My Ex Is Relocating With The Children – What Can I Do?

Blog post by Kate Chisholm

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The Family Court views the relocation of a parent with their child to another town as a serious matter. If the relocation affects the amount of time that the other parent can spend with that child, the Court may make an order preventing the parent from moving.

If You Can Agree About Relocation

It may be that you are able to agree to vary your current parenting arrangements, should the relocation take place, to allow your child to spend more time with you during the school holidays. It is important to formalise any new arrangements with a parenting plan or apply for a consent order from the Family Court before the move occurs.

If You Are Unable To Agree About Relocation

Please be aware that a parent can apply to the Court for a relocation order allowing them to move. The Court will take into consideration the bests interests of the child, their schooling, the care arrangements available should the relocation take place and the support network they would be leaving behind should they move. Recent case law has shown that the Court will allow the relocation of a child with a parent if it can be established that it will not affect the strength and meaningfulness of the relationship with the non-relocating parent.

Help! My Ex Has Already Moved With The Children Without My Permission!

If your ex-partner has relocated without coming to an agreement with you first, it is possible to apply to the Family Court for an order compelling them to return until the matter can be considered. If this order is contravened, the Federal Police may be called upon to enforce the order.

It is important to obtain legal advice on the enforceability of a parenting plan and the correct procedure for applying for an order from the Court.  Contact Kate Chisholm of Culshaw Miller Divorce & Family Lawyers for more information.

What Do I Need To Disclose In My Family Law Case?

Blog post by Natalie Sandman

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The duty of disclosure is the duty of all parties in a case before the Family Court to provide the other parties with all information and documents which are relevant to the issues in the case. This includes new information which is created if a party’s situation changes. The duty applies in all cases before the Family Court, including cases dealing with property, financial support and children.

The purpose of the duty of disclosure is to ensure that the Court can determine a fair outcome having regard to the true circumstances of all the parties as substantiated in the information disclosed by each side. The lawyers for each side will also rely on this information to present their arguments to the court.

Disclosure of information by one party to the other can be one of the most contentious issues during Family Court proceedings and can result in significant unnecessary legal costs being incurred if one or both of the parties do not properly comply with their disclosure obligations.

The duty of disclosure continues until the case is finished.

Where the Court is considering the financial position of the parties, the duty of disclosure would apply to documents including assets and liabilities, bank statements, tax returns, superannuation statements and documents relating to business or trust arrangements.

Where the Court is considering matters relating to children or custody, the duty of disclosure would apply to all relevant information which, depending on the particular case, could include medical reports relating to a child or parent, school reports, photographs and even documents created by the child, like letters to a parent or drawings.

The Family Court recommends that parties seek legal advice in dealing with the process of disclosure. If lawyers are involved, those representing one party will request disclosure of relevant documents by the other. Once the lawyer has received the relevant documents from the client they will compile a list of the documents which is sent to the other party. The relevant documents can then be inspected in person or copied and dispatched to the other party at their cost.

If a party fails to disclose documents which the other side has reason to believe exist and which should be disclosed, that party can apply to the court for an order (a subpoena) that those documents be produced. The consequences for a party who fails to make proper disclosure can be significant as the Court may not allow a party to use that information in support of their case; it may dismiss part of the case; or make an order that the non-disclosing party pays relevant legal costs of both sides.

In situations where a party has deliberately concealed or omitted to disclose relevant information, the Court may impose a fine and/or imprisonment if it deems such failure to be a contempt of court. It may also have regard to such failure to disclose in making a decision in favour of the other party who may already have an idea of what information is in the possession of the other party in any event.

Culshaw Miller Lawyers provides specialist advice across an extensive range of legal areas including Family Law, Divorce and Children’s Matters. Contact Natalie Sandman for more information.

Supply Of Goods On Credit and Outstanding Debt Recovery

Blog post by Fiona Lester

It is common practice for a business to supply goods on credit terms to its regular customers. Unfortunately, it is equally as common for a business to find itself in the position of being unable to recover an outstanding credit debt from a seemingly well-known customer when the debt goes bad.

Preventing the Problem

Well managed accounts are less likely to go bad.

Key management tools can be incorporated into credit application forms and include:

  • Monitoring and enforcement of credit terms of 30 days or less;
  • Verification of details of the credit applicant (correct business name, partnership or registered company);
  • Personal guarantees by directors;
  • Confirmation of valid personal and address details;
  • Bank guarantees; and
  • Retention of title clauses.

Steps for Debt Recovery

Business owners may be reluctant to involve lawyers in debt recovery, particularly if they have had a good, long-standing business relationship with a defaulting customer. However, as a general rule, the longer a debt exists, the more difficult it is to recover.

In most cases, lawyers should be instructed if a debtor has failed to respond to the issue of invoices and final notices or if there has been personal contact and the debtor has not acted on a verbal promise to pay.

The steps that a lawyer may take include:

  • Issue of default notices;
  • Issue of letters of demand;
  • Negotiation of informal and formal settlements;
  • Commencement of a claim through the court system;
  • Mediation through the court system; or
  • Issue of statutory demands.

Lawyers frequently assist in debt recovery without commencing a court action against the debtor.

If a lawyer is engaged at an earlier stage, he or she is required to make attempts in good faith to resolve the matter without going to court.

A good lawyer will primarily be concerned with putting a client in a better financial position by recovering as much of the debt as possible, in a cost effective way.

For more information on Credit Applications and Debt Recovery please contact Fiona Lester from Culshaw Miller Lawyers.

What Happens If A Party Dies During Family Court Proceedings?

Blog post by Natalie Sandman

balance1After the death of a party, the Family Law Act allows the proceedings which have already been commenced and in which he or she was a party to be continued by or against the estate of the person who has died and the court can make orders with respect to property as it could have done when the person was alive.

The personal representatives of the deceased e.g. the executors appointed under a will, are responsible for instructing the lawyers, payment of legal costs and compliance with any order of the court including distribution of any property settlement awarded by the court affecting the deceased person’s estate.

If proceedings have not yet been commenced in the Family Court prior to the death of a prospective party then no claim can be made under the Family Law Act. However, the Family Provision Act authorises the Court to order that provision be made out of the estate of the deceased person for the maintenance, education or advancement of an eligible family member if the Court is satisfied that inadequate provision was made for them from the estate or during the life of the person who has died.

Finally, bear in mind that in Western Australia a will is automatically revoked on marriage and on divorce (unless the will was made in contemplation or anticipation of marriage or divorce).

To be on the safe side, a person should consider making a new will after marrying and after divorce.

Culshaw Miller Lawyers provides specialist advice across an extensive range of legal areas including Family Law, Divorce and Children’s Matters. Contact Natalie Sandman for more information.

How Can I Challenge A Will?

Blog post by Fiona Lester

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Part of the Australian system of law is ‘Common Law’, which governs how we pass on our property by Will. Common Law allows us to leave our property and assets to whoever we wish. This concept is known as ‘freedom of testamentary disposition’ and differs from many other legal systems around the world which have strict rules for the inheritance of property. However, all Australian states have legislation in place which recognises that if there are sufficient assets, a deceased person’s estate should provide support for dependants of the deceased, rather than the State.

In Western Australia, if the terms of a Will do not make adequate provision for the maintenance and support of the deceased person’s dependants, an application to challenge the Will can be made under the Family Provision Act 1972 (WA).  If a claim is successful, the applicant will be legally entitled to a portion of the assets of the deceased’s estate.

Under the Family Provision Act, the dependants who have a right to make a claim are close family members of the deceased, such as a child, a spouse or a de facto partner, or a former spouse or partner who was receiving maintenance payments from the deceased.  In some circumstances, stepchildren, grandchildren or a parent of the deceased may also be eligible to make a claim.

Claims made under the Family Provision Act are complicated and should only be made after you have received legal advice. There are various factors which a lawyer will need to take into consideration before advising on whether or not a claim should be made, including the following:

– Whether you are eligible to make a claim;
– Whether there are other people who are eligible to claim;
– If and when a Grant of Probate has been made;
– Urgency;
– Whether you need support for maintenance, support, education or “advancement in life”;
– Your previous and current financial position;
– The financial position of other Beneficiaries under the Will;
– The size of the deceased’s estate;
– What would be considered to be ‘adequate’ provision from the estate.

Claims can be settled without going to Court, and involve negotiating an agreement with the Executor and all Beneficiaries of the Will, and drawing up a formal Deed of Settlement. If a claim can’t be settled in this way, an application must be made to the Supreme Court and the claim will go to Mediation. If Mediation is unsuccessful, the matter will go to trial and be decided by a Judge.

For more information on making a claim under the Family Provision Act 1972 (WA) please contact Fiona Lester from Culshaw Miller Lawyers.

What Do The Words In Wills Mean?

Blog post by Fiona Lester

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The words used in a Will are extremely important because they must convey the intention and wishes of the person making the Will as exactly as possible.

Some particular words which are used in Wills, such as ‘Testator’, ‘Beneficiary’, ‘Devise and Bequeath’ and ‘Executor and Trustee’ are not frequently used in every-day language. Although these words may seem archaic and complicated, they are part of the history of English laws and customs which have been absorbed into Australian law and which allow us to pass on different kinds of property to whoever we wish. The words, derived from Latin, have very precise meanings so that the intention of the person making the Will can be clearly understood.

Testator

A male person who makes a valid Will is the ‘Testator’. A female person who makes a valid Will is referred to as a ‘Testatrix’. The words come from the Latin word ‘testari’ (meaning ‘to testify’) – a word that was first used in Wills in the 14th century. If a person dies without making a Will, he or she is said to have died ‘intestate’.

Gifts of Property

The term ‘Bequeath’ will be used to refer to gifts of personal property (for example jewellery, furniture or motor vehicles). The word can also be used for gifts of real property (for example a house or land) but the more correct term for a gift of real property is ‘Devise’.

Beneficiary

Any person who receives a gift under the terms of a Will is a beneficiary. The gift may be money (often known as a legacy), personal property or real property. An Executor can also be a beneficiary of the Will. A witness to a Will can now also receive property under the Will, but care needs to be taken so that there is no suggestion of undue influence.

Executor and Trustee

An Executor is responsible for arranging the funeral, obtaining a Grant of Probate (if required), for locating and collecting the property of the deceased and transmitting the property into the Executor’s name. A Trustee is a person who has legal ownership of property, but who is under a legal obligation to hold or use the property for a specific purpose. Once the property has been collected and the Executor is the legal owner, the Executor then becomes the Trustee of the property and must distribute it according to the directions in the Will. This is known as ‘administering’ the estate of the deceased person.

For more information on Wills and Estates please contact Fiona Lester from Culshaw Miller Lawyers.

My Relationship Is Over And I’m On A Partner Visa – What Now?

Blog post by Kate Chisholm

passportAs if the breakdown of a relationship is not traumatic enough – apart from working out how the children will be looked after and who gets the house, many people will need to take into consideration how it will effect their immigration status in Australia. If you are in Australia on a Temporary Partner Visa such as the 820 visa or the 309 visa, a relationship breakdown will have an impact.

The Department of Immigration & Border Protection directs that they must be informed if a relationship ends before a person has been granted a Permanent Partner Visa. Once they have been informed, the DIBP will subsequently ask the sponsor (your ex-partner) to formally withdraw their sponsorship. The DIBP will then notify you that your sponsorship has been withdrawn, and they may provide you with an opportunity to explain why the relationship broke down. It may also give you a chance to seek to be allowed to stay in Australia independently of your sponsor.

It is therefore important that you keep the DIBP informed of your up-to-date contact details, including postal address. After sponsorship has been withdrawn, your sponsor will not be updated on the progress of any removal directions or any further visa applications you may make, due to privacy laws.

If your relationship ends you may still be eligible to stay in Australia. Victims of domestic violence do not have to stay in an abusive relationship to protect their immigration status in Australia. The Family Violence provisions under the Migration Regulations apply if:

  • you are on a Partner Visa (either 309 or 820) or you have married your spouse while on a Prospective Marriage Visa;
  • you or your dependent children have experienced family violence; and
  • the relationship has ended.

If these requirements are fulfilled, you can continue with an application for a Permanent Partner Visa.

Family violence is defined under the Migration Regulations as “conduct, either actual or threatened, towards:

  • the alleged victim;
  • a member of the family unit of the alleged victim;
  • a member of the family unit of the alleged perpetrator;
  • the property of the alleged victim;
  • the property of a member of the family unit of the alleged victim; or
  • the property of a member of the family unit of the alleged perpetrator

that causes the alleged victim to reasonably fear for, or be reasonably apprehensive about, their safety or wellbeing. It can include physical or psychological abuse or harm, forced sexual relations, forced isolation or economic depravation.” The DIBP will need to be satisfied that the relationship was genuine until it ended and that the family violence took place during the relationship.

You may also be able to stay in Australia if there has been a child of the relationship who is under 18 years of age and for which you and your ex-partner still have shared parental responsibility.

It is important to be aware that if the DIBP receives information that your relationship was not genuine, a Permanent Partner Visa may be cancelled.

A migrant on a Temporary Partner Visa will have the same rights under the Family Law Act 1975 as an Australian citizen. Therefore applications for property settlement and parenting orders can be entered into by either party.

For more information please contact Kate Chisholm of Culshaw Miller Divorce & Family Lawyers.

Adult Child Maintenance – The Basics

Blog post by Daniel Sampson

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When can Adult Children apply for Maintenance?

Financial Support for parents or others with the care of children is generally dealt with by the provision of the Child Support Assessment Act and the administration of that legislation by the Department of Human Services – Child Support. But what happens when children turning 18 or already adult children require further support? Under what circumstances can ‘adult children’ seek maintenance from their parents?

The Concept of Maintenance in Family Law

Where there is a need of a child, and that need is justified and reasonable, a parent (or parents) with the capacity to support the child, should attend to those needs as much as can be determined to be reasonable. Maintenance does not mean subsistence, but enough support to allow the child to have their reasonable needs met. There are many factors but ultimately the determination of a reasonable amount of maintenance will be a balancing act between the capacity of the parent or parents to pay and the child’s reasonable needs in the circumstances.

The Health and Education

Under section 66L of the Family Law Act, the Family courts may make orders for maintenance of children over 18 years:

  1. To enable a child to complete their education; or
  2. Because of a physical or mental disability.

Such orders can be applied for after the child is 17 years old in anticipation of his or her upcoming 18th birthday.

Who can apply?

Under the act, a child, a parent, grandparent or any other person concerned with the care, welfare or development of the child may apply for maintenance for the child from a parent.

Is there an Age Limit?

Per se, there is no limit to the age of the ‘adult child’. A parent under the provisions of the Family Law Act may have a responsibility to their disabled child even if that disability occurs after age 18. There is likely to be a common sense approach to the concept of ‘completing’ a child’s education at the secondary or tertiary level.

Common Applications

It is usual for a child embarking on tertiary education to make an application seeking support from a financially well-off parent. It may also be that they require additional assistance with respect to their particular field. The court will balance the need of the child with the capacity of the parents.

In terms of physical or mental disability, it is common for the carers of children transitioning from the Child Support System to seek further maintenance.

Case Examples

In the matter of Re: AM (Adult Child Maintenance) (2006), an adult child sought maintenance from a parent after he was diagnosed with a degenerative disease that stopped him being able to work. He was 28. The court found that he was entitled to periodic payments from his father.

In the matter of A and A (1981), a 16-year-old child applied for maintenance from his parents while in the care of his uncle. The maintenance was for the child’s participation in an overseas sporting event that he was deemed to show some talent in. In a contemporary setting his uncle may have been able to deal with these issues through the Department of Human Services – Child Support.

For more information on adult child maintenance, please contact Daniel Sampson from Culshaw Miller Lawyers.

I’ve Never Worked Outside The Home – Am I Entitled To My Spouse’s Superannuation?

Blog post by Kate O’Leary

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Superannuation entitlements are intrinsically linked to workforce participation. Often it is the case that women who have left the workforce to care for children, or who have reduced their hours of paid work will typically have much less superannuation than their spouse who has been able to maintain their investment in work.

With this in mind, superannuation splitting laws (introduced in 2002) allow superannuation to be divided when a relationship breakdown occurs.

Superannuation splitting laws apply to:

  • married or divorced couples who have not formally settled their property arrangements by a court order or a court-approved agreement;
  • de facto couples, in South Australia, whose relationships broke down on or after 1 July in 2010; and
  • de facto couples, in most States and Territories (excluding Western Australia), whose relationships broke down on or after 1 March 2009.

In the event of a property settlement following a relationship breakdown, superannuation is treated as property under the Family Law Act. It does however differ from other types of property because it is held in a trust.

Superannuation can be split by two processes – by either a superannuation agreement or an order of the court.

The rules relating to the splitting of superannuation are complex and it is an obligation for each party to seek legal advice before signing any agreement regarding superannuation. If legal advice is not sought, the splitting agreement will not be binding on the trustee of the superannuation fund.

Superannuation agreements, provided they comply with legal requirements, are binding. If an agreement is unable to be met, then the court is able to make an order as part of the property settlement about how any superannuation is to be split.

Under the superannuation splitting laws, an agreement or court order to split superannuation becomes an agreement for payment splitting. Splitting does not convert superannuation into a cash asset; it cannot be accessed until you reach a condition of release, such as retirement.

There are different ways in which superannuation can be split. It may be received as a lump sum (often known as a ‘payment split’) when it becomes payable (for example when retirement is reached), or as an ‘interest split’ where both parties receive an interest. In this case, the spouse receiving the new benefit can leave the super interest in the same fund, or transfer the interest into another fund.

Alternatively, parties to the relationship breakdown can choose to divvy up other assets of the relationship to take into consideration the value of the superannuation account rather than splitting.

For more advice on property settlements please contact Kate O’Leary at Culshaw Miller Divorce & Family Lawyers, Adelaide, on (08) 8464 0033.

Can I Represent Myself In The Family Court?

Blog post by Tom Cuthbertson

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There is an entitlement in every court to represent yourself in any hearing and there are a number of protections for self-represented litigants, particularly in the Family Court and Federal Circuit Court, to prevent undue prejudice to your matter. In divorce, separation and child custody issues, self-representation is generally considered to be difficult and time-consuming, especially since the parties are often also juggling work commitments or looking after children.

The Family Court of Australia publishes a number of fact sheets in order to assist those who represent themselves. These sheets address matters such as the filing of documents, court dress and conduct and procedural matters. They even provide guides as to how to access computers and the internet for those who might not have access at home. Duty solicitors (provided by the Legal Services Commission) or duty registrars may be able to provide assistance to self-represented persons, and while court staff cannot provide legal advice they are extremely helpful in explaining deadlines, filing procedure and can provide do-it-yourself kits for certain forms and applications.

Representing yourself, however, has the potential to be a risky endeavour. It can be very difficult for people undergoing a traumatic separation or dealing with property settlements and child custody issues to approach their own case with the degree of objectivity that is often required to be able to achieve the best result. There is, in short, no substitute for the expertise and experience of trained solicitors and barristers in knowing how to conduct a matter in the best interests of a client.

When considering representing yourself, particularly due to financial pressures, it is important to consider the complexity of the matter and whether the savings can be considered a false economy. It might, for example, appear to be cheaper to represent oneself in a property settlement but ultimately prove to be more costly when you factor in the differential between the outcome of the split, the amount of time taken off work or other commitments to prepare for the matter as well as the stress involved.

If you believe your financial situation prevents you from engaging private lawyers, it is strongly recommended that you consult the Legal Services Commission or your local community legal centre to see if you qualify for legal assistance. Additional resources for self-represented parties include the Family Law Courts website and the Family Court of Australia website. Our ‘Resources‘ page also includes some handy links.

Contact Tom Cuthbertson of Culshaw Miller Divorce & Family Lawyers in order to discuss if being self-represented is appropriate for you, or to discuss how we can assist you in the matter to allow you to represent yourself with our guidance.