settlement Archives - CD Lawyers

Pressure to Settle in Parenting Matters & Without Prejudice Offers

July 15, 2020 By CD Lawyers

Parenting disputes affect people deeply. When accusations are being thrown around, and in particular when children are being withheld from a parent, tensions can run high. A person can feel a strong desire to agree to parenting arrangements they feel are unfair because they want it to be over, or want their children returned.

During negotiations, you might receive a proposed “Minute of Consent Orders” for parenting arrangements that you don’t agree with, but you may feel tempted to sign them to see your kids again. In most cases, each parent will believe that what they are proposing is necessary for the best interests of the children, even though their beliefs differ.

In some circumstances however, a party might choose to withhold children as a strategy to get the other party to sign their preferred parenting orders – rather than because they believe they need to withhold the children to keep the children safe. This is rare, but does happen.

However, communications exchanging proposals to settle are typically ‘Without Prejudice’, which means that the proposed arrangements cannot be adduced in evidence should your dispute end up before a judge. If you think someone is trying to pressure you to agree in a way that demonstrates their bad faith, you may want to show this to the Court, to have the Court to take this into account.

However, the general rule for ‘Without Prejudice’ communications is that they cannot be shown to the Court.

Without Prejudice Communications

The term ‘Without Prejudice’ invokes a particular kind of legal privilege, which is specifically permitted for negotiating settlements. The privilege is that that communication cannot be relied on by the other party in Court proceedings. For example, it cannot be introduced as evidence claiming, for example, to demonstrate the weakness of that party’s case.

Providing the other party’s without prejudice offers and communication to the Court is typically disallowed, and if they are filed by the other party, they will be struck out by the Court in line with this privilege, and for good reason. This is because the ability to engage in ‘Without Prejudice’ communications is generally to the advantage of both parties, as it allows them to make offers to settle a matter without fear of having the offer brought up later.

This applies in the Family Court, it can be found in the Family Law Rules at 10.2:

FAMILY LAW RULES 2004 – RULE 10.02 OPEN AND “WITHOUT PREJUDICE” OFFER

10.02(1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.

10.02(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:

(a) in any document filed; or

(b) at a hearing or trial.

The rule against providing without prejudice communications to the Court is a part of a broader set of rules regarding evidence.

Family Court and the Rules of Evidence

The Family Court has a number of notable exceptions to the normal rules of Evidence. The ability to quote children’s speech, when they are not giving evidence themselves, which would normally be a breach of the Rule of Evidence against Hearsay, is the most well-known example, located at 69ZV of the Family Law Act (“the Act”).

Family Law however can involve a number of other exceptions to standard rules of evidence. More generally, 69ZT “Rules of evidence not to apply unless court decides,” specifies the parts of the Evidence Act (Cth), which codifies the principles of evidence, which the Court may decide whether or not to apply in child-related proceedings as per the considerations in that section, and what weight to give them. This includes documents and other evidence including demonstrations, experiments and inspections, and evidence that is hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character.

The important principle to keep in mind is that in parenting matters, the primary consideration is the best interests of the children. What is in the best interests of the children is determined by consideration of primary and secondary factors at s60CC of the Family Law Act.

One interesting example of a departure from normal legal principles regards ‘Without Prejudice’ communication. Typically, if a party tries to put ‘Without Prejudice’ communication before the Court as evidence, it will be struck out and not considered by the Court.

Can Without Prejudice Communications ever be Submitted to the Court?

However, there are exceptions, generally and in the Family Law specific to the normal ‘Without Prejudice’ principles.

Sometimes, without prejudice communications will include content which go towards demonstrating a fact of sufficient significance that the Court may choose to allow their entry into evidence.

In Parenting matters, the best interests of the children are the primary consideration, as per s60B and s60CA. As such, if the other party provides ‘Without Prejudice’ communications, such as an offer that provides for orders which implicitly contradicts other assertions that have been made in Court documents, the court may be willing to enter the ‘Without Prejudice’ communications into evidence.

This has been discussed in the WA case S and K [2007] FCWA 17, where Her Honour Justice Crisford identifies, at 28-32:

28 It goes without saying that it is important to preserve confidentiality in relation to offers. Full and frank negotiation needs to take place between parties so that matters may be resolved without the need for further court action. Often in children’s matters, the very avoidance of litigation can itself be in the best interests of the children. Whilst children are not parties to the proceedings, they are well and truly the subject of the proceedings. The principles governing these sorts of proceedings are very different to those relating to property matters.

29 However, whilst it is important for negotiation that confidentially be preserved, especially in light of the rules of the Court, I am of the view that the preservation of confidentiality is not absolute. One of the main purposes of the Rules is that cases are resolved in a just manner. The Rules do not provide a complete code of the Court’s powers. Other powers are found in the provisions of various Acts, the Court’s inherent jurisdiction and the common law.

30 Hutchings v Clarke may well stand for the proposition that the issue of legal professional privilege does not operate to exclude evidence if in the discretion of the trial Judge such evidence is required to be put before the Court in order to preserve the best interests of the child.

31 There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.

32 The Court should not be precluded from obtaining information to ensure that the principle is met, especially in cases of such naked acrimony as this.

As such, if you have been sent ‘Without Prejudice’ communications in a Family Law matter, where untrue claims are made or strict orders are being sought when the other party does not actually require those Orders, the Court may be willing to accept that correspondence of an offer to settle into evidence.

Such a circumstance might be withholding children except when supervised by a professional supervision agency; while simultaneously making an offer that involves children spending time without any external supervision.

However, other avenues for adducing the same evidence ought to be pursued first. The Court will be very hesitant to override the general rule regarding ‘Without Prejudice’ offers, as ‘Without Prejudice’ offers are a very significant element which benefit the ability to conduct settlement negotiations, and this privilege will not be dismissed lightly.

Indeed, settling a parenting matter by agreement may, in many cases, be very much in the best interests of the child, as ongoing proceedings may very well put children under stress, increase hostility between parents, and potentially require the children to be involved in proceedings to some degree.

As such; the possibility of successful negotiations, and thus ability to engage in these negotiations ‘Without Prejudice’, towards reaching parenting orders both parties may not like but are prepared to accept may well be a better outcome than the outcome of ongoing proceedings even should the party’s preferred orders be made and their concerns legitimate, given the impact on the children of ongoing proceedings.

If you need advice about your family court negotiations, please contact us on (08) 9408 5212 for a free telephone consultation.

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 case in question.

The Pitfalls of Homemade Wills

July 14, 2020 By CD Lawyers

Homemade Wills are a tempting proposition for those interested in reducing the costs associated with obtaining legal services. Whilst on the surface these Homemade Wills kits appear be straightforward and binding, this is not always the case. It is important to ensure that your Will is prepared in the proper legal manner so that your wishes are unambiguous, and your estate may be correctly dealt with at the time of your passing.

The common issues surrounding Homemade Wills have been exemplified in the Supreme Court of Western Australia’s recent case James Edward Donnelly as executor of the estate of Sarah Shulman v Donnelly 2020 WASC 254. In this decision, Master Sanderson at [13] heavily criticised the ambiguity of the Homemade Will in question, stating:

“Although it is a valid will because it complies with the provisions of the Wills Act apart from appointing the plaintiff as executor, it has no content. It makes no disposition. It is meaningless.”

In this case, despite there being every reason to believe that the deceased intended to leave her entire estate to the first defendant, even the most benign interpretation of the Homemade Will offered no benefit to the first defendant. Apart from being mentioned as executor of the Will, the first defendant was not mentioned at all – in fact, no-one was.

Master Sanderson suggests in this judgement that there is no question of the Will being ambiguous, as it simply remained silent on who was to receive the benefit (the beneficiaries of the Will). Through proper exercise of the construction of the Will, it was determined by Master Sanderson that, on the facts, he was satisfied that the deceased intended to leave her estate to the first defendant.

Although in this case the exercise of discretion fell in the favour of the defendant, this acts as a reminder as to the pitfalls of drafting Homemade Wills.

How do the Courts Construct an Ambiguous Wills?

You may be wondering what process is undertaken to properly “construct” or “read” an ambiguous will by the Courts? Construction of a Will is a two-step process:

Firstly, the Will is to be read on its own without regard to any evidence. If this does not lead to an interpretation of the Will then an attempt must be made to deduce the intentions of the testator.
If the intentions of the testator cannot be readily discerned for any reason, then the court should proceed to construe the Will with the assistance of cannons of construction. These cannons often allow a judicial officer to review extrinsic materials, as per section 28A of the Wills Act 1970 (WA), to better consider the intentions of the testator at the time of drafting the Will.

Common issues with Homemade Wills

Although use of these Homemade Wills kits may provide you a legally binding Will, it may not be drafted in such a way as to achieve what you truly intended. Common issues with Homemade Wills include the following:

Failure to properly date the Will;
Leaving the wrong assets or assets you are not entitled to distribute;
Misunderstanding legal definitions;
Losing the Will;
Incorrectly witnessing documents;
Unintended Tax Consequences;
Appointing the wrong Executor;
Ignoring potential and eligible beneficiaries; and
Failing to provide for the guardianship of children.

Recent Judicial Commentary regarding Homemade Wills

Despite gaining popularity in recent years, Homemade Wills have been an enduring cause of concern within the Judicial system. Recent Western Australian examples which demonstrate this concern include the following:

Kossert v Ruggi as Executor of Will of Korps (No 2) [2012] WASC 191

Kenneth Martin J at [8] stated:

‘Sadly, as so many home-made wills seem to do because of a failure to receive proper legal advice, it throws up the question of [the deceased’s] failure to deal fully by his will with the one substantial asset he left, namely the house and land’

O’Brien, as Executor of Will of Hogan v Warburton [2012] WASC 82

EM Heenan J at [3] stated:

“ [the deceased’s] last will was prepared by him or at his direction apparently without any legal advice or assistance. Major difficulties have arisen in determining the proper construction of the testament and, in particular, whether or not it fails fully to dispose of the testator’s estate, so leaving a partial intestacy”

EM Heenan J at [58]:

“Obvious difficulties arise when parts of a will are ambiguous or, worse still, inconsistent. Such problems are often experienced in home-made wills such as this..”

Thomas v Pearman [2017] WASC 209

Master Sanderson at [1] criticised Homemade Wills, stating:

“The will and the codicil were home-made. They comprise 14 pages in all. They are a particularly egregious example of the folly of home-made wills.”

How can Carter Dickens Lawyers help?

Our expert lawyers are able to properly draft a will in the accepted legal manner, ensuring all of your wishes are to be fulfilled upon your passing. This will circumvent the ambiguous situations that often arise from Homemade Wills kits, and ensures that you can confidently have your Will executed as per your intentions.

At Carter Dickens Lawyers, we have the experience and knowledge to help you navigate this potentially complicated area of law. We understand the difficulties faced by families upon the death of a loved one, and we hope to ease this process by ensuring your final wishes are understood and binding.

Our Wills and Estates matters are provided on a fixed fee basis. Wills and Estates matters we may assist you with include the following:

Single Wills
Couples Wills
Enduring Power of Attorney (EPA)
Enduring Power of Guardianship (EPG)
Advanced Medical Directive
Probate Application
Letters of Administration (Deceased had no Will)

If you would like to discuss your Wills and Estates related matter, please contact Carter Dickens Lawyers 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.

Will my illness or disability lead to an adjustment in Financial Orders?

July 1, 2020 By CD Lawyers

Often during the course of property settlements, it is asserted by one of the parties that they ‘deserve’ a larger portion of the asset pool due to reliance on certain factors. The factors relied upon are found in the Family Law Act 1975 (Cth), in particular Section 75(2) for married couples, and Section 90SF(3) for de-facto couples. Application of these provisions is seen as the third step (out of four) that Australian Courts typically undertake in making Financial Orders.

The four steps undertaken by Courts are generally set out as follows:

Identify and value the assets, liabilities and resources of the parties;
Consider the contributions of the parties made throughout the relationship;
Consider the future needs of each party; and
Determine whether the proposed settlement is just and equitable.

Essentially, at the third step the Court evaluates the future needs of the parties taking into account their individual circumstances. The aforementioned provisions set out 19 factors that may be taken into account by the Court in evaluating the extent of each parties’ future needs. The relevant subsections relating to adjustments for disability and illness are the following:

The age and state of health of each of the parties (s 75(2)(a)); and
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment (s75(2)(b)).

Unfortunately, many Australians face challenges in their everyday lives associated with ongoing disabilities or illnesses. At Carter Dickens Lawyers we seek to assist those who may be vulnerable in financial settlements, and ensure they are aware of their rights and the impact their disability may have upon the expected distribution percentage they would receive from a Court ordered financial settlement.

Am I likely to receive an adjustment in my favour due to my disability?

The assessment of ‘future needs’ remains a discretionary activity undertaken by the Court. Therefore, it is difficult to say with confidence that an ongoing disability or illness will guarantee a percentage adjustment in your favour by the Courts.

However, there are precedent cases which appear to suggest a 5-15% adjustment may be made where one party suffers from disabilities and this impacts their ability to achieve gainful employment in the future. In particular, the case of Dritsas v Wilson [2008] FMCAfam 44 saw a section 75(2) adjustment in the wife’s favour of 10 per cent where the potential of future employment was essentially non-existent due to the extent of the wife’s disabilities and her age.

Although there appears to be precedent for making these adjustments, and the legislation specifically makes reference to age, health and the ability to gain meaningful work – each case is determined on an individual basis. We therefore recommend you seek legal advice on this matter if you are either going through a financial separation or are planning on seeking financial orders.

What if both myself and my ex suffer from disabilities/illnesses?

Unlike the circumstances aforementioned, in some cases both of the parties to a financial separation suffer from illnesses or disabilities respectively. This situation creates greater difficulties for Courts in evaluating the ‘future needs’ of the parties as both may have their own valid claims.

Again, this situation would see the courts exercise their discretion, and all factors would be evaluated prior to any Order is made. However, Nathan & Nathan [2007] FamCA 589 was an example where the Family Court of Australia deemed it equitable to make no adjustment. In this case, Justice Kay at [23] stated no adjustment would be made out for the following reasons:

“A global view of this case shows two people with very limited earning capacity, two people with significant medical disabilities. They are both aged 46. Neither of them has a very secure economic future to look forward to. The husband appears able to live on his wits. The wife has secure employment at least with some modest superannuation available to her. It does not seem to me to be a case in which any s 75(2) adjustment is appropriate.”

Essentially, where in the Courts discretion the parties equally suffer from limited earning capacities and significant medical disabilities/illnesses, it may be just and equitable to make no adjustment for future needs, instead opting for an equal split of the asset pool.

From the situations discussed, it is clear that the Court is empathetic to the plight faced by those with illnesses and disabilities; however, the extent to which this will impact Financial Orders depends on scope of the facts at hand. If you believe that the section 75(2) factors discussed in this article may apply to your circumstances, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Carter Dickens Lawyers specialise in Family Law and Financial Disputes. We pride ourselves on our ability to provide legal assistance and advice, including on niche areas of law, such as the impact of disabilities on expected percentage distributions from Financial Orders. We will ensure that you are fully informed of any rights and risks associated with your divorce or financial matter.

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.

Do you require a ‘Sharia-compliant’ Australian Will?

July 1, 2020 By CD Lawyers

Australian Muslims are often obliged to ensure that they have a legally valid Will which conforms to both Australian Law and Islamic guidelines. This is particularly difficult to achieve where key understandings of the cultural, religious and legal needs of Islam are misunderstood by the practitioner tasked with drafting their client’s Will.

Islamic law is not recognised in Australia as we are deemed to be a ‘secular’ nation. Your will, therefore, needs to comply with Australian law for it to be legally enforceable, whilst incorporating the required clauses to ensure that your assets are distributed in accordance with the Islamic rules contained in the Quran.

At Carter Dickens Lawyers, we seek to bridge this gap and have ensured we have services tailored towards these specific needs of our clients. Our ‘Sharia-compliant’, or ‘Islamic Wills’, offer a service which provides legally valid Australian Wills custom-made to satisfy the strict Islamic guidelines following a person’s passing. In particular, we understand the varying requirements with regards to burial arrangements, the distribution of the estate, payment of obligations and the powers of trustees.

Burial Arrangements

Burial Rites

By executing a valid Islamic Will, a Muslim can give directions for the executor to make proper preparations for the washing and shrouding of the body. In addition, directions can be made for the funeral procession, funeral prayers and the burial. This allows a Muslim to state their intention to have an Islamic funeral.

At Carter Dickens Lawyers, we further ensure a proper Islamic burial via making provision for the counsel of a pre-selected Imam for any questions that arise.

Autopsy

As per the Quran, your valid Islamic Wills may contain directions for the prevention of voluntary autopsies, unless required by Australian Law. In addition, your Will can contain provisions for either allowing or preventing removal and donation of organs and other internal body parts.

Obligations & Distribution of Estate

Under Islamic law, your estate will be distributed as follows:

First, all funeral expenses must be paid, followed by the payment of all debts (secured and unsecured) owing.
The remainder of your estate, after deducting liabilities/debt is referred to as your net estate.
From your net estate, Islamic law permits you to distribute up to one-third as a legacy to any person, provided they are not heirs to the remainder of your estate. A legacy can be paid to a Muslim or non-Muslim and to any organisation or charity of your choice.
The remainder of your net estate, after deducting any legacies, must be distributed to your heirs in accordance with Islamic law. The section below outlines the expected shares.

Expected Distribution Percentages

Essentially the beneficiaries of your estate are your spouse (if you have one), your parents and children. Other immediate family members may become beneficiaries if your parents or children have not survived you. The percentage distributions are allocated as per the Quran, and varies depending on survivorship of the beneficial parties. Essentially, the basic inheritance shares are to be distributed according to the following table:

Relative	Share
Each surviving parent	1/6
Surviving husband (where children exist)	1/4
Surviving husband (no children)	1/2
Surviving wife (where children exist)	1/8
Surviving wife (no children)	1/4
Surviving son (where surviving sister(s) exist)	Son receives twice the share of a daughter
Surviving son (no sister)	Son(s) receive remainder of estate
Surviving daughter (where surviving brother(s) exist)	Daughter receives half the share of a son
Surviving daughter (no brother)	Only one daughter = 1/2 of the estate Two or more daughters = they share 2/3 of the estate

It is due to these particular Islamic requirements and their interaction with jurisdictional legal issues that legal advice is recommended prior to drafting and executing a ‘Sharia-compliant’ Australian Will.

Carter Dickens Lawyers excel at providing legal assistance and advice regarding the specific circumstances surrounding these Wills. We will ensure that you are made aware of any risks, and will provide a fully compliant Will to ease the potential legal strain associated with your passing.

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.

Pet Custody

July 1, 2020 By CD Lawyers

The issue of ‘Pet Custody’ has become a prominent concern in the Australian legal landscape. Despite often treating our pets as members of the family, Australian Family Law continues to view our pets as a form of ‘personal property’. As such, pets are treated like other items in the asset pool, and may be divided between the parties.

The ‘Value’ of Pets

Unfortunately, the value we attribute to our pets does not often reflect the market value Courts will allocate to them. Unless the pet is a purebred or pedigree show dog, there is likely only a nominal value attributed to the pet in comparison to other relationship assets.

Should a significant value be attributed to the pet for particular reasons, it may be necessary to provide evidence to the Family Court verifying this amount.

How is Pet Custody decided?

Courts are generally reluctant to get involved in lengthy arguments between parties regarding the custody of their pets. The preferred resolution is often for parties to settle between themselves a custody plan for the retention of their pets. Should Family Court orders be required, the resolution of this matter is often conducted in a similar vein to that of other personal property allocations.

The following are a range of discretionary factors the Family Court may take into account in determining which party retains ownership and care of the family pet:

Which parties’ name the pet is registered in.
Which party undertakes the majority of the responsibilities involved in caring for the pet (day to day care)
Which party has appropriate housing for the pet and who can satisfy the pets future needs.
The ability to pay for stabling or training needs, particularly if the pet is a horse or other farm animal (economic needs).

Can you have Shared Custody?

Despite these factors often resulting in sole custody by a single party, it is well within the courts discretion to make orders to the effect of a ‘shared custody’ plan. Such orders are unlikely to be made, unless the orders are consented to by both parties.

Instances where the court is likely to make this type of order is where it directly reflects the ‘best interests’ of children. Should there be children of the relationship in addition to a family pet, it may be deemed by the Family Court to be in the children’s best interests for the pet to follow them between their parents’ homes. This may give the children a sense of familiarity and stability following the breakdown of their parent’s relationship. Additionally, the pet may provide a therapeutic or medical benefit which requires shared custody.

Carter Dickens Lawyers excel at providing legal assistance in all areas of Family Law. We will ensure that you are made aware of all options moving forward and may aid you in the drafting of orders pertaining to the ownership, possession and shared care of your pets.

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.

Consent Orders and Your Form 11

September 26, 2018 By CD Lawyers

The coastal northern suburbs of Perth are sometimes referred to as the “mortgage belt” due to being populated with young families with large home loans. Many of these young families have been reliant on the high wages afforded by Fly-in-fly-out work taking place on the large projects in the North of Western Australia.

Recently, the economic downturn in Perth has hit families hard, especially up here in the northern suburbs. Houses have dropped in value and many of us face the reality of having a mortgage bigger than the value of our houses. Employment is increasingly difficult to find and Australian families are losing their homes as they cannot afford to pay their mortgages.

These difficult times add pressure that some relationships cannot survive. At CD Lawyers, sadly, we have noticed the increase in family breakdowns.

If your relationship has broken down and you have assets, it is important to obtain legal advice from a lawyer who specialises in Family Law. A single meeting may end up saving you thousands of dollars as you may not be aware of what you are entitled under the Family Law legislation. We recommend that you don’t rely on the comments of family or friends; they are well meaning but often provide information that is incorrect and sometimes end up being costly.

For unmarried couples, if you lived with your ex-partner for more than two years, or you purchased assets together, or had children, then you likely to meet the legal requirement for a de facto relationship and will need legal advice. For those who have separated from their husband or wife, it is important to obtain legal advice about divorce as well as financial and child related family law matters.

If you can come to an agreement with your ex-partner to divide up the assets and liabilities, consider filing an application in the Family Court to finalise that agreement. There are a number of benefits to obtaining Family Court consent orders. For example, if one of the parties is going to take over the ownership of the family home, or investment property, then having consent orders allows for an exemption on the stamp duty.

Having Consent Orders also means that neither party can come back asking for more money or assets. It serves as insurance to be certain that the financial separation is truly done. Another advantage of filing consent Orders is that a registrar of the Family Court is required to assess the agreement as to whether it is “Just and Equitable”. If the registrar finds that the settlement falls within range of what is fair, then the Orders are stamped and made final. The parties are then legally bound by the Orders.

If a couple is contemplating their financial settlement, they can also include Orders to deal with the parenting arrangements for the children. Having consent orders for care arrangements can be helpful as they remove the need for constant negotiation and create set routines to which children become accustomed.

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.

The Pitfalls of Homemade Wills

Do you require a ‘Sharia-compliant’ Australian Will?

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