Principles - Children
Principles - Children The object of the law is to ensure that the best interests of children are met by: ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. The principles underlying these objects are – children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and parents should agree about the future parenting of their children; and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). Family Court of Western Australia Information Session What is in a child’s best interests? The most important consideration of the Court in making decisions about children is what is in the best interests of the children. The primary considerations that will be taken into account when deciding what is in a the best interests of children are: The benefit to the child of having a meaningful relationship with both of the child’s parents; and The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. The additional considerations are: Any views expressed by the child Any other factors the court thinks are relevant to the weight of those views The nature of the child’s relationship with each parent and other significant people such as grandparents and step parents The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent The likely effect a change in circumstances will have on a child, such as moving to live with another person Any difficulties with the child spending time with a parent Each person’s capacity to provide for the needs of the child, including intellectual and emotional needs The maturity, sex, lifestyle and background of the child Cultural factors The attitude to the child and to the responsibilities of parenthood demonstrated by each parent Any family violence Whether it would be better to make an order that would be least likely to lead to further proceedings Family Court of Western Australia Information Session Principles - Property The Court takes 4 steps to divide property: 1. Identify and value assets and liabilities to calculate asset pool 2. Divide the property based on contributions • Financial contributions (initial property/wages/inheritances) • Non-financial contributions (work in family business/ farming/ renovations around the home) • Contributions to the welfare of the family (role as homemaker and parent) Family Court of Western Australia Information Session Principles - Property (continued) 3. May adjust the division of property based on section 75(2) factors these include: Future income earning capacity/qualifications Age and state of health Caring for children Responsibilities to support others Financial resources such as a trust fund Pension / superannuation eligibility Duration of the marriage Child support 4. Just and Equitable Family Court of Western Australia Information Session Court Process- Property 1. Pre- Action Procedures –attempt to resolve dispute before filing at the Court e.g. negotiation, mediation, counselling or arbitration. Do not have to comply if exempt. 2. File Application for Final Orders: Form 1 (Application) & Form 13 (Financial Statement) 3. Case Assessment Conference 4. Conciliation Conference 5. Pre-Trial Conference 6. Trial • Applications for temporary or interim orders (Form 2) can be filed at any time – seek these for matters that cannot be agreed while your application for final orders is underway Family Court of Western Australia Information Session Documents to take with you to your solicitor Marriage certificate and birth certificates for children Pay advice slips Tax returns and group certificates Bank statements Market appraisals of the home Details of superannuation and life insurance Expenses in the household (rates, electricity, telephone etc) Details of debts (mortgage, loans, credit cards etc) List of important dates Values of vehicles, boats, shares, other assets School reports, merit certificates Medical reports, correspondence, hospital records Court documents & legal correspondence Correspondence with : Other party Child Support Agency Family &Children’s Services Any other agency in relation to children Family Court of Western Australia Information Session Working with lawyers Check Legal Aid availability Be open and honest Go prepared Take all relevant documents Take a list of questions Give clear instructions Ask for explanations Expect to be kept informed about the progress of the case and costs Dissatisfied – raise your concerns Manage your expectations – listen to the advice Your lawyer cannot commit you to anything to which you have not agreed Ask about Costs Time = Money Family Court of Western Australia Information Session Family Court Fees EFFECTIVE – 9 OCTOBER 2006 Application for divorce (Form 3) Application for nullity (Form 1) Application for declaration as to validity (Form 1) Application for final orders (Form 1) (Parenting or Financial) Response to application for final orders (Form 1A) (Parenting or Financial) Fixing of hearing date (defended matters) Notice of appeal from court of summary jurisdiction (Form 20) Notice of appeal- Full Court of the Family Court of Australia (Form 20) $405 $639 $639 $191 $191 $383 $383 $787 In some cases fees do not have to be paid, for instance if you hold certain social security cards or can show hardship. If you want to know more, or are unsure about fees, ask registry staff. Please note: GST does NOT apply to the above Family Court Fees. Family Court of Western Australia Information Session Where Do I Go Now? For Accredited Family Law Specialists Contact: Legal Aid 55 St George’s Terrace Perth Toll Free: 1300 650 579 www.legalaid.wa.gov.au Family Court Counselling & Consultancy Service 150 Terrace Road, Perth Phone: 9224 8248 Toll Free: 1800 199 228 Community Legal Centres (WA) CLC Association Phone: 9221 9322 www.naclc.org.au Family Law Arbitrators www.familylawsection.org.au Family Relationship Advice Line 1800 050 321 www.familyrelationships.gov.au Family Law Practitioners Association of WA www.flpawa.asn.au Check the Yellow Pages under Solicitors For Mediation Contact: Relationships Australia 15 Cambridge Street, West Leederville Phone: 9489 6363 Centrecare 12 Brewer Place, Mirrabooka Ph: 9440 0400 Anglicare 23 Adelaide Terrace, East Perth Phone: 9325 7033 Family Court of Western Australia Information Session Where Can I Get Legal Information? To access legal information on the internet you might try the following websites: Family Court of Australia www.familycourt.gov.au Family Court of Western Australia – For Court Forms and Daily Court Lists www.familycourt.wa.gov.au Family Law Access Gateway www.familylaw.gov.au Legal Aid Western Australia www.legalaid.wa.gov.au Australasian Legal Information Institute – For Legal Research www.austlii.edu.au Commonwealth of Australia Law (For Family Law Act 1975- for parties who are married) www.comlaw.gov.au State Law Publisher Western Australian Legislation (For Family Court Act 1997- for de facto couples) www.slp.wa.gov.au/statutes/swans.nsf Library and Information Service of Western Australia (LISWA) Alexander Library Building, Perth Cultural Centre, Francis St, Perth www.liswa.wa.gov.au Family Court of Western Australia Information Session Guide to Legal Terms AFFIDAVIT – Your typed statement setting out the facts of your case (your evidence). It must be sworn or affirmed, usually before a Justice of the Peace, Notary Public or experienced lawyer, as a true statement. Affidavits may also be sworn by other people in support of your case (witnesses). CASE ASSESSMENT CONFERENCE – Usually the first court date. In children’s cases, you meet with a Court counsellor who discusses the case and issues with you. The Registrar then joins the meeting and the counsellor makes recommendations. Procedural orders may then be made. If your matter only relates to financial issues, you will only meet with the Registrar. CONCILIATION CONFERENCE –A meeting which you and the other party attend with a Registrar of the Court. The aim of the meeting is to reach agreement about the issues in your case. If you cannot reach an agreement, the Registrar will make procedural orders to ensure that your case is ready for trial. DISCLOSURE – A process where one side provides to the other side a list of documents in their possession, custody or control. This covers more than documents in your physical possession. If you have questions about this term seek legal advice. FILE – To lodge a document in the Registry of the Court and have it stamped with the seal of the Court. NOTICE OF ADDRESS FOR SERVICE - A court form (Form 8) which tells the Court and the other side the address where documents can be served on you. You can get this form from the Registry of the Court. ORDER – A decision of the Court which is binding on both parties until the Court makes other orders. Family Court of Western Australia Information Session Guide to Legal Terms (continued) PRE-TRIAL CONFERENCE - When you and the other party meet with a Registrar to outline how the case is going and try and reach an agreement. If you can’t reach agreement, the Registrar will set a trial date and make procedural orders to prepare the case for trial. PROCEDURAL ORDERS – These are instructions (sometimes referred to as directions) from the Court about what each party must do and when. The purpose of these orders is to ensure that the case is properly prepared for each stage of the Court process, so that the case is resolved as quickly and cheaply as possible. Standard procedural orders are made at each stage of the process. Other procedural orders may be made at the request of a party in a case. If procedural orders are made, you must comply with them. REGISTRAR – A legally qualified judicial officer performing judicial functions delegated from the judicial head of the Court. Generally a Registrar exercises the powers of a judge in chambers and deals with matters of procedure and interlocutory proceedings. REMISSION OF FEES – This means that you do not have to pay certain fees that the Court charges. If you hold certain Social Security cards or can show financial hardship you may not have to pay certain fees. You can apply for a remission of fees at the Registry of the Court. SERVE – To formally provide documents to the other side. There are special rules regarding service so ask at the Registry of the Court about serving documents. SWORN OR AFFIRMED – When you have made a solemn promise to confirm the truth of your evidence. An affidavit must be sworn or affirmed before a Justice of the Peace, a Notary Public or an experienced lawyer. 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