The Family Court – The “Helping Court”- Is The Court Becoming Tougher?

Most people would appreciate that if you have a right to take someone to court it is a good idea to do that without delay.  For personal injuries, there is a time limit of 3 years and for breach of contract, 6 years to go to court. 

The time limits in family law are much shorter, one year from a divorce order taking effect for a married couple (a divorce can’t be granted unless the couple has been apart for one year) and two years from separation for a de facto couple.

The short family law time limits are for practical reasons.  The longer a couple is separated the harder it can be to untangle their finances; even if they kept things separate there might still have to be an accounting.  What they each had at separation, and what happened in relation to income and assets before and after separation will likely need to be considered.        

Recently a party in Wellard & Hawthorn [2021] FedDFAMC1A (the names are changed to protect the privacy of the parties) complained of significant difficulty in bringing their application in time and asked the Court to extend the time, arguing that they would suffer hardship. While the Court could have granted the application, the court refused the extension of time, allowing the other party to avoid a financial accounting.

lawyer with couple at desk

The Family Court of Western Australia was set up when ‘no fault’ divorce was introduced in 1975 to be the “helping court”.  Even if it is no-one’s fault a relationship has failed, it can be difficult for parties to move on and deal with their situation. 

Since 1975, the Family Court system has been greatly expanded to include de facto relationships, relationships that are treated just like a marriage even if the parties are not married and didn’t have a party to celebrate their union.

Arrangements for children have become more complex too, where the principles guiding how parties should make arrangements for their children changed in 2006. Now both parents are expected to be involved in their children’s lives, as long as that is in their best interests.   In 2012, the Family Law legislation was amended to reflect a greater understanding of the endemic presence of family violence.    

Does the recent decision send a message that the Court will not tolerate parties seeking more time to come to the court unless they can make out a strong case?  Is the court becoming stricter than it might have been in the past, where the pressures on the court’s limited resources are unrelentless? Possibly yes.    

A stricter approach could have a heavy impact on de facto couples, where their circumstances tend to be less formalised than married couples.  In Western Australia despite the best efforts of family lawyers in seeking reform of the law so it falls in line with every other state and territory, superannuation splitting is still not available. Legislation to provide for super splitting has been drafted but not yet passed by the Western Australian parliament.     

Get in Touch With Our Family Lawyers

If you would like advice in this area please contact Rhonda Griffiths at rgriffiths@bbvlegal.com.au.

Our Family Lawyers in Perth can provide you with information, advice and legal representation on a range of family law issues on a fixed fee price basis.

Tougher Laws – Are You Ready?

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New Work Health and Safety Act 2020 (WA)

Are you ready for tougher laws? In November 2020, the WA Parliament passed the Work Health and Safety Act 2020 (WA) (“the Act”). The Act will take effect once the industry regulations have been finalised, which is now likely to be sometime in early to mid-2022.

When implemented, all Western Australian workplaces will come under this single Act.

The Act will be supported by regulations including which include the Work Health and Safety (General) Regulations  (which apply to all workplaces except those covered by the other regulations), the Work Health and Safety (Mines) Regulations (which apply to mining and mineral exploration operations); and the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations (which apply to onshore and offshore petroleum, pipeline and geothermal energy operations).

Will It Affect Me?

The following are some key aspects of the new Act of which you should be aware.

The Act has wide application and applies to Persons Conducting a Business or Undertaking (“PCBU“).

The terms business and undertaking have their ordinary meaning. It is intended to cover a wide range of businesses or undertakings. 

The Act applies to workplaces and workers. These terms are also defined broadly to incorporate a range of environments and situations. A workplace is defined to be a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.  A person is a worker if the person carries out work in any capacity for a PCBU, including work as an employee, a subcontractor, or an employee of a contractor or subcontractor.

This definition is likely to capture working from home arrangements. 

The term health has also been expanded, to include both physical and mental health.

Labour hire employees are also now deemed to be workers.

Primary Duty of a PCBU

A PCBU will have a primary duty of care to ensure that workers and others are not exposed to a risk to their health and safety.

This applies where the PCBU can engage or cause to engage a worker to carry out work (including through a subcontracting arrangement), can direct or influence work carried out by a worker, or has management or control of a workplace.

A PCBU must ensure, amongst other things, that the health of workers and conditions in the workplaces are reasonably and sufficiently monitored to prevent illness or injury arising in the workplace, and that there are adequate facilities to ensure workers’ welfare when carrying out certain functions.

Officers of a PCBU are also required to exercise due diligence, to ensure that the PCBU is complying with its duties and obligations. This requires taking reasonable steps to become familiar with the relevant work health and safety knowledge base, and to ensure that the PCBU has appropriate resources and processes to minimise if not eliminate health and safety risks in the workplace. 

Enforcement And The New Industrial Manslaughter Laws

Significantly, the Act introduces strict enforcement measures including a new regime of industrial manslaughter provisions.  

The Act creates two categories for industrial manslaughter – one for simple offences (Category 1) and one for crimes (Category 2). A Category 2 offence has substantial maximum penalties.

A Category 1 offence is committed where the person fails to comply with a health and safety duty as a PCBU, and this failure causes the death of an individual. An officer of a PCBU will commit a Category 1 offence where the PCBU’s conduct can be attributed to any neglect on the part of the officer or is engaged in with the officer’s consent or connivance. For these offences, an individual (including an officer) will face a term of imprisonment of up to 10 years and a fine of up to $2.5 million and a body corporate will face a fine of up to $5 million.

A Category 2 offence is committed where:

  1. the person has a health and safety duty as a PCBU;
  2. the person engages in conduct that causes the death of an individual;
  3. the conduct constitutes a failure to comply with the person’s health and safety duty; and
  4. the person engages in the conduct:
    1. knowing that the conduct is likely to cause the death of an individual; and
    2. in disregard of that likelihood.

An officer of a PCBU will also commit a Category 2 offence where, the PCBU’s conduct above is:

  1. attributable to the neglect of the officer or engaged in with the officer’s consent or connivance; and
  2. the officer knew that the PCBU’s conduct was likely to cause death or serious harm and disregarded that likelihood.

For these offences, an individual (including an officer) will face imprisonment for up to 20 years and a fine of up to $5 million whereas a body corporate faces a fine of up to $10 million.

With the imminent introduction of the Act and its more severe penalty regime, all PCBU’s and their directors and officers should act now to audit their safety and risk management controls, culture, and practices to ensure that these will meet their obligations under the Act.

 Contact BBV Legal to book an appointment today.  Bowen Buchbinder Vilensky has over 25 years of experience providing legal services in Perth.

Navigating The Family Court After Family Violence

family court lawyer signing

The Family Court and Family Violence

Separation is an extremely difficult time. Those difficulties, and in some cases dangers, can be exacerbated for those who experienced family violence in their relationship. We discuss navigating the Family Court in WA after family violence.

Parties at the end of a relationship involving family violence may find themselves involved in proceedings in the Family Court of Western Australia, if they cannot agree about the post-separation arrangements that are in the best interests of their children.

For many, the Court process is daunting. Fear and intimidation from a former partner add to the stress and anxiety that most people experience while Family Court proceedings are on foot.

In the Family Court of Western Australia in 2020, Family Consultants conducting assessment conferences identified family and domestic violence as a risk issue in 82% of cases.[1]

The purpose of this article is to outline some of the resources and special arrangements available for those who have experienced family violence and are involved in Family Court proceedings. It is not an exhaustive list of resources or arrangements available.

Definition of Family Violence

Under the Family Law Act 1975 (the legislation that applies to married couples in Western Australia), family violence means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, but are not limited to:

  • An assault
  • A sexual assault or other sexually abusive behaviour; or
  • Stalking; or
  • Repeated derogatory taunts; or
  • Intentionally damaging or destroying property; or
  • Intentionally causing death or injury to an animal; or
  • Unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
  • Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
  • Preventing the family member from making or keeping connections with his or her family, friends or culture; or
  • Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

Exemptions from Family Dispute Resolution

The Family Court encourages parties to reach agreement about what is in the best interests of their children, before applying to the Court for orders. To that end, to apply for Family Court orders, generally, parties must attempt Family Dispute Resolution first.

That requirement does not apply where there has been family violence, and parties may proceed with making an application for parenting orders by completing the relevant exemption form.

Special Arrangements for Court Attendance

Usually, during Court proceedings before a judicial officer, both parties are required to be in the same Court room and will usually wait in the same area for their matter to be called. For those who have concerns about their safety, the Court can make special arrangements for their attendance, including:

  • Attending from an offsite location by telephone.
  • Attending from an offsite location by video-link.
  • Attending from an onsite location (in a separate room to the other parties) by video-link.
  • Separate waiting areas inside the Court.
  • Separate entry and exit points from the Court building, or
  • A security escort to and from the entry to the Court building to the Court room.

It is important to provide the Family Court with advance notice of any special requirements, so they have time to process your request.

Cross-Examination Scheme

Most people settle their family court matter without needing a trial.

If a trial is required to determine parenting or financial matters, or both, then provided certain circumstances are met,[2] the Court will not permit one party to cross-examine the other. Instead, any self-represented party would be allocated a legal practitioner to conduct the cross-examination, funded by the Commonwealth Government.

In WA, the funding scheme can presently be accessed by litigants who were married to each other and is run by Legal Aid WA.  On 9 December 2021, the funding scheme will extend to WA litigants who were not married to each other.[3]

Behaviour Change Programs

Where appropriate and in the best interests of the children, the Court has the power to order parties who have perpetrated family violence to enrol in and attend behaviour change programs and parenting courses.

Services Outside of The Court System

Outside of the Family Court system, there are a range of services available for parents and families who have experienced family violence. They include:

You may also be eligible to apply for a Family Violence Restraining Order.

Get in Touch With Our Family Lawyers

If you would like advice in this area please contact Kori O’Meehan at komeehan@bbvlegal.com.au.

Our Family Lawyers in Perth can provide you with information, advice and legal representation on a range of family law issues on a Fixed Fee Price basis.


[1] Family Court of Western Australia Annual Review 2020, at p 13

https://www.familycourt.wa.gov.au/_files/Publications_Reports/FCWA_Annual_Review_2020.pdf

[2] see section 102NA of the Family Law Act 1975 for married couples

[3] See sections 219AJ – 219AL of the Family Court Act 1997. The Family Court Amendment Act (WA) 2021 No 16 of 2021 received Royal Assent on 9 September 2021.  Under Division 3 of that Act, the Commonwealth cross-examination scheme will apply to de facto couples from 9 December 2021 onwards.

 

Voluntary Assisted Dying Implemented In WA

The introduction of voluntary assisted dying legislation in Western Australia was very contentious and divisive. Now that the new legislation is in force, when does it apply and what is the process involved?

On 1 July 2021 the Voluntary Assisted Dying Act 2019 came into effect and eligible West Australians gained access to voluntary assisted dying.

Voluntary assisted dying allows eligible adults to request and access medical assistance to end their life if they are suffering from an advanced, progressive disease, illness or medical condition that is expected to cause death within 6 months (12 months for neurodegenerative diseases). The disease, illness or condition must also cause suffering to the person that cannot be relieved in a manner that the person considers tolerable.

The Process

To initiate the process, a patient must make the first clear and unambiguous request to an eligible medical practitioner for access to voluntary assisted dying.

After the first request is made the patient is assessed by at least two independent and appropriately trained medical practitioners. First, the medical practitioner that accepts the request, referred to as the coordinating practitioner, and if they are satisfied then secondly, the consulting practitioner.

Throughout the process, the patient must make 3 separate clear and unambiguous requests for voluntary assisted dying. The first request mentioned above, a written declaration that is witnessed by two people and can be made after a patient is assessed as eligible, and a final request. The final request can only be made after the end of the designated period (currently a 9-day period beginning on the day that the patient made the first request).

Voluntary

One of the key criteria required to access the voluntary assisted dying process is that it must be voluntary. The person must have the requisite enduring capacity to make the decision for themselves and the decision must be made without coercion.

A person cannot access the voluntary assisted dying process if they have lost their decision-making capacity.

Where possible, every person should carefully consider their treatment wishes while they have decision-making capacity and should ensure that they have valid and up to date estate planning documents, which may include a will, enduring power of attorney, enduring power of guardianship and an advanced health directive, that reflect their current wishes. You may also wish to ensure that your families and health practitioners are aware and informed of your treatment wishes should you become terminally ill, bearing in mind that they cannot access voluntary assisted dying on your behalf.

For legal advice on the voluntary assisted dying legislation, please contact our Wills and Estates team.

Our Wills & Estates Lawyers in Perth provide specialist advice and assistance on a range of estate planning, wills and probate areas on a Fixed Fee Price basis. Our Wills & Estate Lawyers in Perth can help you with understanding, advising and planning:

 Contact BBV Legal to book an appointment today.  Bowen Buchbinder Vilensky has over 25 years of experience providing legal services in Perth.

Estate Planning In a Digital World

There is no disputing the fact that we now live in a digital and technological world. Here’s what you need to know about estate planning in a digital world.

Personal diaries have been replaced by blogs and social media accounts, books replaced by kindles, bank cards replaced by digital wallets and you can now do most of your shopping from the comfort of your own home. There is no escape from the advancement of technology and as time goes on, more and more of our possessions will be digitised.

The question now is: what happens to these digital assets when you die and how can they be transferred to another person?

What Are Digital Assets?

In simple terms, a digital asset is anything that is stored digitally. Digital assets may include emails, photographs, blogs, websites, electronic documents, cryptocurrency, and content uploaded to social media accounts. Some digital assets may only have sentimental value, whereas others may have significant monetary value. In some circumstances, it may not even be a digital asset at all but rather a licence to use a service.

What Happens to These Digital Assets on Your Death?

At present, access to a person’s digital assets is largely determined by contract and user agreements. For example, some social media platforms will deactivate an account after no access for a certain period. Others may provide the option for an account to be memorialised.

There are currently no laws in Australia that expressly outline what happens to a person’s digital assets on their death. Ultimately, this is entirely dependent on the provider concerned and the user agreement in place which often sets out what is to happen to the digital asset after death.

It is important to note that some digital assets such as cryptocurrency do require prior planning on behalf of the deceased for access to those assets to be granted after death. Cryptocurrencies often rely on access keys or passwords to access the wallet and trading platform, with no alternative access methods generally being available.

How Can I Ensure My Digital Assets Are Transferred to My Loved Ones After My Death?

There are several issues that need to be considered when providing instructions in relation to your digital assets. We recommend that your digital assets be considered as part of your overall estate plan.

To assist your executor and loved ones, you should make a list of your digital assets and consider what you would like to happen with those assets after your death. It is critical for your executor to be able to easily identify and access your digital assets. You may even wish to consider maintaining a register (hard copy or digital) of your digital profile, the services used, and your usernames and passwords used to access such accounts.

Now more than ever, people need to be aware of their available options when considering their estate planning. This certainly now also extends to options regarding digital assets.

Contact our estate planning team today to discuss your options further and receive advice tailored to your particular circumstances.

The Bank of Mum and Dad Needs A Paper Trail

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The Australian Financial Review recently reported (8-9 May 2021) that parents are now among the nations’ top 10 lenders for home loans with data showing more than 60% of first home buyers are receiving assistance from their parents to purchase their first home.

Unsurprisingly with the world in the middle of a pandemic and the economy in recession, now more than ever, children are turning to their parents for financial assistance. It is incredibly important that prior to parents providing financial assistance to children, parents must first be clear on whether the assistance is to take the form of a gift or loan.

The distinction between the financial assistance provided being a gift or loan becomes incredibly important in the following scenarios:

  • the child’s relationship breaks down and their spouse alleges that the financial assistance was a gift rather than a loan;
  • the parents pass away and their Executor is left to determine whether or not the financial assistance is to be repaid to the Estate;
  • a sibling makes a claim for further provision from the parents’ Estate on the basis that the child has already received financial assistance during their lifetime;
  • the child becomes bankrupt and the trustee in bankruptcy classes the financial assistance as an asset as opposed to a liability;
  • the relationship between the parents and child breaks down;
  • the parents are receiving a Centrelink pension which may be affected by providing the financial assistance to the child.

In the above scenarios, it is generally the parents or their Executor who bear the onus of proving that the financial assistance was a loan rather than a gift. Often the only written evidence available is the bank transfer, with the only other evidence being verbal communications resulting in a “he said, she said” argument.

Disputes of this nature can so easily be avoided by first consulting with a Solicitor to create a paper trail and have a properly prepared and executed loan agreement in place.

If you or someone you know of are considering providing financial assistance to a child or any other person, please contact our office to make an appointment to meet with one of our experienced Solicitors. We are also able to advise on any existing arrangements that have not yet been documented. 

Family Law: Lawyers and the Bank of Mum and Dad

laywer with couple and paperwork grant of probate

Why is it important to know about Lawyers & the Bank of Mum and Dad? The Australian Financial Review reported (8-9 May 2021) that parents are now among the nations’ top 10 lenders for home loans.  Remarkably, data shows more than 60% of first home buyers are getting assistance from their parents to get into their first home.

How should the families concerned, mum and dad and their adult child and possibly their child’s partner, document such financial assistance?

Binding Financial Agreement (BFA)

What about a Binding Financial Agreement (BFA) for the happy couple, each requiring their own separate lawyer for advice? Another newspaper (The Australian) the same weekend carried comment from family lawyers recommending BFAs where there are Mum and Dad loans.   

A BFA might provide that in the event of a separation of the couple, the loan from Mum and Dad be repaid, or not, and by whom, but is a BFA is the right solution?    

Remarkably, no one knows how successful BFAs are for most couples.  There is no record of the numbers of BFAs done in Australia. The University of Sydney (UTS) has in April 2021 Family Law Section Newsletter invited lawyers to take part in a project involving academics from several universities to gather data and report about BFAs.   

In the 20 plus years since BFAs were first permitted there has been significant litigation between the couples to the BFA and sometimes including their lawyers, that ironically BFAs are intended to prevent.    

A more immediate solution could be a formal contract between the Bank of Mum and Dad and their adult child and possibly their child’s partner, as to the terms of the loan.  Some of the loans will be ‘gifts’ and/or required to be gifted as part of the deposit requirements for the primary housing loan, so what happens then? On any basis, financial planning and legal advice should be considered by all parties.  

Our Family Law team at Bowen Buchbinder Vilensky has the skills to assist our clients to negotiate this complex system and navigate through Lawyers & the Bank of Mum and Dad. 

To book an initial consultation with one of our experienced family lawyers, please get in touch. Alternatively, to get started online now, visit the BBV Legal Online System where you can enter your relationship details and receive information that is free, instant, personalised and helpful.

Family Law: A Complex And Private Legal System

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In Australia all separating couples, are subject to a family law system that is both “bifurcated” and private. 

We can read about Angelina Jolie and Brad Pitt’s divorce and separation process in the media, and learn that in California Angelina and Brad are subject to a “bifurcated” legal system. But you will not usually learn details about local celebrities’ divorce settlements.

The fact of a separation or divorce and general details can be published but that is because it is not about family court litigation or “proceedings”.  

Section 121 of the Australian Family Law Act makes it an offence to publish details of separating couples’ court cases.    

Sometimes when media outlets have sought permission, the Court grants leave for the publication of details concerning a case, or the Court itself directs publication when pseudonyms rather than the real names of the parties are used.  On other occasions, real names are necessary, for example, if there is a missing child.

The embargo on publication means not only can details about a family law case NOT be published in the media but also NOT on social media. 

A bifurcated divorce in California means “they are legally divorced, but are yet to decide on child custody and financial arrangements”.

In Australia, the Family Law Act provides that a person can apply to the court (or negotiate a settlement without going to court) as soon as they separate, but can only apply for a divorce after 12 months has run.

That is how a bifurcated system operates, where the processes are separated into separate branches or parts.  In Australia there are three parts to the system, including a separate child support system.

Services Australia Child Support decides financial obligations for children after separation, separately from Family Court property settlement and spousal maintenance.  Spousal maintenance (rarely used in the 21st Century) is usually resolved at the same time as property settlement. Spousal maintenance can be obtained and very rarely, after property settlement.

Divorce (the right to remarry without committing bigamy) often follows later, after the hard work of financial settlement and arrangements for the children has been done. 

This complicated system is private, to protect the individuals and families involved. 

People can take steps and make decisions or seek legal process to assist them, using those parts of the system that they need at that time.  But there are pitfalls that require experience and expertise in family law to negotiate.

The confidentiality of the system means that general public knowledge of family law in Australia is limited, scattered and often ill informed.

Our team at Bowen Buchbinder Vilensky has the skills to assist our clients to negotiate this complex system as best suits them.