Children With Disabilities – What Happens When They Turn 18?

Blog post by Daniel Sampson

childrendisabilitiesIn some circumstances, children with a decision making disability will need appropriate care arrangements when turning 18 years of age. Once children turn 18 they are no longer within the jurisdiction of the Family Court with respect to parents being able to apply for Court Orders in relation to their welfare.

If suitable informal arrangements are not made for a person with a disability in this transition from adolescence to adulthood, then the person who seeks care of the child may need to apply to have themselves appointed as a Guardian for the child.

Guardianship applications in Western Australia are dealt with by the State Administrative Tribunal (SAT). The SAT will investigate the Application for Guardianship of a person with decision making or health issues, and determine whether guardianship would be in the person’s best interests.

In the case of a person under 18 years of age, an application can be made when the child is 17 years of age to ensure that appropriate arrangements are in place for when the person transitions to legal adulthood. The guardianship commences upon the person’s 18th Birthday.

It may also be appropriate to apply to the Family Court for adult child maintenance where a child needs financial support because of health issues beyond the age of 18 years. Ordinarily the Administrative system of Child Support will not continue beyond a child’s 18th birthday and legal intervention may be required.

For more information regarding Guardianship visit the website of the Office of the Public Advocate.

If you require legal advice or assistance please contact one of our Lawyers for an appointment.

What Is An Independent Children’s Lawyer?

Blog post by Meroë Kuhl

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When is an ICL appointed and for what reason?

Children rarely give evidence in proceedings and a judge will not ordinarily see or speak to the children. So, how are children’s views expressed to the court?

One way is via a family assessment and report, which involves the parties and the child attending upon a child psychologist who will provide recommendations to the court.

The other is the appointment by the court of an independent children’s lawyer (‘ICL’) who will independently represent the child’s interests and help the court decide what arrangements are in the best interests of the child. The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision making about the proceedings, however this does not mean that the child is the decision maker. The ICL does not act on instructions from the child and, in this sense, is not the child’s lawyer.

The role of the ICL is provided by section 68LA of the Family Law Act 1975 (Cth). An ICL is usually appointed in a matter where:

  • there are allegations of abuse of the child;
  • there is intractable conflict between the parties;
  • the child is alienated from one or both parties;
  • there are cultural and religious differences between the parents;
  • there are concerns about the mental or physical illness or personality disorder of either parent;
  • neither party seems to be a suitable residential parent for the child;
  • a child of mature years indicates that they do not wish to have contact with one parent;
  • there is a threat of removal of the child from the jurisdiction;
  • the determination of the case may involve separation of siblings; or
  • neither party is represented.

The ICL is to ensure that all evidence that is relevant to the best interests of the child is put before the court. Particularly, the ICL is expected to be alert to any risk of harm to a child that may arise from the other parties, or the physical environment in which the child may be and the ICL should ensure that as far as reasonably practicable, evidence concerning family violence and abuse that is relevant to the best interests of the child is put before the court.

The ICL will usually do this by:

  • collecting information about the case and the children – it is expected the ICL will meet the child or children
  • encouraging the parents to put the child first and to make an agreement that will meet the child’s needs where possible
  • asking the court to order a family assessment report
  • giving information to the court, including asking witnesses to give evidence
  • asking witnesses questions, including the family consultant (if they have been involved in a court event), teachers, doctors, psychologists or counsellors
  • telling the court how the law applies to the disagreement in the family.

Importantly, the ICL may seek any orders s/he considers to be in the best interests of the child and may choose to support or oppose the making of orders proposed by one or another. The ICL will provide their recommendation to the court. The judge will then consider the views of the ICL together with all the facts and views given by all of the parties and the child in forming a decision.

If an ICL makes a recommendation early in proceedings, the parties can consider the same and potentially reach an agreement without the need for protracted argument.

Usually, the state Legal Aid body will fund the services of a court-appointed ICL but may ask the parties to pay part of those costs and the costs are usually paid at the end of the matter.

For further information about ICLs contact Meroë Kuhl of Culshaw Miller Divorce & Family Lawyers.

Court Isn’t The Only Option For Financial Matters: Family Law Arbitration

Blog post by Daniel Sampson

arbitration

What is Arbitration?

Arbitration is a non-Court based process whereby parties present their case to an independent Arbitrator, selected by the parties, to make a determination on an issue. The determination is final, subject to the usual appeal processes.

The parties may choose to have the benefit of legal representation at Arbitration if they wish.

What can be arbitrated?

Arbitration in Australian Family Law is limited to financial matters, such as property settlement, spousal maintenance and financial agreement. Children matters cannot be determined by Arbitration.

Arbitration can be limited to a single issue or can encompass a complex financial settlement.

Who would the Arbitrator be?

Under the regulations an arbitrator must be:

  • a Legal Practitioner who is either accredited as a Family Law Specialist recognised as such by the relevant State Law Society or Association or who has practised as a Legal Practitioner for at least 5 years with at least 25% of work done in that time in relation to Family Law; and
  • has completed specialist arbitration training conducted by a tertiary institution or professional association of Arbitrators; and
  • is included in a Law Council of Australia list of Practitioners approved by the Council.

The regulations ensure that the arbitrator is an experienced lawyer or specialist and has the requisite skills to undertake the arbitration.

What are the benefits of Arbitration?

  • Selection of the Arbitrator by the parties
  • The continued presence of a single arbitrator or arbitrators
  • Speed of the process compared to Court (e.g. no backlog, no court lists… etc)
  • Flexibility with respect to time and location
  • Flexibility in terms of agreed rules of evidence to be used… etc
  • Flexibility of procedures
  • Parties can determine scope of the Arbitration (e.g. single issues, complex matter, whole ‘trial’ arbitration)
  • Privacy and confidentiality – not subject to open court
  • Costs may be cheaper than litigation or Court-based processes
  • Other ADR processes may be accommodated such as mediation to narrow issues or conciliation
  • Appeal rights may be waived meaning it is a final binding decision
  • User pays means savings on the public purse

What are the possible disadvantages?

  • Costs can be high depending on the length and complexity of the mediation
  • Non-Court based decision means right of appeal in Court is limited

If you think Arbitration may be for you, Culshaw Miller Lawyers can help.

Mediation – The Basics

Blog by Daniel Sampson

What is Mediation?

Helping hand shakes another in an agreementPlease find below an explanation of the Mediation as outlined by the Mediation Standards Board:

1. A mediation process is a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.

2. The mediator[s] may assist the participants to:

(a) Communicate with each other; and
(b) Identify, clarify and explore disputed issues; and
(c) Generate and evaluate options; and
(d) Consider alternative processes for bringing any dispute or conflict to a conclusion; and
(e) Reach an agreement or make a decision about how to move for-ward and/or enhance their communication in a way that addresses participants’ mutual needs with respect to their individual interests based upon the principle of self-determination.

3. Mediation processes are primarily facilitative processes. The mediator provides assistance in managing a process which supports the participants to make decisions about future actions and outcomes.

4. Mediation processes are a complement to, not a substitute for, the need for participants to obtain individual legal or other expert advice and support. Mediation processes may not be appropriate for all individuals or all circumstances.

Role of the Mediator

The mediator’s role is to help you generate options to resolve your dispute. The mediator’s role is not to resolve the dispute per se, but to try to find issues that you can agree on or matters that can be compromised on, and generate some options for a potential agreement. The mediator will use their best endeavours to achieve a mutually agreed outcome, however there is no pressure on the participants to find or agree to a final resolution on the day.

Confidentiality

The mediation is completely confidential. The information you provide at the mediation is intended to be used only for the purposes of mediation and not to be used in any legal proceedings thereafter or for any other collateral purpose.

Neutrality

The mediator will be an unbiased participant in the mediation and will ensure that they use their skills and best endeavours to make sure the parties have an opportunity to communicate freely and equally. The mediator is to act objectively at all times.

For more information on mediation, contact Daniel Sampson from Culshaw Miller Lawyers.

The Status Of Same-Sex Relationships In Australia

Blog post by Sam Lehman

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The status of same-sex marriage and relationships has been a topical one in recent years, but in Australia the former still has no legal grounding. Indeed, ‘marriage’ is strictly defined by Commonwealth legislation as a voluntary union for life between a man and woman, to the exclusion of all others. Quite clearly, the legal definition of marriage currently excludes same-sex couples.

Where does that leave same-sex relationships then? 

Broadly, marriage laws are exclusively within the power of the Commonwealth, so the various states and territories are unable to introduce their own marriage laws. Same-sex relationships do however fall under the definition of de facto relationships in the Family Law Act 1975.

The difference between a marriage and de-facto relationship is that marriage is a formal legal relationship created by the relevant man and woman taking part in an official, recognised process that establishes the relationship. De facto relationships by comparison do not involve the couple taking part in this process. Simply, the de facto relationship is a relationship as a matter of fact where the individual parties to the relationship treat each other as genuine domestic partners.

Same-sex couples are included in this definition and, due to Australia’s strong equality laws, have many of the same benefits as those who are married.

Domestic Partnerships in South Australia

In South Australia, the Family Relationships Act 1975 recognises same-sex relationships as ‘domestic partnerships’. Same-sex partners must be together for three years or for three years over a four-year period to be automatically recognised as domestic partners by the legislation.

In certain circumstances, it may be necessary for a partner to seek a declaration from the courts that a domestic relationship exists or existed at a specified date. This can be found even if the relationship was less than three years in length, and the test in that instance is whether it is in the interests of justice that such a declaration be made.

These declarations can be required for legal purposes, including but not limited to when a partner dies without leaving a will, when a partner wants to challenge the will left by their deceased partner, when there is a death or personal injury compensation claim in relation to a partner and when a medical decision needs to be made on behalf of a partner.

Under South Australian legislation however, same-sex partners are unable to adopt children and fertile same-sex partners cannot access reproductive technology (artificial insemination).

Registering Relationships & Civil Unions

Furthermore, the states of New South Wales, Victoria, Queensland and Tasmania allow registration of same-sex domestic relationships. This allows same-sex couples to make a formal record of their relationship, and assists in proving the relationship for other purposes. This differs from the concept of a civil union, which creates a brand new legal status and was introduced in the Australian Capital Territory in 2012.

Civil unions are similar to marriages insofar as they are treated the same as marriage aside from the fact that they allow same-sex union – terms such as ‘husband’ and ‘wife’ are strictly associated with the institution of marriage only.

For more information on the status of same-sex relationships in Australia, contact Sam Lehman from Culshaw Miller Divorce & Family Lawyers.

Jeremy Culshaw – Lawyer Of The Year Finalist

jeremyawardThe Directors of Culshaw Miller Lawyers are proud to announce their own Jeremy Culshaw is a finalist in The Law Society of Western Australia Lawyer of the Year awards.

Jeremy has in excess of 27 years of experience in the areas of:

– Family Law
– Complex Family Law Property Settlements
– Family Law related Estate Planning
– Insolvency issues related to Family Law Disputes
– Binding Financial Agreements
– Entity-based analysis in Family Law
– International and Cross Jurisdictional Family Law
– Hague Convention Matters

Jeremy has been an Accredited Family Law Specialist since 1994.

Jeremy is one of two finalists and we wish him the very best of luck and await the announcement of the winner on Wednesday 14 May 2014.

Child Support Assessments: The Basics

Blog by Daniel Sampson

childsupportbasicsxt

Under Australian Law, parents have two primary options in seeking child support from a party with a financial duty to support a child:

1. An Administrative Assessment determined by the Department of Human Services – Child Support (formerly the Child Support Agency); or

2. A Court Order from the Family Court with respect to the maintenance of that child where either

a. The Child Support (Assessment) Act 1989 does not apply; or
b. Where all appeal processes under the administrative processes have been exhausted; or
c. Property proceedings between the parents are before the Courts.

Am I entitled to child support?

Generally, a sole parent with the majority care of a child under 18 years may be entitled to child support.

Generally, a parent with the majority care of a child will be entitled to child support where the other party has a financial capacity to pay.

If you are not a parent, but have the majority care of a child for whatever reason, you may be entitled to child support from a liable parent. Make enquiries with the child support agency as to your eligibility.

How do I get an Assessment made?

Contact the Department and request to make an Application for an Assessment of Child Support. The Department will apply a formula for the determination of the amount of child support the liable parent will make.

You can also apply online: https://childsupportapplication.humanservices.gov.au/

What if I disagree with the Assessment?

The Department has processes of administrative review and appeal which are available to you. For example, if you disagree with the income determination that the Department has made of yourself or the other party you may seek a review.

What if the liable parent is overseas?

Australia has agreements with some countries with respect to the collection of Child Support and Child Maintenance. Where Australia does not, if the party has assets in Australia then that may be a way of securing debt for child support in some circumstances.

What if the liable parent refuses to pay or is in arrears?

The Department has the power to garnish wages, intercept tax returns and stop a party leaving Australia where a liable parent has a significant outstanding debt. See the Department website for more details.

My children are now 18 or turning 18. Do I have any further rights?

The Family Law Act allows for Adult ‘Child Maintenance’ for when the child reaches the age of 18 in limited circumstances. The two circumstances under the Act are:

1. To enable the child to complete his or her education; or

2. Because of a mental or physical disability of the child.

Such a determination will be based on the respective financial positions of the parties and the financial needs of the child. The Application can be made when the child turns 17 in anticipation of the age of majority.

New On YouTube: The Family & Federal Circuit Courts

Blog post by Sam Lehman

onlinepic (1)

It’s a sign of the times when the Family Court and Federal Circuit Court decide to launch their very own official YouTube channels – we’re definitely in the digital age! These channels aim to provide informational ‘how to’ videos to the public, allowing the unrepresented to more easily navigate the court system.

It’s a savvy idea and one that couldn’t have come at a better time – with the courts receiving over 31,000 divorce applications each year that lack legal representation, anything that alleviates the mounting pressure on the already backlogged system is a welcome relief.

In a recent media release, the Family Court of Australia has acknowledged that aspects of the divorce process, such as serving documents, can cause confusion to self-represented parties. It’s no surprise then that ‘How to apply for a divorce: serving divorce papers’ was the first video to be uploaded on both YouTube channels.

The first but hopefully not the last, more videos are expected to be uploaded and all will provide a free service aimed at improving understanding of court processes and the ability to perform pre-trial procedures or similar. It’s clear that more needs to be done however, as since the original videos went live there’s been no more activity – the channels will only become viable tools if given the constant support they require.

Nevertheless, the move to YouTube reflects the prominence of visual and online media in contemporary society and is a clever way to tap into the zeitgeist. Indeed, more and more people are computer literate and are using Internet platforms such as YouTube, Facebook and Twitter among others to consume digital information – to not tap into the aether in this manner would be a missed opportunity.

The YouTube channels introduce a novel approach of explaining family law systems, and are an untapped and potentially valuable resource for family lawyers too (if admittedly low on content at the present). They offer an engaging alternative to the kits that the Family Law Courts website already provides to assist with the preparation of court documents, making the court process even more transparent and accessible.

In retrospect, it’s not a particularly surprising move – the Family Court has been abuzz on Twitter since late 2012. You can find them @FamilyCourtAU.

The new YouTube channels are the logical next step and help to make key information more accessible. Next up, Facebook?

Click here to visit the Family Court of Australia’s YouTube channel

Click here to visit the Federal Circuit Court of Australia’s YouTube channel

The Duty Of Disclosure In Family Law Matters

Blog post by Kate Chisholm

nottopsecret

The Family Law Rules state that each party to a case in the Family Court has a duty to the court and to each other to give full and frank disclosure of all information relevant to the case in a timely manner. It is important to understand this duty from the outset, as failure to comply could result in delays to your case, additional costs, and even punishment in the form of a fine or imprisonment for contempt of court.

Financial Cases

A party starting or filing a response to a financial case must file a Financial Statement. If the Financial Statement does not adequately cover all of your financial circumstances, an affidavit will also need to be filed providing these extra details.

All financial resources must be declared. You may be required to provide such documents as wage slips, bank statements, tax returns, superannuation statements, invoices, receipts and title deeds as evidence of your direct or indirect income and interests.

Case law maintains that if a party refuses to provide full disclosure, making it difficult for the Court to correctly identify the asset pool, the Court will often divide the assets in favour of the other party. It is therefore vital that disclosure in financial cases is upfront and honest.

Please also bear in mind that information on any property disposal that has occurred in the 12 months immediately prior to your separation or since your separation will need to be declared as this may affect, defeat or deplete a claim.

Parenting Cases

The duty of disclosure also applies as rigorously to parenting cases. There can be confusion as to the kind of documentation that will be relevant in parenting cases, and often will be specific to your particular matter. Documents can include medical reports, school reports, photographs, your child’s drawings and diaries, letters, emails and evidence of their internet presence.

In all cases you must sign an undertaking confirming that you understand your obligations to disclose all relevant information, that any breach of your duty may result in contempt of court, and that you have complied with your duty of disclosure. This undertaking must be filed with the court no later than 28 days prior to appearing before a judge.

If you believe that the other party has not disclosed a particular document, you may apply to the Court for an order that compels the other party to produce that document.

As your case proceeds and as circumstances change, you will be required to provide updated information and documentation. The duty of disclosure ends only when your matter has been finalised.

The duty of disclosure can be a complex part of your family law matter. It is important to seek advice from a lawyer so that you are aware of your obligations – contact Kate Chisholm of Culshaw Miller Divorce & Family Lawyers for more information.

Calculating A Property Settlement Under The Family Law Act

Blog post by Meroë Kuhl

luckypic2

The law regulating property settlements is contained in the Family Law Act 1975 (Cth) (‘FLA’). All references below are to the FLA unless otherwise stated.

The purpose of a property settlement is to bring to an end the financial relationship between the parties (see s81 of the FLA for married relationships and s90ST for de facto relationships). A property settlement should therefore cover all of the property between the parties and should take into account the whole financial situation of each.

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 property settlement under the FLA is in fact far more complex than people believe.

Firstly, the Court will make an assessment as to whether it is ‘just and equitable’ to adjust the legal and equitable interests that the parties have in property. In other words, should there be an adjustment, and on which basis?

Secondly, the pool of assets and liabilities, and its value, must be ascertained. The net pool of property and its value is usually considered at the date of property settlement, even though this may be some months or even years after separation. This process can be particularly intricate where there are business interests, self-managed superannuation funds, family trusts and can be frustrated by non-disclosure or deceit.

Thirdly, the contributions made by each party to the acquisition and maintenance of those assets are to be considered (see s79(4)(a)-(c) for married relationships and s90SM(4)(a)-(c) for de facto relationships), and include:

  1. a party’s direct and indirect financial contributions, such as property owned at the commencement of the relationship or property received as a gift;
  2. a party’s direct and indirect non-financial contributions, such as unpaid work undertaken to property to improve its value; and
  3. a party’s contributions to the welfare of the family, including those made in the capacity of homemaker or parent.

Fourthly, the calculation must also consider the future needs of each party being those matters referred to in s75(2) FLA insofar as they are relevant. Such considerations include the age, health and future earning capacity of each party, and whether either parent is the primary carer of the children of the relationship.

Finally, the Court must consider whether it is ‘just and equitable’ in all the circumstances to make any property settlement orders and the particular property settlement orders that are proposed (see s79(2) for marital relationships and s90SM(2) for de facto relationships).

It is possible that a 50/50 calculation may be arrived at as per the common misconception. However, in most cases, undertaking the calculation provided by the FLA will result in one person receiving more of the assets than the other.

For further information regarding your rights in a property settlement contact Meroë Kuhl of Culshaw Miller Divorce & Family Lawyers for a consultation.