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

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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

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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.

I think it’s time you leave! – Your rights to ‘Exclusive Occupation’ of the Family Home

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Separating from a spouse or a significant other can be stressful at the best of times. Typically, issues arise where both parties refuse to give up their right to reside in the family home. This begs the question, who has the right to remain in the family home?

Ordinarily, one or both of the parties will agree to move out of the family home in a bid to move on and sever their ties to the relationship. However, in some circumstances both parties will refuse to leave the family home, which often results in a hostile living situation.

In these circumstances, an aggrieved party may apply to the Family Court of Western Australia for an exclusive occupation order. The Court may grant this order where they consider it ‘proper’ in the particular circumstances of that case. The power to make a “sole use and occupancy” order is by way of injunction. For married or de facto couples, these orders are made by reference to sections 114(1) and 114(2a) of the Family Law Act 1975 (Cth), respectively.

Where the matter involves children, the Court may grant one of the aforementioned injunctions to restrain a party from entering or remaining in the child’s place of residence if they deem this action necessary to protect and advance the welfare of the child. Essentially, the Court’s paramount duty will be to protect children from psychological stresses caused by friction between parents, and this is primarily encapsulated by the Court’s obligation to make orders that prioritise the best interests of the children.

 

Matters involving children:

 In the case VCM v KRM [2005] FMCAfam 108, a mother who resided with her husband and 3 children sought exclusive occupation of the family home. In making its decision to grant the exclusive occupation of the family home to the mother and the children, the Court had to determine whether this order would be in the children’s best interests.

The Court turned its mind to several circumstances, including but not limited to the fact that:

  • The parents often fought verbally;
  • The parents fought physically; and
  • The children were in the care of the mother.

In making this order, the Court essentially restrained the Father from occupying the family home as the circumstances of the case were such that the Court deemed it in the children’s interests that they reside solely with their mother at the family home.

 

Factors considered in making an Order for Exclusive Occupation:

 The Court will take into account a number of considerations when deciding whether a particular party should gain the right to solely occupy the family home.

The overarching consideration of the Court is as to the practicality of granting exclusive occupation, having regards to the realities of family life (Bassett v Bassett [1975] 1 ALL ER 513, 520)

The relevant factors outlined in recent case authority is as follows:

  1. Needs of children
  • If children are involved, then the needs of the children are a matter that is always at the forefront of the Court’s mind when making a decision. We note that it is common for the party who cares for the children to be provided exclusive occupation of the family home (In the Marriage of Gillie).

 

  1. Likely Hardship to the children or either party
  • The Court will also take into consideration the hardship that will be suffered by both parties from an emotional and financial perspective if exclusive occupation is not granted to them. If there are children involved, then their needs will be given paramount consideration.

 

  1. Practical effect on Family life
  • The practical effect of an order is a primary consideration of the Court. This factor is assessed with reference to the realities of family life should one party gain rights to exclusive occupation over the other (Basset v Basset).

 

  1. Means of the Parties
  • The Court will also consider the means and needs of the parties. This involves the Court turning its mind to the costs involved in moving homes and finding alternative accommodation. The Court will also consider whether or not the home subject to the order is used as an integral part of either of the parties’ business operations (Mafrica v Mafrica).

 

  1. Conduct of the Parties
  • Finally, the Court will take the conduct of the parties into consideration when deciding whether or not one party should be granted exclusive occupation over another. This relates to whether physical or verbal abuse has been directed to one party by the other.
  • This becomes a particularly relevant factor where the abuse is such that one party fears for their safety or the children’s. In these circumstances, the aggrieved party will often be successful in an application for the exclusive occupation of the property (In the Marriage of Davies).

 

The Court in Saveree & Elenton noted that the factors considered are non-exhaustive and each case must ultimately be determined on its facts. The Family Court will only make an order for exclusive occupation where it considers this action to be ‘just and fair’ in all of the circumstances.

 

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.

“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.

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