Are you frustrated trying to navigate your way through the Family Law and Family Court System?
Then join the Culshaw Miller Lawyers’ Masterminds of Family Law: Jeremy Culshaw, Sue Thomson and Benn Hill on Friday, 18th May at 12:30pm – 2:00pm for a FREE lunch time seminar and Q&A session. We can help you get through this!
Places are limited so book in now by using our Booking Form or call 9488 1300 Now!
The seminar will take place at 2 Victoria Avenue in Perth.
Culshaw Miller Lawyers welcomes Tim Retallack to the team!
With 20 years’ experience, Tim’s career has involved acting in a wide range of commercial business disputes where he has gained experience as an advocate and developed strong strategic and communication skills.
Tim joins us after a lengthy career with Maxim Lawyers as our Director – Litigation. Click here to read more about Tim.
To contact Tim please call us on 08.9488 1300 or to book an appointment, please click here
Superannuation Splitting
Unsure about what happens to Superannuation when you are separating? Benn Hill one of our Perth Family Lawyers, explains below….
Where couples have been married, the Family Court of Western Australia may have jurisdiction to make orders which divide the superannuation interests of each of the spouses. The Family Court may divide superannuation interests with the agreement of the spouses or the Court may make an order dividing superannuation as part of a judgment resolving a dispute.
Each spouse is obliged to provide a full and frank disclosure of their superannuation interests to their former spouse. This disclosure would ordinarily include identifying each superannuation fund the spouse has an interest in, stating the current value of their superannuation interest and providing to each other a copy of their latest superannuation statements.
Spouses who were married to each other may also use the ‘Superannuation Information Kit’ from the Family Court of Western Australia website to require the trustee of their spouse’s superannuation fund to provide them with information about or a valuation of their former spouse’s superannuation interests.
The appropriate way in which the superannuation interests of spouses should be divided by the Family Court will vary depending on numerous factors including the particular type and value of the superannuation interests held by the spouses. There are numerous different types of superannuation interests which may be valued and split according to different rules depending on the type of the fund. Superannuation interests may be split so that one spouse receives a separate superannuation interest altogether or they may be split so that a spouse receives a proportion of any payments which are made by the fund to the spouses.
If spouses reach agreement about the way their superannuation interests are to be divided, they should also consider any taxation consequences of the proposed superannuation splitting orders.
In summary, given the complexity and financial consequences of superannuation splitting, it is important that each spouse obtains professional advice about superannuation splitting from both their lawyer and from their accountant or financial adviser. The lawyers at Culshaw Miller Lawyers include Accredited Family Law Specialists who can advise you about superannuation splitting.
Make an appointment with Benn.
Family violence unfortunately is an all too common scenario amongst WA families, although perhaps it’s behind closed doors. Changes to the legislation means that there will be more protection for families in violent domestic situations.
Daniel Sampson has reviewed the changes and explains below…
The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 was passed on 7 December 2011 and contains a number of amendments designed to strengthen the Act in relation to the protection of children in environment where family violence has been present.
One of the primary considerations of the Family Court in determining care will be the protection of a child from abuse or family violence or exposure to abuse or family violence.
One of the significant features of the Act is its reconsideration of the definitions of ‘abuse’ and ‘family violence’ within the context of the act. Where previously one would usually associate these with physical violence the new definitions broaden the concepts of abuse.
The Act now defines ‘abuse’ as the following:
The Act’s new definition of family violence takes into account not only the physical or mental aspects that may be associated with intimate associations of violence but also the fear that a party may perpetrate against another;
The Act now defines ‘family violence’ as violent, threatening or any other type of behaviour that coerces or controls a family member or which causes the family member to be fearful.
The Act provides the following examples as a guide but does not intend the examples to be exhaustive preserving the philosophy of the breath of the family violence definition:
Interestingly, the act now recognises a concept of ‘economic violence’ previous identified by psychologists, social scientist and academics working within the area. The new definition will now give Family Law Courts cause to consider the effect of these acts on children and ultimately how they will influence whether a child is protected.
The exposure of children to acts of family violence is also dealt with in the new amendments. Exposure will include seeing and hearing or otherwise being exposed to family violence.
Examples that the Act provides are:
While the act has passed the provisions will not become part of the Family Law Act until June 2012. However the court has the power to consider the definitions of abuse and family violence at the time it hears the matter. The amendments do not affect previous judgements and do not give parties the right to appeal.
For information or to book an appointment, please contact us. Please also see our other information posts.
Regardless of whether you are a first home buyer or a seasoned property investor, buying and selling property can be a complex and at times, overwhelming process that can potentially have significant implications if done incorrectly or without due diligence.
It is essential that you choose a solicitor or settlement agent that is right for you and who will keep you informed throughout the whole settlement process. Settlement agents are unable to provide legal advice, therefore, should a dispute arise it is important that you appoint a solicitor at the earliest opportunity to give you sound practical legal advice on your contractual rights and obligations.
In our experience, many of the problems that arise in the settlement process could have been avoided if the parties had obtained appropriate legal advice prior to entering into the contract. If we could offer one piece of advice to anybody that is considering buying or selling property, it would be that you should obtain advice on the contract as soon as possible and in all circumstances prior to signing.
We can provide competitive conveyancing Quotes, fill in our quote form and we will get a same day quote back to you.
For more information about conveyancing or any property related matters please contact our Property and Commercial Team, Darren Miller and Marcus Easthope at Culshaw Miller Lawyers – info@culshawmiller.com.au
+61 (8) 9488 1300.
WHAT IS ESTATE PLANNING
Estate planning means putting in place a structure to organise your financial and personal affairs before any future incapacity and your death. A complete Estate Plan enables your family, your business associates and others close to you to know your wishes and how you would like them carried out.
WILLS
A Will is the document which sets out how your estate will be distributed upon your death. It deals with property that you personally own but may also direct control of other entities such as family trusts.
Issues to consider in your Will
- Who will be the Executor – that is the person who administers your estate
- Who are the family members or dependants that you should make provision for in your Will
- If your beneficiaries are minors or have a disability you can structure your Will to take these factors into account
- The tax consequences of distributing your estate
The Will must comply with the procedures set out in the Wills Act including being witnessed by two independent witnesses who sign in your presence and in the presence of each other.
It is important that your Will is reviewed often and updated as your circumstances change. Marriage and divorce revoke a Will in Western Australia.
Why should you have professionally prepared Will?
If you pass away without a valid Will, your estate is distributed pursuant to legislation (in Western Australia called the ‘Administration Act’).
The Act divides your estate in set proportions depending on which family members survive you. The Act does not allow for your wishes to be considered in the distribution of the estate.
ENDURING POWERS OF ATTORNEY (EPA)
A document by which you appoint an Attorney to make decisions about your financial affairs on your behalf.
An Enduring Power of Attorney is effective only during your lifetime and ceases to have effect on your death. It is effective during any period of incapacity.
An Attorney must act in your best interests and cannot use your finances to benefit him or herself. It is a power that you give only to a person you trust absolutely as it authorises third parties such as banks and the Titles Office to deal with your property on the instructions of the Attorney.
If you change your mind, you can revoke the EPA and appoint a different Attorney.
Why should you have an EPA?
If you become incapable of managing your own affairs, and you do not have an Attorney authorised to act for you, a person must be appointed by the State Administrative Tribunal to administer your financial affairs.
If there is no suitable person to act as an Administrator, an independent body such as the Public Trustee may be appointed to make those decisions for you.
ENDURING POWERS OF GUARDIANSHIP (EPG)
A document by which you appoint an Enduring Guardian to make health and welfare decisions for you during periods when you are unable to exercise reasonable judgment.
The types of functions that an Enduring Guardian can perform include: deciding where you will live, what medical treatment you will receive and conducting legal proceedings on your behalf.
If you would like to discuss your Estate Planning needs or require further information about any of the information above, please contact Darren Miller or Michaela Speering at Culshaw Miller Lawyers on 9488 1300 or make an appointment.
Shared Parental Care – Infant Mental Health Guidelines
Kristie Lear, Family Law Solicitor from Culshaw Miller Lawyers explains the recent guidelines in respect to shared care arrangements for infants.
Whilst it is understood from Section 61C of the Family Law Act 1975 that there is a presumption of equal parental responsibility, what isn’t clear and what seems to be a growing misapprehension amongst participants in the Family Law process, is that there is not a corresponding presumption in favour of equal shared care.
This is an incredibly difficult position for many parents to reconcile with; particularly in circumstances where pre-separation care was shared on an equal basis.
It is important however, that parents accept that what will be the overall determinative factor in cases involving children will be what is in the best interests of that child. This is predominately so in situations involving young children.
The Australian Association for Mental Health in association with Infant Mental Health has recently adopted guidelines based on comprehensive research* conducted in the field of infants, separation and contact. The guidelines indicate that it is imperative for a child to be able to have access to a continuous primary attachment relationship.
What the research suggests is that during the development ages of 0-36 months a child requires the ability to develop a satisfactory, continuous and primary attachment with his or her carer. It is proposed that the importance of this relationship impacts upon such things as emotional well-being, development and the capacity to form meaningful relationships with others.
It is established by the research that repeated and pro-longed absence from the primary caregiver can result in a significant level of distress for the child which in turn can turn into long-term behavioural problems for the child.
Unless and until a child is able to self-soothe and be able to imagine the primary caregiver in their absence, be able to communicate their needs and be able to understand the events surrounding the contact handover, the guidelines suggest non-essential overnight contact away from the primary caregiver should be avoided.
The guidelines seem to adopt an approach whereby shared overnight contact is not acceptable for children under the age of 3 years old, instead promoting frequent and manageable day time contact with the child.
The guidelines go on to emphasise the “co-operation equipment” required to be adopted by parents in order to ensure that they are able to communicate, co-operate and trust each other with respect to the children. Co-parenting is an essential concept in a shared-care arrangement and the long-term benefit to the child is a healthy, meaningful relationship with both parents.
The guidelines are yet to be tested in the Family Law Courts and the legal argument in this respect will be interesting, however in bringing applications to the Court and accepting the process, it is useful for parents to be equipped with the latest information on what is in the best interests of their children.
* McIntosh J & Smyth B (2012), Shared-time parenting and risk, an evidence based matrix. In Kuehnle K & Drozd L. Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press
More support for parents left behind by international child abduction
26 March 2012
Australian parents dealing with the abduction of their child from Australia can access free legal assistance via a new national service which opened today.
Attorney-General Nicola Roxon said that the service will provide practical support to parents in distressing circumstances.
“We want to make it as straightforward as possible for parents to get the assistance they need when dealing with the abduction of their children from Australia,” Ms Roxon said.
“The Hague Convention on international child abduction, to which Australia is a signatory, provides a strong mechanism for lawfully seeking the return of abducted children to Australia.
“However, accessing information about the Convention and knowing how to apply to meet its requirements can be daunting for many parents during one of the most stressful and difficult times of their lives.”
The new legal assistance service will complement the counselling and mediation service already provided by International Social Services (ISS) Australia and funded by the Attorney-General’s Department.
The Government’s new funding agreement with ISS will provide a national service to help parents prepare and lodge applications from Australia for the return of, or access to, children under the Convention, and will also address key recommendations from the Senate Legal and Constitutional Affairs References Committee report into international child abduction to and from Australia, tabled on 31 October 2011.
“This service will now provide a one stop shop offering legal and counselling assistance for Australian families affected by the abduction of their child from Australia,” Ms Roxon said.
“With the assistance of International Social Services, Australian parents will be able to apply directly to the Attorney-General’s Department, as the Australian Central Authority – and the national contact – for the Hague Convention.”
ISS can be contacted Toll free on 1300 657 843 or through their website www.iss.org.au.
Further information about the Hague Convention is available on the Attorney-General’s Department website www.ag.gov.au/childabduction.
The Australian Central Authority can be contacted on 1800 100 480 or via email CentralAuthority@ag.gov.au.
Media contact: Attorney-General’s Office – 02 6277 7300
Violence Restraining Orders or Misconduct Restraining Orders can be obtained in WA should you be fearful for your safety or defended. With legal advice from Perth Lawyers, Culshaw Miller Lawyers we can provide you with all the advice and representation you need. We can help you navigate the Perth Magistrate Court at a very difficult and fearful time.
Noeleen Robinson, one of our Perth Family Lawyers, sets out some questions she is asked frequently about Violence Restraining Orders in the Perth Court System and how we can help you.
What are the steps to take if you have been served with a Violence Restraining Order or “VRO”?
First of all you need to consider whether your want to accept or object to the VRO or MRO and if you need legal advice or representation to defend yourself in Court.
How do I obtain a Violence Restraining Order?
We can provide you with legal advice and assist you to present your full story including the background to recent events to assist you in obtaining your VRO.
How can I be safe at Court?
If you do have concerns about seeing the other party at the hearing, we will attend on your behalf to ensure your safety.
Do I need a VRO?
A Violence Restraining Order can be considered to protect you against threats, assaults, emotional abuse, stalking and threatening behaviour. They can be obtained if you are a domestic relationship or if the person is not related to you.
How do I comply with a Violence Restraining Order?
We strongly recommend that you seek legal advice in complying with your specific conditions and for finding out why you were served with it. For example, it may be that you are not to make any contact by any means unless there is a Family Court Order in place.
Can a Violence Restraining Order or a VRO affect my job?
Yes it can affect your employment prospects but it will not be placed on your criminal record.
I can’t see my children now or get back into my home because I have a VRO against me?
If your VRO has been taken against you it may prevent you from returning to your family home even if you are the owner of the property. You will need advice to obtain orders from the Family Court to put orders in place to see your children and to attend at the property to collect your belongings, you may also be required to attend with a police officer.
There are many situations in which people require to make a VRO application or defend one. It is recommended that you seek legal advice in either case.
Noeleen Robinson is a Family Lawyer for Culshaw Miller Lawyers in Perth dealingwith both Family Law matters and Violence Restraining Orders, should you require legal advice for your situation, please contact us to obtain an urgent appointment.
The information provided in this post is provided for information only and can not be taken as legal advice, each case is different and requires its own specific legal advice.
On the 7th March 2012, Chief Judge Thackray of the Family Court of Western Australia issued a memorandum which will have an automatic effect from 9 April 2012 on all matters involving financial cases where the parties are both legally represented.
The Chief Judge has confirmed with effect from the 9 April 2012 any matter involving a financial case where both parties are legally represented will not be allocated a Conciliation Conference (meaning the matter will not proceed along the normal Court process) until the parties have either engaged in or undertaken private mediation style conferencing (“MDS”) or provided to the Court an appropriate explanation as to why they such mediation cannot be undertaken. There is an expectation that the reasons for not attending private MDS would be very limited in most circumstances.
The cost of the Practitioner conducting the private MDS will range between $3,000 to $4,000 plus GST which would include time spent reading the brief provided by each party, undertaking an intake assessment and then conducting the mediation over a working day. Any extra time would be charged at and hour rate of somewhere between $350.00 to $450.00 per hour plus GST. In most circumstances the cost of the MDS would be borne equally by the parties unless some other financial arrangement is agreed. In addition to these costs would be the cost of the parties’ instructed lawyers charged in accordance with their individual retainers.
Private MDS has a demonstrated success rate of up to 80% for both complete and partial settlements. At worst even if private MDS does not lead to an ultimate resolution it will always serve to limit issues for the final hearing which will have the effect of reducing overall legal costs.
When one considers that a full litigated financial matter in the Family Court is going to cost no less than $60,000 to $70,000 plus GST per party for legal, counsel and valuation fees – the possibility of resolving a financial family dispute in MDS for around $10,000 per party is extremely financially attractive.
The Chief Judge has made it clear that practitioners and clients who have not considered or become involved in private MDS can expect the hearing to be adjourned without the listing of a Conciliation Conference so the parties can arrange private MDS.
If private MDS has occurred, and the parties have not reached a complete settlement or only a partial settlement practitioners will be able to dispense with the requirement that the parties attend upon a Registrar for a Conciliation Conference and therefore bypass that process which on current estimates will provide them with a time priority of some eight months over and above other cases in this respect.
Those parties and/or practitioners who refuse to engage in private MDS without a reasonable or appropriate explanation may face serious cost consequences in the Family Court.
MDS is an initiative of the Family Law Practitioners Association of Western Australia and AIFLAM (Australian Entity of Family Law and Family Lawyers Mediators) which enables senior family law practitioners to be trained to conduct and participate in private mediation style conferencing in financial cases where both parties are represented.
Following the training, there are some 36 family law practitioners who are prepared to conduct mediation style conferences.
Jeremy Culshaw of Culshaw Miller Lawyers is one of those 36 practitioners who are able to engage in and conduct mediation style conferencing.
Benn Hill is an accredited Family Dispute Resolution Practitioner and is able to engage in and conduct both mediation and family dispute resolution for child related and financial matters.
If you require further information concerning this matter, please do not hesitate to contact Jeremy Culshaw of this office.
