Testamentary Guardians – Looking After Your Children In Your Will

Wills 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?

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.


Same Sex Marriage – How Does This Affect My Will?

With the recent amendments to the Marriage Act 1961 (Cth) which see same sex marriage legalised in Australia, it is an opportune time for same sex couples to review and update their Wills or make a Will if they do not already have one in place.

In Western Australia, sections 14 and 14A of the Wills Act 1970 (WA) provide that:

1. marriage revokes your Will; and
2. a divorce order or annulment granted after 9 February 2008 revokes your Will

unless your Will is specifically drafted in contemplation of that marriage or divorce.

As the law in Australia has not until very recently recognised same sex marriage, it is unlikely same sex couples will have had their Wills drafted in contemplation of marriage and the recent legislative change may therefore see couples’ Wills being inadvertently revoked.


Family Law FAQs: Can I Travel Overseas With The Children?

Want to travel with the children overseas?  If you have or are seeking parenting orders however, you might want to double-check a few things before making any sure-fire plans, otherwise you could find yourself in hot water and potentially facing a criminal charge.

Section 65Y of the Family Law Act 1975 makes it an offence to take or send a child from Australia if that child is subject to a parenting order dealing with:

  • where a child lives;
  • when a child spends time with a person;
  • when a child communicates with a person; or
  • when a person has parental responsibility for a child.

Similarly, section 65Z of the Act makes it an offence to take or send a child from Australia if there are proceedings before the Court for the making of a parenting order of the sort referred to above.

There are exceptions however, as the Act allows a child to be taken from Australia overseas in the circumstances outlined above, so long as it is done with:


Family Law: There’s An App For That!

Blog post by Daniel Sampson

app1We sit upon the precipice of a new age whereby we are developing technology that can teach a computer to ace Super Mario World (fun) or to command an autonomous army (scary).

An Australian venture is attempting to do something even scarier still; to apply data and technology to predict likely outcomes in Family Law cases. Is this a good idea or a bad idea?

The concept appears to be that the App will analyse both hard data and matters specific to a case, and predict likely outcome based on patterns and trends or legal precedents together with what the founder of the App describes as ‘gut feelings’, or statistical unknowns.

So are family lawyers about to go the way of the dodo? Will robo-lawyer kill off the industry? Not likely. The App may be accepted by the profession as a ‘second opinion’ resource or even a tool for lawyers to reconsider their advice along the way to ensure that the lawyer’s analysis of the case is sound or there may be further considerations.


CM News – Three New Associates


Culshaw Miller Lawyers is pleased to announce that Hayley Ellison of our Perth office has been promoted to Associate in the area of Family Law. Similarly, Kate O’Leary of our Adelaide office has been made an Associate in Family Law.

Congratulations also to Tom Cuthbertson of our Adelaide office, whose practice covers Criminal Law and Family Law, who has been promoted to Associate of Culshaw Miller Criminal Lawyers.

The directors and staff of Culshaw Miller join in congratulating Hayley, Kate and Tom for their hard work and well-earned appointments.

Avoiding The 60 Minutes Debacle – Applying For An Urgent Recovery Order

Blog post by Mary Basta and Sarah Nicholls

recoveryorder1The 60 Minutes crew recently hit the news headlines after being accused of involvement in an operation to recover children from a street in Beirut in an attempt to have them reunited with their mother.  It was a widely publicised debacle.

Generally, the longer a child remains with the other party, the more difficult it is to successfully obtain a recovery order.

If you are faced with a situation where your child has been wrongfully taken, it is essential that you take appropriate action immediately and seek urgent legal advice.

What is a recovery order?

A recovery order is an order made by a court requiring the return of a child to a:

  1. parent of the child;
  2. person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
  3. person who has parental responsibility for the child.


Legal Aid Matters – A National Campaign


Today saw the launch of the national Legal Aid Matters campaign.

The message:

Australian Governments must:

  1. Increase the Commonwealth’s share of legal aid commission funding to 50 per cent with the States and Territories. This would amount to an additional $126 million in the 2016 Commonwealth Budget.
  2. Immediately provide a further $120 million to cover civil legal assistance, with the States and Territories contributing $80 million, comprising a total of $200 million, as recommended by the Productivity Commission.
  3. Immediately reverse further Commonwealth funding cuts to legal assistance services announced in 2014, due to take effect from July 2017. These include:
    • $12.1 million in cuts to community legal centres;
    • $4 million in cuts to Aboriginal and Torres Strait Islander Legal Services; and
    • all cuts directed at policy and advocacy work conducted by legal assistance bodies, as recommended by the Productivity Commission.

For more information please visit: http://legalaidmatters.org.au/.

Is Your Family Law Case Urgent? A Call To Increase Funding To Triage Family Court Cases

Is Your Family Law Case Urgent?Blog post by Sam Lehman : In news this past week, Family Court Chief Justice Diana Bryant made a call for increased funding to assist appropriate risk assessment or ‘triaging’ of matters at early stages in the Family Court and Federal Circuit Court, both of which hear matters concerning family violence and child abuse.

The Australian reports that Chief Justice Bryant has urged the government to consider a further cash injection of ‘an extra $20 million over the forward estimates’ to support the appointment of family consultants and registrars to assist judges in the management of cases. This will reportedly allow serious allegations of family violence to be dealt with swiftly to ensure the safety of children.

Chief Justice Bryant recognises this issue:

“You don’t want to make a mistake ­either way. You don’t want to make orders that will provide for ongoing contact and put children at risk; on the other hand … you want to try and protect the relationship between a parent and child, especially if it’s going to take two years for a matter to be heard.”


The Need To Keep Your Will Current

Blog post by Ilsa Wallner

inheritance1It is well established that marriage and divorce affect the operation of a person’s Will. A recent decision of the Supreme Court of Western Australia now suggests that the dissolution of a de facto relationship may have equally important consequences for Wills.

A Case Study: Blyth v Wilken

In Blyth v Wilken [2015] WASC 486, under the terms of his Will, Mr Scott left a sizeable portion of his estate ‘for my de facto wife KATHERINE MARY MURRAY’. Ms Murray was the de facto wife of Mr Scott at the time of making his Will in December 2003. Their relationship ended in December 2011, before Mr Scott’s death in August 2014.

The central issue before the court was whether the gift in Mr Scott’s Will, signed in 2003, was conditional on Ms Murray being Mr Scott’s de facto wife at the date of his death. Master Sanderson contrasted the position with a married couple. Pursuant to s14A(2) of the Wills Act, ‘when a married couple is divorced any Will then in existence is revoked’ (if the divorce occurred on or after 9 February 2008). Prior to Blyth v Wilken, a Will entered into by a person in a de facto relationship endured even when the de facto relationship came to an end.


Probate – Your Questions Answered!

Blog post by Michaela Speering and Sarah Nicholls

probateWhat is Probate?

Probate is the process of proving a deceased person’s Will. In Western Australia, the Probate Registry of the Supreme Court of Western Australia has the power to issue Grants of Probate.

If you have been appointed as an Executor in a Will, you may need to apply for a Grant of Probate. The Grant gives the Executor (or Executors) the authority to deal with the assets of the deceased person’s estate.

When is Probate required?

Probate is usually required where:

  • There are assets in the deceased person’s sole name (for example bank accounts, shares, a motor vehicle);
  • The deceased holds real estate in his or her sole name, or part of land as tenants in common; or
  • The deceased has superannuation and the superannuation trustee requires a Grant of Probate.