ByLawyers News and Updates

Family Court Act – WA

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The Family Court Act 1997 (WA) has been amended to reflect recent changes to Commonwealth family law legislation and facilitate the exercise of federal jurisdiction by the Family Court of Western Australia.

The combined WA and Federal amendments provide for the exercise by the Family Court of Western Australia of federal jurisdiction in family law property proceedings to:

  • determine the superannuation interests of separating de facto couples; and
  • hear bankruptcy proceedings concurrently with family law proceedings, where appropriate.

Superannuation splitting

The Commonwealth family law legislation has allowed the superannuation interests of married parties in proceedings before the previous Family Court of Australia, now the Federal Family and Circuit Court of Australia, to be treated as property for distribution since 2001. However, this was restricted to parties to the breakdown of a marriage.

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) inserts a new Part VlllC into the Family Law Act 1975 (Cth). This section provides for the distribution of superannuation entitlements between separating de facto couples in the Family Court of Western Australia. It allows superannuation matters under the Family Law Act 1975 (Cth) to be heard concurrently with other matters under the property provisions of the Family Court Act 1997 (WA).

Bankruptcy jurisdiction

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) also amends the Bankruptcy Act 1966 (Cth) to enable bankruptcy matters related to de facto couples to be heard by the Family Court of Western Australia in conjunction with family law proceedings. This is possible where:

(a) a party to a marriage or de facto relationship is bankrupt, and the trustee of the bankrupt’s estate is a party or an applicant in property settlement or spousal maintenance proceedings; or

(b) proceedings before the Federal Court or the Federal Circuit Court are transferred to the Family Court of Western Australia.

The Commonwealth Act also provides that appeals about concurrent family law and bankruptcy proceedings for Western Australian de facto couples will mirror existing appeal pathways for married and de facto couples in other jurisdictions.

The By Lawyers Family Law publications have been amended accordingly.

Restraining orders – New publication – WA

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By Lawyers are delighted to announce the release of our newest publication, Restraining orders in Western Australia.

Our new guide covers all types of restraining orders available under the Restraining Orders Act 1997 including:

  • family violence restraining orders (FVRO);
  • violence restraining orders (VRO) – when an act of abuse has been, or is feared will be, committed; or
  • misconduct restraining orders (MRO) – when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.

With detailed commentary and precedents, the new publication provides everything a practitioner will need to represent either a respondent or a person seeking to be protected in proceedings for restraining orders in the Magistrate’s Court or Children’s Court.

The commentary sets out important factors which influence an application, including the presence of a family relationship and other important eligibility criteria, the service and duration of orders as well as the types of restraints that a magistrate may place on the person bound.

The commentary also provides valuable guidance on how to negotiate restraining orders at court, as well as other valuable strategies such as a conduct order on a without admissions basis and the use of undertakings. Appeals and costs orders are also covered.

The commentary also assists with advising a client that is bound by a restraining order on the offences and penalties which may apply.

Other issues discussed in the commentary include:

  • interim orders;
  • telephone applications;
  • the role of police and welfare officers in making a restraining order applications;
  • restraining orders in bail applications and family law proceedings;
  • interstate applications and the National Domestic Violence Orders Scheme.

Key precedents include:

  •  The application forms as well as example content precedents to use for the application;
  • Undertakings; and
  • Instructions to oppose or consent to an order.

By Lawyers is always working to increase our content for subscribers. Our new guide for WA Restraining orders is available in the WA Criminal guide from a LEAP matter via the Guides & Precedents tab, or on the By Lawyers website.

 

 

New publication – Traffic Offences – Magistrates Court WA

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We are very pleased to announce the release of another comprehensive step-by-step guide for Western Australian practitioners, being Traffic Offences WA.

This publication covers all aspects of practice and procedure when acting for the defendant in proceedings involving traffic offences in the Magistrates Court.

The guide assists practitioners with all aspects of representing clients in traffic matters, from providing advice in relation to infringement notices, to going to court.  The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedure relating to licence offences and alcohol & drug offences with an appendix for each category summarising the fine and any disqualification period or gaol term for most common offences. Retainer instructions are included on the matter plan.
  • Extensive library of initial letters to client for all BAC and drug driving offences explaining in simple terms the offence, the fine amount and any likely disqualification period or gaol term.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. An instruction sheet for guilty pleas is also included on the matter plan.
  • Rehabilitation and specific program options are discussed, including the alcohol interlock scheme.
  • Client mental health considerations, with a letter of instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence.
  • Information on appeal rights and time limits.

This guide is an invaluable resource for all practitioners who conduct traffic offence matters in the Magistrates Court, including those with limited experience in this area, or those supervising younger lawyers.

WA Criminal – Costs determination

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For costs applications by a successful accused at the conclusion of criminal proceedings in WA Magistrates Court, the amount of any award of costs may be determined in accordance with the relevant determination made under the Legal Profession Act 2008 for the purposes of the Official Prosecutions (Accused’s Costs) Act 1973 and in accordance with s 280 Legal Profession Act 2008 and s 67(3) Criminal Procedure Act 2004.

A link to the current costs determination produced by the Legal Costs Committee in accordance with s 278 of the Legal Profession Act 2008 has been added to the By Lawyers Criminal  commentary.

New publication – WA Criminal Magistrates Court

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We are pleased to announce the release of another comprehensive step-by-step guide for Western Australian practitioners, being Criminal Magistrates Court WA .

This publication covers all aspects of criminal practice and procedure, for both simple and indictable offences, when acting for the defendant in criminal proceedings in the Magistrates Court.

The guide assists practitioners with all aspects of conducting a criminal matter from arrest and bail, or a first appointment in the office, through to hearing and/or sentencing, including avenues of appeal and possible costs applications. The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedures relating to arrest and bail, including the right to silence, the record of interview and practical tips for lawyers attending at the police station. Retainer instructions, including for a bail application, are included on the matter plan.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. Precedent letters to the Crown are included on the matter plan for this purpose, as well as an instruction sheet for a plea and mitigation.
  • Procedures involved when attending court for both simple and indictable matters, pre-sentence reports and conducting the plea.
  • Preparing for hearing when a plea of not guilty has been entered.
  • Sentencing options and procedure for guilty pleas in the Magistrates Court.
  • Client mental health considerations, with a letter instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence are included on the matter plan.
  • Information on appeal rights.

This guide is a valuable tool for all practitioners who appear in the Magistrates Court, especially those with limited experience in criminal work, or those supervising younger lawyers.

New publication – Estates WA

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As of today, our library of publications now includes an Estates publication for Western Australia.

Make an application for probate or administration with ease and confidence.

Supported by comprehensive commentary.

Precedents include all necessary documentation for obtaining the grant, getting in the assets and making the distribution together with releases, indemnities and deeds of family arrangement.

To learn more about what this publication includes, please click here.

As always, if you have any questions, please email us at support@bylawyers.com.au.

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