Blog

I’ve been served with a Subpoena. What do I do?

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What is a subpoena?

A subpoena is an order issued by the Court to compel a person or business to either produce records, or attend court as a witness, or both. The Court issues a subpoena at the request of one of the parties to the proceedings and the document will be served on you.

Do I have to comply with it?

Yes, unless it was not served on you correctly. If you have any concerns about the service of the subpoena you should contact a lawyer to discuss the matter. There are very serious consequences if you do not comply with the subpoena, including the Court issuing a warrant for your arrest or ordering you to pay any costs caused by your non-compliance. The court may also find you guilty of contempt of court. (more…)

Am I entitled to an equal split of assets after separating?

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Following a separation, many clients will come to a family lawyer for advice as to a property settlement believing that the property will be split straight down the middle, that is, a 50/50 split.  They may otherwise assume that a 50/50 split is the starting point for negotiations as to a final property settlement.

Calculating a division of assets according to the law can be far more complex than people believe.

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Recent Cases: Obligations of trustees; Is the trustee doing right by me?

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What are the legal obligations of trustees when exercising discretion pursuant to a trust deed? Recent Victorian Case law sets out those obligations.

 

The Court of Appeal in Victoria has recently handed down a decision confirming the obligations of trustees of a SMSF (and trustees generally) when exercising a discretion under the trust deed – Wareham v Marsella [2020] VSCA 92.

The case involved a dispute between the husband of the deceased, Mr Marsella, and the deceased’s daughter and her husband, Mr and Mrs Wareham, who were the trustees of the deceased’s SMSF.

Following the death of the deceased, the Warehams made a decision to pay all the superannuation death benefits to Mrs Wareham. (more…)

Estate Planning: “I don’t need a Will.. or Do I?” Common Misconceptions

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Any person over the age of 18 years and with legal capacity can make a Will and Enduring Power of Attorney. Unfortunately, it is estimated that between one third to one half of the population dies without a valid Will in place.

In addition, many people suffer an illness or become mentally incapacitated at some point in their lives with no clear direction as to how their affairs should be managed.

The consequences of failing to have the right documents in place can be devastating for families and can introduce complexities, costs and delay that are best avoided at a stressful time.

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COVID-19: You can still make your Will social distancing!

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You can still make your Will social distancing!

The onset of the COVID-19 crisis has changed many aspects of daily life and that change has happened quickly.

There are some things that remain the same.

The laws in relation to estate planning and deceased estates has not changed.

Your ability to create and control your estate plan has not changed.

Our Estate Planning Lawyers can advise and assist with all aspects of:

  • Wills
  • Enduring Powers of Attorney
  • Enduring Powers of Guardianship
  • Applications for Probate and Grants of Letters of Administration
  • Deceased estate administration
  • Disputed estate advice and representation
  • Family Provision Act claims

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Our Response to COVID-19

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UPDATE – regarding current hard lockdown in Perth: to all of our clients and stakeholders, we confirm that during this period of lockdown it will be business as usual for Culshaw Miller Lawyers. Our reception and staff will remain fully operational during this period on a remote basis. Please keep safe and follow all Government directives.

With the recent developments related to Covid-19 (Coronavirus), we have changed some of our processes and procedures to comply with government directions and ensure the protection of staff and client health and safety.

We are continuing to operate as normal and will continue to provide legal services for the benefit of our clients and referral networks.

As a firm, we are taking measures in line with advice from the World Health Organisation (WHO) and Public Health Emergency Operating Centres (PHEOC) and the current State and Commonwealth directions and regulations.

 

Clients and Visitors – for all clients, guests, suppliers and contractors who have travelled from or transited through any international location, we ask that you advise your Culshaw Miller Lawyers contact and set up a virtual meeting instead of a face-to-face meeting. We use Zoom Video Conferencing or Skype and we can help you through the setup – all you need is a computer, tablet or smartphone.

Office Hygiene – high traffic areas will be regularly wiped down with disinfectant wipes several times during the day to minimise the risk of residual viral deposits. This includes all meeting room and entry/exit door handles and all team members are conscious of the need for additional hygiene measures.

Business Continuity – we take our responsibility to you seriously and have a business continuity plan in place to ensure we can continue to deliver a high level of service to you, in a range of possible scenarios and different market environments.

Symptoms – all team members have been advised to self-quarantine and work remotely if they experience any flu-like symptoms, regardless of their travel history.

 

Should you have any queries related to your file please contact your solicitor directly or if you have any general queries relating to how the Coronavirus may affect your legal matters please contact us.

COVID-19: Why now is the best time for your estate plan

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With so much change happening so quickly, it is easy to feel anxious and overwhelmed.

Thinking about death and legal incapacity can be daunting. The truth is that we never know what is around the corner and what we may be faced with from one day to the next. There may come a time when the tough decisions need to be made.

More than one person has said to me in the last few weeks, “I don’t want to overreact, but can you prepare my Will?”

The good news is that there are things you can do and, with the right advice and documents, you can take comfort in knowing that if the worst happens, there is a plan in place for your family.

There are three main documents which comprise an effective estate plan:

  • A Will
  • An enduring power of attorney
  • An enduring power of guardianship

(more…)

How To Formalise Parenting Agreements

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Blog post by Jeremy Gitsham

Separation brings with it the harsh reality that the existing family unit will forever change, resulting in heightened emotions, stress and uncertainty – exacerbated when children are involved.

As a consequence, some parents are unable to resolve issues around the future care of their children without resorting to litigation.  This, however, is not always the case, and if parents are able resolve issues with respect to parenting, an agreement can be formalised by entering into either a Parenting Plan or filing an Application for Consent Orders in the Family Court of Australia. (more…)

Setting Aside Property Orders In Family Law

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It is a common misconception that property proceedings can easily be reopened or reviewed once final orders are made. It is essential that parties involved in property proceedings understand that Setting Aside Property Orders In Family Law can be limited in circumstances which are set out in section 79A of the Family Law Act 1975 (Cth) (referred to as ‘the Act’).

The Family Court can vary or set aside orders by consent pursuant to section 79A (1A) of the Act or in proceedings pursuant to section 79A (1) of the Act. In order for the family Court to set aside or vary orders by consent, all parties to the proceedings where the original orders were made must consent.

Parties can apply to the Family Court to seek that an order is varied or set aside in the following circumstances:

  1. Miscarriage of justice due to fraud, duress, the giving of false evidence, suppression of evidence (section 79A (1) (a) of the act) and any other circumstance:-

 

  • Examples of circumstances which may amount to “any other circumstance”:-
    1. One party not appearing at a hearing: Williamson v Williamson (1974) 24 FLR 226 at 237;
    2. Incapacity;
  • Procedural irregularity, i.e. if a decree nisi was made where the parties had not been separated for 12 months: In the Marriage of Spratley (No 2) (1978) 4 Fam LR 52; FLC 90-414
  1. Consent Orders, i.e. if a party’s consent was not true consent: In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91-243
  2. A substantial increase in the value of a property before the property order was finally made: In the Marriage of Kohl (1981) 7 Fam LR 591; FLC 91-078
  3. Where a party has been withholding facts

 

  1. Where a proceeds of crime order has been made against a party to the marriage or a proceeds of crime order has been made regarding property of the parties to the marriage.

 

  1. Due to a change in circumstances, it is impracticable for an order to be carried out: section 79A (1) (b) of the act.

 

  1. One party has defaulted in carrying out the obligation(s) imposed by the original order(s) and in the circumstances arising as a result of that default it is just and equitable for the Court to either vary or set aside the order and make another order: section 79A (1) (c) of the act.

 

  1. Circumstances of an exceptional nature regarding the care, welfare and development of a child of the marriage, or where the Applicant will suffer hardship if the court does not vary or set aside the order and make another order: section 79A (1) (d) of the act.

 

Other important facts regarding section 79A applications are as follows:-

 

  1. Section 79A does not apply when the Court determines that the connection between the original order and the relief being sought is too remote: In the Marriage of B (1985) 10 Fam LR 8; FLC 91-610;

 

  1. The Family Court will not set aside or vary orders where the parties are unhappy with the orders made or to overturn a “bad deal”;

 

  1. If the court determines that they should vary or set aside the order, they are required to consider all factors under section 79 (4) of the act and section 75 (2) of the act insofar as they are applicable;

 

  1. If parties are successful in seeking that an order should be set aside, the Court determines the fresh order at the date of the hearing rather than the date at which the original orders were made: Fickling v Fickling (1996) FLC 92-664; and

 

  1. Section 79A does not apply when relief is sought in relation to property acquired following the orders being made or a new relationship.

 

Contact Hayley Ellison of Culshaw Miller Lawyers for more information regarding applications to set aside property orders pursuant to section 79A of the Family Law Act 1975 (Cth).

Contact the family lawyers at Culshaw Miller in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

Changing A Child’s Name In South Australia

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Blog post by Kate Bishop

In order to legally change a child’s name in South Australia, the parents will either have to agree about the child’s last name and then register a Change of Name with the Births, Deaths and Marriages Office.

Or the parent seeking to change the child’s name will need to apply to the South Australian Civil and Administrative Tribunal (‘SACAT‘) for an order changing the child’s name.

Such application is made pursuant to section 22 of the Births, Deaths and Marriages Registration Act 1996 (SA). (more…)