Directors and staff of Kim Wilson & Co attended the Women Lawyers of WA Honours Dinner on Friday 6 March 2020. This event recognizes the achievements of women in law, both in private practice and government roles.  Numerous awards were presented, including to the Young Woman Lawyer of the year, the Senior Woman Lawyer of the year and the Woman Lawyer of the Year.   Women who have contributed in other roles, including service to the Courts, were also recognized.
The keynote speaker Cheryl Edwards AM spoke on the topic of domestic violence and child abuse.  Her theme was “Are we there yet?”, her view is that significant work still needs to be done by the community and professionals to eliminate these problems from society.
A fun night was enjoyed by all, with over 450 guests.
For more information on Women Lawyers of Western Australia please click here.  https://www.wlwa.asn.au/
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In some cases involving the breakdown of a relationship one spouse may be ordered to pay to the other spouse a sum of money to assist with their financial support.  This is known as spousal maintenance.
To be eligible for spousal maintenance a party (“the payee”) needs to a establish that they cannot support themselves:

By reason of care and control of a child of the relationship who has not attained the age of 18 years;
By reason of age or physical or mental incapacity for appropriate gainful employment; or
For any other adequate reason.

In short, the payee would need to be able to show that their reasonable personal expenses exceeded their income.
The second aspect of a spousal maintenance application is that the payee must establish that the other party (“the payer”) has the capacity to pay spousal maintenance, that is, to show they have a surplus of income over expenses.
In considering an application for spousal maintenance the Court is to have regard to a number of matters set out in section 75(2) of the Family Law Act 1975 (Cth).
Section 75(3) of the Family Law Act 1975 (Cth) provides that a Court shall disregard any entitlement of a party whose maintenance is under consideration to an income tested pension, allowance or benefit.  This means that Centrelink benefits (eg. disability pension) are excluded when calculating an applicant’s income for the purpose of spousal maintenance.  The aim of this section would appear to be to protect the public purse by increasing the number of spousal maintenance applications.
Interestingly, the National Disability Insurance Scheme (“NDIS”) is not income tested.  Therefore, a potential payer of spousal maintenance may argue that the receipt of the NDIS by the payee could be used to reduce the level of maintenance otherwise payable.  This issue was considered in the decision of Bodilly & Hand [2019] FamCA 210.  Justice Cronin held the following:

Section 34(1)(e) of the NDIS legislation provides that in determining the funding for the recipient, the agency official must take into account what others such as family and the community (that is, other than the NDIS) will provide. That tends to suggest that in the course of an assessment of what has been described as the budgets, the NDIA will take into account the needs of the recipient but only fund those which are not likely to be covered from an outside source. That interpretation has been rejected by the Federal Court. In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J held that the NDIA had to be either satisfied that a support had the character of being a reasonable necessary support or that it did not. Her Honour held that once a support was identified and described then the question for the NDIA was whether or not that support was reasonable and necessary for that particular participant. Her Honour said that that determination could only be made on the basis of probative evidence. In the present case, I do not have that evidence; all I have is the evidence of the anticipated costs calculated by the wife and the historical costs determined by the accountant. Her Honour went on to say that once a decision had been made that the support was reasonable and necessary, then subject to other requirements in ss 33(5) and 34 of the legislation:

The scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.

On appeal before the Full Court of the Federal Court of Australia, [2017] FCAFC 132, her Honour’s determination was upheld.
Importantly for the purposes of the present determination, Mortimer J held that the parliament did not intend the decision-maker to ask, informing a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan (see [95] of the decision of Mortimer J).
Her Honour went on to say that where a support had been found to be both reasonable and necessary, it would be inconsistent with the purpose of the scheme for such a support to be made effectively conditional on either the provision or the funding by another person of a portion of the relevant support.
The assessment of the wife’s entitlement to payments from the NDIS require the NDIA to examine and decide in a rational and reasonable way “based on probative material” whether or not there is, in fact, capacity for others to provide the support needed. The issue is whether or not support needs to be funded rather than the support to be provided. If the support is to be provided by family members or the community, the funding is not necessary. Importantly, as Mortimer J observed, the issue must be determined on probative evidence. Looking at the evidence of the wife as set out above, there was no suggestion by her how (if at all) the family or the community was to provide the support to obviate the necessity for the funding. That being the case, I see no reason why I ought not accept that in assessing the wife’s needs, the NDIA, assisted by those that contributed to assessing her needs, determined that those needs were at a particular level for which funding was provided. That inference is more probative than the wife’s estimates or anticipated expenses.
The result therefore is that the wife is not entitled to argue that any shortfall in the budget should be met by the husband as part of her maintenance claim. If, as the wife asserts, her needs can be quantified, and those needs have been accepted by the NDIA, they must be funded. If not, there is a problem between the wife and the NDIA and that problem is contemplated by the legislation in review processes.

It is not clear if and when the Government will amend the Family Law Act 1975 (Cth) including section 75(3) to specifically capture and exclude entitlements to the NDIS in calculating an applicant’s income for the purpose of maintenance in order to further protect the public pursue.
Adam Somerville-Brown
Director | Accredited Family Law Specialist
 
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The Family Law Section of the Law Council of Australia has released an article titled “Top Ten Guide for Separated Parents during COVID-19”. The link is here.
We hope this guide will be useful for separated parents during these challenging times.
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Our Associate Angela Hayes has written an article for Wolters Kluwer in relation to Super-splitting for WA de facto couples. This is an interesting article for de facto couples in Western Australia.
https://www.wolterskluwercentral.com.au/legal/family-law/super-splitting-for-wa-de-facto-couples/
E: [email protected]
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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 wish to thank all of you for your ongoing support throughout 2019 and we look forward to working with you all again in 2020.

The post Merry Christmas 2019 & Happy New Year 2020 appeared first on Kim Wilson Family Lawyers.

On 27 November 2019, the Australian Bureau of Statistics issued a Media Release in relation to the most recent statistics available for marriage and divorce rates in Australia.
In the release the ABS said:
“There were 119,188 marriages in Australia in 2018, including 6,538 same-sex marriages.
2018 was the first full year in which same-sex couples could marry after changes to the Marriage Act in late 2017.
In 2018, same-sex marriages represented 5.5 per cent of the total number of marriages and inclusion of these marriages has influenced some key statistics.
The median age at marriage recorded the greatest increase in more than a decade. This was largely because the median age of same-sex couples was considerably higher than that of opposite-sex couples.
The data also showed that the most popular season to marry was spring (31.8 per cent of all marriages), and the most popular day to marry was Saturday 20 October, with 1,993 couples tying the knot.
The information also showed that there were 49,404 divorces in Australia in 2018. The crude divorce rate was 2.0 divorces per 1,000 people in 2018, compared to 2.7 in 1998.”
Please click here to read the full Media Release from the ABS.
E: [email protected] 
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On 27 November 2019, the Family Violence Legislation Reform Bill 2019 was introduced to the WA Parliament.
The Bill proposes amendments to 9 separate pieces of legislation including the Restraining Orders Act 1997 (WA).
In a Media Statement issued on 27 November 2019, the WA Attorney General, The Hon. John Quigley MLA said:
“Domestic and family violence victims make up 61% of assault victims in WA and at least 30% of all matters in the Magistrates Courts involve family violence. Nationwide, a woman dies as a direct result of family violence every 9 days…. This comprehensive Bill will ensure WA is at the forefront of the fight against family violence in Australia”.
You can monitor the progress of the Bill on the WA Parliament website:
www.parliament.wa.gov.au
William Sloan Director
E: [email protected]
 
 
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On 27 November 2019, the Family Law Amendment (WA De Facto Superannuation Splitting & Bankruptcy) Bill 2019 was introduced into the Commonwealth Parliament.
If passed, the Bill will:

Accept a referral of powers offered by the WA Parliament for the purpose of making superannuation splitting available to de facto parties in Western Australia; and
Enable de facto couples in WA to have bankruptcy matters heard concurrently with their family law proceedings.

Please click here for a copy of the Media Release issued by the Commonwealth Attorney General, The Hon. Christian Porter MP on 27 November 2019.
 
William Sloan Director
E:    [email protected]
 
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Legal professional privilege protects the production of communications between a lawyer and their client.  The privileged extends to documents created for the sole or dominant purpose of giving or obtaining legal advice, including representation in proceedings in a court.
The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.
However, in the recent High Court Decision of Glencore International AG v Commissioner of Taxation [2019] HCA 26 it has been determined that legal professional privilege is not an enforceable legal right but is instead an immunity from production of documents.
In this case, the plaintiffs were a group of companies involved with a law practice in Bermuda.  Documents containing privileged materials were stolen from the electronic file management system of the law practice in Bermuda and disseminated to the public.
The defendants, the Australian Tax Office (“ATO”), ultimately obtained copies of the documents and refused to return them to the plaintiffs.
The plaintiffs sought an injunction against the ATO to restrain the use of the documents solely on the basis of legal professional privilege, rather than on the basis of confidentiality, unjustified invasion of privacy or other area of law.
The High Court held that no cause of action had been disclosed by the plaintiffs, that legal professional privilege was not an actionable legal right in of itself and found in favour of the ATO, effectively allowing them to use the privileged documents.
Kim Wilson SC I Director I Accredited Family Law Specialist I Arbitrator | Nationally Accredited Mediator (AIFLAM)
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In June 2019, the Family Court of Western Australia delivered a Decision in a case relating to a property that the parties to a marriage had acquired as joint tenants during their marriage.
By the time the Court case started, the Wife had been living in full time residential care for more than a year (while the Husband remained living in the home owned as joint tenants).  It had been a 45-year marriage.
Each of the parties to the marriage had adult children from previous relationships.
After the Family Court case was started, the Wife died.  Her son sought to continue the case on behalf of her estate.
The Wife had made a Will leaving her estate to beneficiaries other than her Husband.  However, since it was held as joint tenants, her interest in the home did not form part of her estate.
In certain circumstances, the Family Law Act gives the Family Court power to make Orders altering property interests even after the death of a party to a marriage.
The Wife’s son sought to be able to continue with the Family Court case (the consequence of which would be that it was at least possible that a partial interest in the home might be added to the Wife’s estate and become available for distribution to her beneficiaries).  The Husband sought that the Family Court case be ended (the consequence of which would be that he would keep the whole of the house as a result of the operation of the joint tenancy).
The Judge decided that the son should be allowed to continue with the Family Court case.
The facts that arose in this particular case highlight a broader issue which the Law Reform Commission of Western Australia has previously identified, namely whether it should be possible to unilaterally sever a joint tenancy in Western Australia (as is possible in certain other Australian states). The Commission recommended in favour of making unilateral severance available in WA as relatively long ago as 1994 and reaffirmed the recommendation when it looked again at the issue in 2002.
In the context of this particular case, the consequence of unilateral severance being available would have been that the Wife would have had the option at least of creating property which could then form part of her estate.  That is to say, the Wife would have at least had the option to sever the joint tenancy in conjunction with making her Will purporting to distribute to beneficiaries other than the Husband.  Perhaps in those circumstances Family Court proceedings could then have been avoided entirely.
The Decision is reported as Layton & Layton [2019] FCWA 145.  A copy of the Decision is available on the Family Court of WA website www.familycourt.wa.gov.au.
The 1994 and 2002 Reports from the Law Reform Commission of WA are available on the Commission’s website www.lrc.justice.wa.gov.au.
William Sloan I Director I Accredited Family Law Specialist
Get started with William online 
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Kim Wilson & Co Family Lawyers has again been ranked First Tier for Western Australia, 2019, for practicing in the area of Family, Divorce, Parenting, Spousal Maintenance and Matrimonial Law Matters in the Western Australian Legal market.
Kim Wilson & Co Family Lawyers are thrilled to announce seven of our Family Lawyers have been ranked by Doyle’s Guide in various categories for Family Law in Western Australia for 2019.
Leading Family Law Barristers – Western Australia, 2019

Our in house Senior Counsel, Kim Wilson SC has been ranked as a Leading Western Australian Family & Divorce Senior Counsel, 2019.
Leading Family & Divorce Lawyers – Western Australia, 2019
Preeminent

Our Director, Linda Richardson has been rated as a Preeminent Leading Family and Divorce Lawyer.
Leading

Paula Wilkinson, William Sloan both Directors and Robyn Hadley, Consultant have been rated as Leading Family and Divorce Lawyers by Doyle’s Guide in Western Australia, 2019.
Recommended

In addition, our Jane Johnson, Director is rated a Recommended Family and Divorce Lawyers.
Leading Family Lawyers (High-Value & Complex Property Matters) – Western Australia, 2019
Preeminent

In addition to our Director, Linda Richardson having been ranked a Preeminent Family and Divorce Lawyer, she has also been recognised as a Leading Family Lawyer for High Value & Complex Property Matters, Western Australia, 2019.
Leading

Paula Wilkinson, Director has also been ranked as a Leading Family Lawyer for High Value & Complex Property Matters, Western Australia, 2019.
Recommended 

Robyn Hadley, Consultant has been ranked as Recommended Leading Family Lawyer for High Value & Complex Property Matters, Western Australia, 2019.
Leading Parenting, Custody & Children’s Matters Lawyers – Western Australia, 2019
Preeminent

Jane Johnson is ranked a Preeminent leading Western Australian Parenting, Custody and Children’s Matters Lawyer.
Recommended

Linda Richardson is ranked as one of the Recommended leading Western Australian Parenting , Custody and Children’s Matters Lawyer.
Leading Family Law Mediators – Western Australia, 2019
Recommended

Our in house Senior Counsel, Kim Wilson SC and our Consultant Robyn Hadley are both Recommended Leading Family Law Mediators.
Kim has extensive Mediation experience in financial and parenting matters, both participating in Mediation with clients and conducting Mediations.
Robyn has extensive experience in negotiating financial matters, and in particular complex financial arrangements.
Family Law Rising Stars – Western Australia, 2019

Our Associate, Angela Hayes is recognised as a Rising Star in Family Law for Western Australia.
The post Doyle’s Guide 2019 Announcements appeared first on Kim Wilson Family Lawyers.

Your Toolkit is an invaluable online resource aimed at helping women and their families facing financial abuse or other forms of abuse to become empowered through increased skills and knowledge.  Your Toolkit provides information and support on a range of issues from preparing a safety plan, accessing government support payments and emergency accommodation to finding more permanent accommodation, financial support, and legal services.
It is estimated approximately 15% of Australian women have experienced financial abuse.  Your Toolkit aims to provide women the necessary support to achieve financial freedom so they can provide a safe and secure environment for themselves and their families.
Your Toolkit guides women through the four steps to financial freedom:

Prepare: for financial independence and protecting women whether they stay or leave an abusive relationship.
Launch: strategies for leaving an abusive relationship and keeping women and their families safe.
Nourish: protecting women and their finances and where they can go for help.
Flourish: achieving long term financial independence and security, including help on how to budget, save and manage debts.

Your Toolkit does not provide direct support to women, but provides them details, links and phone numbers to key services and organisations as well as general information.   It also provides information about a number of family violence support services.
Lisa Guagliardo I Lawyer
Get started with Lisa online
 
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The Directors of Kim Wilson & Co are pleased to announce Jane Johnson and Adam Somerville-Brown will be commencing as Directors at Kim Wilson Family Lawyers on 1 July 2019.  They will be joining our current Directors, Kim Wilson SC, Paula Wilkinson, Linda Richardson and William Sloan.
Jane is an Accredited Family Law Specialist with a particular interest in the post separation care and support of children. In 2017 and 2018, Jane was named a Leading Lawyer in Parenting, Custody and Children’s Matters (WA) by Doyle’s Guide, an honour that reflects Jane’s commitment to and particular interest in this very important area of Family Law.
Adam is an Accredited Family Law Specialist and has been recognised by Doyle’s Guide as one of the Family Law Rising Stars – Western Australia, 2018. Adam is a consultant author for the CCH Database providing legal commentary on Family Law and a casual lecturer for the College of Law teaching other Lawyers in the field of Family Law. Adam has assisted and represented clients across the spectrum of Family law issues with a special focus on more substantial and complex property settlement cases and parenting disputes.
The Directors and team also welcome Angela Hayes as an Associate of the Firm.
Angela joined Kim Wilson & Co in 2015 whilst completing her law degree.
Angela graduated in late 2016 and was admitted in August 2017. She has gained a wide experience in assisting senior lawyers and instructing senior lawyers of the Firm and independent Barristers at numerous Trials.
She was awarded a Certificate of Legal Business Skills from the College of Law. Angela is a member of the Family Law Practitioners Association of Western Australia and a member of the Young Lawyers Committee. Angela is empathetic to the emotional stress and turmoil that arises from the breakdown of relationships and the family unit. She endeavours to assist clients in reaching an outcome that is rewarding, timely and cost effective.
Once again, the Directors and team members of Kim Wilson & Co congratulate Jane, Adam and Angela on their achievements.
 
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The team at Kim Wilson & Co are passionate about giving back to the profession and being involved in the community.  Part of that involvement includes volunteering time to be a mentor to law students and recent law graduates.
Our Elyce Lines is part of the Murdoch Industry Mentoring (“MIM”) program run by the Murdoch University Guild in partnership with the Murdoch University’s Careers Centre and Alumni Relations.  This program was launched in 2018 and involves matching up Mentors and Mentees based on areas of interest, goals for the Mentor/Mentee relationship, and career aspirations.
After the Mentor and Mentee have been matched, it is up to them to shape their relationship, and work together to achieve the goals they each set. The goals can include:

Assistance with resumes and covering letters;
General advice about the profession;
Discussions about the transition from university to working life; or
Building networks for the future.

You can find out more about the MIM program here – https://mim.murdochguild.com.au/
Our Angela Hayes is also part of the Law Society of WA Mentoring program and is mentoring a law student from Curtin University.  You can find out more about the LSWA program here – https://www.lawsocietywa.asn.au/committee/young-lawyers/
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Kim Wilson & Co Family Lawyers were once again a proud sponsor of this year’s Women Lawyers of Western Australia (WLWA) Honours Dinner. The dinner was held on 7 March 2019 at The Westin.
The WLWA Honours Dinner is held each year to coincide with International Woman’s Day.  It is also held to present the Women in Law awards and to acknowledge the appointments and retirements of female judicial officers in our Courts in Western Australia.
Kim Wilson & Co were delighted to again have the opportunity to contribute to this fantastic event and to celebrate the achievements of women in the legal profession.
Linda Richardson I Director I Accredited Family Law Specialist I Nationally Accredited Mediator (AIFLAM)
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No rules have been promulgated by the Supreme Court of Western Australia in respect of appeals from non-federal decisions of Judges of the Family Court of Western Australia.  This was held by way of unanimous decision of the Full Court of the Supreme Court of Western Australia Court of Appeal (“Court of Appeal”) in the […]
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On 20 November 2018 the Commonwealth Attorney General, The Hon. Christian Porter MP announced that the Government has decided to provide funding to allow a system to be developed which will provide the Courts which deal with family law cases with greater information about the superannuation interests held by the parties. There is an existing […]
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With another year almost over, the staff at Kim Wilson & Co again decided to rally together and contribute to the worthwhile cause called Share the Dignity, “It’s in the Bag” Christmas Campaign. For those who are not aware, Share the Dignity is a charity which supports women in crisis.  The organisation is an Australian […]
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William Sloan, Director and Yvonne Willers our In house Accountant attended at a CPA function held at the Perth Convention Centre on 28 November 2018.  The keynote address was presented by Caroline Spencer FCPA and Auditor General for Western Australia. Caroline is the first female Auditor General of Western Australia and has been in the […]
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Until now it has been possible for a perpetrator of family violence to directly cross-examine their victim in proceedings before the Family Court. The Commonwealth Attorney General, the Hon Christian Porter MP said “Recent research by the Australian Institute of Family Studies found that there were 173 final hearings in the Federal Family Law Courts […]
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