Author Archives: Culshaw Miller Lawyers

Family Law Reform Updated for the Future

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On 11 April 2019, the Australian Law Reform Commission (ALRC) released its report entitled ‘Family Law for the Future: An Inquiry into the Family Law System’.

The Report is a culmination of work conducted by the ALRC following a direction of the former Attorney General George Brandis QC to refer the ALRC to make inquiry and provide report into necessary or desirable reform of the current System, “paving the way for long term fundamental reform to better meet the needs of modern Australian families.” (more…)

The Mums and Dads Forever Program

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Anglicare WA runs a specialist program for separated parents called ‘The Mums and Dads Forever Program’. The purpose of the program is to assist separated parents to better co-parent children and develop their perspective of the separation from the child and other parent’s point of view.

The Family Court of Western Australia may make Orders for parents in high-conflict situations for compulsory enrollment for attendance and completion of the program. (more…)

Does Telling Someone You’re In A De Facto Relationship Mean You Actually Are?

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So Does Telling Someone You’re In A De Facto Relationship Mean You Actually Are?  Well with statements made by a party to third parties or government organisations (most Centrelink and the ATO) which contradict their evidence to the Family Court may not be fatal to their application for a finding of de facto relationship status.

Put simply, telling someone you’re in a de facto relationship doesn’t mean you are (and vice versa).

This situation arose in Benedict v Peake [2013] FCCA 332 when a de facto wife who had previously asserted to Centrelink and the Australian Taxation Office she was not in a de facto relationship now sought to lead evidence before the Court that a de facto relationship had in fact existed for 17 years.

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Will By Video Ruled Valid By Supreme Court Of Queensland 

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Can video recordings be treated as wills?

The Supreme Court of Queensland recently ruled that a video recording can be a valid Will within the meaning of S18(2) of the Succession Act 1981 (QLD).

It has long been established that a valid will needs to be in writing, signed by the maker and two witnesses at the time of making the will. The will maker must also have the mental capacity at the time of making the will to understand the nature and effect of the will.  The will maker and witnesses must be over the age of 18.

In this case the deceased purchased a motorcycle.  His partner implored him to make a will prior to picking up the bike. In his own words, the deceased was “too lazy’ to make a will so made a video recording leaving everything to his girlfriend.  In the recording, the deceased said he would “fill out the damn forms later”. In the video the deceased made it clear nothing was to go to his soon to be ex-wife.

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WA De Facto Couples and Superannuation Splitting

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Superannuation Splitting

The Attorney-General for Australia announced on 25 October 2018 that the Federal government will be amending the Family Law Act 1975 to enable de facto couples in Western Australia to ‘split’ their superannuation entitlements in property settlements following a separation.

This is welcome news to the Family Law Team at Culshaw Miller Lawyers who have long been concerned about the inequity of the current legislation to separated de facto couples in WA.

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Can I Lodge A Caveat Over My Ex’s House To Protect My Interest?

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Can I Lodge A Caveat Over My Ex’s House To Protect My Interest?You separate from your partner, and discover the property you resided in together and purchased during your relationship is registered in his sole name. Can lodging a caveat protect your interest in the property and prevent your ex from selling it?

What is a caveat?

In Western Australia, caveats may be registered against a property’s Certificate of Title to prevent certain dealings in the land. It may also notify members of the public of the caveator’s interest in the land. The individual, company or entity lodging it is called a caveator.

What does it do?

A caveat preserves and protects the rights of the caveator. It is similar to an injunction, as it restrains a person from selling, encumbering, disposing of or dealing with land.

It prohibits the caveator’s interest in the land from being defeated without notice first being given to the caveator. For instance, prior to instigating proceedings in the Family Court. A person may lodge a caveat over the former matrimonial home, even if that person is not named on the Certificate of Title – provided that person can show they have a caveatable interest in the property.

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How does the Family Court determine if I can move away with a child?

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The child’s best interests

Cases in which the Family Court has to determine whether a parent can move away with a child are referred to as ‘relocation cases’. However, there is no specific class of case or any law which specifically deals with relocation issues.

Like all parenting orders, the paramount consideration for the Family Court in considering a parent’s application to relocate with a child is the child’s best interest in all the circumstances.

In determining same, the Family Court must have reference to the principles and objects of the Family Law Act 1975 (Cth) (and/or Family Court Act 1997 (WA) in Western Australia) and the mandatory consideration of what is in a child’s best interests.

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Parenting Plans – Are They Legally Binding?

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Parenting Plans

It is often a priority for separating parents to resolve the future care arrangements of their children. Parenting plans are documents that record the care arrangements of children, which parents will often sign and date. They are useful documents, and for many are enough to allow them to move forward with their lives.

What most people do not realise however is that parenting plans are not legally binding documents.

So what does this mean?

The reality is parties of parenting plans are not bound by law to follow them in the same way that they are obligated to comply with Court Orders.

If a party contravenes a parenting plan, you cannot enforce it in the same way that you could if you had a legally binding arrangement. This is also true for seeking sanctions against the party who breached the parenting plan. Fortunately, you can formalise a parenting plan as a Consent Order.

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Binding Financial Agreement are ‘Pre-nups’ still useful

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Thorne & Kennedy [2017] HCA 49 is a decision of the High Court of Australia whereby a Binding Financial Agreement, or ‘pre-nup’, was set aside.

So what good are pre-nups if they can be set aside?

To answer this question, it is important to understand the background to Thorne & Kennedy.

In this case, the parties met on the internet in 2006. Ms Thorne was 36 years old, with no substantial assets, at the time lived in the Middle East. By contrast, Mr Kennedy was 67 years old and held assets with a value of approximately $18 million.

In February 2007 Ms Thorne moved to Australia, and on 30 September 2007 the parties were married.

On 19 September 2007, Mr Kennedy informed his fiancé that they were going to see a lawyer to sign an agreement.  Mr Kennedy informed his fiancé that if she did not sign the agreement, the wedding would not go ahead.              Against independent legal advice, Ms Thorne signed the ‘pre-nuptial’ agreement pursuant to section 90B of the Family Law Act 1975 on 26 September; some four days prior to the wedding.

Shortly after the marriage the parties entered into a ‘post-nuptial’ agreement pursuant to section 90C of the Family Law Act. Ms Thorne again signed against independent legal advice.

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Testamentary Guardians – Looking After Your Children In Your Will

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Testamentary Guardians – Looking After Your Children In Your WillWills predominantly deal with the financial side of your affairs, but did you know your Will can also make provision for the care of your child or children upon your death by appointing Testamentary Guardians.

In Western Australia, a parent or legal guardian of a child may by Will appoint a testamentary guardian for a child or children under the age of 18 years.

Children under 18 are often referred to in Wills as ‘minor’ or ‘infant’ children. The guardian is a ‘testamentary’ guardian because the guardian is appointed by Will which is a testamentary document.

The appointment of a testamentary guardian only takes effect on the death of the last surviving parent or legal guardian of the child. The testamentary guardian’s appointment ends when the child attains the age of 18 years.

Once appointed, the testamentary guardian is responsible for making long term decisions regarding the welfare and development of your child and also has the daily care of the child.

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