Family Law, Facebook and Social Media

Blog post by Daniel Sampson

facebook

Social Media has become part of our daily lives and is often taken for granted. Facebook in particular can be a source of evidence and tool for conducting legal proceedings. It can also get parties to proceedings into trouble if they do not know the law and its implications.

Service of Documents

In the matter of Byrne & Howard [2010] FMCAfam 509, an Order was made for the substituted service of documents to the Respondent’s Facebook page. This was in circumstances where all other avenues of service had been exhausted and where the Court had evidence to believe that there was a reasonable chance that service would be effected by Facebook. The Federal Magistrates Rules at the time allowed for electronic service of a document. This could be seen as the natural evolution and acknowledgement of Facebook as a frequently used communication medium akin to email.

Evidence

Documents may be annexed to support a fact that is stated in your affidavit. Affidavits can therefore provide the Court with evidence of the credibility of a party to the proceedings.

A party’s Facebook (and other social media) account may be a goldmine for the other party seeking to discredit them.

In the matter of Everett & Everett [2014] FamCAFC 152, the mother was given Orders for Adult Child Maintenance for the father to pay for their daughter who had Cystic Fibrosis and was offered a place at University. The father annexed copies of the daughter’s Facebook and Instagram pages to support his contention that the daughter did not require maintenance. The Court did not accept the evidence on this occasion but granted the appeal on other evidence.

Publication of Court Proceedings and Identifying Parties

Pursuant to Section 121 of the Family Law Act 1975, the electronic publication or dissemination of Family Court proceedings and identifying parties to the proceedings or witnesses is prohibited. The Court when publishing reportable judgments available to the public will anonymise the parties prior to their publication.

In the matter of Lackey & Mae [2013] FMCAfam 284, the paternal family made multiple false reports to the child protection authorities with respect to the mother’s care of the child. In addition to the false reports, the paternal family and the father also made a number of denigrating online ‘posts’ with respect to the Court, the Independent Children’s Lawyer and the mother.

The Court had a copy of the postings. Federal Magistrate Neville viewed the posts as a ‘form of cyber-bullying, cowardly, derogatory, cruel and nasty’. The Court ordered that the posts be removed and the matter was referred to the Marshal of the Court for further investigation of the breach of section 121, the penalties for which are fines and possible imprisonment.

For more information, view our earlier blog on this topic or contact Daniel Sampson from Culshaw Miller Lawyers.

Recognition of Overseas Same-Sex Marriage

Blog post by Daniel Sampson

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The New South Wales government recently gave their support to the Relationships Register Amendment (Recognition of Same-Sex and Gender-Diverse Relationships) Bill 2014.

Once the bill becomes law, the NSW government will recognise overseas same-sex marriages in NSW. The implications are purely that of recognition. NSW has already referred its de facto law-making powers to the Commonwealth; the Family Law Act 1975 grants property rights to de facto couples regardless of sexual orientation.

The Act will eventually mean that same-sex couples married overseas can register themselves as ‘married’ on the register of Marriages in New South Wales.

One curiosity is this: if a same-sex couple in NSW wants to formally divorce, then they would need to do so in the jurisdiction in which they were married, and not in NSW. This would of course carry implications for wills and estate planning, and if they wanted to remarry. This however is largely academic, as such scenarios would not apply in Australia until the definition of marriage is changed to recognise same-sex couples. For now, they would need to marry and stay in a jurisdiction which allows same-sex marriage or recognises same-sex married partners in estate disputes.

Two other states have already recognised overseas same-sex marriages in Australia: Queensland and Tasmania.

In Western Australia, there is no recognition of overseas same-sex marriage. Western Australia has not referred its de facto law making power to the Commonwealth. De facto relationships regardless of sex are dealt with under the Family Court Act 1997 in WA which has similar provisions as the federal Family Law Act.

One glaring omission in WA is the treatment of superannuation entitlements for both same-sex and de facto couples. Under the WA legislation, no superannuation splitting orders can be made to deal with a party’s superannuation entitlements. This can have serious implications for those people in long-term de facto relationships with significant superannuation entitlements of one party.

A bill for same-sex marriage has been proposed in the Western Australian Parliament. It is available to read here.

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

CM News – Introducing Warren and Sarah!

CM NEWS

warren-and-sarah2Culshaw Miller Lawyers is pleased to introduce Warren Elder and Sarah Nicholls to the team.

Warren brings considerable experience as an Accredited Family Law Specialist in his role as Special Counsel in the Family Law Section.

Sarah also joins the Family Law team. Hailing from South Australia, Sarah brings her background as a Legal Associate in the District Court of South Australia as well as a passion for Family Law.

Both Warren and Sarah join the team in the Perth office, and we look forward to watching them grow in their new roles. Welcome Warren and Sarah!

Gender Re-assignment of Children: The Role of The Family Court

Blog post by Daniel Sampson

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Justice Diana Bryant, the Chief Justice of the Family Court of Australia, has expressed her view that applications with respect to transgender children should go before the High Court for further determination as to whether the Court should continue to determine this issue. The view is based on a growing body of medical and psychological research with respect to the varied effects of gender re-assignment and whether the Court is the appropriate forum for such matters.

In Australia, where the re-assignment of the gender of a child is concerned, an application must be made with respect to the medical procedure required for re-assignment. This is because the legal capacity of a child is not that of an adult. The Courts are guided by the Gillick competency test or Gillick principle, which is ultimately a test of whether a child is able to consent to treatment without parental permission or knowledge. This will depend on the child’s relative maturity and ability to understand what the procedure will do.

Under the current law, the Court will be guided by the expert evidence of medical practitioners and psychologists as well as evidence of the Applicant to determine whether the gender re-assignment is in the child’s ‘best interests’.

There is reportedly growing research with respect to the increase of cases with respect to the gender re-assignment of children. The comments of the Chief Justice can therefore be seen as an acknowledgement as to whether the Court should continue to be involved in what is a serious medical and mental health issue.

Cases

Gillick v. West Norfolk and Wisbech A.H.A [1986] AC 112

A Decision of the House of Lords in England that established the ‘Gillick test’ that parental power to consent to medical treatment diminishes as the child’s capacity and maturity grows.

Secretary, Department Of Health And Community Services v JWB and SMB (1992)175 CLR 218

This was a High Court case, accepting as good authority Gillick [1986] and establishing further principle for the Court exercising its jurisdiction in cases where serious medical cases required the intervention of Court, not only the parents. This was a matter regarding the sterilisation of an intellectually disabled child. The Court ruled that the parents required an order of the Court and that the Court had proper jurisdiction to authorise such a procedure. An irreversible medical procedure on a child will require the intervention of the Court.

In the matter of the welfare of A (a child) (1993) 16 FamLR 715

This was an Application by A’s mother for male gender re-assignment for her 14 year old daughter. The Court granted authorisation for the procedure and identified gender re-assignment as the type of procedure that ‘stand(s) in the category of procedures which require the authorisation of a court’ (In re Marion (1990) 14 FamLR at p 448).

Re Marion(No 2) (1994) 17 FamLR 336

This was a sterilisation case discussing the relevant factors for the Family Court to consider in determining whether a procedure was in the child’s best interests such as:

  • The condition requiring treatment or procedures;
  • Nature of the treatment or procedure;
  • Reason for the proposed treatment;
  • Alternative procedures and treatment;
  • Waiting of the proposal against the alternatives;
  • Physical, psychological and social implications of the treatment;
  • Risks in not authorising treatment; and
  • Views of parents, guardians, carers and the child.

Re: Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297

Alex was legally a girl and in the care of the state. Alex was requesting treatment for gender reassignment. The Court considered the principles in Marion and applied them to Alex’s case. They held it was in Alex’s best interest to authorise the treatment. There was also an acknowledgement by Chief Justice Nicholson of a child’s right to live with a transgender identity under international human rights law.

Re: Jamie [2013] FamCAFC 110

Jamie, an 11 year old, was diagnosed with childhood gender identity disorder. Jamie was undertaking stage one of a two stage hormonal replacement process. While stage two was irreversible, stage one was not. At first instance Justice Dessau ruled that the procedure required the intervention of the Court, however the Full Court determined that the decision fell within the parental responsibility of the parents. Jamie was in agreement with the treatment, but the protection afforded to irreversible procedures was not required to be exercised by the Court.

Jamie’s case was the subject of the ABC’s Four Corners program that aired on 17 November 2014 – for more information click here.

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

Blog post by Natalie Sandman

disclosure

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.

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.