Culshaw Miller Lawyers is pleased to announce that Robert Parkinson will be commencing on Monday 9 January 2017 as our Family Law Consultant with his law clerk Deborah Luke. Rob and Deborah will be joining the team in our Perth office.
The directors and staff of Culshaw Miller join in welcoming Rob and Deborah to the team!
Blog post by Hayley Ellison
With the Christmas holidays fast approaching, it is important to make arrangements to spend time with your children in advance. If you are unable to reach an agreement regarding the upcoming Christmas school holidays then you may need to seek Family Court Orders.
Family Dispute Resolution
Prior to commencing Family Court Proceedings, the Family Law Act 1975 requires that parties attend Family Dispute Resolution (‘FDR’). There are exceptions to this requirement however; it is most likely that your matter will not fall under one of these exceptions. It is important to remember that you can experience delays in the FDR process therefore it is best to commence the process as early as possible. In the event that you are unable to reach an agreement through FDR, you are issued with a section 60I certificate or FDR certificate which allows you to commence proceedings.
Commencing Family Court Proceedings
In Australia, there are three Family Law Courts:
You can make applications regarding the care arrangements for your children during the upcoming 2016/2017 Christmas school holidays in these courts dependent on which jurisdiction is applicable. For more information regarding the appropriate jurisdiction and making an application to the Family Law Courts, please contact our offices to make an appointment with one of our family lawyers. Each court has separate requirements regarding the filing of applications for the 2016/2017 Christmas school holidays.
Family Court of Western Australia
In Western Australia, the Case Management Guidelines provide that “the cut off to file applications in the Family Court in time for Christmas is 4.00 pm on the second Friday of November each year.” In 2016, the cut-off date to file applications for the 2016/2017 Christmas school holidays is Friday 11 November 2016.
The Family Court advises in the Case Management Guidelines that “parties should be aware that applications filed prior to this date are not necessarily guaranteed to be listed or determined prior to the commencement of the relevant school holiday period. Such applications should be filed as early as practicable to ensure an appropriate listing date.”
Family Court of Australia and Federal Circuit Court
In the Family Court of Australia, the Rule 5.01A of the Family Law Rules 2004 provides that the cut off to file applications is “before 4:00pm on the second Friday in November of the application year”, therefore, the same deadline of 11 November 2016 applies. Following this deadline, the applications will be assessed in terms of urgency. In the event that the application is not assessed as being urgent it is unlikely that your matter will be listed until 2017. In the Federal Circuit Court, there is no specific filing deadline.
However, the Court’s Case Management Guidelines also state, “Parties should be aware that applications filed prior to this date are not necessarily guaranteed to be listed or determined prior to the commencement of the relevant school holiday period. Such applications should be filed as early as practicable to ensure an appropriate listing date.”
Overseas Travel
It is vital to note that pursuant to section 65Y of the Family Law Act 1975 and section 107 of the Family Court Act 1997 parties to proceedings must not take or send the child or children who is the subject of proceedings outside of Australia unless:
If you wish to take your child or children on an overseas holiday you must obtain the written consent of the other party. In the event that you cannot obtain written consent, an application should be filed to obtain endorsement of the Family Court through Orders.
Please contact our offices to make an appointment if you require assistance to make arrangements for your child or children this holiday before the Christmas rush begins.
Blog post by Daniel Sampson
We sit upon the precipice of a new age whereby we are developing technology that can teach a computer to ace Super Mario World (fun) or to command an autonomous army (scary).
An Australian venture is attempting to do something even scarier still; to apply data and technology to predict likely outcomes in Family Law cases. Is this a good idea or a bad idea?
The concept appears to be that the App will analyse both hard data and matters specific to a case, and predict likely outcome based on patterns and trends or legal precedents together with what the founder of the App describes as ‘gut feelings’, or statistical unknowns.
So are family lawyers about to go the way of the dodo? Will robo-lawyer kill off the industry? Not likely. The App may be accepted by the profession as a ‘second opinion’ resource or even a tool for lawyers to reconsider their advice along the way to ensure that the lawyer’s analysis of the case is sound or there may be further considerations.
Even despite the wisdom of an App, it would be interesting to see how the App factors in Judicial Discretion, that esoteric term that basically describes the ability of a Judge to exercise their own wisdom with regard to evidence that they are hearing and make decisions while still applying the law.
Studies have been conducted that conclude that judicial discretion can lead to arbitrary, uncertain and unclear judgments without further rules being applied. Then in that case, could the App help to further crystallise those observations, identifiable trends or common findings into legal rules and perhaps legislation? It is an interesting question.
In any case, I for one will welcome our new robo-judicial overlords if I have not already been replaced by a legally admitted Rasberry Pi.
Culshaw Miller Lawyers is pleased to announce that Hayley Ellison of our Perth office has been promoted to Associate in the area of Family Law. Similarly, Kate O’Leary of our Adelaide office has been made an Associate in Family Law.
Congratulations also to Tom Cuthbertson of our Adelaide office, whose practice covers Criminal Law and Family Law, who has been promoted to Associate of Culshaw Miller Criminal Lawyers.
The directors and staff of Culshaw Miller join in congratulating Hayley, Kate and Tom for their hard work and well-earned appointments.
Blog post by Mary Basta and Sarah Nicholls
The 60 Minutes crew recently hit the news headlines after being accused of involvement in an operation to recover children from a street in Beirut in an attempt to have them reunited with their mother. It was a widely publicised debacle.
Generally, the longer a child remains with the other party, the more difficult it is to successfully obtain a recovery order.
If you are faced with a situation where your child has been wrongfully taken, it is essential that you take appropriate action immediately and seek urgent legal advice.
What is a recovery order?
A recovery order is an order made by a court requiring the return of a child to a:
Who can apply for a recovery order?
A recover order may be applied for by:
How do I apply for a recovery order?
The application process for a recovery order will depend on whether or not you have proceedings currently before the court. In any event, an application to the court is required together with a supporting Affidavit which sets out the background to the matter, details of how the child was taken or not returned to you, steps you have taken to recover the child and why it is in the child’s best interest that they return to you.
What does the court consider when making a recovery order?
A court must regard the best interests of the child as the paramount consideration in deciding whether to make a recovery order. The court is required to give greater weight to the consideration of the need to protect the child from harm.
If the court decides to make a recovery order, the order will authorise or direct another person or persons to find, recover and deliver the child. A copy of the orders must be provided to that person. In most cases, this is the Australian Federal Police.
International child abduction
If your child has been taken overseas without your consent, the Hague Convention may apply.
The Hague Convention is an agreement in force between Australia and a number of other countries. It provides a framework for seeking the return of abducted children to their home country.
It is essential to seek urgent legal advice in the event that you suspect your child is at risk of being removed from the country.
Contact Culshaw Miller Lawyers for more information.
Today saw the launch of the national Legal Aid Matters campaign.
The message:
Australian Governments must:
For more information please visit: http://legalaidmatters.org.au/.
Blog post by Sam Lehman
In news this past week, Family Court Chief Justice Diana Bryant made a call for increased funding to assist appropriate risk assessment or ‘triaging’ of matters at early stages in the Family Court and Federal Circuit Court, both of which hear matters concerning family violence and child abuse.
The Australian reports that Chief Justice Bryant has urged the government to consider a further cash injection of ‘an extra $20 million over the forward estimates’ to support the appointment of family consultants and registrars to assist judges in the management of cases. This will reportedly allow serious allegations of family violence to be dealt with swiftly to ensure the safety of children.
Chief Justice Bryant recognises this issue:
“You don’t want to make a mistake either way. You don’t want to make orders that will provide for ongoing contact and put children at risk; on the other hand … you want to try and protect the relationship between a parent and child, especially if it’s going to take two years for a matter to be heard.”
“All of that means risk assessment is vital at the beginning.”
“We may be failing some families and children and we need to be able to do better.”
Understandably, many parents view the circumstances of their own matter as urgent however, this is a view which may not be shared by the Court which daily deals with children at serious risk.
How we can help you
Engaging a legal representative can significantly cut down on the work which must be undertaken by the Court to understand and assess the parameters of your case. A lawyer can assist you to identify the matters which are relevant to the determination of your dispute and to accurately identify to the Court which issues require the Court’s urgent attention.
A lawyer can also assist you to resolve matters without the need to file in Court or assist you to manage short term arrangements before the Court is able to hear your case.
Contact Culshaw Miller Lawyers today for more information.
Blog 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.
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.
The Court ultimately decided that Ms Murray was not entitled to the gift. Master Sanderson found that the deceased had made the gift to Ms Murray ‘because she was his de facto wife. Once that ceased to be the case it seems to me the intended disposition should fall away’. It appears that had Ms Murray simply been named in the Will rather than being referred to as ‘my de facto wife’, she would have received the gift.
It is important to be aware that marriage is dissolved by divorce. In contrast, there is no clear dissolution of a de facto relationship.
This case highlights the significance of keeping your Will current. When a de facto relationship ends, it is important that the respective partners update their Wills to reflect their changed circumstances to avoid any unintended consequences after their deaths.
Contact Michaela Speering and Ilsa Wallner for more information about Wills & Estate Planning.
Blog post by Michaela Speering and Sarah Nicholls
What is Probate?
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:
Landgate (the Titles Office), banks, share registries, and other financial institutions may require an Executor to obtain Probate before they permit any dealings with estate property.
How do I apply for Probate?
You will need:
To apply for Probate an Executor must make an application to the Probate Office of the Supreme Court of Western Australia. The application involves swearing an Affidavit which sets out evidence about the deceased person’s death, the Will and includes a statement of assets and liabilities of the estate.
There are strict requirements for an application for Probate. For more information, or assistance in making an application to the Court please contact the Estate Planning team at Culshaw Miller Lawyers.
Blog post by Michaela Speering and Sarah Nicholls
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.
Contact Michaela Speering for more information about Wills & Estate Planning.
