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You can run but you can’t hide...

If I just keep avoiding this problem it will go away, right? WRONG.

 We see all too often people avoiding their problems and hoping they will just go away. Unfortunately, they don’t.

 It is common after a relationship breakdown for one party to “just want this resolved” and the other to drag their feet and try to avoid the issue of separation. It is human nature really. Especially when the break up is messy and complicated. It can be overwhelming and the thought of talking about how to separate finances is daunting and very final.

 But sometimes we have to deal with issues we don’t want to, talk about matters which are unpleasant and uncomfortable and most of all, we need to learn to let go (because who wouldn’t want to get on with life and be happier?)

 So, what happens when one party just won’t co-operate. Is all lost? Is it over? No, it is far from over. The Family Court of Western Australia has powers to make orders, with or without you.

 It is a well-known tactic of spouses – fail to engage in the process, increase the other parties costs and eventually they will give up. Whilst sometimes this happens, it is rare. The fighter in us all will dig their heels in and fight ‘til the end and generally they will be successful.

 If the Family Court of Western Australia is satisfied you have done your best efforts to serve the other party and they are choosing not to engage in the process then they will make orders in their absence and they will, if convinced make a costs order (that is an order for the other party to pay your legal costs).

 Therefore, if you are the party trying to hide you may find you are ordered to pay your spouses costs, you may have your house sold without your consent and you may have passports issued for your children without the need for your signature. But that is unfair I hear you say – well, too bad! You should have engaged in the process and let your voice be heard.

 Ok so the last part is harsh, but it is reality (remember, I don’t sugar coat the law!). The Family Court of Western Australia is made for parties to represent themselves. Superstar lawyers like the team at Mandurah Legal can provide you advice on the Court procedure and what to expect so you can save the expense of having us there but get an idea of what to expect. There is no excuse.

 Kerstin Stringer - LLB, BCrimnlgy&Just, GDLP, LLM (Applied Law)

Boss lady, lawyer, realist.  

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Marriage - It’s Super!

Did you know?

In Western Australia, in the breakdown of a de facto relationship, superannuation cannot be ‘split’ the way it can in the breakdown of a marriage.

 Why Marry?

 I won’t pretend people get married so if they divorce they can access their husband or wife’s superannuation. There are many reasons people choose to marry, not least of all- love (Cynical lawyer alert!). However, I believe people should be able to make an informed decision and the reality is, if you choose not to marry, your spouse’s superannuation will be locked away in a property settlement.

It is critical to note this is general discussion and if you need legal advice it will be targeted to your circumstances. However, generally, in a property settlement any assets including real property (houses); bank accounts; shares; motor vehicles; and businesses belonging to both or either of the parties, as well as liabilities including mortgages; personal loans; and credit card debts form what we label ‘the asset pool’. This asset pool is then divided between the parties, not necessarily equally, but to achieve a just and equitable outcome according to Family Law.

In the breakdown of a marriage, superannuation forms part of this asset pool. In the breakdown of a de facto relationship, superannuation which has not yet vested sits outside the asset pool. It cannot be divided by an Order of the Court. It is not ’splittable’.  

This fact is particularly poignant in the context of the recent Marriage Equality plebiscite. Prior to the Yes result, because same sex couples could not marry, they were not able to make this informed choice- they could only be in de facto relationships. They had no choice as to whether they could access one another’s superannuation in the event their relationship breaks down.

Consider this common scenario: a man and woman have been in a relationship for twenty years. They never married. They have three children. The man has always worked and had a good income and correspondingly, he has a good superannuation. The woman worked at the start of the relationship and had a promising career. When the children came along, they made a decision together for the woman to give up work and stay home with the children. They consider they have contributed equally to the relationship, although in different ways. Now they have separated. There isn’t much in the asset pool to divide; a car each, limited savings and a small amount of equity in the family home. But the man has $150,000 more in superannuation than the wife- and this cannot be divided between the parties in a property settlement. He keeps it all. Does this seem just and equitable?

This is not to say superannuation is irrelevant and is disregarded from consideration by the parties or by the Court. The superannuation is a financial resource. It may be the case the party without the financial resource of superannuation is awarded a greater share of asset pool which is capable of being divided; cash or equity or proceeds from the sale of property, for example. The problem is, as in the example above, there may not be much in the asset pool to divide in order to give the party without the superannuation a greater share.

This reason behind this is marriages fall under the Family Law Act 1975 (Cth), a Commonwealth Act. Per the provisions of this Act, superannuation can be divided in a property settlement. In Western Australia, de facto relationships fall under the Family Court Act 1997 (WA). This Act has very similar provisions to the Commonwealth Act for most of the Family Law, but not for superannuation. We are unique in Western Australia.

There have been murmurings for some time about changing this unique situation in Western Australia to reflect the rest of Australia and make superannuation part of the asset pool in de facto property settlements. Lately, these murmurings have become out and out discussions. It may be we see change in the near future, and this has the potential to impact many people currently in de facto relationships and currently in the process of a breakdown of de facto relationships.

In the meantime, at Mandurah Legal, we can assist in so many ways. We can provide advice to people in a de facto relationship contemplating marriage. We can meet with people considering separating from their de facto partner to consider their options. We can advise people on both sides of this issue; those seeking to access superannuation and those seeking to preserve it. Come and see us for our obligation-free initial consultation.

Khie Gregory - Lawyer

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The key to the Court

Being in a de facto relationship for two years ‘opens the door’ to the Family Court of Western Australia for Court orders as to property in the event of a relationship breakdown, but it is not the only ‘key’ to open the door.

 If you remember my last blog, I discussed what it meant to be in a de facto relationship and I ended with, ‘However, simply being in a de facto relationship may not be sufficient to awaken the jurisdiction of the Family Court of Western Australia. There is another hurdle to surpass if you seek property orders from your de facto relationship. I look forward to giving you the rundown on this in my next blog!’.

 So, let’s talk about Jurisdiction (we keep our promises!)

 At Mandurah Legal we do use some legal jargon- it is part of our language as lawyers. Lawyers even use words which only make sense in the law (ever heard of unforeseeability?). But we will always explain what is meant by the jargon. We won’t leave you out of the loop. After all, knowledge is power. Our advice will come to you in ‘Plain English’- you won’t need a legal dictionary to read or understand it!

 Jurisdiction is essentially the circumstances in which the Family Court of Western Australia (which I will call the FCWA) has the power to make rulings, or Court Orders.

 To enliven the jurisdiction of the FCWA (for the FCWA to have the power to make Orders) you must have at least one of three circumstances.

 Firstly, a de facto relationship between the parties for at least two years.

 Or, if there is a child (under 18 years) of the de facto relationship and failure to make Court Orders would result in serious injustice to the party caring for or responsible for the child.

 Finally, if there have been substantial contributions made by the party seeking Court Orders and failure to make Court Orders would result in serious injustice to this party.

 In addition to one of these circumstances, at least one of the parties must also be resident in Western Australia when the application to the Court is made AND for at least one third of the relationship the parties must have been resident in WA, OR substantial contributions must have been made in WA.

 Essentially the Court is looking for a connection between the de facto relationship and Western Australia.

 What constitutes substantial contributions? Broadly, these are financial or non-financial contributions to the acquisition, conservation or improvement of property and contributions as a parent and/or homemaker. For a better understanding of this, as relevant to your circumstances, come and see us.

 If you are married and separated and are seeking property orders, the Court automatically has jurisdiction. It may seem like an unfair difference, but to me it seems as though the Court considers it important for both parties to have a level of commitment to a shared pool of assets of the relationship in order for the Court to make orders to divide this asset pool between the parties. It would seem either taking the step to get married or one of the three above circumstances demonstrates this to the Court.

 Both married people and de factos must be aware of the jurisdictional time limits. The Court requires filing for Orders within a certain time period; whether seeking orders by consent of the parties (where the parties have reached an agreement and are seeking the Court’s approval) or whether seeking orders to be decided by the Court. Married people have one year from the date their divorce becomes final. De factos have two years from the date of separation. Advice is recommended to clarify what these dates are in your circumstances.

 Outside of these periods you need permission from the Court, which we call ‘leave’, in order to apply. The Court has discretion to grant leave if the party seeking the permission can show hardship would be caused. However, any time the Court has discretion, the outcome is uncertain, and therefore you should be mindful of these time periods.

 We recommend getting legal advice as soon as possible after (or before) separation. We can give you some practical tips as well as legal advice to assist you in this new stage of your life. We care about assisting you in this difficult time.  

 Jurisdiction can be an easy hurdle to overcome on your way to the Court, but sometimes it can be a tricky issue you don’t want to get wrong. Come and chat with us about the keys to the door to the FCWA!

Khie Gregory - Solicitor

Mandurah Legal

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How does a Court decide where a child will live

“Best interest of the child”

This is an overused legal term which is not defined by the Family Law Act. Let’s be real – how do you define what is in the best interest of a child. Have you ever met two children whom were the same? It is impossible.

When the Court is deciding where the child(ren) are going to live and who they are going to spend time with it must consider the best interest of the child. Clients always ask me “How does the Magistrate even know what is best for my child?”. My answer is simple – they rely on the evidence before the Court and use the legislation to guide them (typical lawyer response).

So how do you consider the best interest of a child you have not met?

Well the Legislation provides matters which must be considered when determining the best interest of a child.

The two primary considerations the Court must consider are:

The benefits of the child of having a meaningful relationship with both of the child’s parents; and

The need to protect the child from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence.

These are the matters which must be at the forefront of the Magistrate’s mind. They are the overarching considerations. Did you notice they are not gender bias? (shock, I know!)

The reason these are primary considerations is because they are at the heart of the objects and principles which ensure the best interest of the children are met. What are the objects I hear you say…here they are:

·         Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and

·         Protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse neglect or family violence; and

·         Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·         Ensuring the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

(Notice all the AND’s – all of these points create the objects. It isn’t a ‘pick and choose’ which suit exercise)

And the principles underlying those objects? Well they are a little warmer and fuzzier:

·         Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

·         Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both of their parents and other people significant to their care, welfare and development (ie grandparents and other relatives); and

·         Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·         Parent should agree about the future parenting of their children; and

·         Children have a right to enjoy their culture. (Note: Aboriginal and Torres Strait Islander children have a right to enjoy their culture which includes maintaining a connection with culture and to have the support, opportunity and encouragement necessary.

Remember, this is a Family Court – Family being the key word. We are dealing with humans, real people, real lives, children of all ages.  

Is that all the Court considers? NO – these are just the principals, objects and primary considerations. There are a lot more considerations the Court must think about (which I will cover in a future blog).

If you take anything from this blog I want it to be this: Children’s matters are not straight forward. Just because you are a parent does not mean the Court will afford you the time you want with your child (Sounds harsh - I don’t sugar coat). If parents cannot agree at mediation what is in the best interest of their children then the Court will assist by taking into consideration all of the things I have discussed and more.

If you need some guidance about child related matters, contact our office for some honest (frank), realistic (not sugar coated) and easy to understand (plain English) advice.

Kerstin Stringer

Principal Solicitor (Boss Lady)

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Will you or won't you...

Around half of Australian’s do not have a will.

If you die without a will (intestate) your estate is distributed to the inflexible formula of the Administration Act 1903 (WA) (“the Act”). Do you know what this means for you.

Simply put, you do not decide how your estate is distributed. The Act sets out a strict formula for how your estate is to be distributed.

For example, a 55 year old male dies without a will. He owns two properties in his sole name, is currently single, separated from his wife for the last five years, and has two children aged 25 and 30 years of age. He is still married. He also has superannuation benefits, shares and cash in the bank.  What will happen to his estate?

We will assume he has a binding death nomination in place so let’s put the super aside for this case study. We will be dealing with this and what it means in an upcoming blog on superannuation and succession planning.

The estate is worth around $950,000.00. His wife will receive $350,000.00 of the estate, with his children receiving $300,000.00 each. His wife will also receive all his household chattels. It does not matter that he and his wife are separated and have been for some time, they are still legally married and the Act applies.

It is important to note, even if he was still with his wife, these same provisions apply, with the children to receive almost two thirds of the estate. Such a situation could see the matrimonial home and investment property sold to effect the gifts to the children, leaving the wife without a home.

The downside is, your estate is not being distributed in accordance with your wishes. The rules are one size fits all and do not take into consideration what you intended for your estate or what suits your circumstances.

If you do not have a valid will, it’s potentially an unavoidable scenario. There are circumstances where this could be overcome where the family agree on the distribution of the estate, there is potential for them to enter a “Deed of Family Arrangement”. This in itself presents hurdles which we will explore in depth in our succession blog series.

It is important to give consideration to what you would like to happen to your estate, after all it should be up to you. It is unlikely you would be satisfied if it was disbursed according to the formula of the Act.

How can you avoid being subjected to the Act? Prepare a valid will. If you are not sure where to start, telephone our office on 08 9520 8020 and we can get you on your way to meaningful succession planning.

In the mean time, stay up to date with our blog to learn more about Mandurah Legal, Succession Planning, Family Law and everything else in between.

Michelle Todd - Solicitor

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De Facto Relationships: ‘Marriage-like’ Relationships

Did you know?

Contrary to what appears to be a widely held belief in the community, you do not need to live together to be in a de facto relationship according to the law in Australia.

Whilst the Family Court Act 1997 (WA) is the go-to legislation for de facto relationships in Western Australia we actually turn to another piece of legislation to define de facto relationships.

The Interpretation Act 1984 (WA) effectively defines a de facto relationship as, ‘a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship’. The important part is the ‘marriage-like’ aspect.

 The Interpretation Act makes it clear it is irrelevant if the parties to a de facto relationship are of the same sex. Therefore, homosexual de facto relationships are not treated differently in Western Australia to de facto heterosexual relationships (however, all de facto relationships are treated differently to marriages in Western Australia- I will visit this in a later blog).

 It is also irrelevant if one or both parties are already married to other people. So yes, it is possible to be married and in a de facto relationship at the same time and therefore you may need two property settlements from simultaneous relationships. Mandurah Legal is happy to assist you if you find yourself in this situation!

So what is relevant? The Interpretation Act lists a variety of factors which are not essential, but are indicators of a de facto relationship.

It is relevant if you reside together and the nature and extent of common residence. However, this, as with any factor, is not essential, hence my “Did you know?” above.

Other relevant factors include the length of relationship; whether there is, or has been a sexual relationship; the degree of financial dependence or interdependence; the ownership, use and acquisition of property; whether you care for and support children; and the reputation and public aspects of the relationship (ie. Holding yourselves out as a couple).

 The remaining factor is, ‘the degree of mutual commitment by them to a shared life’. I believe herein lies the policy behind this definition of a de facto relationship. Because if both parties in a relationship make a decision together (whether an active or passive decision) for one party to work and provide financially whilst the other party makes a non-financial contribution as a homemaker and primary carer of the children, both parties need to share in the asset pool they built together with their different types of contributions, in the event of the breakdown of the relationship.

If you wish to quarantine your assets when entering into a relationship, you should seek legal advice, as it is not as easy as you may think.

However, simply being in a de facto relationship may not be sufficient to awaken the jurisdiction of the Family Court of Western Australia. There is another hurdle to surpass if you seek property orders from your de facto relationship. I look forward to giving you the rundown on this in my next blog!

Khie Gregory - Solicitor Mandurah Legal

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I have spent the evening discussing children’s matters and the Family Court with a group of local Dad’s.

The passion in the group was overwhelming. This informal Q & A session was the first and hopefully not the last. These men provided important feedback to me, as a lawyer, as to what has caused them the most heartache and pain and how they feel that the system can be improved.

To speak to a group of men at different stages of children matters is rare. At first I thought they were challenging me but I soon realised they were passionate and infuriated with their personal matters and they needed someone to listen. And that is what I did. I took in everything they said, the raw real emotions they were sharing and provided them with some assistance and knowledge.

It has really re-ignited my passion for social justice and shown me the importance of sitting down with a group of individuals who are trying to understand a system that has become second nature to me. Thank you to Relationships Australia Mandurah for having me. They run fantastic programs and it was beautiful to see this one in action in my community.

If you’re a local Dad looking for a support group follow the link - I hear they make great burgers!

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I have spent the evening discussing children's matters and the Family Court with a group of local Dad's.

The passion in the group was overwhelming. This informal Q & A session was the first and hopefully not the last. These men provided important feedback to me, as a lawyer, as to what has caused them the most heartache and pain and how they feel that the system can be improved.

To speak to a group of men at different stages of children matters is rare. At first I thought they were challenging me but I soon realised they were passionate and infuriated with their personal matters and they needed someone to listen. And that is what I did. I took in everything they said, the raw real emotions they were sharing and provided them with some assistance and knowledge.

It has really re-ignited my passion for social justice and shown me the importance of sitting down with a group of individuals who are trying to understand a system that has become second nature to me. Thank you to Relationships Australia Mandurah for having me. They run fantastic programs and it was beautiful to see this one in action in my community.

If you're a local Dad looking for a support group follow the link - I hear they make great burgers!

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I can help YOU but are you ready to help YOU?

I am a lawyer so it is normal course that a client walks into my office with an issue they need to work through to reach a solution.

Usually I can provide them with advice to assist them to reach that solution. However lawyers don’t have magic wands (I wish we did!). We can only do as much as our client instruct us to do.

So what happens when a client doesn’t provide instructions or simply just wants it sorted without their involvement? Well it creates a difficult situation!

I am always willing and ready to assist my clients however they have to be ready and willing to assist themselves, after all it is their life.

I can provide you with legal advice, refer you to local services such as mortgage brokers, financial planners, counsellors, doctors etc however the only person who can make decisions and provide instructions as to how to proceed with a matter is the client.

So are you ready to help YOU? I am!

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But the Court gave my friend...

It is a common story I hear "But the Court gave my friend....". Whether it be a property or a child related matter through the Family Court it is likely that someone else has had a similar case and they have opinions and views on the Court and what your likely outcome will be. I get client's regularly tell me about their friend who received share care or they received 60 per cent of the asset pool or some other story and the client wants the same. It is probably true that the friend received all of those things but what isn't told is the background story. Who contributed to the relationship, what are the future needs of the parties, what is the status quo, are there any risk factors that need to be considered. Reality is that the client's background story may be very different to that of their friend. It is important that you obtain independent legal advice that is relevant to your matter. When dealing with the Family Court the matter is personal. It is your money, your children and your life - get advice suited to YOU.

Contact us on 9520 8020 to make an $100 no obligation appointment to discuss YOUR matter.

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Will a will kit do?

This weekend I saw a post on facebook which included a picture of a will kit. Now my lovely friend knows that I will draft her will, in fact we have discussed it before however she is off on holidays for a week and thought a will kit was a sufficient quick fix. 

This happens a lot - someone is heading off on a holiday and the day before they think "what if something happens to me". Instead of calling a solicitor they head to the newsagent for a DIY will kit.

 Will kits are ok and I use the term 'ok' loosely. If you have a dog and $500 in your bank account then it is fair to say a will kit will do the job. However if you have a house, bank accounts, superannuation, life insurance, motor bikes, boats, caravans and cars then things get a bit more complicated and a will kit will not suffice.

For $200 you can save yourself, your family and your estate a lot of time, money and heartache. Contact us on 9520 8020 to discuss drafting your will (preferably a few weeks before holidays however if you are desperate we will do our best to accommodate your needs!).  

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This week is DonateLife week.

Did you know in 2013 there were 391 deceased organ donors and from those 391 people 1,122 lives were transformed! Amazing, but is it enough?

Around only 1 per cent of deaths in hospital are in the specific circumstances where organ donation is possible. Therefore there is only a slim chance that a person can be an organ donor but when they are, lives are changed.

Personally, this is a matter close to my heart. My late mother was an avid blood donor throughout her life and a vocal advocate for organ donation. She was one of the few people whose death was such that her organs could be donated. Whilst our family grieved another five families rejoiced as their loved ones were given a fresh start in life.  

Organ donation is important - have you signed on to save lives? Visit www.donatelife.gov.au to find out more information.

*Statistics from Organ and Tissue Authority's 2013-2014 Annual Report

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Featured in the Mandurah Coastal Times

I received a great write up in the local Mandurah Coastal Times and super excited to share it: Here’s the pic by Jon Hewson and the article:

KERSTIN Stringer has realised her life-long dream of opening her own legal firm in Mandurah at just 25 years of age.

She recently opened Mandurah Legal and is proof anything is possible, if you set goals and work hard.

“I always wanted to be a lawyer,” she said. “From a young age I decided that it is what I wanted to do and I did everything I could to achieve my dream.”

Mrs Stringer said she was just a local Mandurah girl.

“I was Head Girl of Assumption Catholic Primary School, chairperson of the student executive at Mandurah Senior College (2006), and won the Law award at Mandurah Senior College (2005),” she said. “I am currently further educating myself by doing my Masters of Applied Law - Family Law.”

As well as studying, Mrs Stringer is also a wife and mother.

Despite her achievements, Mrs Stringer is the first to admit it was not all smooth sailing.

“I come from a working-class family and was the first to make it past Year 10 in my family,” she said.

“My parents worked hard and have instilled good values and morals in me.

“I tragically lost my mother when I was 18 months old. It was a shock to our family and I saw the impact that it had on my father and how he struggled to understand the legal processes that follow from the passing of a loved one.

“This inspired me to ensure that in my practice as a lawyer, I would always keep my client well informed and explain to them the process and procedures to ensure they understand and are at ease. I pride myself on being a personable lawyer.”

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Wills

Wills are important documents that every Australian should have however the majority of people do not have a will. Why? Well the reasons vary but usually people don’t want to discuss death or they simply think “I am young and don’t need one”. Whilst those reasons are valid it we stress to you the importance of having a will, whatever your age.  

The purpose of a will is to specify how you wish your estate to be distributed upon your passing. In your will you can specify, amongst other things, who your beneficiaries are, who you wish to administer your estate and how you wish for your body to disposed.

Without a will your estate will be distributed pursuant to law. A lot of people are surprised to learn that the rules of intestacy are not what they think they are.

Justice Kirby noted The freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with one's own property. As one can be in one's lifetime so, by law, a testator can be at death.

This highlights that a will allows you the freedom to decide how your hard earned assets are divided amongst your family, friend or favourite charity.

At Mandurah Legal we offer a convenient service to have your will drafted and signed off on. Simply send us an email and we will forward to you a will instruction sheet to complete. Upon receiving your instructions we will make you an appointment to come in to our office to discuss your will and sign it during that appointment. We offer after hours and weekend appointments to accommodate our clients need.