1. Information Session Family Court of Western Australia
Property Proceedings

2. What will be covered… Settling outside of court Pre-action procedures
The Court process, structure and events
The Law
Property Proceedings
Family Court of Western Australia

3. The Court Definitions Court Structure
A party – a person involved in the court process
Applicant – person who files the application
Respondent – person who receives the application
An Order – a decision of the Court which is binding
Court Structure
Magistrates Court – urgent matters, application’s for interim orders, child support cases, some trials
Family Court – complex matters and lengthy matters
Property Proceedings
Family Court of Western Australia

4. Jurisdiction All marriage and some de facto relationships.
What is a de facto relationship?
The Court will determine if it is a de facto relationship taking into account these factors:
length
Common residence
sexual relationship
financial dependence or interdependence
the ownership, use and acquisition of property
mutual commitment
Children
Reputation and public aspects of the relationship
Property Proceedings
Family Court of Western Australia

5. De facto relationships
The court can only make an order if:
The de facto relationship lasted at least 2 years; or
There is a child of the de facto relationship who is under 18 and failure to make order would result in serious injustice;
The applicant made substantial contributions and failure to make order would result in serious injustice.
Property Proceedings
Family Court of Western Australia

6. De facto relationships (cont)
You can only bring an application if:
One or both parties to the application resident in WA on day application made;
and
Both parties lived in WA for at least ⅓ of the duration of their de facto relationship; or
The applicant made substantial contributions in WA
Property Proceedings
Family Court of Western Australia

7. Pre-action procedures
Before commencing proceedings in the Court, you must first comply with the Court’s pre-action procedures.
You may be exempt from complying with the pre-action procedures in certain circumstances.
Property Proceedings
Family Court of Western Australia

8. Pre-action procedures
The pre-action procedures in property proceedings are:
Participating in some sort of dispute resolution.
If dispute resolution is unsuccessful, writing a letter to the other party/ies, setting out your claim and exploring options for settlement.
Complying with the duty of disclosure.
Property Proceedings
Family Court of Western Australia

9. Settling outside of court
It is usually better if parties can resolve their dispute without having to go through expensive and lengthy court proceedings.
There are a number of options available to parties to assist them to settle outside of court.
Property Proceedings
Family Court of Western Australia

10. Settling outside of court
These include:
Negotiation
Mediation through Centrecare or Relationships Australia
Legal Aid’s Alternative Dispute Resolution program
Arbitration
Property Proceedings
Family Court of Western Australia

11. Reaching an agreement out of Court
Mediation – confidential, voluntary, up to 3 hours free
Arbitration – qualified family law arbitrator helps you reach agreement or makes decision for you, both parties must agree about what issues are to be resolved
Alternative Dispute Resolution – Legal Aid offered service
Property Proceedings
Family Court of Western Australia

12. Mediation Services Relationships Australia Centrecare Anglicare
15 Cambridge Street, West Leederville
Phone:
Centrecare
12 Brewer Place, Mirrabooka
Phone:
Anglicare
23 Adelaide Terrace, East Perth
Phone:
Property Proceedings
Family Court of Western Australia

13. Reaching an agreement
Consent Orders – Form 11 Application for Consent Orders. Both parties reach an agreement and file that agreement in Court
Binding Financial Agreement – both parties need specific independent legal advice for the agreement to be binding.
Do nothing
Property Proceedings
Family Court of Western Australia

14. Advantages
If you reach agreement out of Court, consider whether to make that agreement into Court orders or a Binding Financial Agreement.
Limited circumstances in which orders can be set aside
Nominal stamp duty only on property transferred according to Court orders or Binding Financial Agreement
Capital Gains Tax rollover relief
Property Proceedings
Family Court of Western Australia

15. Pre-action procedures
Before you file an application to commence proceedings in Court you must fulfil the court’s pre-action procedures:
Dispute resolution
Offer of settlement
Duty of disclosure
Exemptions
Property Proceedings
Family Court of Western Australia

16. Time limitations Married couples
1 year from the date your Divorce Order takes effect
De facto relationship
2 years from the date of separation if you were in a de facto relationship
Property Proceedings
Family Court of Western Australia

17. Process File documents at Registry Court process: Property Proceedings
Family Court of Western Australia

18. Applications Two main types of applications:
Application for Final Orders; and
Application for Interim Orders
To commence proceedings, one party files a Form 1 Application for Final Orders
To apply for interim orders, one party files a Form 2 Application in a Case
Property Proceedings
Family Court of Western Australia

19. Applications (cont)
Final Orders – to finalise financial matters between the parties
Form 1 Application
Form 13 Financial Statement
Form 1A Response
Applicant
Respondent
Property Proceedings
Family Court of Western Australia

20. Applications (cont)
Interim Orders – temporary orders made whilst awaiting final orders
Form 2 Application in a Case
Affidavit
Form 2A Response
Applicant
Respondent
Property Proceedings
Family Court of Western Australia

21. Court events
Property Proceedings
Family Court of Western Australia

22. Court events (cont) Procedural hearing First court event
Conducted by a judicial officer
Parties attend with their lawyer
Purpose:
Ensure compliance with duty of disclosure
Issues in dispute appropriately defined
Parties in a position to negotiate
Assign to appropriate “track”
Orders made
Property Proceedings
Family Court of Western Australia

23. Court events (cont) Conciliation conference Conducted by a Registrar
Approx. 11 weeks after procedural hearing
Purpose:
Parties negotiate and attempt to reach agreement
Parties attend with their lawyer
Orders made
Property Proceedings
Family Court of Western Australia

24. Court events (cont) Readiness Hearing Conducted by a Registrar
Approx. 18 months after conciliation conference
2 months notice
Purpose:
Determine whether matter is ready for trial
Ensure parties ready for trial
Callover
Parties attend with their lawyer
Orders made
Property Proceedings
Family Court of Western Australia

25. Court events (cont) Callover Conducted by a Judge
Approx. 3 months after Readiness Hearing
Lawyer attends
Purpose:
Determine expected hearing time of case
Assign case to judicial officer
Allocate trial date
Property Proceedings
Family Court of Western Australia

26. Court events (cont) Trial Before a Judge or a Magistrate
Final Orders made
Judgment given
Property Proceedings
Family Court of Western Australia

27. Court events (cont) Application for Interim Orders
Hearing before a Magistrate
Not a trial
No additional evidence given
No opportunity to cross examine
Property Proceedings
Family Court of Western Australia

28. Affidavits Must have permission from the Court to file
A person under 18 cannot give evidence by affidavit without permission from the Court.
Typed statements containing evidence upon which you intend to rely
Contain facts, not legal arguments or opinions
Must be sworn or affirmed by authorised witnesses only
Eg: Justice of the Peace
Can be made by you or your witnesses
To get permission: file a copy of the unsworn affidavit and a letter explaining why it should be filed, with the Registry
Property Proceedings
Family Court of Western Australia

29. Court Documents Forms and Kits
are available at registry and on website
Link: > Kits - Forms - Brochures
Kits:
Family Dispute Resolution - Exemption Kit and Form
Consent Orders Kit
Property Orders Kit
Financial Statement Kit - (includes Form 13)
Service of Documents Kit - (includes Forms 6 and 7)
Superannuation Kit
Property Proceedings
Family Court of Western Australia

30. The Court room Applicant - right Respondent – left Mobile phones off
Court etiquette
Judge or Magistrate – Your Honour, Sir or Ma’am
Property Proceedings
Family Court of Western Australia

31. Court Fees Divorce Application (Form 3) $492
Application for Final Orders
(Form 1) $232
Response (Form 1A ) $232
Application for Consent Orders $ 80
Fixing of a trial date $466
If you don’t think you can afford to pay these fees you can apply to have them waived - Ask at the Registry
Consent Order fees can not be waived
Property Proceedings
Family Court of Western Australia

32. The law Legislation Jurisdiction Family Law Act 1975 (Cth) - married
Family Court Act 1997 (WA) – de facto
Jurisdiction
All marriages
Some de facto relationships
Property Proceedings
Family Court of Western Australia

33. Principles of Law 4 Step process
No presumption of a 50/50 split
4 Step process
Identify and value the assets and liabilities of the parties
Division of property based on contributions
Further adjustment based on various factors
Ensure orders are “just and equitable”
Property Proceedings
Family Court of Western Australia

34. Step 1 – Identify and Value
Value the asset pool:
Asset pool = assets - liabilities
Identify and value property, for example
Real estate
Motor vehicles
Insurance
Shares
Savings
Superannuation
Then subtract any liabilities
Property Proceedings
Family Court of Western Australia

35. Step 2 - Assess Contributions
Financial Contributions
Property brought to relationship
Wages
Inheritance
Gifts
Non-Financial Contributions
Renovations, Gardening
Working in a family business
Contributions to welfare of family
Role as a homemaker and parent
Property Proceedings
Family Court of Western Australia

36. Step 3 - Further Adjustment
Judge or Magistrate takes into account:
Future income earning capacity/qualifications
Age and state of health
Caring for children
Responsibilities to support others
Financial resources such as a trust fund
Duration of the marriage
Pension / superannuation eligibility
Child support
Property Proceedings
Family Court of Western Australia

37. Step 4 – Just and Equitable
Final step – the court must ensure that the overall orders are fair
Property Proceedings
Family Court of Western Australia

38. Superannuation
A financial resource under Step 3 if parties were in a de facto relationship
An asset if parties are married – Step 1
Superannuation splitting order:
Limited to certain types of funds
Limited to amounts over $5,000
Only available if parties were married
Many different options
See the Superannuation Information Kit for more information
Property Proceedings
Family Court of Western Australia

39. Legal Advice
The Court recommends that every party seeks legal advice from a lawyer with family law experience
Law Society of WA – list of Family Law Specialists –
Legal Aid –
Community Legal Centres Association – ;
Legal Fees
Scale fees - $396 per hour unless otherwise agreed
Costs agreement
Property Proceedings
Family Court of Western Australia

40. Additional Information
Family Court of Western Australia
Law Council of Australia, Family Law Section
My family is separating — what now? familyseparation.humanservices.gov.au
Property Proceedings
Family Court of Western Australia

41. End of Session Please remember to collect your attendance certificate
Property Proceedings
Family Court of Western Australia