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Help! My Ex Is Not Complying With Our Parenting Court Orders!

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helpcontraventionBlog post by Kate Chisholm

Going through the Family Law system can be a frustrating and grueling experience. These frustrations are compounded when the other party refuses to comply with final Parenting Court Orders. However, there are steps that you can take to rectify this.

Family Dispute Resolution – Mediating a Resolution

If your ex-partner or the other party is not complying with an Order about parenting, you should first attempt Family Dispute Resolution (a type of mediation) to try to resolve the issue.

In certain situations, Family Dispute Resolution can be waived, including:

  • where there are allegations of child abuse or a risk of child abuse;
  • where there are allegations of family violence or a risk of family violence;
  • where there is an urgent reason for the parenting order to be complied with; and
  • where the Court Orders being contravened was made within the previous 12 months.

Filing a Contravention Application

If an exemption applies, or if you attend Family Dispute Resolution and it does not resolve matters, you can then file a Contravention Application in the Court.

If the Court establishes that a contravention of the Order has occurred, it can impose penalties on the party who has breached the Parenting Order. It can:

  • Vary the original order;
  • Order the non-complying parent to attend a parenting programme;
  • Compensate you for time lost with your child;
  • Order your ex to pay some or all of your legal costs;
  • Order your ex to do community service;
  • Order your ex to pay a fine;
  • Order your ex to a sentence of imprisonment; or
  • Order your ex to enter into a bond.

Crucially, filing a Contravention Application is only one way to deal with a breach of a Parenting Court Orders.

There are other options available to you that may be more appropriate depending on the circumstances, so it is therefore important that you seek legal advice on this important issue.

Contact the family lawyers at Culshaw Miller in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

The Need To Keep Your Will Current

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inheritance1Blog post by Ilsa Wallner

It is well established that marriage and divorce affect the operation of a person’s Will. A recent decision of the Supreme Court of Western Australia now suggests that the dissolution of a de facto relationship may have equally important consequences for Wills, making the need to keep your will current.

 

A Case Study: Blyth v Wilken

In Blyth v Wilken [2015] WASC 486, under the terms of his Will, Mr Scott left a sizeable portion of his estate ‘for my de facto wife KATHERINE MARY MURRAY’. Ms Murray was the de facto wife of Mr Scott at the time of making his Will in December 2003. Their relationship ended in December 2011, before Mr Scott’s death in August 2014.

The central issue before the court was whether the gift in Mr Scott’s Will, signed in 2003, was conditional on Ms Murray being Mr Scott’s de facto wife at the date of his death. Master Sanderson contrasted the position with a married couple. Pursuant to s14A(2) of the Wills Act, ‘when a married couple is divorced any Will then in existence is revoked’ (if the divorce occurred on or after 9 February 2008). Prior to Blyth v Wilken, a Will entered into by a person in a de facto relationship endured even when the de facto relationship came to an end.

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Probate – Your Questions Answered

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Blog post by Michaela Speering and Sarah Nicholls

probate

Probate – Your Questions Answered, Probate is the process of proving a deceased person’s Will. In Western Australia, the Probate Registry of the Supreme Court of Western Australia has the power to issue Grants of Probate.

If you have been appointed as an Executor in a Will, you may need to apply for a Grant of Probate. The Grant gives the Executor (or Executors) the authority to deal with the assets of the deceased person’s estate.

 

When is Probate required?

Probate is usually required where:

  • There are assets in the deceased person’s sole name (for example bank accounts, shares, a motor vehicle);
  • The deceased holds real estate in his or her sole name, or part of land as tenants in common; or
  • The deceased has superannuation and the superannuation trustee requires a Grant of Probate.

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Five More Myths About Wills And Estates

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Blog post by Michaela Speering and Sarah Nicholls

factmyths2

Five More Myths About Wills And Estates.                                      My estate will be really simple to complete – there won’t be any fights.

If that is the case, then preparing your Will should also be simple and need not be expensive.

If you have a blended family, step children, family members with disabilities, alcohol or drug issues, warring children or complex relationships, then you need advice about the best way to proceed. Otherwise you risk your estate being the subject of a dispute which may end up in Court.

I did my Will years ago – once is enough.

Have you married or divorced since your last Will? Marriage and divorce now revoke a Will in Western Australia (if the divorce occurred on or after 9 February 2008). If you are separated and thinking about changing your Will, you should seek advice.

Have you had more children since your last Will? Do you have grandchildren?

If your circumstances have changed you should update your Will. It is much easier to do this with electronic copies of previous Wills on our file system.

Do you still own the assets you have included in your Will? You may not need to update your Will every time you buy or sell a house, or change banks, however, if you have made specific gifts to certain beneficiaries and your circumstances change (or the beneficiary’s circumstances change) you need to review your Will.

Anyone can challenge a Will – it’s not worth the paper it’s written on.

Certain categories of people can contest a Will in Western Australia. You can minimise the risk of a claim being made if you receive advice about the distribution of your estate. Having no Will or a badly written Will is likely to increase the risk of a contested estate.

I don’t have time to think about this now – I can always do it later.

Accidents happen. People pass away unexpectedly. If you take the time to have your affairs in order now, you can have peace of mind. All you need to do after the initial process is review your Will if circumstances change.

I can do my own Will using the Post Office forms / an internet form.

Do you do your own dental work? A Will is an extremely important legal document. Home-made Wills cause their own problems. There are specific rules for signing and witnessing Wills. The correct language must be used to ensure that all of your assets are distributed in the way you want.

For the Five More Myths About Wills And Estates made clearer please contact Michaela Speering for more information about Wills & Estate Planning.

Update To South Australian Surrogacy Laws

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Blog post by Kate O’Leary

surrogacyupdateJuly 2015 saw a update to South Australian surrogacy laws, with the most notable amendment being the potential to locate a local surrogate by way of the establishment of a Surrogate Register. In effect, the Register will allow women willing to become surrogates to register with the State Government.

The Register will be contained within the proposed State Framework for Altruistic Surrogacy. The Register will not be available for public inspection, but will be available to certain classes of people, such as intended parents. The yet to be seen Regulations will specify those classes of people who will have access to the Register and will likely be available to those intended classes of people via Repromed.

The proposed amendments by way of the State Framework for Altruistic Surrogacy is not too dissimilar to the requirements previously demanded by the Family Relationships Act 1975.  It sets out that any potential surrogate intending to register must:

  • Be aged 18 years or older; and
  • Be a resident and domiciled in the State; and
  • Be a permanent resident of Australia; and
  • Satisfy any other requirement set out in the Regulations (which at the time of writing, have not been published).

The requirement for a Recognised Surrogacy Agreement (‘RSA’) to be entered into has not changed.

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Making An Urgent Family Court Application For Parenting Orders

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Blog post by Callum Etheridge

urgent-1-1541332Whether in the Federal Circuit Court or Family Court, it is common place that a party to a family dispute finds themselves in a situation where it is necessary to act quickly in response to an unforeseen event, making an urgent Family Court Application for Parenting Orders

The appropriate action might be to seek court orders to enforce an existing order or provide injunctive relief. In situations such as this, it is of critical importance to take prompt and direct action.

Urgent Recovery Orders

A common example in respect of children’s issues is where a party is being denied access to a child by the actions of another party. In such instances, it may be necessary to seek a ‘recovery order’ by way of an urgent application to the court. This is the case irrespective of whether court proceedings are underway.

Part of the frustration for carers in such circumstances is that despite there being either interim or final parenting orders in place, a new application must be filed with the court seeking enforcement of existing orders and/or that a recovery order be issued.

Almost without exception, it is only when the court directs that a recovery order be issued that the Australian Federal Police will intervene in the context of a family dispute to recover a child. It is often the case that the court orders that the other party ‘delivers up’ the child and in the event that they fail to do so the recovery order be issued, after which it is reasonable to expect a relatively quick turnaround.

Urgent Ex Parte Applications 

There may be a need to seek that the orders be made ex parte (in the absence of the other party). The court’s powers are limited in this respect, so it is important to include sufficient information in support of the application, or the court may be reluctant to make the order being sought without first hearing from the other side. Among the issues to address in the supporting affidavit are:

  • that the rules relating to dispensing with service have been complied with;
  • whether there have been any previous proceedings between the parties;
  • whether there are any current orders;
  • the reason why the other side hasn’t been informed in respect of the application;
  • the nature and immediacy of the damage which may result if the order being sought is not made; and
  • the grounds for seeking that the order be made on an urgent basis.

Ensuring Your Application Will Be Heard On An Urgent Basis

The same logic applies when requesting that the court take any kind of urgent action in respect of family disputes, be it hearing a matter on an urgent basis, making an order preventing a party from interfering with assets of the relationship, or preventing a party from travelling with children. Broadly speaking, making an urgent Family Court Application for Parenting Orders to the attention of the court and raise a convincing argument that urgent action is warranted and necessary in the circumstances.

If filing at the court registry, a short one-page covering letter which encloses your urgent application and supporting affidavit can be used to highlight to the court staff the urgent nature of the application, and is often a good way of securing a priority listing in the court.

Contact the family lawyers at Culshaw Miller in Adelaide today for more information.

Adelaide: (08) 8464 0033 or email

Independent Children’s Lawyers Representing Children In The Family Court

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Blog post by Genevieve Smit

icl family lawIn the context of Family Court proceedings, the pressure on children to ‘pick a side’ in their parents’ disagreement can often be heightened.  As a result, it may be appropriate for children to be provided with the opportunity to express their views in circumstances that are free from the influence of others. Independent Children’s Lawyers Representing Children In The Family Court (ICL’s) are lawyers who are appointed to represent children in parenting proceedings.

Essentially, the ICL’s role is to determine what is in the child’s best interests, taking into account all the relevant facts and circumstances of the particular case.

ICLs are appointed for the purpose of representing children and, as a result, they need to remain independent of all the other parties to the relevant proceedings.  They also need to establish a professional relationship of trust and respect with the child.

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Commercial Litigation Time Limits For Debts Repayable On Demand

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Blog post by Tim Retallack

debtrecoverytimelimits

A recent WA Supreme Court decision provides a reminder relating to Commercial Litigation Time Limits For Debts Repayable On Demand.

In the case of Blenkinsop v Blenkinsop Nominees Pty Ltd [2015] WASC 254 (delivered 20 July 2015), the Court gave the defendant leave to defend a claim for repayment of loans that had been made in 1986 and 1988 respectively – the potentially available defence being that because no time for repayment had been specified, the common law implied that the loans were repayable immediately upon being advanced (Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5).

In those circumstances, the plaintiff’s cause of action would have accrued more than 6 years prior to commencement of the claim, and would be time-barred by virtue of section 38 of the Limitation Act 1935 (WA).

Interestingly, the judge noted that under the provisions of the Limitation Act 2005 (WA), a different position would apply, because under section 59 of that Act, a cause of action for the repayment of debt repayable on demand accrues when there is a failure to comply with a demand for repayment. There are no equivalent provisions in the 1935 Act, which applies if the cause of action accrues prior to commencement of the 2005 Act.

Commercial Litigation Time Limits For Debts Repayable On Demand was a point of interest when confirmation that (even under the 1935 Act) an old debt can be ‘revived’ and recovered within six years of a written acknowledgement of the debt by the debtor (section 44, Limitation Act 1935), and further that such written acknowledgement can be constituted by more than one document, and could include acknowledgement in financial statements (including a balance sheet) where they have been received by the creditor who sues in reliance on them (Stage Club Ltd v Millers Hotels Pty Ltd [1981] HCA 71).

The case provides a useful reminder of some of the technical issues that can impact upon a debt recovery action.

If you have any questions about debt recovery, or commercial litigation, contact Tim Retallack or Charles Clifton.

Contact the family lawyers at Culshaw Miller in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

Five Myths About Wills And Estates

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Blog post by Michaela Speering and Sarah Nicholls

factmythFive Myths About Wills And Estates

I am married/in a de facto relationship so my estate will automatically pass to my spouse/partner

Five Myths About Wills And Estates, one is if you hold assets in your sole name, and you die without a Will, your assets will be determined by law not go directly to your spouse. In Western Australia, the Administration Act sets out who will receive your estate. Your spouse or partner will receive a share, but will not automatically receive everything. It is more complicated if you leave children under the age of 18. If your spouse/partner claims all of the estate, they will need a Supreme Court order if it impacts on the entitlements of children under 18 – even if they are also your spouse/partner’s children. This can be devastating for the surviving family members and expensive to resolve.

I don’t have any assets so I don’t need a Will

This is often the view of young adults. You may not have a house or a business, but if you have personal items, a car, superannuation and life insurance your estate might hold a higher value than you think. You can choose through your Will how you want those assets to be distributed and the process of administering an estate is easier with an Executor appointed in a Will.

My superannuation is an asset of my estate

Superannuation is not treated in the same way as your other assets. It is the trustee of the superannuation fund who decides how those death benefits should be paid. There are different tax consequences for different beneficiaries so it is important to seek proper advice.

My partner and I own our house as joint tenants but I want to leave my half share to my adult children

You can’t do this. Property held by two or more people as joint tenants automatically passes to the surviving joint tenant/s. This also extends to shares, bank accounts, investments and other items which may are held jointly. These assets will not pass into your estate and cannot be distributed by your Will.

It’s too expensive – and I won’t be around to worry about it

The cost of a professionally drawn Will is significantly less than the legal costs involved in administering an estate where a person has died without a valid Will. If you have no Will or you have an informal Will you may be exposing your family to a complex and expensive legal exercise to administer your estate.

Contact Michaela Speering for more information about Wills & Estate Planning.

Attachment Orders can be an appropriate garnish for Debt Recovery

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garnishee
Attachment Orders can be an appropriate garnish for Debt Recovery which allows a judgment creditor to recover a debt by taking payment of money that is owed to the judgment debtor by a third party.

Since 2005, the provisions of the WA Supreme Court Act and Rules which previously applied to garnishee or attachment orders have been replaced by provisions in the Civil Judgments Enforcement Act 2004 – Division 5 – which define a category of available debts, and establish the administrative framework for obtaining execution of a judgment by way of Debt Appropriation Order.

Availability of these processes requires knowledge of what debts might be owed to an opposing party, and that knowledge is not always readily available.

In practice, garnishee orders are most commonly obtained by the ATO, and other similarly sophisticated institutional debt recovery agencies, rather than by private litigants.

Culshaw Miller Lawyers recently obtained a Debt Appropriation Order for a private litigant in the WA Supreme Court.

As co-owner of shares in a private company, the client became aware that the judgment debtor (a former business partner) was about to receive a substantial payment by way of return of capital, and within 24 hours of Culshaw Miller being instructed, a Debt Appropriation Order was obtained on an urgent basis requiring that the company pay that money to the client, rather than the opponent.

Interestingly, not only was this the first Supreme Court Debt Appropriation Order that Culshaw Miller have obtained for a client, it was also the first time that the Acting Principal Registrar of the Court had seen such an application!

If you have any queries regarding Debt Recovery actions, or Debt Appropriation Orders, contact Tim Retallack or Charles Clifton of Culshaw Miller Lawyers.