News

Shared Parental Care – The Infant Mental Health Guidelines Explained

Shared Parental Care – The Infant Mental Health Guidelines explained  by Kristie Lear, Family Law Solicitor from Culshaw Miller Lawyers explains the recent guidelines in respect to shared care arrangements for infants.

Whilst it is understood from Section 61C of the Family Law Act 1975 that there is a presumption of equal parental responsibility, what isn’t clear and what seems to be a growing misapprehension amongst participants in the Family Law process, is that there is not a corresponding presumption in favour of equal shared care.

This is an incredibly difficult position for many parents to reconcile with; particularly in circumstances where pre-separation care was shared on an equal basis.

It is important however, that parents accept that what will be the overall determinative factor in cases involving children will be what is in the best interests of that child. This is predominately so in situations involving young children.

The Australian Association for Mental Health in association with Infant Mental Health has recently adopted guidelines based on comprehensive research* conducted in the field of infants, separation and contact. The guidelines indicate that it is imperative for a child to be able to have access to a continuous primary attachment relationship.

What the research suggests is that during the development ages of 0-36 months a child requires the ability to develop a satisfactory, continuous and primary attachment with his or her carer. It is proposed that the importance of this relationship impacts upon such things as emotional well-being, development and the capacity to form meaningful relationships with others.

It is established by the research that repeated and pro-longed absence from the primary caregiver can result in a significant level of distress for the child which in turn can turn into long-term behavioural problems for the child.

Unless and until a child is able to self-soothe and be able to imagine the primary caregiver in their absence, be able to communicate their needs and be able to understand the events surrounding the contact handover, the guidelines suggest non-essential overnight contact away from the primary caregiver should be avoided.

The guidelines seem to adopt an approach whereby shared overnight contact is not acceptable for children under the age of 3 years old, instead promoting frequent and manageable day time contact with the child.

The guidelines go on to emphasise the “co-operation equipment” required to be adopted by parents in order to ensure that they are able to communicate, co-operate and trust each other with respect to the children. Co-parenting is an essential concept in a shared-care arrangement and the long-term benefit to the child is a healthy, meaningful relationship with both parents.

Shared Parental Care – The Infant Mental Health Guidelines Explained but are yet to be tested in the Family Law Courts and the legal argument in this respect will be interesting, however in bringing applications to the Court and accepting the process, it is useful for parents to be equipped with the latest information on what is in the best interests of their children.

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

* McIntosh J & Smyth B (2012), Shared-time parenting and risk, an evidence based matrix. In Kuehnle K & Drozd L. Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press

International Child Abduction – Support for Parents Left Behind

More support for parents left behind by international child abduction
26 March 2012

Australian parents dealing with the abduction of their child from Australia can access free legal assistance via a new national service which opened today.

Attorney-General Nicola Roxon said that the service will provide practical support to parents in distressing circumstances.

“We want to make it as straightforward as possible for parents to get the assistance they need when dealing with the abduction of their children from Australia,” Ms Roxon said.

“The Hague Convention on international child abduction, to which Australia is a signatory, provides a strong mechanism for lawfully seeking the return of abducted children to Australia.

“However, accessing information about the Convention and knowing how to apply to meet its requirements can be daunting for many parents during one of the most stressful and difficult times of their lives.”

The new legal assistance service will complement the counselling and mediation service already provided by International Social Services (ISS) Australia and funded by the Attorney-General’s Department.

The Government’s new funding agreement with ISS will provide a national service to help parents prepare and lodge applications from Australia for the return of, or access to, children under the Convention, and will also address key recommendations from the Senate Legal and Constitutional Affairs References Committee report into international child abduction to and from Australia, tabled on 31 October 2011.

“This service will now provide a one stop shop offering legal and counselling assistance for Australian families affected by the abduction of their child from Australia,” Ms Roxon said.

“With the assistance of International Social Services, Australian parents will be able to apply directly to the Attorney-General’s Department, as the Australian Central Authority – and the national contact – for the Hague Convention.”

ISS can be contacted Toll free on 1300 657 843 or through their website www.iss.org.au.

Further information about the Hague Convention is available on the Attorney-General’s Department website www.ag.gov.au/childabduction.

The Australian Central Authority can be contacted on 1800 100 480 or via email CentralAuthority@ag.gov.au.

Media contact: Attorney-General’s Office – 02 6277 7300

Violence Restraining Orders WA (VRO) (MRO)

Violence Restraining Orders or Misconduct Restraining Orders can be obtained in WA should you be fearful for your safety or defended. With legal advice from Perth Lawyers, Culshaw Miller Lawyers we can provide you with all the advice and representation you need.  We can help you navigate the Perth Magistrate Court at a very difficult and fearful time.

Noeleen Robinson, one of our Perth Family Lawyers, sets out some questions she is asked frequently about Violence Restraining Orders in the Perth Court System and how we can help you.

What are the steps to take if you have been served with a Violence Restraining Order or “VRO”?
First of all you need to consider whether your want to accept or object to the VRO or MRO and if you need legal advice or representation to defend yourself in Court.

How do I obtain a Violence Restraining Order?
We can provide you with legal advice and assist you to present your full story including the background to recent events to assist you in obtaining your VRO.

How can I be safe at Court?
If you do have concerns about seeing the other party at the hearing, we will attend on your behalf to ensure your safety.

Do I need a VRO?
A Violence Restraining Order can be considered to protect you against threats, assaults, emotional abuse, stalking and threatening behaviour.  They can be obtained if you are a domestic relationship or if the person is not related to you.

How do I comply with a Violence Restraining Order?
We strongly recommend that you seek legal advice in complying with your specific conditions and for finding out why you were served with it. For example, it may be that you are not to make any contact by any means unless there is a Family Court Order in place.

Can a Violence Restraining Order or a VRO affect my job?
Yes it can affect your employment prospects but it will not be placed on your criminal record.

I can’t see my children now or get back into my home because I have a VRO against me?
If your VRO has been taken against you it may prevent you from returning to your family home even if you are the owner of the property. You will need advice to obtain orders from the Family Court to put orders in place to see your children and to attend at the property to collect your belongings, you may also be required to attend with a police officer.

There are many situations in which people require to make a VRO application or defend one. It is recommended that you seek legal advice in either case.

Noeleen Robinson is a Family Lawyer for Culshaw Miller Lawyers in Perth dealingwith both Family Law matters and Violence Restraining Orders, should you require legal advice for your situation, please contact us to obtain an urgent appointment.

The information provided in this post is provided for information only and can not be taken as legal advice, each case is different and requires its own specific legal advice.

Changes to Family Court Guidelines for Financial Matters

On the 7th March 2012, Chief Judge Thackray of the Family Court of Western Australia issued a memorandum which will have an automatic effect from 9 April 2012 on all matters involving financial cases where the parties are both legally represented.

The Chief Judge has confirmed with effect from the 9 April 2012 any matter involving a financial case where both parties are legally represented will not be allocated a Conciliation Conference (meaning the matter will not proceed along the normal Court process) until the parties have either engaged in or undertaken private mediation style conferencing (“MDS”) or provided to the Court an appropriate explanation as to why they such mediation cannot be undertaken.  There is an expectation that the reasons for not attending  private MDS would be very limited in most circumstances.

The cost of the Practitioner conducting the private MDS will range between $3,000 to $4,000 plus GST which would include time spent reading the brief provided by each party, undertaking an intake assessment and then conducting the mediation over a working day.  Any extra time would be charged at and hour rate of somewhere between $350.00 to $450.00 per hour plus GST.  In most circumstances the cost of the MDS would be borne equally by the parties unless some other financial arrangement is agreed.  In addition to these costs would be the cost of the parties’ instructed lawyers charged in accordance with their individual retainers.

Private MDS has a demonstrated success rate of up to 80% for both complete and partial settlements.  At worst even if private MDS does not lead to an ultimate resolution it will always serve to limit issues for the final hearing which will have the effect of reducing overall legal costs.

When one considers that a full litigated financial matter in the Family Court is going to cost no less than $60,000 to $70,000 plus GST per party for legal, counsel and valuation fees – the possibility of resolving a financial  family dispute in MDS for around $10,000 per party is extremely financially attractive.

The Chief Judge has made it clear that practitioners and clients who have not considered or become involved in private MDS can expect the hearing to be adjourned without the listing of a Conciliation Conference so the parties can arrange private MDS.

If private MDS has occurred, and the parties have not reached a complete settlement or only a partial settlement practitioners will be able to dispense with the requirement that the parties attend upon a Registrar for a Conciliation Conference and therefore bypass that process which on current estimates will provide them with a time priority of some eight months over and above other cases in this respect.

Those parties and/or practitioners who refuse to engage in private MDS without a reasonable or appropriate explanation may face serious cost consequences in the Family Court.

MDS is an initiative of the Family Law Practitioners Association of Western Australia and AIFLAM (Australian Entity of Family Law and Family Lawyers Mediators) which enables senior family law practitioners to be trained to conduct and participate in private mediation style conferencing in financial cases where both parties are represented.

Following the training, there are some 36 family law practitioners who are prepared to conduct mediation style conferences.

Jeremy Culshaw of Culshaw Miller Lawyers is one of those 36 practitioners who are able to engage in and conduct mediation style conferencing.

If you require further information concerning this matter, please do not hesitate to contact Jeremy Culshaw of this office.

De Facto Property Court Orders AGD Press Release

De Facto Property Court Orders AGD Press Release
The Australian Government will be introducing a Bill in March 2012 to provide certainty to people who have orders of the federal family law courts in de facto property and maintenance matters.

Attorney-General Nicola Roxon said the Bill will correct oversights in 2006 and 2009 where Proclamations were not made to bring into effect changes to the Family Law Act. The Bill will also remove the need for these rare type of proclamations to be made in the future in relation to the Family Law Act.

“This legislation will put people in the same position they would have been if these Proclamations had been made on schedule,” Ms Roxon said.

“I welcome statements by the Opposition and the Greens that they will support this legislation and look forward to its early passage through the Parliament.”

Ms Roxon also encouraged people who have orders which might be affected by the lack of Proclamation to continue to comply with them.

“The legislation will eliminate the need for anyone to go back to court to seek new orders,” Ms Roxon said.

The Bill will retrospectively validate de facto property and maintenance orders made by the Family Court of Australia and the Federal Magistrates Court between 1 March 2009 and 10 February 2012 in New South Wales, Victoria, Queensland, Tasmania, Australian Capital Territory, Northern Territory and Norfolk Island. It will also apply to orders made by those courts between 1 July 2010 and 10 February 2012 in South Australia.

A Proclamation under section 40 of the Family Law Act 1975 has been made setting 11 February 2012 as the date from which the federal family courts could exercise this jurisdiction, ensuring there is no doubt about the validity of orders made after 10 February 2012.

Orders in relation to marriage and children are not affected. Likewise, de facto property and maintenance orders made in Western Australia are not affected as Western Australia has not referred its powers in these areas to the Commonwealth.

De Facto Property Court Orders AGD Press Release should have been made in early 2009 to enable the Family Court of Australia and the Federal Magistrates Court to validly make these orders.

The Bill will also retrospectively validate certain orders of the Family Court made on appeal from Family Law Magistrates in Western Australia between 1 July 2006 and 21 October 2011. This will address any concerns about the validity of those orders stemming from a similar Proclamation not made in 2006.

Further information can be found at www.ag.gov.au

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

Estate Planning – Why is it so important?

Estate Planning – Why is it so important for planning for the unexpected during your lifetime by appointing people you trust to make financial and personal decisions for you if you have an accident, become ill or incapacitated, and planning what will happen to your property upon your death.

A Will is essential for every adult with assets (including superannuation). The Will is the document by which the Will-maker appoints a person to administer the estate after they pass away (the Executor), and specifies who will receive the estate (the beneficiaries).

To make a Will a person must be 18 years or older and have legal capacity. There are strict requirements that must be complied with to ensure a document is a valid Will.

In Western Australia, a Will is revoked by marriage and by divorce if the divorce occurs on or after 9th February 2008.

If you pass away without a properly prepared Will, it can be expensive to deal with the legal issues that arise in administering the estate. If you do not have a Will, the estate will pass to family members set out in the legislation and may include one or more of your spouse (including a separated spouse), de facto partner, children, parents, siblings, nieces and nephews, whether or not you want those people to benefit.

Wherever your personal or business assets are located, it is important to receive professional advice about your Will to ensure that it accurately reflects your circumstances and that it will benefit your loved ones.

For more information about Wills and Estate Planning please contact Michaela Speering at Culshaw Miller Lawyers at Culshaw Miller in Perth or Adelaide today for more information.

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

Family Law – Financial Agreements

Family Law – Financial Agreements were introduced into the Australian Family Law System in 2002 and now have applicability across all relationship breakdowns in Australia.

What is a Financial Agreement?

A Financial Agreement is an agreement between two parties to a relationship (either marital or defacto in nature) which can be made at three distinct stages of the relationship. A Financial Agreement can be made before a relationship commences (a pre-nuptial type agreement), during a relationship or after a relationship has come to an end.

A Financial Agreement allows parties to a relationship to decide how their assets will be split upon a relationship breakdown, which has the obvious effect of ousting the jurisdiction of the Family Court, thereby avoiding the inherent legal cost and uncertainty that comes with any Family Court litigation.

As a result of the Family Court being removed from any involvement in the parties’ affairs at the time of relationship breakdown, the Parliament through the legislation has required that the parties in making a Financial Agreement are required to abide by a number of steps ensure that the Financial Agreement when made is binding. In this respect this Agreements are often referred to as Binding Financial Agreements or BFA.

The steps involved include requiring the parties to obtain independent legal advice as to the advantages and disadvantages of entering into the agreement.

The Financial Agreement has since 2002 become an essential part of Family Law estate planning – it has particular relevance for those persons seeking to quarantine assets that they are introducing into a new relationship to ensure that children of a previous relationship will continue to benefit.

For more information on Financial Agreements please contact Jeremy Culshaw, the Legal Practice Director at Culshaw Miller Lawyers, an Accredited Family Law Specialist with 27 years experience in the practice of Family Law.

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

Wills Amendment Act

The Wills Act 1970 was amended by the Wills Amendment Act 2007. The amendments came into effect on 9 February 2008.

One major change in the Act was the insertion of section 14A which states that a Will shall be revoked upon the ending of a Testator’s marriage unless, pursuant to subsection 2 of that section, a contrary intention appears in the Will or there is other evidence establishing that intention.

A marriage is taken to have ended, according to section 14A(3):
(a) when a divorce order terminating the marriage takes effect under the Family Law Act;
(b) on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia or the Family Court of Western Australia; or
(c) on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act.

It is not only divorce that revokes a Will, but “the ending of a marriage”. Section 14A(2) will only revoke a Will where the relevant marriage ended on or after 9 February 2008 so the Will of anyone whose marriage ended, as defined in section 14A(3) before that date will remain unrevoked.

Another major change in the Wills Amendment Act is the introduction of section 24, which allows the Supreme Court to authorise the making, alteration and revocation of Wills for persons who lack testamentary capacity as long as that person is living and is over the age of eighteen years.

The Applicant applying to the Supreme Court must produce the information listed in section 41 of the Wills Act, which includes a written statement of the nature of the application and the reasons for it (s 40(a)), an estimate of the nature and value of the assets and liabilities of the person concerned (s 40(b), any evidence available to the applicant as to the wishes of the person concerned (s 40(d)) and evidence as to the likelihood of the person concerned having testamentary capacity at a later time (s 40(e)).

The Court is able to refuse an application if it is not satisfied of the factors in section 42(1) of the Wills Act (including that the person concerned is incapable of making a valid Will or revoking that person’s Will). The discretion of the Court remains broad under section 42(2) which states that the Court may refuse an application for any reason not listed in section 42(1).

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