Superannuation splitting for separated WA de facto couples
This article provides an overview of the current position in relation to superannuation splitting for separated WA de facto couples, together with information about changes that are expected to occur in the period ahead.
Why is de facto superannuation complex?
One of the factors that contributes to the complexity in relation to superannuation for parties who have been in a de facto relationship in WA, is a division of power between the two Parliaments:

the WA Parliament has power to make laws in relation to parties who have been in a de facto relationship;
the Commonwealth Parliament has power to make law in relation to superannuation.

Consequently, creating a scheme for de facto superannuation requires the two Parliaments to work cooperatively together.
What is the current position?
The table below provides a summary in relation to the current availability of superannuation splitting:

 
Western Australia
Other Australian States & Territories

For parties who have been married
Available
Available

For parties who have been in a de facto relationship
Coming
Available

What has happened so far?
A number of steps have already been taken in the direction of making superannuation splitting available for separated WA de facto couples, as follows:

Date
Description
Document

26 June 2006
The WA Parliament offered a referral of powers to the Commonwealth Parliament (to enable the Commonwealth Parliament to pass laws to make superannuation splitting available to separated WA de facto couples).
Commonwealth Powers (De Facto Relationships) Act 2006 (WA)

21 November 2020
The referral offered in 2006 became effective.
Commonwealth Powers (De Facto Relationships) Act 2006 Commencement Proclamation 2020 (WA).

3 December 2020
The Commonwealth Parliament passed legislation to accept the referral.
Family Law Amendment (Western Australia De Facto Superannuation Splitting & Bankruptcy) Act 2020 (Cth)

10 December 2020
The Commonwealth Parliament made further consequential amendments
Treasury Laws Amendment (2020 Measures No. 6) Bill 2020 (Cth)

What remains to be done?
The following steps still need to be completed before the scheme can commence:

Step
Estimated timing

The WA Parliament needs to pass further legislation in relation to some of the finer details about the operation of the scheme.
At the time of preparing this article in early December 2020, there are no further sittings of the WA Parliament scheduled to be held in the remainder of 2020.  It is anticipated that a State election will be held in early 2021.  It is not yet known whether the Parliament will sit again before the election.  It may not be until the second half of 2021 (or possibly later) before the further legislation is passed.

A Proclamation needs to be made for the Commonwealth legislation to commence.
It is expected that this proclamation will not be made until the further State legislation is in place (see row above).

Who will be eligible?
Parties who have been in a de facto relationship in WA will be eligible to seek superannuation splitting if:

they are separated;
they have not made a Financial Agreement; and
there are no final Family Court Orders made between them.

The other eligibility criteria are (deliberately) in alignment with the general eligibility criteria for seeking other financial relief (alteration of property interests and/or spousal maintenance):

the Application will, ordinarily, need to be made within 2 years after the end of the relationship;
the duration of the relationship must have been for at least 2 years (or the parties must be able to satisfy an alternate criteria);
one or both of the parties must be resident in WA on the day the Application is made to the Court; and
one or both of the parties must have resided in WA for at least one third of the duration of the relationship (or the parties must be able to satisfy an alternate criteria).

If you are reading commentary on the new scheme, care needs to be taken in relation to the time at which the material was written.  This is because there were changes made to the eligibility criteria.  In an earlier draft (which did not get included in the final legislation as passed), there were going to be restrictions on parties accessing the scheme if they had already commenced court proceedings.  Those restrictions were not included in the final version of the legislation as passed.
What if I already have an existing court case underway?
The key criteria for eligibility to access the new scheme will be whether final Orders have been made.
Due to a lack of resources, cases in the Family Court routinely take between 2 and 3 years from when an Application is filed (the start of a case) and when final Orders are made (the end of the case).  It is entirely possible that if you have a case at an early stage, by the time it reaches the later stages, the other necessary steps will have been taken (see above) and the scheme will then be available.
On the other hand, if you have a case that is already at a relatively late stage and the making if final Orders is already imminent, then it is possible that you might arrive at a stage where final Orders are going to be made before all of the remaining steps have been completed and consequently, before the new scheme has become available.  In those circumstances, it may be possible to consider seeking to have the case adjourned until after the scheme has become available.
What if I have an existing Financial Agreement?
Parties who have already entered into a Financial Agreement at the time when the new scheme commences, will not ordinarily be able to access the scheme.  In other words, the existence of the Financial Agreement will, in most circumstances, operate as a barrier to accessing court to seek a splitting Order.
This is consistent with the purpose of the Financial Agreements scheme.  Entering into a Financial Agreement is intended to avoid the parties becoming involved in court proceedings.
If the parties to an existing Financial Agreement particularly wanted to be able to access superannuation splitting, then terminating the existing Financial Agreement would be an option.  However, in most circumstances that would require the agreement of parties (and the necessary formalities will need to be complied with).
What if I am making a new Financial Agreement?
If you are making a Financial Agreement, whether the superannuation splitting scheme will be available will depend upon the timing of the making of the Agreement:

If the Agreement is made before the scheme commences, then the scheme will not be available (in other words the Agreement cannot be made in anticipation of the scheme becoming available);
If the Agreement is made after the scheme has commenced, then the scheme will be available.

William Sloan I Director I Accredited Family Law Specialist
Get started with William online
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Where a de facto relationship ends, there is legislation in Western Australia known as the Family Court Act 1997 that allows the parties to make claims against each other for alteration of property interests and spousal maintenance.
There are various requirements that must be satisfied to be eligible to make such financial claims.
One of the requirements is that one or both of the parties must be “resident in Western Australia”.
In a Decision delivered in January 2021, the WA Court of Appeal has provided some guidance in relation to the proper interpretation of the residence requirement.[1]
In the case that the Court was considering, the parties had divided their time: spending part of the year in WA and part of the year living in another country.  In some years, the parties sent as little as 8% of the year in WA.
Despite spending such little time in WA, other connections with WA were nonetheless maintained, including:

Retaining Australian citizenship;
Not obtaining permanent resident status in the other country;
Remaining an Australian resident for taxation purposes.

In relation to the proper interpretation of the requirement for a party to be resident in WA, the Court said:
“…even a remote and general connection [with] the State is sufficient.
…the focus is not on the person’s residence in the sense of his or her place of occupation…
…’resident’ in this context encompasses residences of differing permanency.  It connotes a connection with Western Australia by habitation in the State, even temporarily … It imports no particular degree of permanence, although it connotes more than the mere sojourn of a visitor to or transient presence in the State.”
The Court said that relevant considerations include:
“…whether the person has retained a continuity of association with the place … together with an intention to return to that place and an attitude that that place remains ’home’”. 
On the facts in this particular case, the Court concluded that the party was a resident in WA.
Consequently, they were eligible to pursue their claims in WA against their former de facto partner.
If you are a person who is spending time in WA and if you are in a de facto relationship, then you may need to give consideration to the question of whether you have sufficient connections with the State to expose you to financial claims being made against you here.
The only effective way of protecting against such claims is to enter into a Financial Agreement.
[1] Laufer & Gear [2021] WASCA 2
William Sloan I Director I Accredited Family Law Specialist
Get started with William online
 
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On 27 November 2020, the Australian Bureau of Statistics released the most recent figures in relation to marriage and divorce in Australia.
The statistics show:

The rate of marriage is continuing to decline: from a rate of 6 marriages per 1,000 head of population in 1999 to 4.5 in 2019.
The divorce rate is declining: from 2.8 divorces per 1,000 head of population in 1999 to 1.9 in 2019.
The duration of marriages is increasing: from 7.9 years to separation in 1999 to 8.5 years in 2019.

 

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On 7 October 2020, the Commonwealth Parliament’s Joint Select Committee on Australia’s Family Law System tabled an Interim Report.
The Interim Report is available on the Parliament’s website.
 
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Clayton & Bant Case B21/2020
Should a party be able to pursue a divorce settlement in Australia if a foreign Court has already dealt with matters between the parties?  That is, in somewhat simplified terms, the question to be determined in a case currently before the High Court of Australia.
The facts that give rise to the dispute are as follows:

The Wife is an Australia citizen.
The Husband is a citizen of the United Arab Emirates.
The parties married in the UAE in 2007.
The parties separated in Australia in June 2013.
The Husband has “extensive property interests in the United Arab Emirates, Europe and Asia”.
In July 2013, the Wife started a Court case in Australia.
In July 2014, the Husband started a Court case in UAE.
In February 2015, the UAE Court made Orders. The Court ordered the Wife to repay to the Husband a dowry (an amount of 100,000 Dirhams the Husband paid to the Wife at the time of marriage).
In February 2015, the Husband asked the Australian Court to prevent the Wife from proceeding further with her Australian case (described as a “permanent stay” of her case). The basis for seeking stay of the Australian case was that the UAE Court had already dealt with the issue.
In September 2018, the first Australia Judge to consider the issue decided that the Wife should be able to continue with her Australia case.
In November 2019, an Appeal Court decided that the Wife should be prevented from continuing her Australian case.
The Wife then appealed to the High Court (the current case) and the issue remains whether the Wife should or should not be able to continue her case against the Husband in Australia.

The two Australian Courts that have dealt with the case so far have each said clearly that it does not matter whether the foreign decision is more or less generous than what an Australian Court might have awarded.  What matters is that the question that the foreign Court resolved is sufficiently the same as the claim sought to be pursued in Australia.
In the High Court:

The Wife says, in relation to the division of assets, that the UAE Court had no jurisdiction with respect to property located outside of the UAE. In respect of spousal maintenance, the Wife says there has never been any determination of that claim by the UAE Court.  In effect, the wife says that what the UAE Court did was limited – leaving room for the Australian Court to deal with financial claims between the parties.
The Husband says that the common feature of the Australian case and the UAE case is that both concerned the financial consequences to the parties arising from the breakdown of their marriage. In effect, the husband says the UAE Court has dealt with the entirety of matters between the parties – leaving no room for any Australian case.

The High Court heard arguments about the issue at a Hearing on 9 September 2020.  The Court is currently considering the issue and will deliver a Decision in due course.
William Sloan I Director I Accredited Family Law Specialist
Get started with William online
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On 6 October 2020, the Commonwealth Attorney General, the Hon. Christian Porter MP, announced the following budget measures relevant to Family Law in WA:

Additional funding for the Family Violence & Cross-Examination of Parties Scheme;
Funding for the Family Court of WA to transition to a new case management system;
Funding to implement criminally enforceable Federal Family Violence Orders.

The post Federal budget announcements relevant to Family Law in Western Australia appeared first on Kim Wilson Family Lawyers.

Report following Inquiry into the Magistrates Court management of matters involving family and domestic violence
On 13 August 2020, a Report from the Community Development & Justice Standing Committee was tabled in the Parliament of WA.
The Report follows an inquiry into the Magistrates Court of Western Australia’s management of matters involving family and domestic violence.
A copy of the Report is available on the Parliament website www.parliament.wa.gov.au 
E: [email protected]
 
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Barnell & Barnell [2020] FamCAFC 102
In the recent decision of Barnell & Barnell [2020] FamCAFC 102 the Full Court considered the issue of whether certain initial contributions to a relationship could be “quarantined” and dealt with separately to the other property.
The brief facts of the decision were that the wife was born in December 1968 and is 51 years of age.  The husband was born in June 1962 and is 57 years of age.
The parties commenced cohabitation in 1995 and married in March 1996.  They have 2 children aged (at Trial) 22 and 16 and were living with the wife.
The husband had been in a prior relationship, and during the prior relationship the husband received an inheritance in 1988 which he used to purchase land in Denmark.
In dealing with Property Settlement Orders the Full Court found, in summary, that the primary judge treated the husband’s introduction of the Denmark property as the sole factor distinguishing the husband’s contribution from those of the wife, resulting in the 25 percent disparity between the parties on the assessment of contributions.
As to the issue of the treatment of the introduction by the husband of the Denmark property to the marriage the Full Court comment at paragraph 42 and 43 as follows:

“We are persuaded that by isolating the Denmark property in the manner in which his Honour did and by adopting a differential of as much as 25 per cent between the parties as to their contributions based entitlements as a consequence of “quarantining” the Denmark property, and giving discrete consideration to that contribution, the primary judge fell into the same error as was made at trial in each of Hurst and Jabour, as discussed in the appeals in those cases. We consider that his Honour’s approach had the overall effect of according a subsidiary role to the wife’s contributions.”
“It follows from this conclusion that we are satisfied of merit in each of the wife’s grounds of appeal including that the primary judge acted on wrong principle, with the consequences of a miscarriage in the exercise of discretion. It follows that the appeal must be allowed, and the subject orders set aside.”

The Full Court effectively found against the notion of “quarantining” Property in s79 proceedings in mid to long term relationships.
Kim Wilson SC I Director I Accredited Family Law Specialist I Arbitrator | Nationally Accredited Mediator (AIFLAM)
Email: [email protected]
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This might apply where one party has lost capacity to make decisions (eg. Dementia) or one party has died after the commencement of Court proceedings but before separation has taken place.
The High Court in Stanford and Stanford (2012) FLC 93-518 confirmed that the Court does have the power under the Family Law Act 1975 (Cth) to make orders for a property settlement where married parties have not yet separated.
What about de facto relationships?  In Western Australia, the Court’s power to make orders for a property settlement for de facto relationships falls under the Family Court Act 1997 (WA).
Usually, where a de facto relationship has ended a party must apply to Court for a property settlement within 2 years of separation under section 205ZB of the Family Court Act 1997 (WA).
In Fabrizi and Grasso (Deceased) by his legal personal representative Grasso (Jnr) [2019] FCWA 176, Justice Duncanson considered a situation where a de facto relationship had not ended before a party commenced proceedings for a property settlement under s205ZG of the Family Court Act 1997 (WA).
It was ultimately found by Her Honour that there is no requirement in the Family Court Act 1997 (WA) for a de facto relationship to have ended before a party can commence proceedings for property settlement.  Justice Duncanson held at paragraphs 79 to 82:
[79] “In my view, in the interpretation of s 205ZB of the State Act, a construction which places de facto couples in Western Australia in the same position as married couples in Western Australia is to be preferred over a construction that does not.
[80] I agree with the applicant’s submission that s 205ZB merely provides a temporal limitation on when an application may be made by a de facto partner if the relationship has ended, and it is not relevant to an application by a de facto partner whose relationship has not ended.
[81] There is no reference to a de facto relationship having ended or broken down in s 205Z of the State Act which sets out the circumstances where the Court may make an order.
[82] I conclude there is no requirement in the State Act for a de facto relationship to have ended before a party can commence proceedings.”
Lisa Guagliardo I Lawyer
[email protected]
Get started with Lisa online
 
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This is the last instalment as to Financial Agreements.  If you missed the first 3 instalments, you can review these articles here.
In the final instalment, William Sloan writes about how Financial Agreements interact with estate planning, foreign agreements, foreign assets and are Financial Agreements binding.
How do Financial Agreements interact with estate planning
Financial Agreements deal with the resolution of financial claims between parties in the event of a breakdown of their marriage or relationship.  Financial Agreements do not deal with a situation where one party dies at a time where the marriage or relationship is intact.  That situation instead needs to be dealt with via a Will and associated estate planning measures.
How do Australian Financial Agreements interact with foreign agreements
The effect of making an Australian Financial Agreement is to “contract out” of the ability to make a claim in an Australian Court.  Whilst Australian Agreements operate, in effect, as a barrier to what would otherwise be potential claims in Australian Courts, there is no such recognition in Australia for foreign Agreements.  Parties who have previously lived outside of Australia may have made a foreign Agreement.  The foreign Agreement will provide no protection if the parties later form some connection with Australia such as living in Australia or holding assets in Australia.  If the parties establish some connection with Australia, then to obtain protection they will need to enter into an Australian Financial Agreement.  The terms of the Australian Financial Agreement may, in substance, be similar to the terms of the foreign Agreement.
How do Australian Financial Agreements interact with foreign assets
Australian Financial Agreements operate to prevent claims being made in Australian Courts. If the parties have connections with a foreign jurisdiction such as being citizens of a foreign jurisdiction or holding assets in a foreign jurisdiction, then the foreign jurisdiction may not recognise the Australian Agreement.  If there is a continuing connection with a foreign jurisdiction, then it is worthwhile getting advice from a suitably qualified lawyer in that foreign jurisdiction as to matters including:

Whether the foreign jurisdiction will recognise the Australia Agreement;
Whether an additional Agreement can be made in the foreign jurisdiction (mirroring the terms of the Australian Agreement).

Are Financial Agreements binding
The legislation under which Financial Agreements are made contains provisions that allow parties who have made a Financial Agreement to later seek to set aside the Agreement.  Grounds on which Courts have power to set aside Agreements include:

the Agreement was obtained by fraud;
the Agreement was entered into for the purpose of defeating a creditor;
a party to the Agreement engaged in unconscionable conduct in respect of the making of the Agreement.

Given the potential for an Application to be later be made seeking to set aside the Agreement, great care needs to be taken in respect of the making of Financial Agreements.  For example, adequate disclosure needs to be made and genuine negotiations need to take place.
Further information
This guide is intended to provide general introductory information in relation to Financial Agreements. The legislation under which Financial Agreements are made is highly complex.
If you would further information about Financial Agreements, please contact:
William Sloan on 6380 3900 or email [email protected].
Get started with William online
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If you missed our first two articles you can review these articles here. In this next instalment, William Sloan writes about the steps required, the costs involved and the potential costs that might arise if a Financial Agreement is not in place.
What are the steps required to make a Financial Agreement
Usually the making of a Financial Agreement involves the following broad phases or steps:

Disclosure of information and documents about the parties existing financial circumstances.
Negotiation as to the terms to be contained in the Financial Agreement.
Drafting of the Financial Agreement.
Provision of detailed written advice in relation to the proposed Financial Agreement. Each party must get independent legal advice.  This means that there will be one lawyer acting for one party and another lawyer acting for the other party.
Execution of the Financial Agreement.

There is no mechanism for the registration of Financial Agreements in Australia.  The Agreements are a private document.  Once signed, they need to be held in a safe location along with other similar documents, such as Wills and so forth.
What are the costs involved with making a Financial Agreement
Factors that can influence the extent of the work required and the associated costs involved with making a Financial Agreement include:

The extent to which the negotiations about the terms of the Financial Agreement are conducted directly between the parties as compared to being conducted by lawyers on their behalf;
The complexity of the parties’ financial circumstances before the Agreement is made. For example, the extent to which the parties are involved with various entities such as companies and trusts.
The complexity of the terms that are negotiated to be recorded in the Financial Agreement.

Typically speaking, one party to the Agreement will take responsibility for most of the work associated with the drafting of the Agreement.  Typically, that party will have higher costs than the other party.  For the party who takes responsibility for the drafting, it is not uncommon to incur costs in the range of about $5,000 to $10,000.  Depending upon the particular circumstances, the costs in individual matters can be higher or lower than those typical costs.
What are the potential costs that might arise if a Financial Agreement is not in place
When considering the costs associated with making a Financial Agreement, it is relevant to have regard to what might be the potential costs if no Financial Agreement were in place.  These costs include:

The costs associated with being involved in a contested case before the Family Court. Due to delays in the system, it is not uncommon for the Court to take between 2 and 3 years to deal with a case.  Over that period it is not uncommon for significant legal costs to be incurred by each party.  Over the course of 2 or perhaps 3 years of litigation, each party might incur costs of perhaps $50,000 to $150,000 (potentially higher);
There is also the question of the amount that the Court might award to the other party. Without a Financial Agreement in place, the Court will be in control of how much is awarded to the other party.  The Court is not constrained by considerations such as whether a particular amount was received as part of an inheritance.  In contrast, if parties enter into a Financial Agreement, they remain in control of the outcome.

If you are considering the preparation of a Financial Agreement, please contact our office on 6380 3900 or email [email protected] and we will be happy to assist you.
Next week will be our final instalment of Financial Agreements and how they interact with estate planning, foreign agreements, foreign assets and are Financial Agreements binding.
Get started with William online
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This article is part two of Financial Agreements.  If you missed our first article last week, of “The What, Who and When” – you can review it here.
In this article, William Sloan looks at examples of situations that might make it worthwhile to consider a Financial Agreement.
Parties becoming increasingly involved with a family business
It is not uncommon for adult children to become increasingly involved with family businesses over time.  This may include the children:

becoming shareholders in or directors of companies;
having money owing to the children pursuant to loan accounts;
a range of other arrangements being put in place.

As part of a wider conversation about succession planning, it may be prudent to consider asking adult children to enter into Financial Agreements with their partners.
Without a Financial Agreement in place, property that has been placed in the name of the adult child (for example, shares in a company) is property that will be subject to claim in the Family Court if there is a relationship breakdown between the adult child and their partner.
A Financial Agreement can provide a degree of protection for that property.
Parties expecting an inheritance
If a party has already received an inheritance or is expecting to receive an inheritance at some stage in the future, then they may wish to consider entering into a Financial Agreement to provide a degree of protection for the inheritance.
If parties separate without a Financial Agreement in place, there is no automatic quarantining of inheritances if the entitlements of the parties are being determined in the Family Court.
A Financial Agreement could, for example, provide that the inheritance is to remain with the party who received it while other assets accumulated jointly by the parties are divided between them following separation.
Parties wishing to avoid becoming involved in Family Court proceedings
Parties may be entering into a second relationship.  At the breakdown of their first relationship, they may have experienced being involved in Family Court proceedings and the associated costs and delay.  Having experienced those aspects of Family Court proceedings at the end of their first relationship, they may be seeking to avoid those outcomes in respect of the second relationship.
Entering into a Financial Agreement can be a means of achieving that.
Second relationship – with children from first relationship
A party may have children from a first relationship and be entering into a second relationship.  They may wish to ensure that their assets are protected and available to be passed on to their children.
Without a Financial Agreement in place those assets are exposed to a claim if the second relationship breaks down.  A Financial Agreement can provide a degree of protection for that property, ensuring it remains available for it to be passed on to the children.
Parties migrating to Australia with an existing foreign Agreement
For further information in relation to this situation, look out for the next instalment featuring “How do Australian Financial Agreements interact with foreign agreements”.
If you are considering the preparation of a Financial Agreement, please contact our office on 6380 3900 or email [email protected] and we will be happy to assist you.
Our next article we will look at “What are the steps, what are the costs and what are the potential costs that might arise if a Financial Agreement is not in place”.
 
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The Kim Wilson & Co Family Lawyers Team packed up their home office and returned to the office last week.
Our teams are available by phone, email, video conference and face to face appointments.
The health and wellbeing of our staff, clients and visitors continue to remain our upmost priority and if you prefer not to visit our office due to the COVID-19 health warnings or because you are unwell yourself, please let us know and we will make alternate arrangements to communicate with you.
Please do not hesitate to contact our office on 6380 3900 if you have any questions.
Kim Wilson & Co Family Lawyers Team
The post COVID-19 Update appeared first on Kim Wilson Family Lawyers.

Over the coming weeks, our Director, William Sloan will be writing about Financial Agreements and giving you some information as to:

What is a Financial Agreement?
Who can make a Financial Agreement?
When can a Financial Agreement be made?
Examples of situations that might make it worthwhile considering a Financial Agreement.
What are the steps required to make a Financial Agreement.
What are the costs involved in making a Financial Agreement.
What are the potential costs that might arise if a Financial Agreement is not in place.
How do Financial Agreements interact with estate planning.
How do Australian Financial Agreements interact with foreign agreements.
How do Australian Financial Agreements interact with foreign assets.
Are Financial Agreements binding.
Further information.

In this article, we look at the basics of the What, Who and When?
What is a Financial Agreement?
A Financial Agreement is a written Agreement made between the parties to a marriage or de facto relationship, which deals with their financial rights in the event of a separation.
The financial rights dealt with in a Financial Agreement can be:

alteration of property interests;
spousal maintenance; or
both alteration of property interests and spousal maintenance.

There are certain matters which cannot be dealt with in a Financial Agreement, including:

parenting arrangements; and
child support.

If a separation occurred, then these matters would remain to be dealt with (even with a Financial Agreement in place).
Who can make a Financial Agreement?
A Financial Agreement can be made by:

parties who are intending to get married;
parties who are already married;
parties who are intending to commence living together in a de facto relationship;
parties who are already in a de facto relationship.

When can a Financial Agreement be made?
A Financial Agreement can be made:

before parties get married or begin living together in a de facto relationship; or
after parties have been married or begun living together win a de facto relationship.

If you are considering the preparation of a Financial Agreement, please contact our office on 6380 3900 or email [email protected] and we will be happy to assist you.
Our next article we will look at “Examples of situations that might make it worthwhile considering a Financial Agreement”.
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The Directors and staff of Kim Wilson & Co Family Lawyers would like to wish all our clients and colleagues a very Merry Christmas and a safe and prosperous New Year. Our office will be closed over the Christmas period from 12 noon Friday 20 December 2019 until 8:30 a.m. Monday 6 January 2020. We […]
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The health and wellbeing of our staff, clients and visitors remains our upmost priority at this very difficult time. We are doing all we can to avoid disruption to the delivery of our services to our clients, the Court and the wider community. Kim Wilson & Co Family Lawyers is doing all we can to […]
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Kim Wilson & Co Family Lawyers continue to be operating business as usual.
Our office remains open and if you wish to speak with one of our team members please call us on 6380 3900 or email us at [email protected].
The health and wellbeing of our staff, clients and visitors remains our upmost priority at this very difficult time.
Some team members are now working remotely.  Our teams remain available by phone, email or video conference and we continue to be available to meet your needs.
We are doing all we can to avoid disruption to the delivery of our services to our clients, the Court and the wider community.
We continue to monitor the updates from the Family Court of Western Australia, and how their decisions will impact on matters which our clients currently have before the Court.
Please refer back to this webpage which will be kept up to date with any further updates or changes to implement our responses to COVID-19 in line with the advice from the State and Federal Governments.
Please do not hesitate to contact our office on 6380 3900 if you have any questions.
Kim Wilson & Co Family Lawyers Team
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The World Health Organisation has declared Coronavirus disease (COVID-19) to be a pandemic.  On 15 March 2020, the Government of Western Australia declared a State of Emergency in response to the COVID-19 pandemic.
Like other parts of the community, the family system in Western Australia has had to make some adjustments in response to COVID-19.  The table below sets out a summary of some of those changes that have been made and, importantly, services that are still available to parties involved in a family law matter notwithstanding the pandemic:

Part of the family law system

Impact of COVID-19

Getting legal advice

Developing and maintaining a level of mutual trust and confidence is an essential part of a successful relationship between a client and their lawyer.  Traditionally, in family law matters a foundation to building that sort of a relationship has been regular face to face meetings.
Given the advice from Government to “stay at home” and the travel restrictions that are now in place, face to face meetings are now more challenging.  In response to this, lawyers are increasingly offering clients other ways to communicate including telephone, email and video conferencing.

Family Dispute Resolution

Before seeking to commence proceedings in the Family Court in relation to parenting arrangements, in most circumstances, parties are required to participate in an external process known as Family Dispute Resolution (“FDR”).
The conventional model for FDR involves a series of meetings: one party having an intake session with the FDR provider, then the other party having an intake session with the FDR provider and finally both parties meeting together in a joint session with the FDR provider.
Traditionally, those meetings have, in most instances, taken place face to face.  However, with the restrictions now in pace arising from COVID-19, many FDR providers have adjusted their service delivery models.  Many providers are now able to offer FDR services in alternative formats including via video conferencing.
There is an online directory of FDR providers available at: www.familyrelationships.gov.au.

Negotiation via solicitors

In family law matters, where parties have solicitors acting for them and they instruct their solicitors to engage in negotiations on their behalf, those negotiations have, for the most part, occurred via an exchange of correspondence.  Since that correspondence is exchanged via email, it has continued largely unaffected by COVID-19.
What might change slightly is the manner of your lawyer getting instructions from you as those negotiations progress.  Often at significant points in the negotiations, your lawyer might have wanted to meet with you face to face.  Those exchanges will now take place in other formats such telephone, email or video conferencing.

Mediation Style Conferences

Another process available to parties seeking to resolve their family law dispute without having to incur the cost and delay associated with proceeding to a defended Trial in the Family Court is a process known as a Mediation Style Conferences (“MSC”).
Similar to what occurs with Family Dispute Resolution (see above), the process with a MSC has traditionally involved a series of three meetings: each party having an intake session and there being a joint session.  There are a number of MSC chairpersons available in Western Australia who are willing and available to conduct MSC’s via video conferencing.
The Australian Institute of Family Law Arbitrators & Mediators publishes an online directory of MSC chairs at: www.aiflam.org.au.

Family Court proceedings

Along with all other Courts in Western Australia, the Family Court of WA has implemented a wide-ranging response to COVID-19.
The Chief Judge has published a notice that outlines those measures.  You can view a copy of the notice on the Court’s website: www.familycourt.wa.gov.au.
One of the key measures is a move to conduct an increasing number of Court Hearings and other Court events by telephone (rather than the traditional method of parties and their lawyers attending Court in person).
Before the onset of COVID-19, the Court already had a capacity to receive documents electronically via its online service known as the Portal.  There is now increasing usage of the Portal as the primary method of lodging documents with the Court.

Restraining Orders

On 2 April 2020, the WA Attorney General announced that amendments to the Restraining Orders Act 1997 (WA) had passed through the State Parliament.
The changes include:
·        Enabling Restraining Order Applications to be lodged online;
·        Allowing the Family Court of WA to issue Interim Restraining Orders on an ex parte basis, in the same way the Magistrates Court is permitted to do so.
Please click here to read the full announcement from the Attorney.
https://www.mediastatements.wa.gov.au/Pages/McGowan/2020/04/New-laws-to-protect-family-violence-victims-during-COVID-19-pandemic.aspx?from=DigestNotification&e=nhQCfmfdvkW8RkSEKSK7Pw&at=9

William Sloan I Director I Accredited Family Law Specialist
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The health and wellbeing of our staff, clients and visitors remains our upmost priority at this very difficult time.
We are doing all we can to avoid disruption to the delivery of our services to our clients, the Court and the wider community.
Kim Wilson & Co Family Lawyers is doing all we can to ensure we are operating business as usual at this difficult time.
All meetings can be conducted by telephone or video conference and we have all necessary infrastructure and technology in place to arrange this.
We continue to work closely with the Family Court of Western Australia, and we are monitoring their updates as to how it will impact on matters which our clients currently have before the Family Court of Western Australia.
We are also working with our Mediators to ensure Mediations can continue and other relevant third-party providers.
If there is a lockdown imposed upon us, we assure you we will be able to continue to service our clients and work remotely.  Telephone and video conferencing can continue.
Please do not hesitate to contact our office if you have any questions.
Kim Wilson & Co Family Lawyers Team
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The health, wellbeing of our staff, clients and visitors to our offices is our upmost priority and to help safeguard this we have implemented the following protocol at the office.
This protocol applies to all planned meetings and events at our Subiaco office, or if you are planning to meet any of our staff at another location.
We ask that you do not attend any such meetings if you have been to, or knowingly been in contact with, anyone who has travelled overseas and/or interstate in the past 14 days, or if you feel unwell.  We are happy to discuss with you an alternative method of meeting.
If you experience the relevant symptoms after attending at our office or after having met with any of our people, please email [email protected]  so that we can manage communications with our own staff and fellow attendees.
If you would prefer not to visit our office due to the COVID-19 health warnings or because you are unwell yourself, please let us know and we will make alternative arrangements to communicate with you by phone, email or video conference.
Please monitor the Government websites as information is continually being updated.  We will continue to review and update our protocol as necessary.
https://www.healthywa.wa.gov.au/coronavirus
https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert
 
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