Blog

How Do I Get My Ex Out Of The House?

·

Blog post by Kate O’Leary.

“My partner and I have separated but he/she won’t move out of the house! What can I do?”

leavingBoth spouses are entitled to live in the family home, regardless of whose name is on the title to the house. In the event of a dispute, you cannot force your spouse to leave unless a court orders it.

An occupancy order is an injunction providing for sole occupancy of the family home. Such an injunction is sought under s114 of the Family Law Act 1975 (Cth). Where there are allegations of violence involved there are different avenues that can be followed (please contact the Police if you feel that you or your children are in danger).

The court regards the exclusion of a party to the family home as a very serious matter. In determining an application for an occupancy order the court must decide:

  1. should the property be occupied by only one party; and
  2. if so, which party should leave the property.

The onus of establishing a case for occupancy rests on the spouse seeking the injunction.

The test is that it must be proper to make an order for occupation. In determining what is proper the court needs to determine whether or not it is reasonable, sensible or practical to expect the parties to remain in the home together. With this in mind, the court will have regard to the following:

  • the needs of any children;
  • the means and needs of the parties; including financial resources, presence of alternative accommodation, the degree to which the home is an essential part of any business owned or run by a spouse;
  • the hardship to either party or to the children of the marriage;
  • the conduct of the parties; and
  • any physical violence against one of the parties.

The court will be reluctant to order a person to leave the home unless the needs of the other spouse clearly outweigh his or her right to occupy the property.

For further information regarding your rights post-separation please contact Culshaw Miller Divorce & Family Lawyers to make an appointment.

Can I Change My Child’s Name?

·

Can I change my childs name

There are two ways in which you can change the name of your child. One is through an application to Births, Deaths and Marriages, and the other is seeking a ‘specific issues order’ from the Federal Circuit Court of Australia.

Changing the name through Births, Deaths and Marriages

If both parents agree to the name change, or if there is only one parent recorded on the birth certificate, or one parent is deceased, then it is simply a matter of making an application to Births, Deaths and Marriages. The child must also consent to the name change unless they are unable to understand the meaning or the implication of the change. The Registrar of Births, Deaths and Marriages must also approve the new name.

If the parents do not agree then the parent wanting the change must apply to the Magistrates Court of South Australia. The Court will then decide if the change of name is the in the child’s best interests.

If the other parent cannot be found, then the parent may apply to either the Registrar or the Court to change the name, however they will have to show that they have made all reasonable efforts to locate the other parent before changing the name.

Changing the name in the Federal Circuit Court of Australia

A specific issues order needs to be made in the same way that any other parenting order is made under the Family Law Act. This means that the matter must first go to Family Dispute Resolution, and only proceed to court if the parties are unable to come to agreement. Of course, Family Dispute Resolution can be skipped if there is child abuse or family violence. The Court can make an order to stipulate the name by which the child is to be known. While this doesn’t change the name on their birth certificate, it is the name in which the child can be enrolled in school etc. The court will only ever make an order to change the name if it is considered in the best interests of the child.

Which avenue should I choose?

If you want to change the name of your child, especially if your partner is not consenting, it is important that you seek legal advice as to the best avenue to take. Contact Chris Kummerow of Culshaw Miller Divorce & Family Lawyers to assist you with an initial consultation to help you decide the right path.

Binding Financial Agreements: What Are They?

·

binding_financial_agreementsBinding Financial Agreements are financial agreements entered into by married or de facto couples which determine how property will be divided either during a relationship or in the event of relationship breakdown. These are sometimes called ‘pre-nuptial agreements’, although Binding Financial Agreements can be made before, during or at the end of relationships.

In the event of divorce or relationship breakdown a Binding Financial Agreement can cover how assets are divided, resolve matters regarding maintenance and other financial issues.

Before these agreements can have legal force they must be signed by both parties, and also signed by a lawyer saying that the parties have had (separate) independent legal advice prior to them entering into the agreement which has covered how the agreement will affect their rights and whether or not the agreement is to their advantage.

Once a Binding Financial Agreement is in place the only way to cancel or change it is to show the court that either there was fraud, the agreement is not practical to carry out (inconvenience is not enough), there is a major change in the children’s care and welfare or the other person acted in an ‘unconscionable’ (i.e. unethical or unfair) way. In this respect usual contractual principles will normally apply.

Binding Financial Agreements, properly drawn and advised upon, provide legal security in the event of either relationship breakdown or divorce.

If you are considering entering into a Binding Financial Agreement it is absolutely essential that you get specialised family law advice. If you wish to discuss the option of drafting a Binding Financial Agreement contact Chris Kummerow of Culshaw Miller Divorce & Family Lawyers for a consultation.

What You Say Can And Will Be Used Against You In A Family Law Matter… Or Will It?

·

images-12

In today’s society, a majority of people rely heavily on social media interactions. Forums such as Facebook and Twitter are used by an average of 9 million Australians per day. Information about the daily happenings of people’s lives, the food they eat, the places they visit, the feelings they feel are uploaded for others to see. ‘Netiquette’ generally exists however given that there is no regulatory body on these sites, anything goes.

It is common for people to use these forums as an area where they express their moods/emotional states/feelings about their exes. This has proven detrimental, particularly when involved in Family Court proceedings.

When views are published, and despite “privacy settings” that exist, you are unable to control who gets hold of these views. In matters where parent A is seeking contact time with the child/children of the relationship, the Court looks at the ability of parent B to facilitate this contact and a meaningful relationship between the child and Parent A (amongst other factors). As such, Facebook/Twitter posts that slander the other parent are not symbolic of this ability and can be very hard to undo once up and in the hands of an interested (or nosy) third party who may then pass on to others. You may later find them attached to Court documents submitted in your matter, and you are left trying to figure out how this came about because your settings are on “private”. These documents are then read by lawyers, Magistrates/Registrars, Judges, and Court Experts appointed in your case. As lawyers, we receive these social forum views openly if made by another party, but scorn them if they are made by our own clients.

In a 2008 Family Court decision, a Father’s credibility was affected and proof of him breaching a court order was presented to the Court. Orders existed for the Father to spend time with the child only in the paternal grandparents’ home. On this particular day, the Father posted photos of him and his child at the beach. During cross-examination at Trial, the Father was asked if he had ever taken his child to the beach on his own. He responded no, only to then be provided with the Facebook photos.

In a 2010 Family Court Decision, a mother posted a status update about intentionally prolonging proceedings unnecessarily. This was presented to the Court by way of the Father’s evidence, and the Mother was made to pay $15,000.00 of the Father’s Court fees.

Social media forums and the posts on them are not a joke. These cases serve to be examples of how these forums can be used in Family Court proceedings. At the moment, at least 1 in 5 cases in the Family Court have some Facebook posts presented, which serve to impact on the credibility of either party. Please be aware of this, and be careful what you write, as it can and will be used against you.

This post was written by Mary Basta, Family Lawyer at Culshaw Miller Lawyers.

Please book in for your initial consultation to find out more information.

Child Support Agreements: The Basics

·

p-legal-services1Child support is a payment from one parent to another for the financial benefit of a child or children of a relationship or marriage that has ended. The payments are monitored by the Department of Human Services (‘DHS’), which was previously known as the Child Support Agency.

If parents are able to reach an agreement regarding the payment of child support, which differs to the assessment by DHS, they are able to formalise this agreement then lodge it with the Registrar at DHS for review, this agreement must be in writing.

There are four types of agreement:

  1. Limited agreement;
  2. Binding agreement;
  3. Transitional binding agreement; and
  4. Lump sum agreement.

A limited child support agreement (‘limited agreement’) is an agreement between parents where the child support payable is equal to or exceeds the amount assessed by the DHS.

The limited agreement can be concluded by:

  • either party providing written notice of termination (this must be after 3 years);
  • inputting a new limited or binding agreement;
  • a written agreement stating that the old agreement has concluded;
  • the assessment of child support by the DHS changing by more than 15%; or
  • a Court Order.

A binding child support agreement (‘binding agreement’) is an agreement where the child support payable can be less than the amount assessed by the DHS. In order for a binding agreement to be accepted both parents must have obtained independent legal advice. The legal practitioner that provides each parent with advice must provide a statement vouching his or her provision of legal advice and the parent receiving the advice must sign an acknowledgement of the advice.

The binding agreement can be concluded by:

  • another binding agreement being entered by the parents; or
  • Court Order.

Transitional binding child support agreements (‘transitional agreements’) are effectively binding agreements, which were entered by parents prior to 1 July 2008.

A lump sum agreement is the agreement for the child support payable to be paid in a ‘lump sum’. This payment can include the transfer of property. In order for a lump sum agreement to be accepted, there must be a child support assessment and the lump sum that is payable must be either equal to or greater than the amount assessed by the DHS. Parents can agree for the lump sum payment to be credited at a specific rate in their agreement.

Please contact Hayley Ellison from Culshaw Miller Lawyers if you would like any advice regarding a Child Support agreement or book in for an initial consultation.

When can my child decide who they want to live with?

·

Can I change my childs nameChildren’s Wishes in the Family Court

A common question for parents is, ‘When can my child decide who they want to live with?’ It seems a straightforward question, however, the answer is complex and dependent on a number of factors.

How are the child’s wishes considered by the Family Court?

The question of which parent a child lives with is determined by a number of factors, one of which is what is in the ‘best interest of the child’. The child’s wishes are but just one of these best interest factors. Generally speaking as a child gets older the Court will place greater weight on the wishes of the child on the basis of an increased maturity and understanding.

The Court’s paramount consideration is to make decisions in the best interests of the child. In determining what the best interests of the child are the Court must first primarily consider:

  1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (the greater consideration)

One of the additional considerations the court must also have regard to are: any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

For example, it may be the case that once a child reaches the age of 14 years their views may be more heavily weighted because their maturity and understanding. There may also be practical reasons. It may be difficult to force a 14 year old to see a particular parent against their wishes.

How does the Court find out what the child’s wishes are?

The Court has the power to order what is commonly referred to as a ‘wishes report’. The wishes report if ordered, will usually involve a Court based psychologist or social worker interviewing the child with respect to the child’s wishes.

Each parent may also be interviewed in relation to their perceptions of the child’s wishes if need be. If the family dynamic requires more thorough examination, a family report may be conducted by a Single Expert Witness to the Court being a Psychologist or Psychiatrist.

If you require any advice regarding your children’s arrangements, please book in for an initial consultation.

What is ‘Spousal Maintenance’?

·

divorce lawyers adelaide

You’ve heard about it but what does it actually mean and could it apply to you?

Spousal maintenance (which is sometimes referred to as alimony), is where one party to a marriage or de facto relationship is required to pay maintenance to the other party following their separation or divorce. It is important to distinguish spousal maintenance from child support as the purpose of spousal maintenance is for one spouse to assist another with reasonable living expenses.

Parties can apply for spousal maintenance from the date of separation, however, it is important to note that time limits apply. In particular, parties to a marriage should note that they have 12 months from the date the divorce becomes final to make an application. Parties to a de facto relationship must make an application within 2 years of the date of separation. There can be exceptions made if the Court is satisfied that leave not being granted to the parties to make that application would cause significant hardship.

The central principle of spousal maintenance can be summarised as a payment, ‘from those who can to those in need.’ The Family Court of WA assesses whether the spouse or payer has the financial ability to support the other spouse or payee. The Court also must assess whether the payee is able to support himself or herself themselves.

In order for the Court to assess the payee’s ability to support themselves from their own funds (this does not include any allowances, benefits or pensions that party receives), the test is, “whether by reason of earning capacity, by reason of capital or other resources which have accrued independently to the applicant, the applicant is in a position to support herself [themselves]” (Nygh J in Eliades (1981) FLC 91-022).

Spousal maintenance payments can cease when one of the following occurs:

1. when the Court ordered time expires, or a date set by the court arrives;
2. when one of the parties dies; or
3. when the party receiving spousal maintenance re-marries.

It is important to note that the Family Court assesses spousal maintenance on a case by case basis.

If you require any advice regarding your spousal maintenance claim, please book in for an initial consultation.

This article was written by Hayley Ellison, Family & Divorce Lawyer at Culshaw Miller Lawyers Perth.

 

White Ribbon Day & Culshaw Miller Lawyers’ Statement on Male Violence Against Women

·

Culshaw Miller Lawyers condemns male violence against women.

According to the 2009 Report of the National Council to reduce violence against women and their children, “nearly one in three Australian women experienced physical violence, and almost one in five would then experience sexual violence over their lifetime”.

The majority of incidents are perpetrated by men.

Male violence against women continues to be a shameful epidemic across our community and our society. As we approach White Ribbon Day on the 25 November 2012, we call on all Australians to join the white ribbon campaign and stand up to violence so that women can live free from violence, within respectful relationships, and in safe communities.

In this respect please visit www.whiteribbon.org.au/find-events?state=WA to show your support.

The scale of this point is such that about 70,000 Australian women were subject to violence by a male partner last year.

Partner violence also leads to many other need of consequences. A 2004 Vic Health study found that, among women under 45, intimate partner violence contributed more to poor health, disability and death and any other risk factor, including obesity and smoking. The cost of violence against women and their children to the Australian economy was estimated to be $13.6B in 2008/2009 and this cost is continuing to rise.

However, the most concerning aspect of this issue is that an estimated 70% of cases of violence against women go unreported to the Police.

This is why we need to speak out. Violence against women is a silent epidemic in Australian because our society continues to ignore it, and therefore condoned this behaviour.

This is not just an issue for women; this is an issue that affects everyone.

We believe that in order to change this culture that accepts violence against women, we need to acknowledge the problem and condemn it.

Culshaw Miller Lawyers Quality Assured for 15 Years!

·

Not many law firms in Perth can say that they have been a Law Society of Western Australia Accredited Quality Practice for the last 15 years, but we can! 

Having been such long standing providers of legal services in the community of Perth has allowed us to really understand our clients needs and standardise our practices to ensure that you are receiving a superior level of quality of service.  When you are dealing with a legal situation you require your lawyers to understand and provide a quality and consistent service in a timely manner. You can rely on Culshaw Miller Lawyers to do this, no matter what your legal issue is.

(more…)