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Many people find themselves in a situation where they don’t have an agreement with their partner and they haven’t commenced Family Court proceedings either. This page contains useful information about your options and possible next steps in relation to dividing the assets of your relationship and making parenting arrangements for your children.
How To Fairly Divide The Assets Of The Relationship?
In most cases, the Family Court of WA requires you to make a genuine attempt to resolve your property and financial dispute before you apply to the Family Court. There are exceptions to this, such as if there is urgency or allegations of fraud or family violence.
The main ways of trying to resolve a property and financial dispute before going to court are mediation and negotiation. Less common dispute resolution options are arbitration and counselling.
Property mediation involves you and your ex-partner sitting with a mediator and having discussions that will hopefully lead to an agreement.
Negotiation usually involves sending a negotiation letter to the other party. You can either prepare this negotiation letter yourself, or instruct a lawyer to prepare it on your behalf.
A negotiation letter needs to set out the issues in dispute, what the assets and liabilities of the relationship are (to the best of your knowledge), and it also usually contains your proposals for settling the matter. It might include other things too, such as a request for disclosure documents, or proposals about obtaining valuations of certain assets such as the family home.
Going to court as a last resort
If you have made a genuine attempt to resolve your property and financial dispute with your ex-partner and there is still no agreement, then, as a last resort, you can apply for property and financial orders in the Family Court of Western Australia.
This involves filing specific documents in the Family Court, serving them on your ex-partner (i.e. arranging for someone, usually a process server, to personally hand them over to your ex-partner), and attending the first court hearing.
The first court hearing is usually what is called a Directions Hearing. At this hearing, the Court considers procedural matters such as whether the other party has been served with your application, whether the other party has filed their responding documents, and what orders need to be made to progress the matter. For example, the Court will consider whether an interim hearing needs to be programmed, so that the parties can present their competing arguments about what interim orders need to be made.
When you apply to the Family Court of WA, you can apply for interim orders and final orders. Interim orders are orders that the court makes pending its final decision in your case. Examples of interim orders include: orders about who needs to pay the mortgage pending the sale of the home or the final hearing; orders for a person to retrieve their personal belongings and furniture from the family home; and who gets to live in the family home pending the final hearing.
Examples of final orders include: orders about how the assets and liabilities of your relationship are to be divided, such as an order that there be a 50/50 split of the net assets of the relationship, or an order that one person retains the family home and gives a cash payout to the other person; orders for a person to roll over some of their superannuation to the other person; orders for the sale, auction or transfer of the family home; and orders as to who is responsible for debts of the relationship, such as mortgages, home loans, personal loans, business loans, and credit cards.
Settling a property case in the Family Court
Even if you end up in the Family Court, this does not mean that your matter cannot or will not settle. The good news is that the vast majority of cases in the Family Court settle before they ever get to a final hearing or trial. The Family Court also actively encourages the parties to reach a resolution before they reach the trial stage.
In a property case, one very important court event is the Conciliation Conference. This is the Family Court of WA’s one and only attempt to mediate the property dispute between you and your ex-partner. Conciliation Conferences are often successful in helping the parties reach a final agreement.
A Conciliation Conference is essentially a mediation-style conference with a Family Court Registrar or Magistrate, who does their best to encourage the parties to reach an agreement and avoid further court proceedings. It involves sitting in a conference room with your ex-partner and your lawyer (if you have one). The court normally allocates about 2 hours for a Conciliation Conference. If the parties reach an agreement, then the lawyers can draw up your agreement in a document called a Minute of Consent Orders.
How To Fairly Resolve Care For Your Children?
Parenting Arrangements - Family Dispute Resolution
If you can’t reach an agreement with your ex-partner in relation to the parenting arrangements for your children, your next step will most likely be attempting a type of mediation called Family Dispute Resolution (“FDR”).
Every parent must attempt FDR before they can apply for parenting orders in the Family Court of Western Australia, unless there are exceptional circumstances.
If there are exceptional circumstances in your case, such as family violence, child abuse or urgency, then you can apply to the Family Court of Western Australia to be exempt from mediation and apply for parenting orders.
To attempt FDR, you need to contact a Family Dispute Resolution Practitioner (“FDRP”). There are many different organisations and individuals that offer FDR services. It is always a good idea to phone around as fees and waiting lists vary. On average, the waiting list for FDR is about 3 months. To find an FDRP, a good place to start is the FDR Register: https://www.fdrr.ag.gov.au/
Once you find an FDRP you are happy with, you need to book your intake interview with them and also provide them with your partner’s address and telephone number.
If you do not know your partner’s address or telephone number, then you cannot proceed with FDR and you may have to go directly to the Family Court. Legal advice is recommended if you find yourself in this position.
If FDR goes ahead and you and your partner reach an agreement, then you can take steps to make that agreement legally binding.
If you and your partner don’t reach an agreement in FDR, or if your partner fails or refuses to participate in FDR, then the FDRP will issue you with what’s called a Section 60I Certificate. A Section 60I Certificate confirms that you have attempted FDR and is valid for 12 months from the date of the last attempted FDR. You cannot apply for parenting orders in the Family Court of Western Australia without a current Section 60I Certificate (unless you are seeking to be exempt from mediation because of exceptional circumstances).
Court Proceedings As A Last Resort
In parenting cases, the first court event is usually the Child Related Hearing. At this hearing, the court will consider procedural matters such as whether the other party has been served with your application, whether the other party has filed their responding documents, and what orders need to be made in order to progress the matter.
The second court event is usually the Case Assessment Conference. This is where you, your partner, and your lawyers (if any) meet with a Family Consultant at the Family Court. A Family Consultant is a social worker employed by the Family Court who provides guidance and recommendations to the court in relation to parenting issues. At a Case Assessment Conference, the Family Consultant meets with each party separately first, and then convenes a joint meeting with both parties if appropriate.
The Family Consultant asks both parties about various risk factors such as family violence, child abuse, neglect, mental health issues, and drug and alcohol abuse. The Family Consultant also asks both parties about the issues in dispute and the issues they agree on, if any.
The court normally allocates about 2 hours for a Case Assessment Conference. A couple of weeks after the conference, the Family Consultant prepares and releases to the parties a Conference Memorandum. This is a report which sets out the matters reported and discussed by both parties, and the Family Consultant’s recommendations. Examples of recommendations include: that one parent’s time with the children be supervised by a professional supervision agency; that one or both parents undergo drug testing; and that the court appoint an Independent Children’s Lawyer to represent the interests of the children.
INDEPENDENT CHILDREN’S LAWYERS AND SINGLE EXPERT WITNESSES
An Independent Children’s Lawyer, or ICL, is a lawyer who is funded by Legal Aid and whose role is to represent the best interests of your children.
The Family Court of Western Australia does not appoint an ICL in every parenting case. It is only appropriate to do so when serious allegations have been made about things such as family violence, child abuse, neglect, mental illness or drug and alcohol abuse.
An ICL attends every court hearing and court event and plays a vital role in assisting the court and gathering evidence, such as by subpoenaing documents. A subpoena is a request for the provision of written or oral evidence, and is directed to organisations such as the WA Police, the Department of Child Protection, schools and medical centres.
An ICL can also apply for the appointment of a Single Expert Witness. In a parenting case, a Single Expert Witness is usually a clinical psychologist or social worker, depending on the nature of the issues and allegations raised in the case. A Single Expert Witness assesses all the evidence – contained in court documents and subpoenaed documents – and interviews the parents, children, and any other relevant parties, and prepares a detailed expert report which sets out their findings and the basis for those findings.
INTERIM AND FINAL ORDERS
When you apply to the Family Court of WA, you can apply for interim orders and final orders. Interim orders are orders that the court makes pending its final decision in your case. Examples of interim orders include: who the children are to live with pending a final decision; the children’s contact arrangements with the other parent pending a final decision; what school the children go to; care arrangements for the children during Christmas and school holidays; and orders for the obtaining and safekeeping of the children’s passports.
Examples of final orders include: who has parental responsibility in relation to the children (parental responsibility means who makes decisions in relation to major long-term issues affecting your children, such as their education and schooling, their health and medical issues, and their religion and culture); who the children live with; how much time the children spend with the parent with whom they are not living; the requirements and procedures for a parent who wants to travel interstate or overseas with the children; and where the children are to live if one parent seeks to relocate with them interstate or overseas.
HOW YOU COULD SETTLE THE CHILDREN'S ISSUES
Even if you end up in the Family Court, this does not mean that your matter cannot or will not settle. The good news is that the vast majority of cases in the Family Court settle before they ever get to a final hearing or trial.
You and your partner can reach an agreement at any time during the child-related proceedings. For example, you and your partner might come to an agreement after an interim hearing, or after the release of the Single Expert Witness’s report.
You and your partner can formalize your agreement by filing a Minute of Consent Orders in the Family Court.
What To Do NEXT
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If An Agreement Is Reached
If you can reach an agreement with your former partner, we help you make the agreement legally binding to ensure no-one changes their mind later, and the dispute is resolved for good.
We Can Start Court Proceedings
If an agreement is not reached, and there is no other option, we can take your claim to the Family Court of WA. There is still a good chance of your case settling even if court proceedings have started
9 BenefitS of Getting Legal Advice Early
A lawyer can advise you about your entitlements and rights and also the options and strategies for resolving your dispute that are best suited to you and your situation.
A lawyer can help ensure that your offer of settlement is not unreasonable or unrealistic, and also that you don’t accept any offer from your ex-partner that is unreasonable or unrealistic. You and your partner may be more inclined to resolve the dispute once you both know legally where you stand and what can and cannot be done. Having lawyers involved in the process can assist in reaching a resolution quicker, as opposed to people being misinformed about what constitutes a likely or realistic outcome.
A lawyer can help you and your ex-partner reach an agreement by giving you detailed and informed advice
An experienced family lawyer can also negotiate effectively with your ex-partner or your ex-partner’s lawyer.
A letter from a lawyer, containing the lawyer’s letterhead, usually carries more authority and weight, and is less likely to be ignored by your ex-partner, than a letter that comes from you directly.
An experienced family lawyer can assist in stopping your matter from going to the Family Court by identifying the issues in dispute and areas of agreement early, and encouraging you and your ex-partner to work constructively towards a sensible and cost-effective resolution.
If you and your ex-partner do reach an agreement, a lawyer can help you turn that agreement into a legally binding document.
An experienced family lawyer knows the factors and information that the Family Court looks at in order to make a decision in relation to your children.
A good family lawyer is child-focused and committed not just to ensuring the best possible outcome for you, but more importantly, the best possible outcome for your children. “Child-focused” means focusing on what is in the best interests of the children, rather than on the best interests of other people such as the parents or grandparents.
You Are In Experienced Hands
Jeff Hewitt is head of MKI Legal’s family law team. Jeff is a senior family lawyer with over 15 years’ experience.
Jeff practises exclusively in family law, and has extensive experience in property and financial matters, parenting and childern’s matters, de factor property matters, family law matters affecting same sex couples, superannuation splitting, spousal maintenance, divorce, child support, child support agreements, binding financial agreements, and consent orders.
Jeff is an experienced nefotiator who takes great pride in resolving disputes and keeping people out of court as much as possible.
In his spare time, Jeff enjoys spending time with his family, playing guitar, reading, meditation, and supporting his beloved footy team.
Jeff is a member of the Family Law Practitioners’ Association of Western Australia, the Law Society of Western Australia, and the Law Council of Australia (Family Law Section).
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