Logo

What if my child refuses to see the other parent?

by

One of the most common issues parents face is defiant children. For separated parents, this issue may arise when handover is looming. So, what can you do when the kids are kicking, screaming and telling you that there’s absolutely no way they’re going to spend time with their other parent?

This issue was addressed in the matter of Cartland v Cartland [2014] (“Cartland”), by Judge Terry of the Federal Circuit Court. The father in this matter filed a contravention application against the mother because their two children, who were 11 and 12 years old, were not spending time with him in accordance with the parenting orders. The father gave evidence that the mother would bring the children to handover and sit silently in the car while the children told the father through the rolled down window that they would not spend time with him.  The mother would then drive the car home, taking the children with her.

When dealing with contravention applications of this nature, the Court is of the view that failing to handover the children pursuant to the orders is not considered a contravention if there is a ‘reasonable excuse’ for not doing so. When deciding whether you have a reasonable excuse, you should seek legal advice.

In Cartland, the mother argued that she complied with her obligations by attending handover and making the children available to the father, but she had a reasonable excuse for the visit not going ahead: the children did not want to go.

The Court disagreed; the mother had not discharged her obligations pursuant to the orders. Judge Terry was critical of the mother’s behaviour, finding that her passive behaviour taught the children that it was reasonable to refuse to spend time with the father. In order to comply with the handover order, the mother had an obligation to positively encourage to spend time with the father; “parents must make a reasonable effort and take positive steps to bring about a change in the attitude and wishes of the children”.

Importantly, each case is different. Many factors will be taken into account when determining what is reasonable in the circumstances, such as the children’s age, maturity and ability to make decisions for themselves; history of proceedings; and family violence. However, the following general guidance may prove helpful when navigating this issue:

  1. You must physically take your child to handover, pursuant to the relevant orders.
  1. If the children express to you or the other parent that they do not want to spend time with the other parent, you must take positive steps to change their attitude. For example, you could:
    1. before the visit, tell your child they will have a good time with the other parent; and
    2. after the visit, talk to your child about what they did with the other parent and raise positive talking points. For example, “you went to the beach with Dad? That’s great! Did you build a sandcastle?”.

After taking positive steps, you will hopefully notice an improvement in your child’s attitude. However, if this isn’t the case, you will at least have a stronger argument for a reasonable excuse.

Presumption of Guilt for DUI Charges

by

The Road Traffic Act 1974 (WA) (the RTA) is the legislation that sets out the rules on how we share and use the road. Naturally, matters involving driving under the influence of alcohol fall under the purview of the RTA.

 In the State of Western Australia, an individual charged with a criminal offence is deemed innocent until proven guilty in a court of law. To be deemed guilty, it must be deemed beyond a reasonable doubt that an individual is guilty of a criminal offence. There does appear to be one exception to this rule however: charges relating to driving under the influence of alcohol.

Of particular concern are the evidentiary provisions set out in ss70 & 71 of the RTA.  Sections 70 and 71 of the RTA allows for Police Officers to breath test you within 4 hours after the alleged use or management of a motor vehicle, then you are subject to being charged for driving under the influence under the RTA.

What makes matters worse is that the RTA provides under the same sections that should Police require a blood or urine sample from an accused, that there is a window of 12 hours between the collection of said sample and the alleged use or management of a motor vehicle for it to be admissible as evidence in a Western Australian Court.

The problem with these evidentiary provisions is that it provides Police with an enormous window to charge an individual with an offence that they might not have actually committed.

For example, you’re involved in a traffic collision and provide Police with your details should they require a statement. You return home and have a drink to calm your nerves after being involved in a traumatic event. Police arrive a short time later requesting a statement or to question you further and during that process, request a breath sample for analysis, picking up on the alcohol you had just consumed.

Under the RTA, that breath test is admissible as evidence and you would be charged with Driving Under the Influence, even if you hadn’t had a sip of alcohol before returning home.

These provisions provide for far too generous an amount of time between an alleged offence and testing. The presumption of guilt that follows goes against one of the cornerstones of our legal system, being the presumption of innocence. Further, these provisions circumvent the onus of the prosecution to prove an individual’s guilt beyond a reasonable doubt as the collection of a sample within the specified timeframe does not recognise that an accused may consume alcohol after the purported incident.

If the contents of this article apply to your current situation, please do not hesitate to contact one of our criminal lawyers on (08) 9408 5212 and speak to a lawyer regarding your rights.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

Can The Police Take My Phone?

by

As we become more reliant on our mobile phones, the idea of losing it can cause a lot of stress and anxiety. The question that a lot of people have though, is under what circumstances can the police take my phone and recover the information stored on it?

According to the Criminal Investigation Act 2006 (WA) (“the Act”) there are multiple circumstances in which police may seize a mobile device, these include:

  1. The police have a search warrant; and/or
  2. The police reasonably suspect that the phone may be relevant to an offence

SEARCH WARRANTS

Police can obtain search warrants to investigate a “target place” or to search for a “target thing”. They are able to seize any “thing” at the target place that may be relevant to an investigation, or that they have a reasonable suspicion has been used for the commission of an offence.

If your phone is the “target thing” or, police reasonably suspect that it’s relevant to the investigation they will likely be able to seize your phone.

REASONABLE SUSPICION

If police don’t have a warrant they may still be able to seize your phone under section 146 of the Act.

This section specifies:

If this Act provides that an officer may seize a thing that is relevant to an offence the officer may do so only if the officer reasonably suspects one or more of the following –

  • That the thing is property that has been stolen or otherwise unlawfully obtained;
  • That the thing may be seized under another written law;
  • That the possession of the thing at that time and place by the person in possession of it is unlawful;
  • That the thing may be forfeited to the State or the Crown;
  • That it is necessary to seize the thing for one or more of the following purposes –
    1. To prevent it from being concealed, disturbed or lost;
    2. To preserve its evidentiary value;
    3. To do a forensic examination on it;
    4. To prevent it from being used in the commission of another offence

Police aren’t able to seize your phone on a whim. They must be able to show that they have a right to seize it, and, that they have a reasonable suspicion that the phone relates to an offence.

DATA ACCESS ORDER

Just because the police have your phone does not mean you need to unlock the device or provide them access to it.

If police want to unlock the device, they are required to obtain a “Data Access Order”. If their application is successful then you would be required to provide information and assistance reasonable and necessary to allow the officers to gain access to the data included in the Order.

If you have been served a search warrant, or had property seized by the police, please do not hesitate to contact one of our criminal lawyers on (08) 9408 5212 and speak to a lawyer regarding your rights.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

Will my Past Criminal Convictions Stay on my History Forever?

by

Your past criminal convictions on your criminal record can impede your future; it can impact your ability to get a job, travel to some countries, obtain visas and loans.

If you have been convicted of a crime in the past, you may be worried about whether it will stay on your criminal record forever.

While there is no obligation for the police in Western Australia to destroy any conviction record information – you may be able to apply to have your convictions “spent”.

 

What is a Spent Conviction?

A spent conviction does not have to be disclosed under most circumstances and will not be included when you apply for a National Police Clearance check.

This does not mean that the offence disappears completely, the police will still have a complete record and if you have later court appearances, even spent applications are considered.

Certain situations do require you to disclose a spent conviction such as when you apply for a Working with Children Check, or if you are applying to work for a casino or the police.

 

Am I Eligible?

To be considered eligible for a spent conviction in WA for a past offence, the conviction must:

  • Be a ‘lesser conviction’ in which the penalty was;
    • A fine of $15,000 or less; or
    • An imprisonment term of 12 months or less.
  • Have been heard in a West Australian Court;
  • Be over 10 years old; and
  • The most recent conviction (if multiple), including traffic and interstate matters, must be over 10 years old or have a fine of under $500.

For lesser convictions these are dealt with by the Commissioner of Police.

If however you wish to have more serious convictions spent (that being penalties above the $15,000 / 12-month limit) you must make an application to the District Court.

Factors that are considered for a successful application include;

  • Your personal circumstances;
  • The type of offence;
  • The penalty you receive; and
  • Your criminal history.

 

Commonwealth (Federal) Offences

If you have been convicted of a federal offence, this conviction may automatically become spent after a certain amount of time under the Crimes Act 1914 (Cth).

These times are:

  • For an adult, 10 years beginning on the date of conviction, and
  • For a minor, 5 years beginning on the date of conviction.

 

How can a lawyer help?

Lawyers would be able to advise you on whether or not you are eligible to apply to have your past criminal convictions spent. On top of that, we can assist you in drafting your documents needed to progress your application and put your best foot forward before the Courts.

If you wish to be assisted on the matters discussed above or have any further questions, please do not hesitate to contact us today on (08) 9408 5212 and speak with a lawyer regarding all your criminal record queries.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

Coping with Christmas – 10 tips for separated Mums and Dads

by

For families with separated parents, coping with Christmas can be a time of disappointment and disagreement. Rather than opening presents first thing in the morning and happily gorging yourself with far too many mince pies, separated parents might find themselves a little sad during what should be a joyful time. Caught in the middle of this are children who just want to enjoy the festive period.

With substantial experience in family law, our lawyers have ten top tips to help separated parents make the most of coping with Christmas:

  1. Plan ahead. If you’re not sure whether the kids will be at your house or your ex’s on Christmas morning, now is the time to make arrangements.

 

  1. Remember that Christmas is a time for your children. Practical steps to prioritising the children’s best interests include asking them what they want to do over Christmas, listening closely to what they say and putting their wishes ahead of your own. The kids want to watch The Grinch on Christmas Eve instead of It’s a Wonderful Life? Maybe suck this one up, Dad.

 

  1. That being said, parents should always call the shots. If children’s wishes can’t be met (for example if, despite their pleas, you can’t make it to the North Pole to visit Santa and his elves this year because of border closures), explain to the children why they can’t do exactly what they want to do over Christmas. Young children are not decision-makers – that’s your role.

 

  1. Build the children’s excitement by telling them everything they can expect on Christmas day. Who is coming over? What are you eating for lunch? Most importantly, when can they open their presents? This serves the dual purpose of encouraging some festive excitement and keeping them involved in the plan for the special day, causing them to feel involved.

 

  1. Allow your children to take items of comfort between homes. This is particularly helpful if the children are young, as they are more likely to have a favourite and familiar item which will help them settle into the other parent’s home. If one of the children accidentally leaves an item of comfort with you after handover, organise for it to be returned as soon as possible.

 

  1. Be flexible. While each parent should try to abide by the agreed care arrangement, sometimes things happen. If the children are half an hour late to handover because your ex’s Christmas family lunch went a little over the planned time, suggest the children spend an extra half an hour with you to make up for this. Be practical, not argumentative.

 

  1. Avoid conflict. Although emotions are heightened over the festive period, especially if Christmas isn’t living up to what you had hoped. It’s important to avoid conflict when the children are present. The quickest way to ruin Christmas for your children is to argue in front of them.

 

  1. Handover should not be stressful. If seeing your ex is usually a tense affair, enlist the assistance of a third party to facilitate handover for you. For example, a family member or friend. Avoiding your ex entirely is sometimes the key to keeping negative emotions at bay.

 

  1. Seek legal assistance if you need to. You could do everything in your power to plan the perfect Christmas around your difficult ex, and they still might not cooperate. In such a scenario, remember that our office does not shut down for Christmas until 24 December 2020, so there’s still plenty of time to reach out for assistance.

 

  1. Finally, always remember there are many social services open over Christmas if you need help. The contact information for various services who specialise in providing assistance to different people in different circumstances can be found via the following link: https://www.whiteribbon.org.au/Find-Help/Help-Lines.

 

If you would like to discuss your personal circumstances with one of our experienced family lawyers for coping with Christmas, please contact our office today on (08) 9408 5212.

Carrying a Weapon: Could what’s in my Bag Get me in Trouble?

by

Have you ever been going about your day, minding your own business and then had to go through a bag check and wondered if the contents of your bag could get you in trouble?

What exactly is a weapon? Could that pocket knife you got for your 16th birthday that you always forget is there get you in trouble?

Almost anything can be a weapon if it is carried or possessed with the relevant intent.

Section 8 of the Weapons Act 1999, holds that it is an offence to carry an item that is not a controlled or prohibited weapon, but could be used as a weapon (such as a baseball bat or wrench), if the person has an intention to use it as a weapon, or threatens to use it as a weapon. Whilst the section does provide a list, it is important to know this isn’t exhaustive. The biggest concern is what you intend to do with the object.

Whether or not an item can be said to be a weapon, depends on the way in which it is being held or used. There needs to be enough evidence to give reasonable grounds for suspecting that the person has the relevant intention to use the item as a weapon. Circumstances which may be taken into account to determine intention include the object itself, the location in which it is being carried, how it is being carried, the time of day, and whether there is a credible explanation.

A good example of the matter of ‘circumstance’ is that of Guant v Hooft [2009] WASC 36. A tow truck driver approached another driver with a spanner in his hand. He argued he had it because he did not want the other driver to leave, he had no intention of using it as a weapon. Even though he was yelling as he approached the other driver, it was decided that he did not have the relevant intent for the spanner to be considered a weapon and that under the circumstances it was reasonable for him to have a spanner without the intention of it being a weapon.

If you have been charged with a Weapons offence or had property seized by police under suspicion of a weapons offence, get in contact with one of our criminal lawyers to discuss your matter and your rights and obligations.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Can I be Charged for Drink-Driving if I am Sitting in a Stationary Vehicle?

by

In Australia, the dangers of drink-driving are well known. We have almost all viewed and been exposed to the government funded Road Safety Commission television advertisements and educational campaigns. It is generally common knowledge amongst license holding Western Australian’s that driving with a blood-alcohol level of over 0.05% is illegal. However, not many people know that sitting in a stationary car and drinking alcohol, or being under the influence of alcohol, may also be against the law.

According to Section 63 of the Road Traffic Act 1974 (WA):

  • A person who drives or attempts to drive a motor vehicle-
    • While under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of alcohol or drugs to such an extent as to be incapable of

          having proper control of the vehicle,

          commits an offence, and the offender may be arrested without a warrant.

In order to determine whether or not a person is under the influence of drugs or alcohol, Section 66 of the Road Traffic Act relevantly states that:

  • A police officer may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test in accordance with the directions of the police officer, and for the purposes of this subsection may require that person to wait at the place at which the first-mentioned requirement was made.

A person may therefore be charged with drink-driving if they are over the legal blood alcohol limit and they are:

  1. Driving a motor vehicle; or
  2. Attempting to put a motor vehicle into motion; or
  3. ‘In charge’ of a motor vehicle.

A person will be determined to be ‘in charge’ of a motor vehicle if they have the ability to exercise physical control over it. This is a broad definition which encompasses a range of situations, such as: sitting in an idling vehicle; sitting in a stationary vehicle while in possession of the keys; or even sleeping behind the wheel of a stationary vehicle.

Whether or not a person is determined to be ‘in charge’ of a vehicle will depend upon a combination of the following factors:

Location of the Person

The location of the person is a key factor in determining whether or not a person is ‘in charge’ of a motor vehicle. Put simply, the closer the person is to the ignition of the vehicle, the more likely they are to be determined to be ‘in charge’ of it.  For example, a person is sitting in the driver’s seat is, by nature, far more likely to be able to exercise physical control over the vehicle than a person who is sitting in the backseat.

Location of the Car

Another important factor in determining whether or not a person is ‘in charge’ of a motor vehicle is the location of the car. The location of the car will not only give police an indication of whether the person was driving before the offence occurred, but the extent to which putting the car into motion may have presented a danger to the public. For example, a person parked in their own driveway may present less of a concern to police than someone who is parked on the side of the freeway or on a major street in a busy area.

Location of the Keys

The location of the keys will also play an important role in determining whether or not a person is ‘in charge’ of a motor vehicle. Given that keys are required to start the engine of most motor vehicles, not having possession of them would indicate to police that a person is unlikely to be able to exercise physical control over the vehicle. The keys being located in a person’s bag, on the backseat of the vehicle or in the boot would also be more favourable than being found in the ignition, for example.

 Status of the Engine

Like the location of the keys, the status of the engine will play a critical role in whether or not a person is determined to be ‘in charge’ of a motor vehicle. For example, if the vehicle’s engine is running, a person is far more likely to be able to exercise physical control over the vehicle than if it had been turned off. However, the status of the engine may also be mitigated by other factors, such as the location of the driver and how alert they appear to be. For example, a person sleeping on the backseat of their car may be able to justify the engine running for the purposes of air conditioning while they sleep.

Level of Alertness

The final factor in determining whether or not a person is ‘in charge’ of a motor vehicle is how alert the person appears to be; or in other words, whether they are awake or asleep when found by police. A person who is found to be asleep would, from a logical perspective, be far less likely to be able to exercise physical control over the vehicle than someone who is awake. However, a person who is asleep is not automatically excluded from committing an offence and would still need to prove that they were not ‘in charge’ of the vehicle when they were found by police.

 

Even if a person satisfies each of these factors and is determined to be ‘in charge’ of a motor vehicle, they may still be able to contest this charge if they can sufficiently demonstrate that they did not intend to drive and/or were not in control of the motor vehicle. This may apply in situations where a passenger was drinking alcohol but did not have sufficient control over the vehicle, for example.

Drink driving offences of this nature are a complicated and niche area of law. Due to the complexity of the situation, the specific factual circumstances play a prominent role in any defence.

If the content of this article appears relevant to your circumstances, or if you require assistance with another matter related to Traffic Law, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Parenting arrangements and Christmas: don’t leave it too late!

by

“It’s the most wonderful time of the year!” … except when it’s fraught with arguments because your ex won’t agree to a Christmas parenting arrangement. Arguing about where the children will spend Christmas isn’t very festive. In light of the whirlwind of 2020, we all deserve a much more relaxing and joyful end to the year. For this reason, you should seek to make Christmas care arrangements well in advance so you can enjoy the lead up to the festive period without any unnecessary stress.

What can I do?

The Family Court’s deadline for applications to be heard before Christmas was 13 November 2020. If you haven’t already filed an application seeking orders for Christmas care arrangements, the Family Court will be unable to assist you this year. It’s time to ramp up your negotiation efforts.

If you’re on amicable terms with the other parent, you might be able to agree to a care arrangement on the basis of a few informal conversations. However, it’s not always that easy. Engaging the assistance of a lawyer to negotiate on your behalf is often an investment worth making.

If you still can’t agree, it’s not too late to attend mediation or an informal conference. Often the involvement of an experienced third party can help warring parents resolve parenting disputes, even if the short-term ones.

What should I propose?

Some options you might consider are as follows:

  • A common compromise on Christmas day is for children to spend their time with one parent in the morning and with the other parent from midday onwards. This allows for the children to spend equal time with each parent on the special day.
  • Often, parents agree to alternate the arrangement each year. That is, if the children spent Christmas morning with mum this year, they’ll spend Christmas morning with dad next year.
  • If the children can’t spend time physically with one parent (say, they’re currently abroad), spending half an hour on video-call might make their day.
  • Sometimes, one parent might have family traditions that the children participated in each year prior to separation. If the children look forward to this each year, it is likely in their best interests to ensure this annual tradition is not broken, even if it means one parent might have a little less time with them over Christmas.

Of course, what works for one family might not work for the next. You should obtain legal advice about the suitability of specific care arrangements in your circumstances. Our lawyers are well-versed in family law disputes, including those specific to the festive period.

What if I don’t get what I want?

Christmas is a time for family. There is nothing more festive than being woken up at 5am by your children bouncing on your bed and asking whether Santa has been, or falling asleep on the sofa watching Christmas movies with the kids. Parents disagreeing about care arrangements has the potential to ruin the “ideal” Christmas. When this issue rears its ugly head, there is only one thing to remember: the children’s best interests are the priority.

It isn’t about what the adults want. If you wanted to wake up with the children in the morning but your ex is insisting otherwise, be flexible and compromise. The earlier an agreement is reached, the longer you have to plan your time with the children to make sure it’s their best Christmas yet.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

I just want a divorce – but my ex won’t accept the paperwork

by

You may be familiar with the line in police and legal dramas where documents are handed over saying, “you have been served.”

In a Family Court context, the first time documents are served in a particular matter must be by the default method of “Special Service” – this is service where you prove to the Court that the documents have been received by the other party, before the matter can proceed. 

Service of Court documents is an essential, if sometimes frustrating, part of the process of beginning Court proceedings. It is essential, because the Court must be confident that the other party to proceedings is aware that the Court proceedings exist, so they have an opportunity to respond. 

This is typically done by an “Affidavit of Service” and either an accompanying “Acknowledgement of Service” and “Affidavit Proving Signature,” or the Service Agent swearing that they positively identified the person, such as by photograph, before leaving the documents for them. So far so good – these are provided in the Family Court “Service Kit” with instructions. 

In an application for Divorce, for example, either person can apply for divorce, even if their spouse wants to stay married. The other person can’t refuse to be divorced – either person can end the marriage, but the objecting party might attempt to avoid service of the documents, to avoid getting divorced, or simply to be frustrating. 

This might be in the form of refusing to reply to emails, refusing to identify themselves or come to the door. Sometimes it involves barricading themselves in their home, behind high fences.

This calls for what is known as “Substituted Service,” or “Dispensing with Service” 

 

Substituted Service 

In the Family Court context, this is where an application for substituted service comes in. If a person won’t accept service, you can apply to the Court to ask that service via an alternate method be “deemed” to be effective. 

The rules about service are located at Chapter 7 of the Family Law Rules. In particular, rule 7.18: 

 

FAMILY LAW RULES 2004 – RULE 7.18

Service with conditions or dispensing with service

 

(1)  A party who is unable to serve a document may apply, without notice, for an order:

(a)  to serve the document in another way; or

(b)  to dispense with service of the document, with or without conditions.

 

(2)  The factors the court may have regard to when considering an application under subrule (1) include:

(a)  the proposed method of bringing the document to the attention of the person to be served;

(b)  whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;

(c)  whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;

(d)  the likely cost of service; and

(e)  the nature of the case.

 

(3)  If the court orders that service of a document is:

(a)  dispensed with unconditionally; or

(b)  dispensed with on a condition that is complied with;

the document is taken to have been served.

 

Note: An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).

 

The most common way to accomplish substituted service is via an email address. 

However, to do this, you must address the factors at Rule 7.18 (2) to the Court, via an accompanying affidavit statement. 

In an email example, this could potentially be demonstrated with the following evidence: 

  1. A statement regarding the email address of the other party 
  2. Other attempts at service or why other methods were not attempted, for example: 
    1. The cost of service – perhaps exorbitant to serve documents in another country and have an affidavit sworn in English
    2. Evidence of unsuccessful attempts at skip-tracing
    3. A statement that their address is unknown
  3. Evidence of historical use of the email address, that demonstrates that the person using the address is the relevant person
  4. Evidence of recent use of the email address, which will show the Court that emails sent recently will likely be seen by the recipient. 

 

If email is impossible, it might be time to consider alternative approaches; such as:

  • Newspaper advertisements; 
  • Private investigators; or even
  • Getting in contact via mutual acquaintances.

Ultimately, a decision regarding whether a particular method of substituted or dispensed service is at the discretion of the Court, so putting the best evidence before the Court to show that service has been affected is essential. 

If you would like assistance with a substituted service application, Carter Dickens Lawyers is experienced with these, and all manner of Family Court applications.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

‘My Ex has Control of all our Financial Assets!’ – Your Right to Partial Property Settlements during Financial Separations

by

A financial separation is often a difficult and stressful process for both parties involved, particularly so where your ex-partner maintains control over joint assets or has a much higher earning capacity. Unfortunately, it is sometimes the case that one party to a financial separation maintains financial control over the other due to their higher earning capacity or control over joint assets. For example, this may be the result of one party withdrawing from the workforce during the relationship to take on the role of the primary carer of the parties’ children.

As the process of finalising financial settlements can often take months or even years to be resolved, it may be the case that the party with a lower earning capacity will face financial burdens and may require additional funds to support their daily living expenses, legal fees and/or educational costs. In these circumstances the burdened party may seek what is known as a ‘partial property settlement’; this is essentially an ‘advance’ of funds which can be paid before the final settlement is complete.

Partial property settlements can be ordered in these circumstances to counteract the inequity in the parties’ access to assets and/or financial resources during negotiations or proceedings. These settlements are recognised and accounted for in subsequent negotiations and proceedings as a distribution made in the otherwise burdened party’s favour.

 

What do I need in order to be successful in a partial property settlement?

The Family Court of Western Australia under sections 79 and 80 of the Family Law Act 1975 (Cth) has the discretion to make an interim property order when it is appropriate and in the interests of justice. The primary consideration for the Court when adjudicating these matters regards the current financial circumstances of the parties as opposed to the purpose for which the funds are sought.

An application for partial property settlement requires the applicant to satisfy the Court of the following elements:

  • A source for finance of the payment can be identified;
  • There is a party with the majority control of assets or relative financial strength;
  • The payment must not be more than the party will ultimately receive from the settlement;
  • There is a reasonable explanation on what the funds are for; and
  • It is ‘just and equitable’ and in the interest of justice to make the partial property settlement order.

It is noted that the Court does not make interim cost orders such as partial property settlements without a strong consideration to the circumstances of each party. Essentially, the Court will make this determination on the basis of the evidence that is before it with respect to the value of the asset pool, the initial contributions of the parties and the contributions of the parties throughout the marriage, but most importantly, if it considers it is just and equitable to do so.

An applicant must convince the Court on the evidence at hand that you will, without doubt, receive more in the financial settlement than you are asking for on this interim basis. This is to ensure the payment cannot cause injustice later on where the relationship assets have already been spent.

Where the Court makes this order, it is described as an ‘add-back’. That is, the funds which are distributed to a party via a partial settlement will be acknowledged and added back to the value of the asset pool available for distribution, but is recognised to have been distributed in one party’s favour already.

 

Is partial property settlement my only option?

Other orders can be sought to remedy the discrepancies in parties’ resources during family law proceedings. These include seeking a periodical or lump sum for spousal maintenance under ss72 and 74 of the Family Law Act or seeking a “dollar for dollar” order under s117(2) to cover the expense of legal fees.

 

How can I apply for a partial property settlement?

If you have not commenced proceedings but seek to have a partial property settlement, you can apply for this via interim Orders sought in your initiating documents before the Court. If proceedings have already commenced, a partial property settlement must be applied for via a Form 2, ‘Application in a Case’. These can be filed on the eCourts website after paying the relevant fee.

If the contents of this article appear relevant to your circumstances, or if you require any assistance with your family law matter, please contact our office on (08) 9408 5212.

 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Contact Us

Suite 102, 126 Grand Boulevard, Joondalup WA 6027

Phone: (08) 9408 5212

info@cdlawyers.com.au