Blog post by Sam Lehman
Summer is around the corner and with it comes school holidays, Christmas, New Year and a deluge of last-minute court applications for parenting orders.
That’s right, it’s that time of year again—the time when the Family Court and Federal Circuit Court brace for an influx of family law applications relating to the summer school holiday period.
Whether it’s parents debating who gets the kids for Christmas or New Year’s Eve, or even who gets to take the kids for a holiday, too often parties leave it too late to seek court orders if these arrangements haven’t otherwise been agreed well in advance.
Fastest finger first
The problem is that the courts simply cannot cope with all matters in a timely manner.
It’s a well-known issue, but what most people don’t realise is that the court rules require that any application for parenting orders regarding the care arrangements of children relating to the December-January summer school holiday period must be filed before 4.00pm on the second Friday in November of the application year.
Non-urgent applications filed after the deadline will be allocated a court hearing in the usual way but the courts cannot guarantee that such applications will be dealt with before Christmas. Indeed, the fact that an application relates to the summer school holiday period will not in itself justify a hearing before Christmas—it could be after Christmas, and possibly significantly later.
Don’t be late
Applications filed before the deadline aren’t guaranteed to get an early listing either—but the chances will be substantially improved.
If you haven’t yet agreed on contact and parenting arrangements for the summer school holiday period, now is the time to seriously consider whether you need to file an application in the Family Court or Federal Circuit Court.
This year, the deadline falls on Friday the 13th of November—an unlucky date for some. Don’t let it be unlucky for you.
Our local, Adelaide-based team at Culshaw Miller Lawyers can help you file your application to maximise your prospects of securing the results you want, when you need them.
Start your application today
The post Seeking Parenting Orders For The Summer School Holidays appeared first on Culshaw Miller Lawyers.

Blog post by Kate Bishop
The South Australian Surrogacy Act 2019 (SA) (“the new Act”) and its Regulations (2020) were introduced on 1 September 2020.
The new Act repeals the previous laws found in Part 2B of the Family Relationships Act 1975 (SA). The new Act continues to outlaw commercial surrogacy and regulates access to non-commercial surrogacy in South Australia.
The new Act extends accessibility to allow the Intending Parents (no longer known as the “Commissioning Parents”) to single people. The previous requirement that one member of the intending parents must provide genetic material for the production of an embryo has been removed.
The previous requirement for both Intending parents to be domiciled in South Australia, and for the fertility treatment to take place in SA has also been removed; the new Act allows for cross-jurisdictional fertility treatments, for one intending parent to be domiciled in SA, and for lawyers in other jurisdictions to fulfil the function of providing advice and signing the lawyer’s certificate.
Additions to the new Act include the following:

The surrogate mother must be at least 25 years of age (increased from 18 years of age);
The surrogate mother must provide the Intended Parents with a criminal history report provided by SAPOL;
The surrogate mother must not have impaired decision making capacity;
The surrogate mother must be an Australian citizen, or a permanent resident of Australia;
The surrogate mother must not be pregnant prior to entering into the written surrogacy agreement; and
The identity of any donor of genetic material must be presented to the Youth Court at the time of the application for Parentage Orders.

Of difference to the Family Relationships Act, is that the new Act now identifies three surrogacy principles:

That the best interest of the child must be the paramount consideration;
The acknowledgement of the human rights of all parties to a lawful surrogacy agreement including any child born as a result of the Agreement are to be respected; and
The surrogate mother under a lawful surrogacy agreement should not be financially disadvantaged as a result of her involvement in the lawful Surrogacy Agreement.

Please contact our Kate Bishop for any enquiries regarding surrogacy in South Australia.
The post New Surrogacy Laws In South Australia appeared first on Culshaw Miller Lawyers.

Blog post by Candice Scott
Studies estimate that around 40% of Australians may not have a Will.[1]
During these times of uncertainty, understanding how your assets will be dealt with if you cannot make decisions for yourself, or if you die, is vital to protect your family and loved ones.
We Australians are living longer as a population, and we should all have plans in place allowing someone we trust to step in and look after our affairs in the event that we suffer some kind of illness or incapacity.
The consequences of failing to consider and plan for what happens if you are incapacitated or if you die, can be devastating for families and can create unnecessary stress as well as legal and administrative costs.
We can help you prepare:

an Enduring Power of Attorney in which you appoint trusted people to look after your legal affairs if you are incapacitated for some reason;
an Advance Care Directive in which you appoint trusted people to look after your wellbeing and health care if you are incapacitated;
a Will which deals with your assets and debts if you pass away. A Will is the best way to ensure the people you nominate benefit from your estate. If you don’t have a Will, State legislation applies and your estate might not be distributed in accordance with your wishes.

If your circumstances change you should always review these documents to make sure they are still applicable.
Call Candice Scott from our Adelaide office to discuss whether you need any of these documents in place.
[1] Families and generational asset transfers: Making and challenging wills in contemporary Australia, a joint project between The University of Queensland (UQ), Queensland University of Technology (QUT) and Victoria University (VU), 2015.
The post Do I Really Need A Will? (Or Any Other Estate Planning Documents?) appeared first on Culshaw Miller Lawyers.

Blog post by Jeremy Gitsham
Child support is often a contentious issue after a relationship breakdown, and while some parents seek to abscond from their obligations, the legislation provides that parents have a duty to maintain their children. This duty has priority over all commitments of the parent other than those of supporting themselves or any other child they are obliged to maintain.
When formalising child support arrangements, parties can consider:

an assessment by the Child Support Agency;
a binding or limited child support agreement registered with the Child Support Agency; or
a private agreement.

While binding or limited child support agreements and private agreements can include specific clauses accounting for the payment of non-periodic expenses (e.g. education, co-curricular and medical expenses), an assessment by the Child Support Agency is instead for periodic payments of child support only (e.g. weekly, fortnightly, monthly or yearly payments calculated by the Child Support Agency on their criteria).
In the case of an assessment however, any payments over and above the periodic amount that has been assessed can be treated as ‘non-agency payments’ should the parties agree.
What is a non-agency payment?
A non-agency payment is one of the following types of payment:

a payment made directly to a payee of a child support liability;
a payment to a third party in discharge of a debt owed by the payee or payer of the child support liability; or
a non-cash transaction, such as a transfer of property or the provision of services, taken to be an amount paid under the child support liability.

Non-agency payments can usually be credited towards child support if both parties agree for this occur, in which case both parties should notify the Child Support Agency of such agreement.
Prescribed payments
In the event the parties do not agree for a non-agency payment to be credited, the Child Support Agency can still credit certain ‘non-agency prescribed payments’ towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made.
The prescribed payments can generally be applied towards a child support liability (to a maximum of 30% of the liability), provided that:

the balance of child support is paid as it becomes due and payable;
the payer has less than 14% care of all of the children to whom the relevant child support assessment relates at the time the credit is being applied; and
the child support liability is not already being met by a lump sum credit.

Prescribed payments include:

child care costs for the child who is the subject of the child support liability;
fees charged by a school or preschool for that child;
amounts payable for uniforms and books required by a school or preschool for that child;
fees for essential medical and dental services for that child;
the payee’s share of amounts payable for the payee’s home; and
costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

Contact our family lawyers at Culshaw Miller Lawyers in Adelaide today for more information.
The post What Are Non-Agency & Prescribed Child Support Payments? appeared first on Culshaw Miller Lawyers.

Blog post by Sam Lehman
Too often, parties to family law disputes will leave it too late to seek legal advice as to where they stand. Stigma abounds, as many believe if you’re seeing a family lawyer then you’re on a one-way ticket to court.
This is often far from the truth.
Seeing a family lawyer early can be your best defence against ending up in a court—much in the same way as seeing a doctor early can be the best way to avoid ending up on an operating table.
If you’re experiencing or have experienced a relationship breakdown or separation, or are considering separating sometime in the foreseeable future, it’s a good idea to seek family law advice as soon as possible so you know where you stand at this most crucial crossroad.
You may not need ongoing legal representation, but a one-off consultation can arm you with practical advice as to your entitlements, risks and options which you can act on yourself to move forward.
A good family lawyer should also be able to assist you with coming up with an action plan, so you can better chart your course and navigate your separation—whether related to divorce, property division, parenting arrangements, child support, maintenance or otherwise.
At Culshaw Miller Lawyers, our family lawyers meet with our clients for initial consultations of about one hour or more, and provide realistic, practical and cost-sensitive advice so that our clients walk away with both eyes open and no longer ‘flying blind’.
This is especially important for parties intending to mediate or progress private negotiations, as it ensures our clients are having those discussions from an informed position and not doing anything that may end up coming back to haunt them later on (especially if things do end up progressing to court).
The message is clear: don’t wait until it’s too late to seek legal advice. Indeed, failing to seek appropriate advice early can be a very costly mistake longer-term.
Contact Culshaw Miller Lawyers today to chat with one of our family lawyers and book an initial consultation to start planning for your life after separation.
The post When Should I See A Family Lawyer? appeared first on Culshaw Miller Lawyers.

You can still make your Will social distancing!   The onset of the COVID-19 crisis has changed many aspects of daily life and that change has happened quickly.   There are some things that remain the same.   The laws in relation to estate planning and deceased estates has not changed.   Your ability to […]

The post COVID-19: You can still make your Will social distancing! appeared first on Culshaw Miller Lawyers.

Following a separation, many clients will come to a family lawyer for advice as to a property settlement believing that the property will be split straight down the middle, that is, a 50/50 split.  They may otherwise assume that a 50/50 split is the starting point for negotiations as to a final property settlement. Calculating […]

The post Am I entitled to an equal split of assets after separating? appeared first on Culshaw Miller Lawyers.

What is a subpoena? A subpoena is an order issued by the Court to compel a person or business to either produce records, or attend court as a witness, or both. The Court issues a subpoena at the request of one of the parties to the proceedings and the document will be served on you. […]

The post I’ve been served with a Subpoena. What do I do? appeared first on Culshaw Miller Lawyers.

There is an entitlement in every court to represent yourself in any hearing and there are a number of protections for self-represented litigants, particularly in the Family Court and Federal Circuit Court, to prevent undue prejudice to your matter. Representing yourself can be difficult and time-consuming, particularly where you juggling work commitments or looking after […]

The post Can I represent myself in the Family Court? appeared first on Culshaw Miller Lawyers.

Online Applications for Restraining Orders have now been introduced in Western Australia. “People seeking the protection of restraining orders have previously been required to visit a court registry to apply. Now it can be done online through registered legal services which provide family violence assistance. These include Legal Aid WA, Aboriginal Family Law Services and […]

The post You can now apply for a Restraining Order online – 12 May 2020 appeared first on Culshaw Miller Lawyers.

Sally Savini is the newest member of Culshaw Miller Lawyers’ experienced Family Law team. As a Senior Associate, Sally has a wealth of Family Law experience including the following practice areas:

Complex and simple property/financial matters;

Care arrangements and welfare of children;
Family and domestic violence/abuse;
Spousal maintenance;
Child Support;
Exclusive occupation of the marital home;
Financial Agreements;

Sally is a passionate advocate in financial and children’s matters and is committed to achieving the best possible outcome for her clients.
To make an appointment with Sally, don’t hesitate to contact us on (08) 9488 1300.
The post Welcome Sally Savini! appeared first on Culshaw Miller Lawyers.

What are the legal obligations of trustees when exercising discretion pursuant to a trust deed? Recent Victorian Case law sets out those obligations.
 
The Court of Appeal in Victoria has recently handed down a decision confirming the obligations of trustees of a SMSF (and trustees generally) when exercising a discretion under the trust deed – Wareham v Marsella [2020] VSCA 92.
The case involved a dispute between the husband of the deceased, Mr Marsella, and the deceased’s daughter and her husband, Mr and Mrs Wareham, who were the trustees of the deceased’s SMSF.
Following the death of the deceased, the Warehams made a decision to pay all the superannuation death benefits to Mrs Wareham.
One of the central issues in the case was the obligations upon trustees when exercising an absolute and unfettered discretion, such as making a determination as to who is to receive superannuation death benefits.
Referring to the case of Karger v Paul, and cases which followed, the Court confirmed that when exercising a discretion the trustee must:
·        Act in good faith;
·        Act upon a real and genuine consideration of the interests of the dependants; and
·        Act in accordance with the purposes for which the discretion was conferred.
If those essential factors are not present, then it cannot be said that there has been a proper exercise of the discretion conferred upon the trustee.
The Court of Appeal upheld the Trial Judge’s finding that the trustees had failed to give real and genuine consideration of the interests of the dependants of the deceased including Mr Marsella, as well as the removal of the Warehams as trustees of the fund.
The key takeaway from the case is the need for trustees to obtain specialist legal advice before making a death benefit payment, in particular as to who are the dependants of the deceased and their personal circumstances when exercising their discretion.
Should you have any enquiries regarding the obligations of a Trustee, please do not hesitate to contact our team at Culshaw Miller Lawyers.
The post Recent Cases: Obligations of trustees; Is the trustee doing right by me? appeared first on Culshaw Miller Lawyers.

Any person over the age of 18 years and with legal capacity can make a Will and Enduring Power of Attorney. Unfortunately, it is estimated that between one third to one half of the population dies without a valid Will in place.
 
In addition, many people suffer an illness or become mentally incapacitated at some point in their lives with no clear direction as to how their affairs should be managed.
 
The consequences of failing to have the right documents in place can be devastating for families and can introduce complexities, costs and delay that are best avoided at a stressful time.
 
Below are some of the common myths about Wills and estate planning:
 
I don’t have any assets, just debts. Why do I need a Will?

Although you may have significant debts or perhaps little equity in your home, most people have superannuation and/or life insurance that will be payable on death. These assets can be protected so that they are not used to pay debts but can be used to directly benefit loved ones.
It is not the case that assets held in your sole name will automatically revert to your spouse. There are limits under the Administration Act which dictate which family members receive a share and how much.
If you don’t have a Will, more than one person may be eligible to administer your estate. That means there may be arguments from the beginning as to who should be in control.
Delays can be costly if there are ongoing liabilities such as mortgages, loans or credit cards to be paid with no one authorised to do this.
If you have young children or grandchildren, at law they can inherit their share at 18. A Will enables you to defer this age to 21 or 25 while allowing the Executor to pay for their education maintenance and support in the meantime.

 
My finances aren’t complicated…my partner/spouse can just deal with them

Unfortunately that is not the case. A spouse or partner does not have an automatic right to administer your financial affairs if you lose legal capacity, even for joint assets
If you are unable to make financial decisions for yourself because of injury or illness, someone must be appointed to make these decisions for you
An Enduring Power of Attorney allows you to appoint your spouse or partner or another trusted person to manage your affairs for your benefit

 
What happens if I don’t have a plan?

If you do not have a Will at the time of your death, your estate will be distributed pursuant to section 14 of the Administration Act. The limits in the Act have not been changed for about 30 years.
For married or de facto couples, the Act provides for a spouse to receive $50,000 plus a third of the balance of the estate. Children receive the other two thirds of the balance of the estate
For married, de facto or single people without children, your parents and siblings will receive a share of your estate, regardless of the status of your relationship with them
If you do not have an Enduring Power of Attorney in place and you lose mental capacity, someone will have to make an application to the State Administrative Tribunal to appoint an administrator for you. If there is a dispute as to who should be your administrator, the Public Trustee may be appointed to manage your affairs

If you hold business or trust interests, not having an Enduring Power of Attorney or a valid Will can leave your business or trust in limbo until the State Administrative Tribunal or the Supreme Court appoint a legal representative for you

 
What if my family or financial situations change?

We tailor our clients’ documents to their needs and also to maximise flexibility if circumstances change
If key people such as your Executors or beneficiaries pass away before you, or you no longer wish them to act, you can contact us and we can update your documents
If you marry or divorce it is crucial that you update your Will as both of these changes will automatically revoke an existing Will (in the case of divorce if it occurred on or after 9 February 2008) unless a specific intention to the contrary is included in the Will

 
How can we help you?

You can request an Estate Planning instruction form from our Estate Planning lawyers by calling 9488 1300 or  emailing us:

Michaela Speering [email protected]
Ross Mendonca [email protected]
Darren Miller [email protected]

We have an online portal at www.culshawmiller.com.au where you can enter your information and wishes in response to the questions asked
We can meet with you through online facilities, or by telephone to go through your plan
We can prepare the documents, arrange for you to sign  and store the originals in safe custody for you

 
Please call us on 9488 1300 or via www.culshawmiller.com.au to discuss your needs and how we can best assist you
 
There is much we cannot control in the current environment but a good estate plan will give you some peace of mind.
The post Estate Planning: “I don’t need a Will.. or Do I?” Common Misconceptions appeared first on Culshaw Miller Lawyers.

With so much change happening so quickly, it is easy to feel anxious and overwhelmed.
 
Thinking about death and legal incapacity can be daunting. The truth is that we never know what is around the corner and what we may be faced with from one day to the next. There may come a time when the tough decisions need to be made.
 
More than one person has said to me in the last few weeks, “I don’t want to overreact, but can you prepare my Will?”
 
The good news is that there are things you can do and, with the right advice and documents, you can take comfort in knowing that if the worst happens, there is a plan in place for your family.
 
There are three main documents which comprise an effective estate plan:

A Will
An enduring power of attorney
An enduring power of guardianship

 
A Will
Your Will is your expression of how you want your estate to be distributed in the event of your death. The critical issues to consider are:

The Executors: Who do you want to be in control of your estate, to manage your assets and hold funds in trust for beneficiaries?
Guardians of minor children: In the unfortunate event that both parents died before the youngest child is 18, who would make parenting decisions for your kids?
Are there any family members who are dependent on you: Aside from your children are there other members of the family who rely on you for financial support?
Distribution of your estate: Who would you like to benefit from your estate? Are there family members who require more financial support for education or due to a disability? Is there a beneficiary who requires some protection around their inheritance?

 
Enduring Power of Attorney

This document allows you to appoint a trusted person to make decisions on your behalf relating to your property and finances
You can choose whether to appoint your attorney to act immediately or in the event you lose legal capacity

 
Enduring Power of Guardianship

This document allows you to nominate a person to make health, welfare and lifestyle decisions for you in the event that you are unable to make them yourself
Under the Guardianship and Administration Act, your spouse and other close family can make medical treatment decisions for you but the EPG goes beyond issues of medical treatment and includes decisions such as where you will live and with whom you will associate
An EPG ensures you have a trusted person in place to make these decisions on your behalf if you are no longer capable of making them

 
How can we help you?

You can request an Estate Planning instruction form from our Estate Planning lawyers by calling 9488 1300 or  emailing us:

Michaela Speering [email protected]
Ross Mendonca [email protected]
Darren Miller [email protected]

 

We have an online portal at www.culshawmiller.com.au where you can enter your information and wishes in response to the questions asked
We can meet with you through online facilities, or by telephone to go through your plan
We can prepare the documents, arrange for you to sign  and store the originals in safe custody for you

 
Please call us on 9488 1300 or via www.culshawmiller.com.au to discuss your needs and how we can best assist you
 
There is much we cannot control in the current environment but a good estate plan will give you some peace of mind.
The post COVID-19: Why now is the best time for your estate plan appeared first on Culshaw Miller Lawyers.

With the recent developments related to Covid-19 (Coronavirus), we have changed some of our processes and procedures to comply with government directions and ensure the protection of staff and client health and safety.
As much as possible, we are continuing to operate as normal and do not envisage that this will have any real impact upon our provision of legal services for the benefit of our clients and referral networks.
As a firm, we are taking measures in line with advice from the World Health Organisation (WHO) and Public Health Emergency Operating Centres (PHEOC) and the current State and Commonwealth directions and regulations.
 
Clients and Visitors – for all clients, guests, suppliers and contractors who have travelled from or transited through any international location, we ask that you advise your Culshaw Miller Lawyers contact and set up a virtual meeting instead of a face-to-face meeting. We use Zoom Video Conferencing or Skype and we can help you through the setup – all you need is a computer, tablet or smartphone.
Office Hygiene – high traffic areas will be regularly wiped down with disinfectant wipes several times during the day to minimise the risk of residual viral deposits. This includes all meeting room and entry/exit door handles and all team members are conscious of the need for additional hygiene measures.
Business Continuity – we take our responsibility to you seriously and have a business continuity plan in place to ensure we can continue to deliver a high level of service to you, in a range of possible scenarios and different market environments.
Symptoms – all team members have been advised to self-quarantine and work remotely if they experience any flu-like symptoms, regardless of their travel history.
 
Should you have any queries related to your file please contact your solicitor directly or if you have any general queries relating to how the Coronavirus may affect your legal matters please contact us.
The post Our Response to COVID-19 appeared first on Culshaw Miller Lawyers.

 
The onset of the COVID-19 crisis has changed many aspects of daily life and that change has happened quickly.
 
There are some things that remain the same.
 
The laws in relation to estate planning and deceased estates has not changed.
 
Your ability to create and control your estate plan has not changed.
 
Our Estate Planning Lawyers can advise and assist with all aspects of:

Wills
Enduring Powers of Attorney
Enduring Powers of Guardianship
Applications for Probate and Grants of Letters of Administration
Deceased estate administration
Disputed estate advice and representation
Family Provision Act claims

 
We are able to take your instructions, provide advice and prepare documents for you in the same way that we always have, within the restrictions of social distancing and utilising the range of technologies available to us.
 
If we can assist you, please contact one of our Estate Planning lawyers by calling 9488 1300 or  emailing us:

Michaela Speering [email protected]
Ross Mendonca [email protected]
Darren Miller [email protected]

 

For estate planning enquiries we also have an online portal at www.culshawmiller.com.au where you can enter your information and wishes in response to the questions asked
We can meet with you through online facilities, or by telephone to go through your plan
We can prepare the documents, arrange for you to sign  and store originals documents in safe custody for you

 
Please call us on 9488 1300 or contact us via www.culshawmiller.com.au to discuss your needs and how we can best assist you
The post COVID-19: You can still make your Will despite social distancing requirements appeared first on Culshaw Miller Lawyers.

Blog post by Jeremy Gitsham
Separation brings with it the harsh reality that the existing family unit will forever change, resulting in heightened emotions, stress and uncertainty – exacerbated when children are involved.
As a consequence, some parents are unable to resolve issues around the future care of their children without resorting to litigation.  This, however, is not always the case, and if parents are able resolve issues with respect to parenting, an agreement can be formalised by entering into either a Parenting Plan or filing an Application for Consent Orders in the Family Court of Australia.
Parenting Plans
A Parenting Plan is an agreement between the parties, drafted to reflect parenting arrangements. Less formal than Consent Orders, a Parenting Plan sets out the rights and obligations of parents and other parties involved in the care of the children pursuant to section 63C of the Family Law Act. Provided that it is signed and dated by each party it is usually deemed sufficient.
The Parenting Plan is largely reliant on the goodwill of each party to ensure its success, and if a party contravenes the terms of the Plan it is not legally binding or enforceable. If the agreement breaks down and issues are unable to be resolved with the matter ending up before the Court, the terms of the Parenting Plan can be considered, however, the Court is not bound to make Orders reflecting the Parenting Plan.
Consent Orders
Consent Orders are generally made by the Family Court and reflect an agreement between the parties. The substantive element of the agreement, known as a Minute of Order, is drafted and filed in the Family Court with an Application for Consent Orders. An Application for Consent Orders can be filed in the Family Court of Australia for a current fee of $165.00 although this can change from time to time, with no need for either party to attend Court in most circumstances.
Provided the terms of the agreement are considered by the Court to be in the best interests of the child or children concerned, the Court will make orders based on the Minute of Order.
Importantly, Consent Orders are legally binding and have the same effect as if they had been made by a Judge during a Court hearing, therefore if a party to the Consent Orders contravenes them, the other party is able to make a Contravention Application to have the Orders enforced. The defaulting party may also face Court imposed sanctions as result of the contravention.
While it is possible for parties to complete an Application for Consent Orders and the accompanying Minute of Order on a ‘DIY’ basis, it is recommended that a qualified family lawyer assist in preparing the documents to ensure they are drafted correctly to minimise any ambiguity with respect to the future care arrangements of the child or children of the relationship.
Contact our family lawyers in Adelaide today for more information.
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It is a common misconception that property proceedings can easily be reopened or reviewed once final orders are made. It is essential that parties involved in property proceedings understand that Setting Aside Property Orders In Family Law can be limited in circumstances which are set out in section 79A of the Family Law Act 1975 (Cth) (referred to as ‘the Act’).
The Family Court can vary or set aside orders by consent pursuant to section 79A (1A) of the Act or in proceedings pursuant to section 79A (1) of the Act. In order for the family Court to set aside or vary orders by consent, all parties to the proceedings where the original orders were made must consent.
Parties can apply to the Family Court to seek that an order is varied or set aside in the following circumstances:

Miscarriage of justice due to fraud, duress, the giving of false evidence, suppression of evidence (section 79A (1) (a) of the act) and any other circumstance:-

 

Examples of circumstances which may amount to “any other circumstance”:-

One party not appearing at a hearing: Williamson v Williamson (1974) 24 FLR 226 at 237;
Incapacity;

Procedural irregularity, i.e. if a decree nisi was made where the parties had not been separated for 12 months: In the Marriage of Spratley (No 2) (1978) 4 Fam LR 52; FLC 90-414

Consent Orders, i.e. if a party’s consent was not true consent: In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91-243
A substantial increase in the value of a property before the property order was finally made: In the Marriage of Kohl (1981) 7 Fam LR 591; FLC 91-078
Where a party has been withholding facts

 

Where a proceeds of crime order has been made against a party to the marriage or a proceeds of crime order has been made regarding property of the parties to the marriage.

 

Due to a change in circumstances, it is impracticable for an order to be carried out: section 79A (1) (b) of the act.

 

One party has defaulted in carrying out the obligation(s) imposed by the original order(s) and in the circumstances arising as a result of that default it is just and equitable for the Court to either vary or set aside the order and make another order: section 79A (1) (c) of the act.

 

Circumstances of an exceptional nature regarding the care, welfare and development of a child of the marriage, or where the Applicant will suffer hardship if the court does not vary or set aside the order and make another order: section 79A (1) (d) of the act.

 
Other important facts regarding section 79A applications are as follows:-
 

Section 79A does not apply when the Court determines that the connection between the original order and the relief being sought is too remote: In the Marriage of B (1985) 10 Fam LR 8; FLC 91-610;

 

The Family Court will not set aside or vary orders where the parties are unhappy with the orders made or to overturn a “bad deal”;

 

If the court determines that they should vary or set aside the order, they are required to consider all factors under section 79 (4) of the act and section 75 (2) of the act insofar as they are applicable;

 

If parties are successful in seeking that an order should be set aside, the Court determines the fresh order at the date of the hearing rather than the date at which the original orders were made: Fickling v Fickling (1996) FLC 92-664; and

 

Section 79A does not apply when relief is sought in relation to property acquired following the orders being made or a new relationship.

 
Contact Hayley Ellison of Culshaw Miller Lawyers for more information regarding applications to set aside property orders pursuant to section 79A of the Family Law Act 1975 (Cth).
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
The post Setting Aside Property Orders In Family Law appeared first on Culshaw Miller Lawyers.

Blog post by Kate Bishop
In order to legally change a child’s name in South Australia, the parents will either have to agree about the child’s last name and then register a Change of Name with the Births, Deaths and Marriages Office, or the parent seeking to change the child’s name will need to apply to the South Australian Civil and Administrative Tribunal (‘SACAT’) for an order changing the child’s name. Such application is made pursuant to section 22 of the Births, Deaths and Marriages Registration Act 1996 (SA).
If SACAT is satisfied that the change of name is in the best interests of the child and approves the change, then the parent seeking the change of name can apply directly to the Registrar of Births, Deaths, and Marriages in order to change the child’s name.
In circumstances where the other parent has died or cannot be found, the parent wishing to change the child’s name may apply directly to the Registrar of Births, Deaths, and Marriages, rather than SACAT. The same can occur if the applying parent is the sole parent named on the birth certificate.
Section 26 of the Births, Deaths and Marriages Registration Act 1996 (SA) deems that a child of any age must consent to the change of name unless the child is unable to understand the meaning and implications of the change of name.
In parenting disputes, the Family Court of Australia or the Federal Circuit Court of Australia does not make orders changing a child’s name but may make an order providing for the name by which the child is to be known, the name used in enrolling the child into school and other enrollments.
Contact Culshaw Miller Lawyers today for more information.
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Blog post by Kate Bishop
With the passing of the Adoption (Review) Amendment Act 2016 (SA) recent amendments to the Adoption Act 1988 (SA) create a new option which until recently has been unavailable, namely the adoption of adult children.
Section 10A of the Adoption Act 1988 (SA) provides that a person above the age of 18 can be adopted provided the parties can prove to the Youth Court of South Australia that the parties have a significant parent-to-child relationship, and that the ‘child’ demonstrates an understanding of the consequences of adoption on his or her rights, interests and welfare.
In determining if a significant parent-to-child relationship exists, the Court may take into account whether the child was cared for by the prospective adoptive parent or parents, prior to reaching the age of 18.
An adoption order will not be made unless each person who is a parent or guardian has consented to the adoption. Notwithstanding the issue of consent, the Court has the power to dispense with the consent of a person (other than the child) in certain circumstances.
It is important to obtain legal advice before considering adult adoption. To determine whether adult adoption is right for you, contact Culshaw Miller Lawyers, Adelaide on (08) 8464 0033.
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