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“But I’m not the dad!” – Presumptions of Parentage in the Family Law Act

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A DNA test is typically the most reliable method of determining whether or not a man is the father of a child. However, under the Family Law Act 1975 there are a number of presumptions of parentage:

  • Marriage if a child is born to a woman who is married (s69P(1)) or is born within 44 weeks of a marriage ending by death or annulment (s69P(2)), the child is presumed to be a child of the woman and her husband. Also, is a child is born within 44 weeks after the end of cohabitation, but after the divorce of a man and woman, the child is presumed to theirs (s69P(3)).
  • Cohabitation If a child is born to a woman who has cohabited with a man during a period not earlier than 44 weeks and ending not less than 20 weeks before the birth, the child is presumed to be the child of the man.
  • Named on the Birth Certificate If a person’s name is entered as a parent on the child’s birth certificate under a law of the Commonwealth, or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be the parent of the child.
  • A Court’s finding If a court has made a finding that a person is a parent of the child, the person is presumed to be the parent of the child.
  • Declaration If a man has executed a legal document, such as a statutory declaration, acknowledging that he is the father of a child and the document has not been repealed or set aside, he will be presumed to be the father.

Where a presumption arises and is satisfied, this is often enough for the court to make a determination as to a parent’s requirement to pay child support.

 

Rebutting the presumption

These presumptions are rebuttable by proof on a balance of probabilities. This means the standard of proof is ‘more likely than not’, in comparison to the standard of proof ‘beyond a reasonable doubt’ in criminal cases.

The obvious mechanism for rebutting the presumption is a DNA test. The court is able to make orders for a paternity test on its own initiative or by one of the parties making an application. Failure to undertake a DNA test while claiming that you are the father of the child may allow the court to conclude that you are not the father.

 

An Interesting Case: Artificial Semination

In the recent case Masson v Parsons & Ors [2019] HCA 21, the High Court rule that a man who donated his sperm for the birth of a child through artificial semination is a parent of the child under the meaning of parent in the Family Law Act 1975.

The man took action when the mother of the child attempted to relocate to New Zealand with the child and her partner. The High Court overturned the Full Court of the Family Court’s finding that the man was not a parent of the child. It was said at [26]-[29] of the majority judgement that: “A court will not construe a term in a way which departs from its natural and ordinary meaning unless it is plain that parliament intended it to have a different meaning.”

Therefore, because the man is the biological father of the child and provided his genetic material for the purpose of fathering a child, he was held to be a parent for the purposes of the Family Law Act.

If you have concerns about whether or not you are the father of a child, Carter Dickens Lawyers can assist you. Contact us today on (08) 9408 5212 to speaker with a lawyer who can assist you.

 

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.

Consideration of Inheritance in Property Settlements: Who’s Entitled to What?

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How Does Financial Separation Work?

There are four ways financial separation can occur:

  1. By Orders of the Family Court of Western Australia;
  2. By Consent Orders;
  3. By Binding Financial Agreement; or
  4. By Informal Agreement.

You should seek legal advice from a lawyer experienced in Family Law property matters to determine the best form of financial separation for you.

When finalising your orders formally, there is an expectation that Orders or an Agreement should completely sever the financial ties between the parties, known as the clean break principle, and then ‘vest’ any property a party is entitled to in the name of that party. In doing that, it means that except in very limited circumstances, your ex should not be able to come back and try and seek further funds from you.

 

What Happens if I receive an Inheritance Payment Prior to Financial Separation?

It’s not always simple to come to an agreement on financial separation, and there is always a risk if you only come to an informal agreement, that your ex can try and come back later and seek more funds from you. This may occur where one party receives an inheritance after the death of a parent.  

There is a common misunderstanding that inheritance received after separation, or towards the end of the relationship will not be included in the asset pool. This is not always correct. Assets obtained post-separation or to benefit only one party are still considered a part of the asset pool. The Courts starting position is that all assets obtained, during the relationship and even post-separation is to be considered during a property split. This is often referred as the “global approach” and whilst it is common, there are exceptions to the rule. If a party wishes to “quarantine” inheritance then they must be able to show there are sufficient funds in the asset pool to ensure a just and equitable division and that the other party can still receive a fair portion of the asset pool without having to take from the inheritance.

When it comes to inheritance, relevant considerations include, when the inheritance was received and the nature of the relationship between the deceased and the other party.

 

Timing

If the inheritance was received early in the relationship or even before the relationship commenced, it is usually treated as an initial contribution of that party and is a relevant factor in the division of assets.

If the inheritance was received during the relationship it can be considered to be used for the “betterment of the family or the couple” and is likely to be considered a contribution to the relationship and not to the benefit of either party. The exception to this however is if the deceased makes it very clear that the inheritance is only to benefit the inheriting party. In which case, the funds would likely be considered as a financial contribution by the inheriting party and there would be some recognition in the division of the asset pool of the money provided.

If the inheritance is received post-separation, there are two ways it could be treated, and, depending on your individual separation will depend how it is treated. It will be treated as either:

  1. Part of the global assets; or
  2. A quarantined asset

 

Relationship Between the Deceased and the Other Party

When deciding if an inheritance should be shared between the spouses in a financial separation, the court considers the intention of the deceased. If the deceased appears to have left the inheritance for the betterment of the entire family, a court is likely to include it in the asset pool despite the receipt of the inheritance being after separation. On the other hand, if it appears to have been left only to the named beneficiary, it is likely to be kept apart from the divisible assets. Similarly, the court will look at the relationship of both spouses with the deceased to discern what the intentions would have been.

Essentially, if the inheritance is received before finalising Consent Orders for the property settlement, it is possible that it may be included in the asset pool. It is best to seek legal advice on the possibility of including or protecting an inheritance from being included.

For advice on financial separation, especially if you are aware you or the other party will be, or have, received inheritance or the likelihood of inclusion of an inheritance after separation, contact us on (08) 9408 5212 or info@cdlawyers.com.au to book a meeting.

 

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.

Will my Past Criminal Convictions Stay on my Criminal Record Forever?

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The short answer: if the last conviction is at least 10 years old, then you may be able to clear your record.

Your criminal record is adduced from your criminal history, which consists of all arrests, court appearances, convictions, non-convictions and police warnings that are kept on file by the police. Naturally, you may be anxious about these past issues staying on your criminal record forever. This record may have an impact on potential job applications, should an employer make a request for you to disclose any criminal convictions.

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

 

What is a Spent Conviction?

A spent conviction is essentially the same as having no conviction recorded. This means the disclosure requirements for that conviction will be limited. 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 (a key document employers may require when applying for employment).

However, it is noted that although a conviction is ‘spent’, the conviction does not disappear completely – the police will keep the record as part of your private criminal record, and your whole criminal history will be reviewed if you find yourself in court for another offence.

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.

For a full list of exemptions, you can review the Spent Convictions Act 1998 (WA), or talk to a lawyer regarding your specific situation.

 

How can I Apply for a Spent Conviction?

You can apply for a spent conviction while you are being sentenced. Preparing this simultaneous application will not have any impact on your actual penalty, rather this is treated as a separate matter once the sentence has been handed down.

If your concern is regarding a previous conviction, you may apply to have it spent by submitting a Spent Conviction Application form, or through a National Police Certificate application as the application includes a request for the WA Police to spend any eligible WA Convictions.

 

Am I Eligible?

To be considered eligible for a spent conviction in WA, 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.

All serious convictions that imposed penalties above the $15,000 or 12-month limit can only be spent by making an application to the District Court.

A successful District Court application will depend on a number of factors including:

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

You must ensure that you provide adequate reasons for the Court to make this decision in their discretion. Carter Dickens Lawyers specialises in spent conviction applications and may assist you with efficiently working through the necessary steps to apply for such orders.

 

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?

If you would like to discuss your eligibility and the process involved in applying for a spent conviction, Carter Dickens Lawyers are able to guide you through this application.

If your matter concerns a serious conviction, preparing your case to convince the Court can be a difficult task, and for this reason, it is advised that you speak to a lawyer before commencing your application process.

If you require assistance with any of the matters discussed in this article, please do not hesitate to contact us today on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

 

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.

Child Abduction and Family Law

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It can be a terrifying moment for parents when they discover that their partner or ex has taken the children somewhere and cannot be contacted or located. If you believe that your partner or ex has taken your children and intends to flee with them, you should immediately contact the police emergency services on Triple Zero (000), and then contact a family lawyer experienced in recovery matters.

Often, whilst overwhelmed in this moment, parents can feel like they are powerless and there is not a lot they can do. This is not always the case and recourse is available to locate, and if necessary, recover children who have been taken.

 

If They Are Still in Australia

If you know your ex has taken the children but is still located in Australia, there are a few options available to you to assist in finding out where your children are and, if appropriate, having your children returned to you.

You do not need court orders to be able to have a child located and recovered. If you have a parenting plan in place (even an informal one) or so long as you are involved in the child’s life and have a hand in the child’s care, welfare and development then you will be able to make an application. This also applies to grandparents.

 

LOCATION ORDERS

A Location order is an order requiring a party to provide information to the Court regarding the children’s whereabouts.

A government agency (for example the police) can also provide information to the Court about the location of the children.

If a location or Commonwealth information order is granted, you will not be provided the information and, if you are legally represented, then your lawyer will only be able to receive that information if there is a court order allowing them to do so.

 

COMMONWEALTH INFORMATION ORDERS

A Commonwealth information order is an order to government entities requiring that they provide information (if they have any) to the Court regarding a child’s location.

 

RECOVERY ORDERS

Keeping in mind with all of the above orders, if the court believes it appropriate that the court’s paramount consideration is the best interest of the children, then it will make a Recovery Order.

A Recovery Order allows appropriate agencies (such as the police) to do what is required to find and recover a child and return them to the applicant, if they are a parent or have responsibility of the child. You do not need to have Court Orders in place for a recovery order to be granted.

If a recovery order is granted you will not be able to be present during the recovery and would be informed afterwards if it was successful and how to arrange handover of the children.

 

If They Have Left Australia

It is a criminal offence punishable with 3 years immediate imprisonment to remove a child from Australia or (if already removed) stopping a child from returning to Australia.

There are very limited grounds to remove, or keep a child removed, from Australia.

If this has occurred, the police have specialist units whose duty is to recover children who have been abducted. Australia and a large number of other countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, which allows for the recovery and return of children under the age of 16 taken to one of these countries.

If your ex has taken your children internationally, you will need to obtain a Recovery Order to direct the appropriate authorities to locate and return your child to you.

If you do not know the location of the child or the other party, then you may need to consider obtaining location orders and/or Commonwealth information orders.

 

What if I’m Worried They May Take the Kids and Leave Australia?

If you have genuine concerns that the other party is going to take the children and take them out of Australia, you are able to seek Family Court Orders preventing them from being able to do so.

If appropriate, the Court has a number of options available to stop a party from removing children from Australia. These options include:

  1. an order that the children’s passports be held at the Court.
  2. the children be put on the Australian Federal Police (AFP) Airport Watchlist. If Children are included on the Airport Watchlist, it means that if someone tries to remove them from Australia they will be flagged on the system and the AFP will be alerted to potential movement of the child.

The Court will ordinarily provide Watchlist Orders to the AFP on the same day that the Orders are made. Airport Watchlist orders can be granted on an urgent basis, even if the Court is not open at the time you find out that the other party is going to be taking them.

If you do have concerns that the other party is going to take your children, you should contact police emergency services on Triple Zero (000) immediately and then contact a lawyer during the day, or if after-hours first thing the next day.

Carter Dickens Lawyers is able to arrange urgent client meetings with same-day appointments as needed. We have experience in making urgent court applications and the have acted in such matters in the past.

Contact our Office on (08) 9408 5212 for a no obligation initial consultation and one of our experienced lawyers will be able to discuss the above matters with you as well as broader family law matters.

 

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 my ex access my psychological records?

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In family law parenting matters, it is well-established that the paramount consideration to the Court is the best interests of the child. This takes priority over everything, even your right to confidentiality.

In considering what is in the best interests of the child, the Court will consider many factors, including:

  • the benefit the child may have from a meaningful relationship with both parents;
  • any views that the child expresses;
  • the nature of the relationship between the child and each of the child’s parents; and
  • the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs.

If one parent attends counselling, it is likely that their counsellor’s notes would shed some light on these factors. In particular, the psychological records would be relevant to the question of whether the parent has the capacity to:

  • take care of the child’s best interests;
  • take care of the child physically;
  • provide emotional support to the child;
  • maintain or build a meaningful relationship with the child; and
  • Take care of the child long-term.

Psychological records may also evidence a risk of future family violence, psychological abuse or neglect. Therefore, psychological assessments can be highly relevant when determining orders that are in the child’s best interests.

 

How can my records be obtained?

Psychological records can be obtained pursuant to a subpoena. A subpoena is an order by the Court to an institution, such as your counsellor, to provide documents they have on record pertaining to you. Failing to comply with a subpoena is a breach of a Court order, which is punishable by a fine or imprisonment.

 

What about confidentiality?

Health practitioners have a duty of confidentiality, pursuant to which they cannot disclose medication information about the patient without the patient’s consent. However, this duty is subject to the medical practitioner’s obligations under a subpoena. If a counsellor receives a subpoena requesting them to provide documents to the Court about a patient, they must do this; practitioner-patient confidentiality is subject to the Court’s orders.

 

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.

It’s the Drugs, Not Me!: How Perth’s Drug Court addresses drug addictions and helps to reduce overall sentences simultaneously

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Drugs are often related to crime through the effects that they have on the user’s behaviour. In the eyes of the law, an offender cannot use their drug use as an excuse for criminal actions.

However, while an offender cannot blame drugs on their offending behaviour, an acknowledgement of a drug problem may enable them to access the Perth Drug Court for help.

 

What is the Drug Court? What does it do?

The Perth Drug Court operates in the Perth Magistrates Court and is aimed at breaking the cycle of drug related offences by allowing individuals to enter a treatment program prior to sentencing. Allowing the participant to deal with the problems prior to sentencing shows the Court that they have taken positive steps in the attempt to reduce the likelihood of reoffending. As a result, the presiding judicial officer will take these steps and efforts by the offender to change their behaviour into account, and may subsequently reduce their overall sentence in light of this information.

This process aims to help individuals by:

  • Supporting participants in addressing their substance misuse and associated lifestyle;
  • Helping participants change their behaviour so that they can lead a constructive, fulfilling and law-abiding life;
  • Reducing the imprisonment of those with substance misuse issues by addressing problems that are integral to offending behaviour; and
  • Reducing post-treatment supervision requirements for participants by having them address relevant requirements at an earlier stage in the process.

A review of the Perth Drug Court conducted by the Department of the Attorney-General found strong evidence that involvement in a Drug Court program had a positive effect in reducing the level of re-offending among individuals charged with a drug-related offence. Specifically, it was found to be associated with a net reduction in recidivism of 17% over prison and 10.4% over community corrections.

 

Who is accepted by the Drug Court?

Not everyone is automatically eligible to participate in the Drug Court program. To participate, an applicant must:

  • Admit that they have an illicit substance abuse problem;
  • Enter a plea of guilty to all charges;
  • Be willing to undergo appropriate and agreed evidence-based drug treatment, in the community or a residential rehabilitation facility; and
  • Be willing to be supported and supervised by the Drug Court and the Court Assessment and Treatment Service (CATS).

 

How do I get referred to the Drug Court?

The Perth Drug Court accepts referrals from the Magistrate, District and Supreme Courts, and is normally referred at your first court appearance. After you have been referred to the program, you will undertake an initial assessment, and be considered by the Drug Court Magistrate as to your suitability.

The Drug Court Magistrate, when assessing your suitability, will take into consideration the seriousness of your drug problem, the seriousness of the offence and what individual requirements have been identified during the assessment. If accepted, your final sentencing will be deferred until after you complete the treatment program.

 

What are the Drug Court programs? Which one will benefit me?

There are three different pre-sentence programs available within the Perth Drug Court, which are as follows:

  • Supervised Treatment Intervention Regime (STIR): For those that have committed less serious offences that would not result in a prison sentence. This program runs for up to 6 months and involves community-based treatment and less intense case management.
  • Drug Court Regime (DCR): For those with a significant criminal history and drug problems, who have committed a serious offence. This program runs for up to 6 months.
  • Pre-Sentence Order (PSO): For those with a significant criminal history and who are looking at a substantial prison sentence. This program runs for approximately 12 months and heavy supervision is required.

All of the above programs require you to undertake regular drug screen urine tests, make regular appearances in the Drug Court, and participate in treatment through the help of support services and programs within the community.

 

How can a lawyer help?

Although decision making is largely dependent on the discretion of the Court, one of our lawyers may be able to assist in your matter by:

  • Providing you with detailed information on the Drug Court;
  • Discussing whether you are likely to be eligible for a program;
  • Representing you throughout your proceedings before the Court;
  • Providing you with specific information on how participating in a program can be beneficial to you;
  • Assisting you in obtaining a referral from the Court; and
  • Once the program is completed, assist you in preparing for your sentencing hearing with the aim of minimising your sentence to the greatest extent possible.

If you wish to be assisted in the matters outlined above or have any further questions about the Drug Court and wish to speak to a lawyer, please do not hesitate to contact Carter Dickens Lawyers on (08) 9408 5212.

 

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.

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Phone: (08) 9408 5212

info@cdlawyers.com.au