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Parenting Preparation during the Coronavirus Pandemic

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The Coronavirus pandemic (COVID-19), whilst creating special challenges for all, may particularly affect separated or divorced parents with young children. With the situation rapidly evolving, the long-term outcomes remain to be seen. In light of such uncertainty and the extra stress associated with the COVID-19 pandemic, it can be hard to manage stress for both parents and children alike. However, the following suggestions below may assist separated parents in working through this difficult time:

  1. Adapt and Communicate

In light of COVID-19 and the surrounding anxiety, parents may become angry with the decisions of their ex-partners regarding the children. However, during this time it is important to ensure that parents stay focused on the best interests of their children. Whilst difficult, this will require compromise and polite communication between parents to ensure that needless conflict is avoided. This is a time when the last thing children need to see is their parents fighting about them.

As the impact of COVID-19 on Courts remains unknown, it is uncertain if the Courts will suffer delays. It may be the case that the Courts will have limited availability, with dispute resolution services becoming scarce. As such, separated parents must attempt to resolve issues and manage matters between themselves to avoid long delays. If you have not already done so, it may be useful to consider discussing personal policies regarding the children’s care with your ex-partner. This may include discussing:

  • How time with the children will be divided should school closures occur?
  • Where will changeover occur? Do you have a plan for another location should your current venue become inaccessible?
  • How will the children’s safety and health be maintained?
  • How will you follow government advice about large gatherings such as weekend sporting events?
  • What activities are you both happy for the children to engage in during holidays or otherwise?
  • How you will discuss this scary matter with the children so that they are informed but not panicked?

In certain situations, it may also be worthwhile implementing a parenting plan between yourself and the other parent to address the above concerns, and more, quickly without the need to go to Court. Parenting Plans provide flexibility and can allow for arrangements between parents to be changed as the circumstances require. However, having a Parenting Plan in place does not mean you can neglect any obligations under existing Court orders or agreements.

If you are unsure about how to create a Parenting Plan or are having trouble communicating with your ex-partner, CD Lawyers may be able to assist you. For more information please contact our office.

  1. Continue to meet your obligations

Whilst we are currently living in unpredictable times, that is no excuse to neglect your obligations under a court order or agreement regarding your parenting matter. If for some reason you are unable to meet your obligations, say because arrangements are unclear or because of extenuating circumstances (e.g. school closures or quarantine), you must attempt to find a solution. At the very least, it is essential that where a change is anticipated, you communicate with the other parent providing them with ample notice and information.

If you are having difficulty meeting your obligations CD Lawyers can assist you.

  1. Stay healthy and follow government guidelines

Ensure that you and your children practice healthy hygiene habits to minimise the risk of spreading germs and viruses. Frequently and thoroughly washing your hands, as well as practicing responsible social distancing will reduce the risk of illness both to your family, friends, and others.

Setting an example for children is the best method of ensuring they learn these practices. As such you should let the other parent know you are following these healthy practices to ensure consistency across households.

For more information and access to the Government guidelines please visit:

https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/what-you-need-to-know-about-coronavirus-covid-19#protect-yourself-and-others

  1. Be Patient, Positive and Compassionate.

It is important to understand that in these coming months COVID-19 will bring special challenges. This situation will not be resolved overnight, but will require long term changes to the way we work, socialise, communicate and parent.  Despite the stress and anxiety, it is important to think about how you would like the other parent to engage with you about parenting issues and to reciprocate that engagement.

Understand that a certain degree of flexibility will need to be maintained with the other parent to ensure the children are taken care of. The current events are unprecedented and unplanned for. However, maintaining open and positive communication with the best interests of the children in mind will likely reduce conflict and ensure you can focus on your family and not on costly litigation. However, if the other parent is being unreasonable, and you have followed the required pre-action procedures, it may be necessary to issue court proceedings, and we can advise you on this.

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.

Are you legally prepared for COVID-19?

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Whilst we prepare for many events in our lives, we often neglect to discuss the difficult ‘what if’ topics like passing away suddenly. Unfortunately, for many people, this means they leave their family without information and guidance about what to do when they die. Without adequate preparation, your loved ones may be left exposed to drawn out litigation required to settle your estate. As such, it is importantly to ensure you are legally prepared for the unforeseen to prevent further hardship to your family.

On the 11th of March 2020, the World Health Organisation (WHO) declared the Coronavirus (COVID-19) a pandemic. This is just one example of many unforeseeable global issues that may have significant implications for those who are legally unprepared. It is vital that people of all ages ensure that they are prepared for the legal ramifications of death or illness. Please make sure that you stay up-to-date and comply with all government directions and policies regarding COVID-19.

If you have not already done so, you should ask yourself the following questions to see if you are legally prepared for the unforeseen:

Do I have a Will and is it up to date?

No one wants to be worried about their assets from a hospital bed, as such it is vital to have a Will prepared. A Will is a legal document that sets out how you wish for your assets to be distributed after your death. It forms part of an estate plan and is an important strategic step in preserving your property for your family or other beneficiaries.

Passing away without a Will can place a significant burden on your family. It can impose onerous legal fees on your loved ones, and may result in your assets being distributed by the Supreme Court of Western Australia. Having a Will may ensure that your estate is dealt with promptly and efficiently and that your family is not left to fight drawn out legal battles.

Simply put, a Will properly drafted by our lawyers is the best way to have your assets dealt with in accordance with your wishes after your passing. A Will is designed to reduce future complications and reduce the likelihood of disputes arising from the interpretation of your Will between trustees, beneficiaries, and other parties.

Do I have an Enduring Power of Attorney?

An Enduring Power of Attorney (“EPA”) allows you to appoint someone you trust to make property and financial decisions on your behalf in the event you lose the legal capacity to manage your own affairs. This will include managing your money and real estate. An EPA does not permit an attorney to make personal, medical and lifestyle decisions.

In light of events such as the COVID-19 pandemic, the benefits of an EPA are clear given the chances of hospitalisation or isolation. In such an event, an EPA would allow your appointed attorney to undertake a range of tasks  on your behalf when and if appropriate to do so. These may include everyday tasks, such as paying your bills and signing documents that require urgent attention, or more complex tasks such as dealing with your property (i.e. selling property) during your recovery.

Do I have an Enduring Power of Guardianship?

An Enduring Power of Guardianship (“EPG”) allows you to appoint someone to make personal, lifestyle and treatment decisions on your behalf should you ever become incapable of making these decisions yourself. These decisions include, but are not limited to, where you will live and what medical treatment you will receive.

With events such as COVID-19 having potentially life-threatening health impacts, it is vital to ensure that you have a guardian, appointed via a legally enforceable EPG. Your appointed guardian should understand your health care plans, directives and wishes should you become incapable of dealing with your own health care decisions. You must also ensure that if you have already appointed a guardian, they know of their appointment and are willing to act in such a capacity.

Where no attorney is nominated via an EPG you risk having the Public Advocate, which is a government body, appointed to assume responsibility over your health care decisions. This means that should you become mentally, or physically incapacitated without having executed an EPG, your family may not have sole control over your health care decisions.

Did you know that your Superannuation does NOT form part of your estate by default?

Superannuation is not considered an estate asset. A super fund is a type of trust meaning that it is not legally “owned” at the time of death. This means that on death it does not flow to the estate of the deceased automatically. Instead, without a binding death nomination a trustee of the super fund will pay out ‘death benefits’ in accordance with the governing rules of the fund and relevant law. This means that if you arrange to leave all your super to a child or spouse, this might not be honoured upon your passing.

However, an up-to-date Binding Death Nomination can be used to override the trustee’s discretion and ensure that the arrangements you have made during your lifetime are honoured. Simply put, a Binding Death Nomination is a legally binding nomination allowing you to advise the trustee who is to receive your superannuation benefit upon your passing and how to distribute your benefit.

Note, Binding Death Nominations should be reviewed regularly, as they can lapse in binding force after a period (usually 3 years). If you do not have a Binding Death Nomination or have not reviewed it in recent years, we advise that you talk to one of our lawyers regarding your options.

Do I have all my important documents in order?

You should ensure that copies all your important documents are stored together with your Will. Usually, after a person passes away, that person’s family will struggle to locate all relevant documents, passwords, and keys. To assist your family, you should prepare a list detailing your:

  • assets and liabilities;
  • access codes and passwords;
  • the location of keys and other documents i.e. bank account details, superannuation details etc.; and
  • details of your financial advisor, lawyer, accountant, insurance company and similar entities.

It is important to share with someone you trust the location of that list.

Do I need to nominate a guardian for my children?

If you are a parent of a child under 18, it is important that you know who will take care of your children if anything were to happen to you. Generally, whilst care of your children would flow to the other parent, it is worthwhile determining who would assume care of your children in the unfortunate event that both you and the other parent have passed on.

Fortunately, s71(3) of the Family Court Act 1997 allows you as a parent to appoint a testamentary legal guardian for your child via a Will or Deed. The appointment of a guardian will only take effect upon the death of the last surviving parent or legal guardian of the child. The appointment ends when the child reaches the age of 18 years. If you are unsure of who will take care of your children if you and the other parent are no longer, it may be time to speak to one of our lawyers.

If you have not yet prepared the above documents, you leave your family open to the potential of costly litigation. Further, there is no guarantee that your arrangements would be honoured upon your passing if you do not have a legally enforceable Will.

 Contact CD Lawyers today, and we can assist you and your family in ensuring you are legally prepared for the unforeseen.

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.

Relocation Orders

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Following separation proceedings, it is often the case that each parent will need to find somewhere to live. This may involve one parent wanting to move with their child to another city, state or country. Under the Family law, moving a child away to another city or country is known as relocation. The relocating parent can ask the court for a relocation order, which will allow them to move with the child. The other parent can ask for an order to stop the relocation of their child. Where a proposed move will significantly prevent or limit a child from spending time with a parent or another significant individual a court may refuse a request to relocate a child.

When assessing any proposal bought before it to relocate the residence of a child, whether it be internationally or otherwise, the court will likely have regard primarily to the interests of the child. When determining this, the court generally employs a three-stage process of analysis.

Firstly, the court will identify the nature of both parties’ proposals regarding where the child should live.

Secondly, the court will take into account the relevant considerations established in section 60CC of the Family Law Act 1975. The court will look at the advantages and disadvantages of each of these considerations in respect to each proposal that is put forward by the parties. Whilst the considerations of the court are extensive, the court may consider:

  1. the benefit to the child of having a meaningful relationship with both of the child’s parents;
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
  3. the views expressed by the child;
  4. the nature of the child’s relationship with each parent and other persons, including grandparents or relatives;
  5. the extent to which each of the child’s parents has participated in the long-term issues relating to the child, spent time with the child and communicated with the child;
  6. the likely effect of changes to the child’s circumstances; and
  7. the practical difficulty and expense associated with having a child spend time and communicate with a parent, and whether such difficulty will impact a child’s personal relationship with the parents.

Finally, the court will then identify the party’s proposal which is preferred and make the relevant relocation orders. The decision is often made having regard to which proposal best ensures the child’s interests.

Do you need Legal advice concerning a relocation orders? Our lawyers can provide you with comprehensive legal advice. Please contact our Office for an appointment today.

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.

Reversing a transfer of property or assets during Family Court proceedings

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During a separation it is common for the Family Court to make property settlement orders to ensure that the distribution of assets between the parties is ‘just and equitable’. However, there are instances where property has been transferred or disposed of by one party to the separation proceedings.

In some instances, section 106B of the Family Law Act 1975 operates as an anti-avoidance provision. It functions to stop parties from entering transactions which hinder or circumvent Family Court orders during property settlements. Essentially it allows that the court can reverse transactions including the transfer of land in certain situations. Section 106B allows a court to do this when:

  1. a transfer of land occurs during family court proceedings; or
  2. during a time when the proceedings were reasonably anticipated; and
  3. the disposition is likely going to defeat existing or anticipated court orders.

The operation of section 106B does not require that the party selling the asset specifically intended to defeat the existing or anticipated orders of the court. It is merely enough to show that the sale or transfer of the asset would have the effect of doing so. For example, the reduction of the available pool of assets in a property settlement may be enough to satisfy a likelihood that a court may not be able to make adequate orders. It should be noted that section 106B does not only apply to sales of property or assets but also to gifts and the issuing of rights which attach to interests in a company or a trust.

For example, if around the time of separation an ex decides to sell their assets or gifts them to a family member the court has the power to reverse that transaction. These situations are complicated by instances where a third-party bona fide purchaser is involved. That is someone who purchases an asset from a party for value without having knowledge of any other parties’ interests. Whilst the court will generally have regard to the interests of a bona fide purchaser and can make orders to protect them, this does not provide them with an absolute safeguard.

The Family Court still has the discretion to make orders reversing a transaction which negatively impacts a just and equitable outcome. The Court is particularly minded to reverse transactions which are clear ‘shams’ attempting to defeat the operation of the Family Law Act. When dealing with a bona fide purchaser, the Family Court may consider whether at the time of the disposition the purchaser:

  • was aware of the other party’s interest;
  • should and would have been made aware if they made all the proper enquiries; and
  • whether the disposition would be likely to defeat the claim of the party in whose favour the order was existing or anticipated.

In exercising its discretion to set aside instruments and dispositions, the Family Court may also take into account the length of time between the disposition and the proceedings, and between the discovery of the disposition and the proceedings to set aside the disposition.

Parties to a dispute should use caution when dealing with property interests in the wake of Family Court separation proceedings. Third-parties who suspect impending family law matters should also take care when purchasing property and ensure all proper enquiries are made.

As well as section 106B of the Family Law Act 1975, there are several other ways that this may be dealt with.

Do you need Legal advice concerning a family law property settlement? Our Lawyers can provide you with comprehensive legal advice. Please contact our Office for an appointment.

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.

Disclosure in Family Law matters

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‘Disclosure’ refers to the process where parties provide each other with copies of all the relevant documents in their possession or control. Each party in a family law dispute has a continuing duty to ensure full and frank disclosure until proceedings are finalised. The existence of this duty means that you must disclose information that is relevant, even if the other parties do not know it exists. The ongoing nature of the duty means that you are also required to provide updated information where circumstances change.

The duty to disclose in family law applies to both parenting matters and financial disputes. The types of information that may be disclosed varies depending on the matter type. However, generally disclosure can include paper documents as well as documents stored by some other means (i.e. on a computer or storage device).

In parenting cases, the information to be disclosed may often depend on the specific issue in dispute. Relevant information in these cases will often include information which provides evidence of the parenting capacity of each party. For example, the relevant documents may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs or even diaries. Additionally, where expert reports are obtained in relation to a parenting case, you may also be required to give a copy to the other party and the independent children’s lawyer (if one has been appointed).

In property and financial matters, the duty may require disclosure of any information as to earnings, interest, property or other financial resources which you as a party have access to either directly or indirectly. The specific documents required may include:

  • copies of Pay slips, Group Certificates and/or Centrelink statements;
  • copies of tax returns, estimates or assessments;
  • details of assets that you own or are in your possession, including valuations or appraisals of these assets;
  • copies of statements from any of your bank or building society;
  • copies of statements from any credit card/s and any loans;
  • superannuation statements; and
  • information about any trust where you act as an appointor, trustee, director or shareholder.

Disclose of information regarding the disposal of assets may also be required, especially where the disposal occurred during the year prior to separation or since separation. Disposal transactions not only include transaction were assets are sold, but also those where assets transferred, assigned or gifted.

Failure to provide full and frank disclosure or providing false disclosure may incur severe penalties. The court may in such a situation:

  • refuse to give you permission to use information or documents in your case;
  • stay or dismiss all or part of your case;
  • order costs against you; and
  • fine or imprison you on being found guilty of contempt of court for not disclosing documents.

Ultimately, the duty to disclose is not designed to place an unnecessary burden on either party. Rather, it aims to help parties focus on the genuine issues of their matter, reduce cost and encourage settlement.  Whilst the circumstances are limited, there are situations where not all information requested needs to be provided. In some cases, documents may be exempt from disclosure on the basis of privilege or relevance to the dispute.

Do you need legal advice concerning your disclosure obligations to the family court? Our lawyers can help you understand your rights and responsibilities and how the law applies to your case. Contact our Office for an appointment today.

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.

A Beneficiary’s Access to Trust Information and Documentation

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Beneficiaries have a prima facie right of access to information relating to their trust and trustees have a corresponding duty of disclosure. This right to access trust documents is exceedingly broad and encompasses almost all documents or information which can be categorised as ‘trust documents’. The definition of a ‘trust document’ was brought up in Silkman v Shakespeare and ‘may include those which evidence or record the nature, value and condition of trust assets’. Of these trust documents, trustee’s will always have a duty to disclose Accounts, Vouchers and Financial records.

One legal ‘grey area’ that remains is whether a beneficiary will be privileged to legal advice obtained by a trustee for the administration of trusts. As an example, legal advice which concerns a breach of trust, despite relating to the administration of a trust, may be privileged information between the trustee and their legal counsel.

Two competing approaches have developed around a beneficiary’s access to trust information.

The Londonderry Approach:

This approach is the more expansive of the two and was developed in the case of re Londonderry’s Settlement. The underlying basis of the Londonderry Approach is that documents are the property of the trusts or are so closely related to trust property that the beneficiary has a legal interest in them. Therefore, beneficiary’s right to inspect the trust documents held by the trustee is an equitable proprietary interest. The only thing that needs to be shown to the courts, when using this approach, is that the documents in question are trust documents. If this can be shown, then the courts will use their inherent jurisdiction to grant assess of the documents to the beneficiary. The most determinative factor when using this method is whether the documents in question where paid for using the trust’s funds.

The Schmidt Approach:

This approach has come out of the verdict of Schmidt v Rosewood Trust Ltd (Isle of Man). It represents a shift away from the former proprietary approach, seen in the Londonderry, to one more at the discretion of the courts. This approach has been used because it allows the court to take into account the parties competing interests in trust documents and determine if the beneficiary has a right to obtain trust documents.

What may be considered by the court has not been enumerated but can be inferred from cases. As an example, a beneficiary will not have a right to confidential communications between the trustee and their solicitor made for the dominant purpose of giving or receiving legal advice. The beneficiary’s rights to see these trust documents in these circumstances are not regarded as relevant for proper administration and transparency of the trust. However, a beneficiary may have a right to litigation documents if they relate to management of trust estate. Other factors that the courts can consider are the confidential nature of the documents, the trustee’s obligations and the reason the information is being sought (e.g. is it just a ‘fishing expedition’). Ultimately, what needs to be shown for the beneficiary requires the trust documents for supervision and administration of the trust.

Recently, in Avanes v Marshall the Schmidt approach was used because the judge felt it did not represent a significant departure from the Londonderry Approach and should be adopted in Australia.

Summary:

In most circumstance, trustee will be obliged to release trust documents when a beneficiary makes a request for information. When a dispute about access to information arises, the court will use its inherent jurisdiction to settle the matter. The approach used by the court could have a significant bearing on whether the beneficiary has access to the information in question. A beneficiary will have access to trust documents if the documents don’t contain confidential information of a third party or access is not at the discretion of the trustee. Qualifications like legal professional privilege, the confidential nature of the material, the trustee’s other obligations, and the reason for the information being sought, may all be used to determining this.

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.

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