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.

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.

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

Blog post by Daniel Sampson

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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.

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

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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.

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

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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’?

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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.