News

Children With Disabilities – What Happens When They Turn 18?

Blog post by Daniel Sampson

In 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 18^th 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

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?

Please 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

The 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.

hat You Say Can And Will Be Used Against You In A Family Law Matter… Or Will It?

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.

Child Support Agreements: The Basics

Child support is a payment from one parent to another for the financial benefit of a child or children of a relationship or marriage that has ended. The payments are monitored by the Department of Human Services (‘DHS’), which was previously known as the Child Support Agency.

If parents are able to reach an agreement regarding the payment of child support, which differs to the assessment by DHS, they are able to formalise this agreement then lodge it with the Registrar at DHS for review, this agreement must be in writing.

There are four types of agreement:

1. Limited agreement;
2. Binding agreement;
3. Transitional binding agreement; and
4. Lump sum agreement.

A limited child support agreement (‘limited agreement’) is an agreement between parents where the child support payable is equal to or exceeds the amount assessed by the DHS.

The limited agreement can be concluded by:

• either party providing written notice of termination (this must be after 3 years);
• inputting a new limited or binding agreement;
• a written agreement stating that the old agreement has concluded;
• the assessment of child support by the DHS changing by more than 15%; or
• a Court Order.

A binding child support agreement (‘binding agreement’) is an agreement where the child support payable can be less than the amount assessed by the DHS. In order for a binding agreement to be accepted both parents must have obtained independent legal advice. The legal practitioner that provides each parent with advice must provide a statement vouching his or her provision of legal advice and the parent receiving the advice must sign an acknowledgement of the advice.

The binding agreement can be concluded by:

• another binding agreement being entered by the parents; or
• Court Order.

Transitional binding child support agreements (‘transitional agreements’) are effectively binding agreements, which were entered by parents prior to 1 July 2008.

A lump sum agreement is the agreement for the child support payable to be paid in a ‘lump sum’. This payment can include the transfer of property. In order for a lump sum agreement to be accepted, there must be a child support assessment and the lump sum that is payable must be either equal to or greater than the amount assessed by the DHS. Parents can agree for the lump sum payment to be credited at a specific rate in their agreement.

Please contact Hayley Ellison from Culshaw Miller Lawyers if you would like any advice regarding a Child Support agreement or book in for an initial consultation.

When can my child decide who they want to live with?

Children’s Wishes in the Family Court

A common question for parents is, ‘When can my child decide who they want to live with?’ It seems a straightforward question, however, the answer is complex and dependent on a number of factors.

How are the child’s wishes considered by the Family Court?

The question of which parent a child lives with is determined by a number of factors, one of which is what is in the ‘best interest of the child’. The child’s wishes are but just one of these best interest factors. Generally speaking as a child gets older the Court will place greater weight on the wishes of the child on the basis of an increased maturity and understanding.

The Court’s paramount consideration is to make decisions in the best interests of the child. In determining what the best interests of the child are the Court must first primarily consider:

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (the greater consideration)

One of the additional considerations the court must also have regard to are: any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

For example, it may be the case that once a child reaches the age of 14 years their views may be more heavily weighted because their maturity and understanding. There may also be practical reasons. It may be difficult to force a 14 year old to see a particular parent against their wishes.

How does the Court find out what the child’s wishes are?

The Court has the power to order what is commonly referred to as a ‘wishes report’. The wishes report if ordered, will usually involve a Court based psychologist or social worker interviewing the child with respect to the child’s wishes.

Each parent may also be interviewed in relation to their perceptions of the child’s wishes if need be. If the family dynamic requires more thorough examination, a family report may be conducted by a Single Expert Witness to the Court being a Psychologist or Psychiatrist.

If you require any advice regarding your children’s arrangements, please book in for an initial consultation.