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.

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.