Proposed changes to the South Australian Adoption Act 1988 will enable over 18’s the opportunity to be adopted.  This change, evolving from a series of recommendations put forward by independent reviewer Associate Professor Lorna Hallahan, is just one that relates to a range of changes to the Adoption Act that will also enable same-sex couples and extend the rights of single people to adopt.

Why should adoption of over 18’s be an option?

By far the greatest benefit of this new law is the power that it has for the building of strong family connections.  Indeed, it can not be underestimated the degree to which legal adoption can act as a healing salve, promoting a sense of belonging, in a child who has quite often experienced loss and suffering caused by the abandonment or neglect of the natural parent.

This proposed law recognises that it is never too late to address this need. 

While a carefully drafted Will may include anyone (including non-adopted children) as beneficiaries of your estate, the formal process of adoption ensures that an adopted child has equal rights to inherit your estate as would a natural born child.  This distinction provides an additional safeguard, diminishing the likelihood of an estate being contested and adding further weight to the wishes of a parent.

How will applications for adoptions of over 18’s be processed?

The first step in moving forward with the adoption of a child over the age of 18 is to meet with an experienced solicitor.  Through this consultation, the legal practitioner will assess eligibility and make the necessary preparations required to file paperwork with the Court.

It is anticipated that following the filing of documents, relevant parties will be required to attend counselling sessions to ascertain the motivations of those concerned and to determine if this is the most positive course of action for the child involved.  Following this, the Court will be advised of any recommendations, and if adoption is advised, a short Court hearing will provide the adoption order and finalisation of the process.

At this point it is recommended that families revisit any Wills and Testamentary documents to ensure that they are updated to reflect the legal change in this relationship.

Who is eligible to access this new Law?

Two main groups are expected to seek access to this legal process.  Primarily, the law will assist foster parents to legally adopt their fostered children once they have reached the age of 18.  This enables families to by-pass a range of red tape that has, in the past, made adoption of minors difficult.  Secondly, the law will enable the adoption of children by step-parents.

In both circumstances an existing parental bond must be demonstrated to have evolved before the child in question reached the age of 18.

What are the likely costs involved in undertaking this legal process?

At this stage it seems reasonable to assume that the financial outlay for undertaking this process will be minimal.  It is recommended that interested parties engage the support of a solicitor to prepare and file the appropriate documents.  These legal fees, in addition to the normal court filing fees, will be required.  It is highly unlikely that legal aid will be available for this matter.

While the Bill is currently awaiting consideration by the current State Government, its passing stands to herald a range of positive changes for many families throughout South Australia.  For advice about how changes to the Adoption Act may positively support your family, we warmly encourage you consult with one of our experienced solicitors with a view to moving forward with legal proceedings in the future.

My ex and I have very different ideas about how we want our children educated.  Even when we were together we couldn’t agree and it was one of the reasons why our marriage ended.  With our eldest child starting school next year we need to make some important decisions.  I really want both our children to attend the small Catholic school around the corner, but my ex was always adamant that the local State school was ‘good enough’ for him and that his children ‘would never grow up to be entitled brats’.  Since he only has them alternate weekends anyway, can I just enrol them at the school of my choice and send him the bill later?

The Answer is NO.

The Family Law Act presumes that both parents should have shared parental responsibility when making long term decisions about the care, welfare and development of their children.  Education falls within this category.  There is a positive obligation on both parents to make this important decision.

Indeed, some parents don’t see the need in sending their child or children to private schools.  Some parent’s look at the fees they charge, and simply will not entertain sending their children there.  It is not uncommon to hear one parent claim that since they are already paying child support, they should not be expected to ‘cough up more cash’ to fund the cost of expensive school fees.  Obviously, this becomes a major source of discontent if the parent receiving child support wants to send the child to a private school, and doesn’t understand the other parent’s rationale.  It’s about the child isn’t it.

In the first instance, your primary aim should be to work with your ex to share your ideas about the type of education you want for your child.  Ideally, through this discussion you may come to an agreement, or a compromise.  It may be that both parents agree to contribute to the costs of education.  In some situations, you may achieve consent to enrol your child in the school of your choosing, albeit with the proviso that this expense is borne by you entirely.

Where these discussions fail, or are not possible, such negotiations may take place through mediation or with the assistance of a Family Solicitor.  In this manner, as with other Family Law disputes, your lawyer will negotiate with your exes’ lawyer until a suitable compromise can be reached.  Should this negotiation fail the matter can be brought to the Federal Circuit Court with the Judge ultimately deciding what is in the best interests of the child.

While there are no simple answers to your dilemma, it is critical that separated parents with children work to find solutions that are ultimately in the best interests of the child.  Too often, I observe situations where parents lose sight of their parenting responsibilities and this situation is used as an opportunity to ‘get one over’ their ex.  Children should never be used as pawns in this game.  Sometimes, the best solution is to be open to compromising some of your dreams so as to move forward and ensure your child greater stability in the long term.

When you separate, there are so many things to consider.  Obviously if children are involved the primary focus is making sure that they feel loved by both parents. Initially, your immediate considerations revolve around their living arrangements.  Will they live with mum, dad or a combination of both?  Will they continue to live in the house that they know, or will circumstances necessitate a move somewhere new.  Lastly, the question of when and how they will they see each parent emerges.

You are doing well if you manage to work out these arrangements without hitting too many speed bumps along the way.  However, even the best negotiated arrangements can hit a wall when it comes to special occasions. What happens when both mum and dad want to spend time with the children at the same time?   Special events, such as birthdays, Christmas, and Easter may become tricky without some forward thinking.

The usual and best approach to avoid any feelings of disappointment on these special occasions is to suspend the usual care arrangements for that day.   Rather than leaving the planning to the last minute this is one situation where planning needs to occur a few weeks (or even a couple of months) before the event.  While it may help to speak to other separated families for ideas on how they deal with these events; what your plan will look like will depend on the unique dynamics in your family.  Unfortunately in the world of split families there is no such thing as a ‘one size fits all’ arrangement.

Of course, in families where there exists good communication, negotiation can be easier, with parents managing this independently.  However, when this is not present, or if negotiations turn ugly, or fail to move forward, it can be worthwhile to seek to professional support from a skilled family lawyer, to mediate an equitable solution that best serves the needs of the children, parents and their extended families.

For compassionate, family first, legal advice speak to Joanna Diamantopoulos at Welden & Coluccio Lawyers. 

 Because We care and because Your family matters.

There is growing talk about younger generations moving into adulthood with a sense of entitlement.  While this condition is often spoken of in relation to Gen Y’s; a sense of being entitled to things in the ‘now’ and without having worked for them is an affliction to which no generation is immune.  Of course, while it is one thing to expect to have material things handed to you on a silver platter, it is another thing altogether when this expectation manifests itself as a form of elder abuse.

As lawyers, we are constantly alert to the possibility that our older clients may become victims of financial abuse at the hands of those who are nearest and dearest to them.  As horrific as this may seem, it is occurring with alarming regularity and it evolves directly from a sense of entitlement.

Consider the following scenario. A man in his late twenties appeals to his elderly grandparents to reverse mortgage their home so that he may access the funds to finance the purchase of a car.  ‘It is just like me getting my inheritance early’ he explains to them, ‘and you still get to live in your home’.  The couple, feeling sympathy for their grandson, agree to his request, reverse mortgage their family home without understanding fully the broader implications that surrendering their home may have on their long term financial security.  In other situations, elderly people are coerced (in ways ranging from gentle persuasion to outright blackmail) to make changes to their Will.  Similarly, in other circumstances, adult children have misused their authority as Power of Financial Attorney as an opportunity to direct funds from their elderly relative into their own account.

As we move into our twilight years, managing finances becomes a challenge.  Especially in this time of online banking and constantly evolving technologies, it is normal to transfer the burden of these duties to a trusted relative.  Alas, undertaking such actions inevitably places the elderly person at greater risk of abuse.  While current laws generally fail to recognise the criminal nature of these activities, lawyers remain constantly alert to the increasing incidence of this and are actively working towards educating their clients and promoting the risks with the broader community.

If you, or a relative, feel that you are at risk of elder financial abuse, you are welcome to chat confidentially with one of our experienced solicitors to discuss your unique circumstances.

There are times in my job that I feel more like a relationship counsellor than a Lawyer. Family Law is one where these roles work hand in hand.  It is to be expected.  I work closely with people as they struggle through the life challenges that separation and divorce bring.  I aim to make the transition for my clients, their children and at times extended families, as stress free as possible.

But sometimes, my client’s emotional needs and internal struggles go beyond giving them helpful and beneficial legal advice.  They need more than an ear to bend and some kind words to get them through this difficult period.  I know I am not trained in psychology, nor do I have a qualification in counselling; but I can appreciate when a client needs to seek the help of formal counselling.

I wish to highlight the important role that professional counselling has in the legal process.  In some situations it is wise to consider employing a professional relationship counsellor (psychologist, psychiatrist or other mental health professional) to work with the client’s through some issues that may emerge as a result of their separation or divorce.  This approach can often assist clients to effectively overcome a range of mental blocks or challenges that may be preventing them from reaching a satisfactory legal solution.

I want the very best for my clients and sometimes doing this means ensuring my client’s get any help they need from not just from me, but other professionals that can guide them through this life challenge at a faster pace, enduring less pain than might otherwise occur.

In 2016 there were 24 million pets in Australia.  In fact, last year 62% of Aussie households had at least one pet.  One only needs to undertake a quick google search to realise that doggie and feline hotels, day care facilities and designer pet accessories are big business.  Certainly, the booming pet care industry reflects a significant change in attitudes towards our furry friends.    Indeed, many now view their pets as proxy children or ‘fur-babies’.

For lawyers specialising in Family Law, we have noticed a shift in thinking with regards to pets following separation.  Where once, poor Fido went with ‘whoever’ was willing to take him, more often this very question is the source for heated discussions and immense conflict.  Increasingly separating clients will dedicate a significant amount of time and energy to discussing (arguing) about where their beloved pet will live.  At times this becomes so emotive that it could easily be mistaken for a discussion about care of a human child.

Contrary to this, insomuch as the Court is concerned, pets in separation are treated as property.  Who keeps the family pet, is a decision the Court can in fact make but is the extent of their determination and no other consideration is given to the other party maintaining their relationship.

If there is evidence before the Court as to the pet’s monetary value (i.e in the case of a pure breed) it will be taken into account when determining the overall property settlement. More often than not however, the reality is that pets, unlike inanimate objects, form emotional bonds between the parties and the children of the relationship, and leaving this important decision to the Court, is bound to lead to heartbreak for all concerned.

Considering that the Court’s position is generally not a helpful one it may seem appropriate to approach the issue akin in many ways to the one undertaken with regards to children.  It is best to try and resolve to settle emotionally charged disputes over a beloved pet by way of negotiating a solution of a kind of ‘shared-care’ arrangement, along with handover clauses, While an Order may not necessarily be fashioned for share care arrangements over a pet, it does not mean an agreement cannot be reached.

For this and any other matter related to Family Law contact Joanna Diamantopoulos or one of the team at Welden & Coluccio Lawyers.

I have been married for several years but have recently separated from my spouse. We have finalised a property settlement, but are yet to get around to being officially divorced.. I don’t have a Will, does this mean my former spouse will still have access to my estate when I die?

The simple answer is yes. Whilst you may be separated, you are still legally married and have a legal ‘spouse’ in the eyes of the law. Under the Administration and Probate Act 1919 (SA) if a person dies without a Will, having a legal spouse and no children, then the partner would be entitled to the whole of the estate.  Alternatively if there were children, and the estate was worth over $100,000.00 then the legal spouse would receive the first $100,000.00 and anything over $100,000.00 will be divided equally between the legal spouse and the children of the deceased.

In a recent case, the Supreme Court of South Australia heard the case of a young couple who had been married and undergone a messy break-up. A property settlement was entered into and they began to move in separate directions. The wife had served divorce papers on the husband, but he hadn’t yet signed them.   Legally speaking, the divorce was never finalised. Approximately 15 months later the husband died in a tragic accident. The husband left no Will which resulted in the former spouse being entitled to the estate in its entirety.  This included a house and a significant superannuation benefit. The deceased’s grieving family were left with nothing.

Whilst the family of the deceased might, in certain circumstances, be entitled to make a claim for an interest in the estate under the Inheritance (Family Provision) Act 1972 (SA), the exercise would be costly and possibly detrimental to the family.  This could easily have been avoided, either by finalising the divorce or by having a Will in place.

In the matter described above, if the deceased had been divorced or had left a Will, then his estranged wife would have no claim or entitlement to the estate.

It is prudent to seek advice from a solicitor in the event of a relationship break down. A solicitor is best equipped to provide you with appropriate advice related to the effects and long term implications a previous relationship may have on your estate and how to best to structure your affairs in order to minimise any ex-partner from making a claim to your estate. For advice on Wills and Estate matter contact the dedicated and experienced team at Welden & Coluccio Lawyers.

We live in a world in which we are increasingly electing to do certain things using online platforms such as grocery shopping and paying bills.  It is becoming a way of life; the new norm so to speak.   While it is fair to say that law has been slow in the uptake, some legal processes are now occurring in cyberspace.

From 1^st March 2017 an Application for Divorce will no longer be able to be filed in person at the Family Court Registry.  Rather, it will need to be e-filed via the Commonwealth Courts Portal.

What does this change mean for clients?

For clients who prefer to engage a Family Law Solicitor to file the Divorce Application on their behalf, the move to e-filing will have little to no impact except that it may mean that they have to spend a little more time with their solicitor when completing and signing the application.  Additionally, as payment of the filing fee must be made via credit card when e-filing, the Solicitor could use the client’s credit card, instead of necessitating that the client deposit funds into the trust account, waiting a few days before the Application can be filed and a hearing date set, as was the case in the past.  However, for many individuals who had intended to forgo the services of a solicitor and file their own Application for Divorce, this may present a few challenges.

The new online process will require the Applicant to firstly create a file on the Commonwealth Courts portal in readiness to complete the Application online.  Part-way through, the Application will have to be saved in order for a copy to be printed.  Another court document called an e-affidavit will also need to be printed, and both documents will need to be taken to a solicitor or Justice of the Peace to be signed by the Applicant.   Once completed the e-affidavit needs to be scanned and uploaded to finalise the on-line Application ready to serve their spouse.

This new process has been developed to alleviate the demand on Court Registry Staff.  While the online process will be embraced by many tech-savvy individuals, to those that may not be so tech-savvy; the stop and start nature of the process will no doubt be perceived by many as being ‘messy’ and somewhat ‘clunky’.  Indeed, to those lacking a reasonable standard of computer literacy (or appropriate facilities, including the ability to scan documents), this process will seem an insurmountable obstacle.  Certainly, many may give up altogether and employ a solicitor to undertake what they previously would have felt confident in undertaking on their own.

For support or advice with this, or any other Family Law matter, feel free to contact Joanna Diamantopoulos or the team at Welden & Coluccio Lawyers.

Each morning I like to watch a few minutes of Sunrise.  At least I do, until I realise that the kids are no-where close to being ready for school (and the grumbling ensues).  At any rate, yesterday morning, I happened to catch a report about the rise of ‘Mum and Dad Banks’.  This is the term that has been coined to describe a situation when parents provide money or security to assist their children to jump onto the property ladder. . . although usually not at the bottom (as most of us did, and perhaps where they should).

The story continued, suggesting that a whopping 52 percent of all first home buyers in this country required some sort of financial assistance from their parents in order to secure their first foothold on the property ladder.

While the story was primarily focussed upon housing unaffordability throughout Australia with ‘Family Pledges’ as being a realistic solution to this problem, I was thinking ‘Oh no! Please don’t go there.’

Let me state, from the outset, that Family Pledging is a risky strategy.

So what exactly is a ‘Family Pledge’?

Essentially it is a guarantee.  It is a guarantee that you (the parent), should your offspring fail to meet their financial obligations or find themselves in a situation where they are unable to make their loan repayments, will undertake to pay the debt.

In most cases, Family Pledges evolve like this.  Son or daughter finds the perfect property (often expensive and close to the CBD).  They approach the bank presenting their meagre savings and are swiftly declined.  The initial ‘No’ is soon replaced by a ‘Yes’ along with the provision that a family member (usually Mum and Dad), put up their home as a security for the loan.

In recent times, especially as house prices have risen, this has evolved to be an effective strategy used  by banks.  After all, they know how hard it is for parents to say no to their kids.

The nature of these pledges, I mean ‘guarantees’, is that the bank will demand that parents go and seek their own independent legal advice on the guarantee document they are about to sign.

Why?

Well, they know that there is a lot at stake if things go wrong and they are seeking to absolve themselves of all liability if it does.  Make no mistake the stakes are indeed high, the kind of situation that has Mum and Dad losing the very roof over their own heads.

While I’d like to say that we have parents beating down our doors asking for legal advice on such documents, the reality is it doesn’t happen.  Lawyers seldom, if ever, provide advice on these kinds of documents.  You see, parents want to help their kids.  More pertinently, and assuming that they believe their kids are financially responsible, they seem to believe that the main (and only) risk is that their kids will be remiss in their repayments.  Unfortunately, there is no ‘peace of mind’ to be found in this belief.  You see, even the most financially astute person can fall victim to relationship breakdown.  Yes, should your child and his partner separate, chances are they will not be able to afford the loan repayments and you will be called upon to pay off the huge interest that has accrued.  I mean, let’s face it, if they could they would not have needed you to go guarantor in the first place.

The bank knows that very few people will seek advice on such a document and will never even consider such a scenario or countless others (job loss, illness) all which have the potential to leave you in a precarious situation.

The bank always wins.

Always.

Consider this.  If your son has a $100,000 loan with the bank and has it paid down to $30,000 but THEN defaults on his payments, the bank may want YOU to repay the $20,000 credit card AND the $25,000 personal loan he has with the bank also.  It is all in the fine print.

An old gambler’s truth is that you should only gamble what you can afford to lose.  Can you afford to lose your family home?  Your retirement fund?

I thought not.

All contracts, loans, guarantees and other important documents should always be examined by a lawyer. Visit Jason Coluccio or myself, for this and any other property related issues so that if you do decide to sign, it is with eyes wide open to all the potential risks.

Joanna Diamantopoulos has more than a decade’s experience as a family lawyer.  Today,  she shares some wisdom for parents who are in the throes of a relationship breakdown, with advice for making this event a smooth transition for children.

Separation and divorce is unquestionably one of the more stressful life events you can experience. It creates an emotional upheaval, not only for you but also for your children (irrespective of how old they are). When faced with this situation it is paramount to remember that children are innocent bystanders in the tug and war of separation. Too often I’ve seen parents involve the children, some of them very young, into what is essentially adult conflict. Children, of course, lack the tools to manage the complicated issues and the range of emotions surrounding separation (indeed many adults find this challenging also).

While separation and divorce is always a challenging time for children, there are a few things that you, as a parent, can do to make this difficult transition easier.

1. Do not tell your children how bad their mother or father are, or point out the things they do wrong or the mean words that have been exchanged. This isn’t your children’s fight. Children have an unconditional love for both parents and their love should not be clouded by your war;

2. When transitioning from one household to two, allow your former spouse to take some household furniture and effects and even some of the children’s favourite things. This will assist a child to connect their old life and feel at home irrespective of whose house they happen to be staying at.

3. Keep the lines of communication open. There are ways to communicate without necessarily having to speak face to face. Email and text message can be easily exchanged in order to avoid the tensions associated with talking to each other when emotions are high. It is advisable to keep any correspondence business-like in tenor. Use respectful and polite language.

4. Remember children have commitments also. Sport, dancing lessons, karate or even party invitations. Don’t let the new living arrangements interfere with the children attending these activities. It is understandable that a non-residential parent wants to spend as much time with their children as possible, but failure to take them to their activities, can be perceived by them as a punishment. Enjoy the activities with your children, stay, watch and interact with the rest of the parents. No doubt your children will be happy just to have you there.

5. Do not use your children to “spy” on the other parent. Of course you can ask how their weekend was, but don’t push for information like it is the Spanish inquisition as you try and get dirt on your former spouse.

These common sense tips will assist you and your children through the trying time that is separation. They are not difficult, complex or hard, but sometimes are simply forgotten due to the barrage of extreme emotions encountered during separation and divorce.