When are the children old enough to decide which parent to live with?

In a recent High Court of Australia decision, Bondelmonte v Bondelmonte, the Court upheld a decision by the Trial Judge that two children, 15 and 17 year old boys, were not able to permanently reside in New York with their father despite expressing a clear desire to do so. It is an important family law decision relating to the wishes of a child.

The case discusses the weight a child’s wishes should be given by Courts exercising their jurisdiction in children’s matters. The Court held that the best interests of the child are not always in line with what the child wishes; even for older children who may have the maturity to understand the impact of their decision. Their wishes should also be considered in a broader context according to the facts of the case. (more…)

Why Guardianship and Powers of Attorney are an important part of your Estate Plan

 

Making an Enduring Power of Guardianship (EPG) and Enduring Power of Attorney (EPA) are an important part of the estate planning process, and they should be reviewed regularly as part of an estate plan.

An EPG allows a person to nominate who they want to make important lifestyle, care and medical decisions when they are no longer able to do so whilst an EPA allows a person to nominate who they want to make financial decisions on their behalf.

An interested person may make an application under the Guardianship & Administration Act (GAA) seeking orders appointing them, or someone else, as the Guardian and/or Administrator of a person (the Represented Person).  The Application is made to the State Administrative Tribunal (the Tribunal).

A key question in any application is whether or not the proposed Represented Person has already made an EPG or an EPA.  If so, then the Tribunal will not make an order unless it considers that the person or persons that have been appointed are not acting in the best interests of the Represented Person.

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Welcome Sally Savini!

Sally Savini is the newest member of Culshaw Miller Lawyers’ experienced Family Law team. As a Senior Associate, Sally has a wealth of Family Law experience including the following practice areas:

      • Complex and simple property/financial matters;
  • Care arrangements and welfare of children;
  • Family and domestic violence/abuse;
  • Spousal maintenance;
  • Child Support;
  • Exclusive occupation of the marital home;
  • Financial Agreements;

Sally is a passionate advocate in financial and children’s matters and is committed to achieving the best possible outcome for her clients.

To make an appointment with Sally, don’t hesitate to contact us on (08) 9488 1300.

You can now apply for a Restraining Order online – 12 May 2020

Online Applications for Restraining Orders have now been introduced in Western Australia.

“People seeking the protection of restraining orders have previously been required to visit a court registry to apply. Now it can be done online through registered legal services which provide family violence assistance.

These include Legal Aid WA, Aboriginal Family Law Services and community legal centres. Anybody can contact these agencies by phone, or in person, and be assisted with the lodgement of their restraining order application. People can still go directly to a court to lodge an application.

After the application has been lodged, the applicant will be given a time to attend a court hearing to seek an interim order.”

 

Media Statement: Victims of violence able to apply for restraining orders online

 

Resources:

Legal Aid WA

Aboriginal Legal Service WA

Community Legal Centres WA

Can I represent myself in the Family Court?

There is an entitlement in every court to represent yourself in any hearing and there are a number of protections for self-represented litigants, particularly in the Family Court and Federal Circuit Court, to prevent undue prejudice to your matter. Representing yourself can be difficult and time-consuming, particularly where you juggling work commitments or looking after children.

The Family Court of Australia publishes a number of resources to assist those who represent themselves. Issues covered include the filing of documents, court dress and conduct, procedural matters and even provides access to computers and the internet for those who might not have access to these at home.

Duty solicitors from Legal Aid may be able to provide some assistance to self-represented persons, and the while court staff cannot provide legal advice they can provide information regarding deadlines, filing procedure and can provide do-it-yourself kits for certain important forms and applications.

It can be very difficult for people undergoing a separation or dealing with property settlements and children’s issues to approach their own case with the degree of objectivity that is often required to be able to achieve the best result for their circumstances. An experienced lawyers can assist in providing advice and guidance.

Culshaw Miller Lawyers can provide anything from one off advice to ongoing representation according to your needs. Call us today on (08) 9488 1300.

 

Resources:

Family Court of Western Australia Handbook for Self-Represented Litigants

Legal Aid WA: What we do – Family Law

I’ve been served with a Subpoena. What do I do?

What is a subpoena?

A subpoena is an order issued by the Court to compel a person or business to either produce records, or attend court as a witness, or both. The Court issues a subpoena at the request of one of the parties to the proceedings and the document will be served on you.

Do I have to comply with it?

Yes, unless it was not served on you correctly. If you have any concerns about the service of the subpoena you should contact a lawyer to discuss the matter. There are very serious consequences if you do not comply with the subpoena, including the Court issuing a warrant for your arrest or ordering you to pay any costs caused by your non-compliance. The court may also find you guilty of contempt of court. (more…)

Am I entitled to an equal split of assets after separating?

Following a separation, many clients will come to a family lawyer for advice as to a property settlement believing that the property will be split straight down the middle, that is, a 50/50 split.  They may otherwise assume that a 50/50 split is the starting point for negotiations as to a final property settlement.

Calculating a division of assets according to the law can be far more complex than people believe.

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Recent Cases: Obligations of trustees; Is the trustee doing right by me?

What are the legal obligations of trustees when exercising discretion pursuant to a trust deed? Recent Victorian Case law sets out those obligations.

 

The Court of Appeal in Victoria has recently handed down a decision confirming the obligations of trustees of a SMSF (and trustees generally) when exercising a discretion under the trust deed – Wareham v Marsella [2020] VSCA 92.

The case involved a dispute between the husband of the deceased, Mr Marsella, and the deceased’s daughter and her husband, Mr and Mrs Wareham, who were the trustees of the deceased’s SMSF.

Following the death of the deceased, the Warehams made a decision to pay all the superannuation death benefits to Mrs Wareham. (more…)

Estate Planning: “I don’t need a Will.. or Do I?” Common Misconceptions

Any person over the age of 18 years and with legal capacity can make a Will and Enduring Power of Attorney. Unfortunately, it is estimated that between one third to one half of the population dies without a valid Will in place.

In addition, many people suffer an illness or become mentally incapacitated at some point in their lives with no clear direction as to how their affairs should be managed.

The consequences of failing to have the right documents in place can be devastating for families and can introduce complexities, costs and delay that are best avoided at a stressful time.

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