|
|
|
|
|
|
|
Trying to Reach a Property Settlement? The Court Hearing If you have not been able to reach agreement about your case then the Family Court requires each party to take certain steps. These steps help parties to reach agreement if possible. If there is no agreement, then these steps make sure that the case is made ready for a hearing.You must do everything you can to prepare your case properly. You must remember that this hearing is when the Court makes its orders. The Applications When you went to the Conciliation Conference and the Pre-Hearing Conference, the Registrar advised you about the result the Court is likely to reach. If you have changed your mind about the Orders that you are asking the Court to make, then you should file a new application or response. This is called an Amended Application or an Amended Response as appropriate. It is very important that you tell the Court in your documents exactly what orders you want the Court to make. You must be able to show the Court why you say that it should make the orders that you have applied for. This means that you need to be able to show the Court evidence that proves your case.You provide most of your evidence by preparing affidavits. State your financial position The Court needs to know your financial position. Be honest about this.When you filed your documents in this case, you had to file a Financial Statement (Form 17). You must make sure that your document is totally correct. The Registrar normally directs both of you to file affidavits and a fresh Financial Statement before the hearing. Prepare Affidavits (Form 16) In an Affidavit, you put in writing the things you want to say to the Court about the case.If you want someone else to give evidence for you about your case, then that person must also use an Affidavit in order to give their evidence to the Court. When you are preparing an Affidavit, you use Form 16. You can obtain this form from the Court.You include things that you saw, heard or did.It usually does not help the Court if you say how you feel about things or for you to give an opinion about things.The Court must make its decision based on what the Court believes is the truth, not the way that you feel. You prepare an Affidavit by typing what you want to say into numbered paragraphs. Try not to make each paragraph too long. Short paragraphs help you find evidence in your Affidavit much more quickly. This will be very useful when you are in court. Annexures If there are any documents that help show what you have said in the Affidavit is true, then you should mention them in the Affidavit. Then, you attach them to the back of the Affidavit. These are called are called annexures.You give every Annexure a letter of the alphabet starting with "A" and you describe what the document is. So, for example, if you want to annexe a receipt that you received when you purchased a car, you attach a copy of the receipt to the back of the Affidavit. In the Affidavit you say something like: "Annexed and marked with the letter A is a copy of the receipt dated ...". Then when you attach the receipt you say that it is Annexure A. You then write on the receipt: "This is Annexure A referred to in the Affidavit of ... sworn (or affirmed, whatever is the case) the (here insert date) before me ..." The person promises that the evidence is true by taking an oath or other form of solemn promise. They then sign each page of the Affidavit in front of a Justice of the Peace (JP) or lawyer. The JP or lawyer then signs each page of the Affidavit, including the Annexures. What does the Court look at? Apart from your financial circumstances, the Court needs to know a lot of things before it will make an Order for a property settlement. The matters that the Family Court looks at in a property settlement are set out in section 79 and section 75(2) of the Family Law Act. There are three main things that the Family Court looks at when it is making a decision about a property settlement. 1. Assets and their Values The Court must be able to find out what assets are owned by each of the parties. This includes details of the current market value of things like land, bank accounts and superannuation. It does not matter when the asset came to be owned. 2. Contributions The Court needs to find out all of the contributions that have been made to the assets and to the marriage generally. The types of contributions that are important are set out in section 79(4) of the Family Law Act. These can be financial or non-financial contributions. There are many different types of contributions. Some examples of contributions are: 1. The assets owned by each of the parties at the time that they started to live together as a husband and wife. 2. The assets that are owned at the time that the parties stopped living as a husband and wife. 3. How these assets came to be owned and how they were cared for. 4. Who earned the income that came into the marriage. 5. Who cared for the residence in which the parties, and any of their children lived. 6. Who cared for any children living with the parties. 7. Who cooked, cleaned, washed and performed the many and varied household tasks for the parties and children. 8. Gifts and inheritances. 3. Future Financial Position The Court will look at what the future holds financially for each of the parties. These matters are set out in section 75(2) of the Family Law Act. Some examples of these matters are: 1. The age and state of health of each of the parties. 2. How much income each party is able to earn. 3. Whether either party is looking after a child of the parties and whether either party wishes to continue caring for the child full-time. 4. Any child support that is being paid 5. The need for each party to have a reasonable standard of living. In your Affidavit you must provide evidence that covers all of these matters that apply in your case. You file your Affidavits (Form 16) and Financial Statement (Form 17) and forward them to the other party. You will receive a copy of their documents. Should I get evidence from experts? If a person is going to give an opinion in a case, then as much as possible, you should make sure that this person is qualified to give that opinion. This is because you want to do your best to make sure that the Court will believe the evidence.In a property settlement case, one example is the valuation of a house and land. You both must either agree upon the value of this asset or get an opinion about it.If you try to give your own opinion about its value the Court will usually not pay much attention to your opinion. The Court will find the evidence of an expert like a Land Valuer the most helpful. The Land Valuer will sign an Affidavit that gives information like: a) the opinion of value; b) why the opinion is correct; c) the qualifications and experience that the valuer has. This is the same with all experts who give evidence in your case. Sometimes you can reach agreement about expert opinions if you both agree to the same expert and accept whatever opinion the expert gives. This can save a lot of money. If necessary, the Registrar will give directions about expert evidence at the Pre-Hearing Conference. Asking for a subpeona A subpoena (Form 38) is a Court Order issued to a person/corporation (eg. a bank) to produce documents or come to court in person.You can ask the Court to issue a subpoenae for the hearing if you want the Court to take into account documents which you do not possess or control. You can prepare and file a subpoenae after the Pre-Hearing Conference. Don't leave it to the last minute. You must give seven days clear notice if you want documents produced. Often it will take longer. Be specific in the documents you ask for. If the person/corporation has to spend a lot of time and effort searching records, you may have to pay a lot of money for the cost of production. The Court nearly always requires payment of reasonable expenses. When you serve the subpoenae, don't forget to provide conduct money. This is usually $20-$50. It covers the cost of getting the documents to court. Which questions do I ask? Once you have received the documents from the other party, you must read them very carefully.These documents are very important because they show where each of you agree and disagree.You use these documents to work out the questions you must ask the other party and their witnesses at the hearing. This is called cross-examination. After you read them you must tell each other who the witnesses are that you say should come to court. You must do this in a letter.If you agree with all of the evidence that a witness gives in an Affidavit, then normally you do not need that witness to come to court. You must carefully decide the parts of the evidence that you want to ask questions about.You do not need to ask questions about everything to do with the case. This takes too long and is a waste of the Court's time.For example, if you disagree about a contribution that one of you relies upon, then you would include this as an area where you would ask questions. If you both agree about this contribution, then normally there is no need to ask questions in this area. Select the areas of the case that are important and confine your questions to these areas. When you are preparing your questions you must be careful to find out exactly where you disagree with a witness. This is because you must tell the witness where you disagree, and you must ask the witness whether they agree or disagree that your evidence is correct. Prepare your questions so that each question only asks one thing. For example: The Applicant says on affidavit: "Shortly after we were married we went on a long holiday. When we returned, we had no money that we could use to put a deposit on a block of land. My father then lent me $10,000 which we used to help in the purchase of the property". The Respondent says on affidavit: "Two months after we married, the wife's family gave us $10,000. We used $2,000 of this to go overseas on an extended holiday. When we returned, we used the rest of this money to put a deposit on our home." Which questions does the Respondent ask the Applicant? Firstly, the Respondent must work out where the parties disagree. These matters include, 1. Whether the sum of $10,000 was a gift or a loan; 2. How the money was used; 3. Whether or not the trip overseas was two months after the wedding; 4. What is a long holiday as compared to an extended holiday; 5. How much money was used to place the deposit on the home; 6. Whether the money came from anyone in the wife's family other than the wife's father; 7. Whether the money was provided to the wife or to both parties; 8. Whether the parties are referring to the same property; 9. Whether or not the holiday was overseas. Secondly, the Respondent must work out the important areas of evidence where there is no complete agreement. This very much depends upon the evidence. If we restrict ourselves to the evidence above, the important areas include the matters in 1, 2, 5, 6, 7 and 8. Once you have worked on these steps, then thirdly, the Respondent must prepare the questions that will be asked. The Applicant must also prepare questions in the same way. What happens at the Hearing? On the day the hearing is due to start, you should arrive at Court before 10.00am. You will normally have an opportunity to speak to the other party to see if you can reach agreement. You should try your best to resolve the case. If you both cannot reach agreement then you both will start the hearing. The Hearing normally has six main parts: 1. The opening address. 2. The affidavits. 3. The Applicant's case. 4. The Respondent's case. 5. The Applicant's case in reply. 6. The closing address. Sometimes the Court will give a judgment and make orders immediately after the hearing. This is called an "ex-tempore" judgment.Alternatively, the Court will adjourn the case and deliver a judgment and make orders on a later date. This is called a "reserved judgment". The Opening Address This is a short summary where each party tells the Court about the case. The Applicant gives their opening address first. Often the Court won't require an opening address. The Court sometimes requires you to file a summary of your case before the hearing. If this is so, the Registrar will make a direction about it at the pre-hearing conference. The Affidavits There are a variety of ways that the Court deals with Affidavits in a hearing, including: 1. Reading them before coming into court; 2. Reading them whilst sitting in court; 3. Requiring each party to read their Affidavits in court, starting with the Applicant. The Court will ask if there are any "Objections" to the Affidavits. This is where one party complains that an Affidavit relied upon by the other, does not comply with the laws about evidence. If you are reading the Affidavits in court, then you will make these objections just before the other party reads the part of their Affidavit where you object. Otherwise, you deal with the objections when the Court says so. In either case, the Court will normally deal with objections before the Applicant starts their case. If you want to find out about the laws of evidence, then you should look at the Commonwealth Evidence Act. The Applicant's Case The Applicant has set out in Affidavits all of the evidence they want to present in their case.Therefore the Applicant and witnesses normally cannot give any oral evidence as part of the Applicant's case. The Court will sometimes allow the Applicant at this stage of the proceedings to give oral evidence in response to the Affidavits relied upon by the Respondent. Firstly, the Applicant goes into the witness box and takes an oath or other solemn promise to tell the truth. This happens with every person who gives evidence in the case.Any oral evidence that the Applicant gives at this stage of the proceedings is called "evidence in chief". After the Applicant gives any evidence in chief, the Respondent can then ask the Applicant questions that are relevant to the case. This is called "cross-examination". The section called Which Questions do I ask? will help you to prepare for cross-examination. The Applicant may then give further evidence so long as the evidence deals with questions that the Respondent asked in cross-examination and which have not already been dealt with in the evidence.If the Applicant gives further evidence, this is called "re-examination". If there are any other witnesses that the Applicant wants to call, then that witness will give evidence by answering questions in the same order ie. evidence in chief, cross-examination and re-examination. Sometimes there are documents that help your case but you have not annexed them to any of your Affidavits. This often happens after you have read the Affidavits from the other party.You should take these to the hearing at the Court. If you wish to show these to the Court at the hearing then you can have each relevant document marked in court as an "exhibit". Just like an Annexure to an Affidavit, you describe the document and the Court gives it a number or letter.Like an Annexure in an Affidavit, the other party can object if the document is against the laws of evidence. Once the Applicant has shown the Court all of the evidence that the Applicant relies upon, then the Applicant tells the Court that their case is closed. The Respondent's Case Once the Applicant's case has concluded, it is the Respondent's turn to present their case.Like the Applicant's case, the Respondent and witnesses each give evidence and are asked questions in the same order.Similarly, the Respondent can tender documents that help their case.When the Respondent has finished their case they tell the Court. The Applicant's Case in Reply In certain circumstances, after the Respondent's case is closed, the Court will permit the Applicant to call evidence in reply to a part of the Respondent's case.This does not happen much in these sorts of cases, only if the Applicant has not been able to reply to a relevant part of the Respondent's case. This is sometimes the case where the Applicant wishes to tender further documents that reply to the Respondent's case. Similarly, in rare circumstances, the Applicant may rely on further oral evidence, so long as the Applicant could not have known at the time they presented their case, that they would need this evidence. If the Applicant calls oral evidence in a case in reply, the Court normally allows the Respondent to cross-examine the witness. This cross-examination is normally limited to the extra evidence given by the witness. When the Applicant has finished their case in reply, if any, they tell the Court. The Closing Address At the end of all of the evidence, each of the parties has the opportunity to summarise their case.The Court will decide who goes first. You should deal with a number of matters in a closing address, including: 1. The law that you say is relevant, eg.which parts of section 79(4) and section 75(2) of the Family Law Act you say are relevant in your case; 2. The evidence that helps prove those points relevant to your case; 3. The evidence that shows why the Court should believe you and each of your witnesses rather than the other party and their witnesses; 4. Why your case is preferable to the case of the other party. When you are giving your closing address, you can only refer to facts that are in evidence. For example, if your family lent you money to renovate a home, you cannot rely upon this contribution unless there is evidence about it in the case. Conclusion This information does not cover everything that can happen in a property settlement case.It just tries to help you understand some important things that will happen.You must always try to see if you can reach an agreement with the other party so that you can both get on with your lives without the problems and the uncertainties of a court case.If you need further information about a property settlement, see a lawyer. |
|
|
|