Family Law Matters

Superannuation and Family law

2012-01-22T01:57:00.000-08:00

Superannuation is now treated as property by the Family Court. In most situations, if a terminating event has not occurred and a party is not at the minimum retirement age, then in reality superannuation is not property as it cannot be accessed or spent by the member.

The Family Law Act, has now been amended so that a superannuation interest is treated as if it were property.

Essentially, therefore in any property settlement (whether between married couples or de facto couples) a superannuation interest of a party must be identified and must be valued. There are particular regulations in the Family Law Act that prescribe how such superannuation interests are to be valued.

A party is able to find out the value and details of the other party’s superannuation interests by signing a Declaration and submitting their request for information about that party’s member benefit accounts.

The Family Law Act also allows a party to split their superannuation interest (all of it or part of it) to the other party. This can either be done by consent between the parties or the Court can make an Order.

In many instances, when an accumulation fund is split (and that fund is still in the growth phase) then part of the superannuation of a party can be transferred to another complying fund of the other party.

In those cases, a superannuation split does not necessarily mean | does not always mean that the superannuation can be transferred to the other spouse and taken as cash or spent by that party. They must place it in their own complying Super Fund.

It is often challenging for a party to find out which is in their own best interests as to what property and superannuation mix they should receive in a property settlement.

When contemplating the size and impact of any superannuation split, one should obtain proper advice from a qualified financial adviser as to what is the best arrangement in relation to superannuation having regard to their particular circumstances.

The Family Law Act and Regulations place specific and strict requirement on both the parties and also on the Superannuation Trustee in relation to the drafting of the Orders and acts or things to be done to ensure the super split takes place.

This article provides basic information only and is not a substitute for a professional or legal advice . It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end.

Our family law lawyers members are able to provide you with comprehensive legal advice in relation to the all legal areas associated with separation and divorce, to assist you and your family to move forward. Family lawyers QLD - Brisbane , Family lawyers Newcastle , Family lawyers Perth, Family lawyers Wollongong,

“Uplift” Cases short relationships

2012-01-16T00:03:00.000-08:00

A common situation which arises in the context of short relationships is where one party contributes a significant asset at the commencement of the relationship and that asset subsequently experiences an “uplift” in value during the relationship or after separation. In this situation, the question becomes, who ought to enjoy the benefit of that “uplift” and in what proportion?

Some general principles may be applied as follows:

· The weight of the initial contribution in favour of the contributor will be greater where the increase in value has come about by market forces as opposed to the contributions of either party.

The weight of an initial contribution in favour of the contributor may be less where the non-contributor has contributed to the increase in the value of the asset during the relationship. For example, performing or funding renovations on a property, making business decisions which lead to an increase in the value of a company.

Set out below are some examples of such cases and how the Courts have determined the parties’ entitlements.

Howlett v Neilson [2005] NSWCA 149

In this case, on appeal, the parties’ respective contributions of $110,000 and $2,000 were returned to them, with the uplift in the assets which occurred during the relationship divided on a 50/50 basis.

Burgess v King [2005] NSWCA 396

In this case, the wife came to the relationship with an interest in a house. During the relationship, the husband loaned funds to the wife, the parties jointly borrowed funds and the husband completed renovations to the house. There was a subsequent increase in the value of the wife’s house.

At first instance, the trial judge returned to the husband his financial contributions to the house, at a discounted rate, however, to take into account care that the wife had provided to him. The husband was not given any share in the “uplift” in the value of the house. The husband appealed the decision claiming that he was justly entitled to a share in the uplift in the value of the house based on his contributions. It was held that the uplift was to be apportioned between the parties and the husband was awarded 23% of the increase in value (being $100,000 of a $420,000 uplift).

This article provides basic information only and is not a substitute for a professional or legal advice . If you are likely to be involved in court proceedings or legal action, you should get advice from a family law lawyers. Family lawyers Melbourne, Family lawyers Adelaide , Family lawyers NSW-Sydney, Family lawyers QLD - Brisbane, Family lawyers Canberra,

The Family Court has given a prompt reminder of its duty to guard tax revenue

2012-01-15T21:35:00.000-08:00

The Family Court has given a prompt reminder of its duty to guard tax revenue, in the decision of Kruger & Zaio [2009] FamCA 1218. Justice Mushin adjourned the property trial out of concern that the litigant husband and wife had failed to file tax returns for a number of years, and discrepancies between the information declared in the tax returns which had been lodged and the sworn evidence in the proceedings. The Court referred the matter to the Commissioner of Taxation and ordered that court documentation and 'any other document' requested by the Commissioner, be delivered to the ATO, to enable action to be taken for non-compliance.

REASONS FOR JUDGMENT

1. At the request of counsel, and with the agreement of their clients, I met with counsel in chambers. This is clearly not a case which can be contained within two or three days, as was quoted at the original mentions of these matters.

2.While in chambers with counsel I raised a problem which I see as being fundamentally important. Upon reading the relevant documents in this matter yesterday, it occurred to me that I was going to have difficulty in doing justice and equity to the parties in accordance with the requirement of the statute because it seemed to me that the tax records of the parties were less than complete.

3.At the beginning of the sitting today, when the case was called on, I asked counsel to provide me with copies of the relevant tax records and I was assured by counsel that that with which I have been provided is all that they have. The documents themselves appear to me to be quite inadequate. There is no tax returns in respect of several of the relevant tax years and on a first inspection it would appear that there may be a lack of correlation between the documents which I have been given and the parties’ sworn financial statements in these proceedings.

4.In those circumstances in the event that there is a significant disparity in the tax situation it may well be that the asset position, as represented by the parties, is not accurate and that there may be a significant tax liability which at this stage is unstated. In those circumstances I take in to account the judgment of Lindenmeyer J in P & P (Tax Evasion) (1985) FLC 91-605 and which states the duty and responsibility of the court to protect the revenue. In my view, the situation with the parties’ disclosure is far from satisfactory and I therefore feel unable to go on with these proceedings.

5.In those circumstances I have decided that the proceedings will be adjourned and I will require the parties to ensure that they file all relevant tax returns. I will cause a copy of these reasons, together with a copy of the order which I will make and the parties’ affidavits of evidence-in-chief and Financial Statements, to be forwarded to the Commissioner of Taxation of the Commonwealth of Australia and invite him to take whatever steps he sees as being fit.

6.Upon completion of that process the proceedings will resume before me. To that end I will require a mention to be made of the proceedings after Easter 2010. In those circumstances the proceedings will be adjourned.

This article provides basic information only and is not a substitute for a professional or legal advice . If you are likely to be involved in court proceedings or legal action, you should get advice from a family law lawyers. Divorce lawyers Melbourne , Divorce lawyers QLD - Brisbane , Divorce lawyers NSW- Sydney , Divorce lawyers Canberra

The erosion principle in a short marriage

2012-01-14T14:05:00.000-08:00

There is a principle in law known as the erosion principle, which means that over time the value of the initial contribution reduces and the contribution of the other person increases.

The “erosion principle” later evolved as follows In a Pierce v Pierce (1999) FLC 92-844

This case involved a 12 year relationship with 2 children. The husband made a significant contribution at the commencement of the relationship. At the date of trial, the pool was $320,000. The largest asset of the parties was the former matrimonial home, of which most of its value could be apportioned to funds initially contributed by the husband.

The trial judge found that the parties had contributed equally throughout the marriage and that the husband’s initial contribution had diminished such that his entitlement should only be 55/45 on the basis of contributions with no adjustment for section 75(2) factors.

While on appeal it was agreed that it was acceptable for the trial judge to have found equal contributions during the relationship, the trial judge’s conclusion that the initial contributions were diminished such that his entitlement should only be 55/45 was not accepted.

The Full Court held that the trial judge had not given proper weight to the husband’s initial contributions. Rather than speaking in terms of “erosion” of his contribution, Ellis, Baker and O’Ryan JJ stated:

“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached in all the circumstances to an initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”

The Full Court found that despite the length of the relationship (12 years), the initial contribution formed a major portion of the post separation pool. The adjustment of 5% in favour of the husband was increased to an adjustment of 70/30 on the basis of contributions, with a further adjustment under section 75(2) of the Act to take the husband’s entitlements to 75% overall.

Initial Contributions in Short Relationships Bearing those principles in mind, there are no hard and fast rules in relation to how initial contributions will be treated in short relationships. However, it is clear that in a short relationship, initial contributions are likely to hold much greater weight in the circumstances than in a longer relationship. This is because there is simply less time for the non-contributor to “off-set” a larger initial contribution made by the other party.

However, it is not simply the passage of time that will “offset” the initial contributions, but the contributions made by the other party during the relationship that are important (although both factors may go hand in hand). This will be discussed further below. The weight attached to an initial contribution may also depend on how the initially contributed asset is treated and used during the relationship, including whether the non-contributor contributes to any increase in the value of the asset during the relationship. This will also be discussed further below.

The Family Law Act provides a process for the resolution

2011-12-14T12:35:00.000-08:00

The Family Law Act provides a process for the resolution of controversies about the time children will spend with parents and also other important people in their lives.

Alterations to the Family Law Act in July 2006 introduced the concept of family dispute resolution. Parties are generally required to attend mediation with a registered family dispute resolution practitioner prior to filing an application in Court, except in some circumstances.

At the end of the family dispute resolution process, this specialist will issue what is known a Section 60I Certificate. If you haven't been able to reach agreement with the other parties, you are able to use that Certificate as a “permit” to start proceedings.

In order to go to Court, you will need to prepare court documents. An “Initiating Application” is a document in which you tell the Court what Orders you would like to have them make. An “affidavit” is a document for which you tell the Court your story and why you would like them to make the Orders you seek. You may have to file affidavits from other witnesses.

Within the court process, you need to attend Court. You may also need to attend meetings with a Family Consultant (previously referred to as a Family Court Counsellor) or other Expert. That Family Consultant or Expert will prepare a Report for the Court to assist the Court in deciding what to do in your matter.

If needed, your matter may go to a Final Hearing. In cases like this, you and any other witnesses you have may be asked to attend Court to answer questions about their evidence.

If you have any questions about the process or if you would like any further information contact a family lawyer

Family lawyers Melbourne, Family lawyers Adelaide , Family lawyers Sydney , Family lawyers Brisbane, Family lawyers Canberra, Family lawyers Wollongong, , Family lawyers Newcastle

Helping to make Supervised Visitation Perform

2011-12-12T01:36:00.000-08:00

Supervised visitation is generally ordered with the Court to confirm kid's security whenever divorced or perhaps isolating mothers and fathers are in high discord scenarios.

Monitored period. It’s not necessarily the ideal way to visit your kids, but will be oftentimes preferable for the father or mother to be able to consent to supervised contact to get a outlined period of time, rather than paying almost no time at all using a child. Although you may don't think supervision is required, feel free to point out that you can develop (or repair) rapport together with your kid.

If you choose to head to court docket to get a choice regarding your kids, the judge may order one to be involved in closely watched changeovers, or some time that a parent or any other family member stays using a little one to get monitored at the distinct Children’s Make contact with Services. If you have been obtained from the court to go to a Children’s Get in touch with Services, the Support will perform the better to assist you to comply with the order, in case you along with the other parent of your kid fulfill their criteria, possesses proper establishments and also means accessible.

Your Children’s Make contact with Service is not necessarily limited through the order from the court. Are applying to the courtroom in the event the court ruling ends, if the Children’s Make contact with Services are unable to still present their providers, or maybe the particular Support suggests a variation in the buy in writing for your requirements and also the various other mother or father. If you and the various other mother or father consent written to be able to fresh plans for getting together with your youngster, you may have to come back to the courtroom with regard to permission purchases to become manufactured. The judge will still only create a concur buy if it is inside the child’s desires for this.

The Children’s Contact Program may possibly suggest that an individual or the various other mother or father participate in an article separation parenting software. The the courtroom could buy work in other packages anytime through legal action to try and resolve the down sides that received with respect to each parent getting together with the youngster.

A the courtroom could order an investigation coming from a Children’s Make contact with Service. Reviews offers the judge together with information about some time spent while using youngster at the Program and will profit the court docket to determine if they should let without supervision appointments.

Children’s Speak to Services charges you costs for changeovers along with supervised appointments. Allow the Service determine if you're on a low earnings or even encountering poverty because Service could have arrangements available to ensure you can access the particular Program.

Divorce lawyers Melbourne , Divorce lawyers QLD - Brisbane , Divorce lawyers NSW- Sydney , Divorce lawyers Canberra

In child custody proceedings, the husband claimed unacceptable risk towards children.

2011-11-29T19:58:00.000-08:00

In a child custody matter in the Family Court of Australia at Cairns, Rosen family lawyers were the acting lawyers on behalf of the husband. The serious problem was whether the Mother’s de facto partner, Mr S, was an unacceptable risk towards the daughters.

Within these courtroom proceedings the lawyer acting for the dad of the children who initially agreed to the Mother relocating the children to Cairns without telling the Father that Mr S had recently been found guilty of and spent time in prison for indecent assault upon the daughter of his then, but not current, de facto partner.

Mr S and the Mother maintained the view that Mr S was innocent of the charge notwithstanding that he has been found guilty by the District Court, spent time in jail and wouldn't appeal either the conviction or sentence.

Evidence in the Family Law Trial included:-
1. The viewing of the complainants evidence, in the Criminal proceedings;
2. The viewing of Mr DF’s Record of Interview by the Queensland Police Service; and
3. Perusing the Transcript of the criminal proceedings.

The Trial commenced with the playing of the video recording of the cross-examination of the complainant (in the criminal proceeding). At the conclusion of that viewing the Mother was asked whether she found that the evidence of the complainant was compelling which the Mother replied “No”.

The Mother under cross-examination by the Independent Children’s Lawyer confessed that when her daughter’s friends came over she didn't advise the parents or guardians of those children that Mr S was a found guilty sex offender. In fact the Mother’s evidence was that the life that she led with Mr S was more about shielding Mr 'S “reputation” and there was very little consideration to the risk to her daughters or the daughter’s friends. Mr S in his cross-examination confirmed that view.

The Mother and Mr S maintained their position until late on day 2 of the Trial. This changed when evidence was given by the Report Writer who had sat in Court throughout the Trial. The Report Writer was concerned that the Mother and Mr S were maintaining “family secrets” and was convinced having heard the accounts of the Mother and Mr S that Mr S represented an even greater risk to the children.

Our family law lawyers can assist you through the difficulties associated with child custody, residence of children, child visitation rights and other issues like relationship breakdowns and divorce.

Family Court claims power to sell assets of couples 'separated' by old age

2011-11-22T20:27:00.001-08:00

An article by the Australian Paper 23 November 2011

The full bench of the Family Court has declared that it "clearly has the power" to split the assets of elderly couples who remain married but are "physically separated" because one of them lives in a elderly care facility, opening the way for a new wave of legal action.

Within the determination, the Family Court could order the sale of the family house and split all of the other properties and assets of a long marriage when a couple had been intentionally broken down by dementia and the other diseases of old age.

The court says, in the 33-page judgment published a week ago, that it expects to begin to deal with several such cases "with increasing frequency".

The full court was asked to evaluate the issue in a case known as Stanford and Stanford, in which a husband had been ordered to sell his $1.3 million house to pay a $300,000 bond for his wife's nursing home. The court halted the sale for the reason that the magistrate who made the initial orders made errors in her decision, and had failed to take into account correctly the impact of the husband having to sell his home of 48 years, and the other monetary agreement he previously put in place for his wife. It was in the process of sending the matter returning to the lower court for an additional hearing when the wife, known as Mrs Stanford, who was 89 years old, died while in the nursing home. The matter had been due back court today.

Mr Stanford, 87, had been dealing with efforts to have the home sold to pay the $300,000 bond for his wife's care, on the understanding it would be unfair and unreasonable. Stanford v Stanford made its first appearance in the Magistrates Court, which hears family law matters in Perth, in January.

The Stanfords were being married for 41 years. Both had children from previous marriages. In accordance with the judgment, they were "physically separated" because Mrs Stanford had dementia and lived in a nursing home
.
Mr Stanford lived in the marital home in a Perth suburb that he had shared with his wife for 41 years and owned for 48 years. The house was valued at $1.3 million.

Mrs Stanford's daughter took the matter to court because she was unhappy with the nursing home her mother had been placed into. Mrs Stanford was then in a shared room, with a communal bathroom. There was no common area for visitors and there were few gardens.

There was a better nursing home nearby, but it required a $300,000 bond.

The court heard that Mr Stanford did not object to having his wife move to the better home, "provided it did not cost him anything". He lives on a veteran's pension. Mrs Stanford's daughter told the court that she wanted "the (matrimonial) house be sold so the money can be spent on care for her mother".

Mr Stanford's lawyer argued that the court had no jurisdiction over the matter, since the couple was not separated.
In addressing that area of law, the magistrate said: "I accept that the parties did not intend to separate, and they live apart only because (Mrs Stanford) suffered a stroke and required permanent care." But she added: "The parties will never live together again.

Most of the elements of a normal marital relationship have ceased to exist." The court heard that Mr Stanford would "visit the wife up to three times a week".

The magistrate ruled in favour of Mrs Stanford, saying the marital home should be sold, in order that Mr Stanford could give his wife slightly less than 50 % the value, or $612,000, for her care.

Mr Stanford's children appealed to the full bench of the Family Court. His counsel argued the Family Court "must recognise and enhance marriage as a voluntary relationship entered into for life, and protect the institution". The full bench disagreed, saying the court "clearly had the power" to make an order that the house be sold. At the same time, it agreed the magistrate should have considered other options that weren't so onerous.

The full court found that both sets of children, who brought the case on behalf of their parents, had "as their primary motivation the interests of their respective parents". But it added that "both had good reason to protect those interests, having regard to their likely inheritance".

The court was expecting closing submissions from both sides when Mrs Stanford died.

Divorce lawyers Melbourne , Divorce lawyers QLD - Brisbane , Divorce lawyers NSW- Sydney , Divorce lawyers Canberra

Break up | 5 Functional Suggestions for Outlasting Splitting up

2011-11-22T16:56:00.001-08:00

Even though the embarrassed knowledge about separation has never been simple, there are a few practical steps that can assist. Plan in advance and think about the following:

1. Never leave your family home without all of your paperwork. Gather and photocopy the following:
• birth and marriage certificates
• details of superannuation funds for you and your partner
• names and account numbers of all bank accounts held jointly or separately including credit cards
• name, value and details of any shares owned
• copies of property titles or deeds
• registration papers for motor vehicles
• mortgage paperwork or other loan information
• tax returns, notices of assessment and group certificates for at least the previous three years
• recent payslips
• children’s school reports and medical records
• home and other insurance policies
• any business documents or self employment details or at least the name and details of the accountant
• passports
• receipts for the purchase of big ticket items or those likely to be disputed.

Besides having the paperwork, make sure you completely understand your financial position. In order to you should get the appropriate

2. After collecting your documentation and keeping it safe, prepare yourself for the actual splitting up from your partner. Make certain you afford saved to cover 1 month rent in advance and bond on a new property. Take your (and those of the children if relevant) personal belongings, clothes, jewellery, sentimental items with you at the time of leaving. Ensure any draw down facilities on loans are closed or converted to joint signatories. Notify people of your change of address and redirect your mail.

3 Make an itemised list of your entire assets - furniture, jewellery, contents and personal items and give them a value. If you don’t know the value, find out. Ask a local real estate agent to appraise your property; price furniture conservatively. Just because the Italian leather lounge was purchased for $20,000.00 fifteen years ago, does not mean it is worth that on present day values. Don’t forget your debts - lists mortgages, loans, credit card debts and loans to family and friends. They all need to be included.

4 Consult a family lawyer. Ideally prior to leaving, but alternatively asap. You must know your rights and obligations. Ask the lawyer about their fees; ensure you understand the legal process; ask all of the questions you think of, even if they seem silly. And most importantly, don’t expect to hear what you need to hear.

5 Generally, keep these in mind:
(a) Always act rationally and sensibly, don’t denigrate your estranged partner in front of the children and don’t expose the children to ongoing conflict.
(b) In children’s matters, do not relocate without consent or use the children to score points against your partner.
& Be positive and optimistic, the majority of matters settle without the need to go to final hearing in court. You will get through this!
(d) Don’t rebound quickly into another relationship, give yourself time to heal old wounds.
(e) Ensure all of your affairs are in order, draft a new will, power of attorney or health directive.

Family lawyers QLD - Brisbane , Family lawyers Newcastle , Family lawyers Perth, Family lawyers Canberra, Family lawyers Wollongong,

Separation and added pressure of Christmas

2011-11-20T16:37:00.001-08:00

Traditionally, the Christmas school holiday period is a busy time for both family law lawyers and the Family Courts. The reasons for this may include the fact that any cracks in the relationship are often more obvious around Christmas time and for families who have separated there may be conflict regarding children's care arrangements over the Christmas and school holiday time. Another factor may, according to a recent report in the Sydney Morning Herald, be that the youngest child has now completed their Higher School Certificate and for many women this is the opportune time to separate.

Any separation, irrespective of the ages of children, is stressful for parents, extended family members and of course the children themselves. Research shows that whilst parental separation is stressful for children, children will be able to manage the change in their living arrangements. Where children have difficulty managing is if there is ongoing conflict between parents. Parental conflict commonly takes two forms, that is, where parents verbally abuse each other, put down the other parent directly to the children or in the children's presence, make the other parent's time with the children difficult in that the children are not "allowed" to see the other parent or speak with them, and involving the children in other related aspects of the relationship breakdown such as child support and the property settlement. Alternatively, parents fail to speak with each other at all and the cold war begins. Where these practices continue, children are at risk of doing poorly at school, psychologically and emotionally.

To avoid or work towards breaking this pattern of behaviour, both parents should obtain legal advice about how family law works and in particular their rights and responsibilities under the Family Law Act as parents. There are organisations available at modest to no cost for families, including Relationships Australia, Centrecare, Unifam, the Government-run Family Relationship Centres, and private counsellors who have experienced mediators to help parents discuss their children's care needs and work towards reaching agreement so that as parents they can continue to meet those needs. These strategies will work for the majority of families where there are no significant risk factors and safety concerns such as where a parent engages in regular substance or alcohol abuse.

Divorce lawyers North Sydney , Divorce lawyers Chatswood,Divorce lawyers NSW- Sydney

property division

2011-11-13T18:02:00.001-08:00

Division of property is a vital aspect of family law. After the best interests of any children to the former marriage or de-facto relationship are considered, it will be necessary for parties to turn their attention to the division of liabilities and assets. Reaching an agreement regarding division of property can avoid the expense and stress often involving court proceedings. Pre-action procedures, including conciliation, provide an important opportunity for both sides to make a genuine effort to settle their property dispute. Only in exceptional cases (such as cases involving family violence) may the court may accept that it is not possible or appropriate for the pre-action procedures to be carried out. Agreements concerning the division of property may be formalised through consent orders or a financial agreement.

There are important differences which must be considered before choosing to utilise one form of agreement over the other. For an enforceable financial agreement to be entered into independent legal advice must be obtained by all parties to the agreement and strict compliance with the statutory requirements for financial agreements must usually be had.

When property division through agreement is not possible, an application for property orders must be submitted to either the or the Federal Magistrates Court within 12 months of a divorce becoming final. Throughout the four step process of property settlement, there exists a duty of disclosure which continues until the matter is finalised by the court. The duty of disclosure requires parties to a family law matter to make available to the other party all relevant information in a case. In property settlement matters, there exist additional requirements of disclosure in relation to: sources of earnings, income, property, financial interests, all forms of property disposal (within one year of separation) and other financial resources. Penalties for failure to disclosure relevant information may be potentially very serious ranging from refusal by the court to use a particular document as evidence to a fine or imprisonment for contempt of court.

The first step of the four stage process of property division involves determining the net asset pool between the parties to the former marriage or de facto relationship. The net asset pool includes all assets (such as property, cars, furniture etc) or liabilities (mortgages, loans, credit cards) acquired before or during the course of the relationship, as well as after separation. The court will also have regard to other financial resources in which either party has an interest. If the value of a certain item cannot be agreed upon by the parties then an independent expert will be brought in to make a determination.

The second step involves consideration of contributions made to the relationship. Contributions may be financial (wages, the amount of money brought into the relationship, etc.) or non-financial. Non-financial contributions range from value adding contributions that a party has made to property or other assets, to parenting or homemaker contributions.

The 3rd step is concerned with the future needs of both parties. Whilst there is no set formula capable of predicting the exact outcome of a court’s property division, the Family Law Act does list the factors to which the court may have regard in reaching its decision. These include, the responsibilities of a party to care for another person, the age and health of a party, any need to protect a party, what is required to ensure a reasonable standard of living and the capacity of a party to obtain future employment.

Finally, the court orders as to division of property must be guided by what it considers to be just and equitable in the circumstances.

Family lawyers QLD - Brisbane , Family lawyers Newcastle , Family lawyers Perth, Family lawyers Canberra, Family lawyers Wollongong

Family law and spousal maintenance

2011-11-11T13:50:00.001-08:00

Relationships that have come to an end, whether the parties were part of a marriage or a de facto coupling, are always difficult. Additionally if there are further issues relating to finance, the situation can be even more fraught – especially if one of the parties is in a weaker economic position. The Family Law Act (the Act) allows a party to a marriage or de facto relationship, to financially maintain the other party to the extent that they are reasonably able to do so, if one of the parties cannot support him or herself adequately. The courts then can decide to issue a maintenance order however, the Act mandates that certain requirements must be met before an order can be issued.

Spousal maintenance under the Act

In ss 72 and 75(2), relating to married couples, and ss 90SE and 90SF for parties who were involved in a de facto relationship, outlines the requirements under the Act in which the the Court may issue a maintenance order.
Looking towards s 72 of the Act as an example, the following considerations will be made by the Court when assessing the viability of issuing a maintenance order:
“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only, if that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage or de facto relationship under 18 years;
(b) by reasons of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
With the introduction of the 2008 amendments, de facto couples share the same substantial maintenance rights under ss 90SE and 90SF, and the Court will take into consideration the propriety of issuing a maintenance order in favour of one of the parties.
However, in order for a party to be considered for maintenance as a de facto, a person must meet the formal requirements under the Act before they are deemed to be eligible. To satisfy the Court that a person was part of a de facto relationship, the following considerations must be met in order for the relationship to gain recognition:
• the parties were not married to one another
• the nature and the extent that the parties lived with one another
• the parties did not share any family ties, common ancestry, or have a child with one another
• the parties had lived together on a genuine domestic basis.

What considerations will the Court make if a de facto is seeking an order or declaration?

Conversely, if a party to the de facto relationship is seeking an order or declaration, then the Court will only do so under the following conditions:
• the period of the de facto relationship was at least two years
• there is a child involved in the relationship
• there had been a substantial contribution by one party to the other, and it would be seen as a serious injustice if an order or declaration was not made.
If the parties to a de facto relationship meet the conditions as outlined under the Act, the Court will not consider whether the de facto relationship was a heterosexual, or same-sex coupling.

The party must have the ability to pay for maintenance

In determining whether a maintenance order should be issued, it must be demonstrated to the Court that the paying party is able to afford the costs associated with the issuing of the order. When making a decision, the Court will examine the living standards between the parties, and make an assessment on the paying party’s ability to financially support the other person.
The overarching aspect when making an assessment, is one in which the comparative living standards between the parties is to be considered, which involves looking into the surrounding situation in relation to the parties, pre, and post-separation.

Making a maintenance application

When applying for maintenance, a party who is seeking the order must do so within 12 months after the finalisation of the divorce for a married couple, or within two years of the ending of a de facto relationship.
Seeking a maintenance order is a complicated process, and it is always advisable that you seek help from a lawyer to ensure that you meet all the procedural requirements. An experienced lawyer can help you file an application, and assist you with any court appearances that may occur.

Divorce lawyers Parramatta, Divorce lawyers Penrith, Divorce lawyers Melbourne , Divorce lawyers QLD - Brisbane , Divorce lawyers NSW- Sydney , Divorce lawyers Canberra

The vagaries of Family Law and property settlements

2011-10-20T02:07:00.000-07:00

Family Law clients are often surprised to hear that there is no specific formula to determine each party’s entitlement in a property division, unlike child support for example. There is good reason for this – every party to a relationship is different, every relationship is different and everyone’s financial situation is different. The Family Law Act provides a four step process in determining a property settlement in marriage (and now in de facto relationships also):

Identify and value all the assets owned jointly or individually or on behalf of a client (ie trust or company)
Full financial disclosure is required by the Family Law Act. It does not matter in whose name an asset is held – it is all part of the asset pool to be considered and possibly divided.
Determine each party’s contribution to those assets and the whole relationship
In a long relationship contributions are usually seen as equal. Usually one person has contributed more by way of financial contribution, and the other has contributed more by way of non-financial contribution in caring for children and maintaining the home. The Court most often treats each party’s contributions as being equal.
Assess each party’s future needs
The Family Law Act provides a list of factors to be taken into consideration such as relative responsibility for children, health, earning capacity, age and so on. Often there is a 10%, 15% or 20% adjustment to one party, for example, where they are the primary carer of the children and have a lower earning capacity.
Finally, consider whether this is “just and equitable”
In the fairly typical case of a long marriage, dependent children, wife a stayat- home Mum (or part-time employee Mum), the husband with a good earning capacity and an asset pool of $1,000,000.00, the wife may get 70%. With an asset pool of $2,000,000.00 the wife may get 60% and with an asset pool of $10,000,000.00 the division to the wife is more likely to be 50%. As you can appreciate, as the asset pool gets higher, there is less need to give the “poorer” party an adjustment above 50% to help them provide for their future.

Ironically, above $10,000,000.00, if one person is responsible for the wealth, contributions may not be considered to be equal and the party with the entrepreneurial flair may be given credit for a greater contribution – essentially because their contribution is argued to be far above the norm.

At the end of the day when taking your matter to Court, you put the outcome of your property settlement in the hands of the Judge or Federal Magistrate on the day. The Family Law Act does not provide a formula, but gives the Judge or Federal Magistrate a process which he or she must apply. In theory they are objective. In practice, there is a good deal of subjectivity, and different judges will give different results. After all, what is just and equitable to one, may not be to another. That is good incentive to resolve a property matter through collaboration, mediation or negotiation. Or enter into a prenuptial binding financial agreement and avoid Court altogether. Do ask us about the alternative, and least stressful, ways of resolving these matters.

Family lawyers Newcastle,Family lawyers Hunter Valley

Father’s Day for divorced Dads

2011-10-18T17:40:00.000-07:00

Are you a separated dad wondering what sort of arrangements you can put in place to see your children on Father’s day?

If you have not yet formalised your arrangements with your former partner, think about including a provision in your parenting plan or consent order for dealing with Father’s Day. Many parents forget to consider ‘special days’ when discussing arrangements to spend time with their kids, and this can cause unnecessary grief later on.

Common arrangements include: swapping weekends so that regardless of your normal arrangements to spend time with your kids, you always spend the Father’s Day weekend or at the least the day with kids. A similar swap is often arranged for Mother’s Day and this gives both parents a feeling the arrangement is ‘fair’.

Other arrangements may include adding the night before to the special day, so if you normally only see the kids from 10am on a Sunday, think about adding Saturday night to the arrangement, so that you can enjoy Father’s Day (or the other special days) from the very start of the day instead of having to worry about the usual collection or delivery arrangements (where appropriate). Particularly if you and your former partner are not on good terms and there can be tension at change-over, such arrangements can help to avoid confrontations or delays on a special day.

Other special days might include the father’s birthday itself (or the weekend nearest the father’s birthday). A similar swap can be arranged to ensure the children are with the mother on or near the mother’s birthday.

Planning for such eventualities can save a lot of distress down the track. Some useful online and paper resources and/or services which are available to separated dads include the following: Child Support Agency booklets, “What about Me?” and “Me, my kids and my Ex” offer practical advice and helpful information about looking after yourself after separation and building the relationship with your former partner for the benefit of your kids. You can download these or call CSA to mail them out to you.

Armstrong Legal Canberra routinely distributes these booklets as part of its helpful ‘resource kit’ handed out to all new clients where appropriate.

Family lawyers Canberra, Family lawyers QLD - Brisbane , Family lawyers Newcastle, Family lawyers Perth,

Many spouses believe that they can’t afford to leave an unhappy marriage.

2011-10-18T17:31:00.000-07:00

Many spouses believe that they can’t afford to leave an unhappy marriage. In Canberra, the divorce capital of Australia, some are finding that certain government superannuation schemes make separation a more practical proposition.

An article in Sunday’s Canberra times (14.08.2011) found that Canberra has the highest divorce rate in Australia (almost double the national average). This may have several causes:

Canberra families may be a more transient community, with one spouse being sent to work in Canberra, while the family remains at home in another city;
Canberrans enjoy a high standard of living, often with two incomes, which may make it easier to leave a marriage.
There may be diplomats or foreign nationals living in Canberra whose spouses wish to return to their home country, leaving the other spouse in Canberra.

So what does this mean for the average Canberran facing or contemplating a higher than average rate of separation?

Make a binding financial agreement

Firstly, you can enter into a legally binding arrangement with your spouse or de facto partner about dividing your assets and financial resources even before you enter into the relationship, get married or decide to separate. This can be done under the Family Law Act provisions dealing with Binding

Financial Agreements. Provided that both partners have independent legal advice, such agreements cannot be set aside by the courts (other than in the rare cases, such as where there has been duress, or fraud). Having such an agreement gives both parties certainty about how their assets will be divided if and when they separate.

Treat them like an insurance policy, if you like. We all hope our houses don’t burn to the ground but it gives peace of mind knowing that we are covered if that event happened.

If you have not entered into a binding financial agreement and you wish to leave a marriage but do not know if you can afford to do so, you may be able to find out about your spouse’s superannuation entitlements quite discreetly, before raising the issue of separation with your spouse.

Find out how much super your spouse has

Many Canberrans work for the Federal Government, either as public servants, as members of the Military or Australian Federal Police (AFP). Such employees may have superannuation interests in Military Super, ComSuper, PSS, CSS and other equally generous older style superannuation schemes. The value of such schemes for ‘family law purposes’ can be much higher than it appears on a member statement. This is because the method of valuation by an expert will take into account the length of the service, age of member, years to retirement and other factors.

A recent case I had involved a CSS member close to retirement whose normal member statement showed superannuation assets of $272,000 but a superannuation value for family law purposes found the real value to be over $800,000. The wife in that case was able to obtain a splitting order which gave her $400,000 she was otherwise going to miss out on.

How do you find this information out? We can assist you filling in the appropriate forms to find out the information about a spouse’s superannuation from the super fund. That information is sent directly to you or to our firm without the member knowing. We can then arrange to have this information formally valued by a superannuation expert without the member knowing.

The fees can include disbursements of around $150 for getting the information from the fund and another $400 or so to have that information valued.

If the difference in the asset pool is an extra $600,000 available for division between both parties, then paying modest legal fees to find out this information can seem like a very worthwhile exercise. Once you have that information, you could then obtain some financial planning advice and legal advice which may assist you in making a decision whether to leave the relationship.

Aussie Divorce products and services that deal with all the relevant strategies that you will need to ensure you are in control of your divorce. We have Family lawyers that are always ready to provide an honest legal advice.

Family lawyers Canberra Armstrong legal Canberra.

Change of assessment in special circumstances

2011-10-17T17:56:00.000-07:00

If you believe your child support assessment doesn’t reflect your, your children’s or the other parent’s special circumstances, you may be able to apply for a change of assessment.

The 10 reasons and examples of what you should show us

There are 10 reasons for changing your assessment. You can apply under one or more, if appropriate. We appreciate you giving us as much information as possible to help inform our decision. Examples of the types of documents you can give us are below, but we can check them with you when we call.

Reason 1: your capacity to pay child support is significantly affected by the high costs of enabling you to spend time or communicate with your children.

The costs must be more than five per cent of your adjusted taxable income, which is shown on your assessment notice. These costs can include transport, accommodation and phone calls, but you can’t claim food, clothing or entertainment. If you care for your child at least 52 nights (or 14 per cent) of the year, travel is the only cost we can take into account.
What you can show the CSA:

court orders or agreed parenting plans
receipts for expenses like airfares, accommodation or petrol
an estimate of future costs.

Reason 2: the costs of maintaining your child are significantly affected because of their special needs.

You can only claim out-of-pocket costs after taking off rebates, refunds or allowances. You can’t claim day-to-day expenses like food, clothing or normal/standard medical care.
What you can show the CSA:

medical evidence about the child’s condition, treatment and cost
receipts showing out of pocket expenses
an estimate of future costs.

Reason 3: the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended.

You and the other parent must have intended for your child to be cared for, educated or trained in a particular way - like attending a private school.
What you can show the CSA:

education application and enrolment documents signed by both of you
receipts of costs, like fees or tuition
other evidence showing both parents’ intentions, like a parenting plan.

Reason 4: the child support assessment is unfair because of your child's income, earning capacity, property or financial resources.

Your child must be earning enough to reduce the need for parental support. This doesn’t include their Centrelink payments.
What you can show the CSA:

information on the child’s employment or income (if you know it)

Reason 5: the child support assessment is unfair because you’ve paid or transferred money, goods or property to your child, the receiving parent or a third party for the child’s benefit.

This usually relates to a property transfer or a large lump sum payment directly to the other parent or another person for child support (for example, as part of a property settlement).
What you can show the CSA:

court orders or agreements showing the transfer of money, goods or property
receipts showing payments made to third parties.

Reason 6: the costs of maintaining your child are significantly affected by the parent or non-parent carer’s high child care costs and the child is under 12.
The costs must be more than five per cent of your adjusted taxable income if you’re a parent, or at least 25 per cent of the assessed costs if you’re a carer. The amount is shown on your assessment notice. You can only claim actual costs after taking off rebates, refunds or other assistance.
What you can show us:

receipts showing child care payments
statements showing rebates, benefits and government assistance
enrolment forms.

Reason 7: your necessary expenses significantly affect your capacity to support your child.

You must tell us why the expenses are necessary and what makes them special or out of the ordinary. For example, you might have high medical costs.
What you can show the CSA:

papers confirming your income, like payslips
papers detailing your necessary out-of-pocket expenses.

Reason 8: the child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.

You or the other parent can apply on the basis that financial circumstances are not properly recognised in the assessment.
What you can show the CSA:

payslips
if you’re self employed, a profit and loss statement and balance sheet for your business
papers explaining your change in income, like medical certificates or financial statements.

If your income has dropped by more than 15 per cent, you may be able to lodge an income estimate instead of applying for a change of assessment. To find out visit www.csa.gov.au and click on income estimate.

Reason 9: your capacity to support your child is significantly affected because of your legal duty to maintain another person or child.

A legal duty generally means you have a court order making you responsible to support someone. You may be paying costs for another child, spousal maintenance or supporting a partner living with you who can’t support themselves.
What you can show the CSA:

court orders
proof of payments for someone you have a legal duty to support
information on why the person can’t support themselves.

Reason 10: your responsibility to support a resident child significantly reduces your capacity to support your child.

We check a number of things to see if you can be considered responsible in this situation. The requirements are that:
the child normally lives with you but isn’t legally your child
they’re under 18
they’re not a member of a couple
you are, or were, a member of a couple with a legal parent of the child for two continuous years
one or more of the following applies for each legal parent:
- they’re deceased
- they can’t support the child due to ill-health
- they can’t support the child because of caring responsibilities
- the child needs financial assistance.

What you can show the CSA:

evidence showing the legal parents’ inability to financially support the child
Information about the child’s need for financial assistance.

Will the other parent see my application?

Yes, copies of the application and all supporting documents will be given to the other parent. They have the right to respond or make a cross-application and you’ll get a copy of this information. We won’t give the other parent your personal information contained in the Privacy Section of your application. You must ensure you don’t include private/personal information (such as your phone number or address) in any accompanying or supporting documentation. This must be sent to the other parent.

What happens now?

When you’ve completed the application, send it to:
PO Box 9815
Melbourne VIC 3001
The change of assessment process can take up to two months and can involve sharing a lot of information with the other parent. A Senior Case Officer will call you and the other parent to talk about the application and the response.
At the end of the process you and the other parent will get a written Notice of Decision from us. This will explain whether the assessment has changed.

What if I disagree with the decision?

When you get the Notice of Decision, it’s possible you’ll disagree with it. In some cases we may even make a decision that’s the opposite of the change you asked for. For example, you might ask for an assessment to be decreased but we find the circumstances mean there should be an increase. This is called a contrary decision.

If you’re not sure about the Notice of Decision or think the information may be wrong, call the Change of Assessment team on 131 141. This gives you and the CSA a chance to discuss any misunderstandings as well as your review options.

Divorce lawyers Melbourne ,Divorce lawyers QLD - Brisbane ,Divorce lawyers NSW- Sydney ,

Was a 17 year Affair a De Facto Relationship?

2011-10-17T11:13:00.000-07:00

This question appeared before the Court in the recent case of Jonah & White [2011] FamCA 221 on 4 April 2011.

In that case the affair had been ongoing between a single woman and a married man over a period of 17 years. The woman had commenced working in the business run by the man and they began an intimate relationship. That relationship continued, with some interruptions between 1992 and 2009. During the whole of that time the man was married, with children. His Wife was, until the end of that period, unaware of the relationship.

During the course of the relationship the man and woman expressed love and affection for one another, had a sexual relationship and spent various time together including overseas travel.

The man assisted the woman in the purchase of her house by gifting her $24,000.00. The man also maintained the woman by making regular monthly payments to her.

In this case the woman applied to the Family Court of Australia for a Declaration that the relationship was De Facto in nature.

The Family Court, when considering whether a relationship is De Facto in nature considers the following:

The meaning of a de facto relationship

A person is in a de facto relationship with another person if:

the persons are not legally married to each other; and

the persons are not related by family; and

having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The Court will consider all of the circumstances of the particular relationship, but in particular will consider the following:

the duration of the relationship;

the nature and extent of their common residence;

whether a sexual relationship exists;

the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

the ownership, use and acquisition of their property;

the degree of mutual commitment to a shared life;

whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

the care and support of children; and

the reputation and public aspects of the relationship.

It is important to note that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

In the Case of Jonah & White the Court considered that on the evidence as a whole the parties maintained separate lives, the man living with his Wife and children in their matrimonial home and the woman living by herself in her own residence.

Although the parties came together, on a regular basis, for periods of time during which they enjoyed a loving, sexual relationship, the Court formed the opinion that absent from the relationship was the “merger of two lives into one”, or the “coupledon”. The Court accepted that the long-standing nature of the relationship was a pointer toward the relationship being a de facto relationship, as too did the existence of the sexual nature of the relationship and the financial support provided.

Nevertheless, the Court determined that the relationship was not in this case not a De Facto Relationship.

Notation:

a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

If you have any queries in regard to the above or in respect of any family law matter, please do not hesitate to contact us at Wiltshire Lawyers , Family lawyers Gold Coast, Family lawyers Toowoomba , Family lawyers Brisbane

Collaborative Law – The Respectful Divorce Process

2011-10-17T01:39:00.000-07:00

“Collaborative practice is a facilitative approach to resolving disputes, where the parties, their lawyers and other experts, sign an agreement to focus on Negotiation and settlement rather than litigation.”[1]

Collaborative law is focused around interest based negotiation. The process allows parties going through a separation, to remain in control of their future both in relation to financial matters and children arrangements.

To engage in the Collaborative Process it is necessary to retain a lawyer who has been trained in this area. Your spouse will also be required to retain a Collaborative Lawyer to engage in this process. You and your spouse then decide if you would like a Family Professional and/or a Financial Professional to be part of the problem solving team. The Collaborative process is a respectful process which aims to reach an amiable settlement between the parties.

The advantages of using collaborative practice to resolve family disputes are said to be that it:

Reduces the time that lawyers must spend in correspondence with each other;

Uses the expertise of independent experts including child specialists and/or financial advisors outside the adversarial system;

Provides legal advocacy support during collaboration;

Removes the threat of litigation;

Encourages parties to develop a relationship of trust for their future parenting;

Directly involves the parties in negotiation based on interests and not positions; and

Aims to achieve results that meet the needs of both parties and their children.[2]

The Collaborative Process is becoming more and more popular in the United States of America and the Australian Collaborative Practice Guidelines for Lawyers have recently been released in Australia.

Please do not hesitate to contact the team at Wiltshire Lawyers if you would like to learn more about the Collaborative Process. We have trained collaborative lawyers who can assist you.

Family lawyers Gold Coast, Family lawyers Toowoomba , Family lawyers Brisbane

Lottery Winnings - 'mine' or 'ours'

2011-10-17T00:26:00.000-07:00

The recently decided case of Kneen & Crockford [2011] FMCAfam 372 found, ultimately, that a lottery win by one party to a relationship constituted an equal contribution by both parties to their final property pool available for division at the conclusion of their relationship.

The case involved a de facto couple aged in their late 20’s who had both immigrated to Australia, separately, from overseas. The parties lived together in a de facto relationship, as defined by Section 4AA of the Family Law Act 1975 (the Act) for sporadic periods over the course of five and a half years.

There was no contest between the parties as to whether a “relationship” existed as governed under the Act, as in the case of Jonah & White[1], referred to in my colleague, Ms Ludeke's article titled ‘De Facto Relationship or Not?’[2].

The evidence before the Court was to the effect that during the relationship, the parties had varying periods of separation. The last brief period of separation, before the parties' final separation, concluded with the parties reconciling in September 2008.

Following that reconciliation, the de facto Wife, as she claimed to religiously do, purchased a lottery ticket on 22 October 2008. The lottery was drawn on 25 October 2008 and the de facto Wife subsequently learnt that she had won $3million.

Due to the de facto Wife's difficulties conversing in English, she called upon her de facto Husband's assistance in claiming the winnings, which included the parties traveling together from Adelaide to Melbourne to personally collect the cheque from Tattersalls for the winnings.
The cheque was made payable to the de facto Husband solely, presumably on their joint instructions to Tattersalls and was thereafter deposited to a bank account in the sole name of the de facto Husband.

The parties applied the sum of $800,000 each to separate purchases, with the balance of the winnings being used to purchase a home and two (2) investment properties.

The parties continued their de facto relationship for a further year, before they finally separated in December 2009, the relationship spanning a total period of approximately five and a half years, as referred to above.

At the time of trial, the parties’ net asset pool comprised a total of $3.1million, such that the lottery winnings and the assets having been purchased therefrom, were in essence, the only property available for division.

The de facto Wife's position was that she ought be entitled to the entirety of the asset pool due to the fact that she was the purchaser of the winning ticket. The de facto Husband disagreed. His position was that as he had assisted the de facto Wife, including in teaching her how to enter the lottery at the beginning of the relationship, together with the assistance he provided the de facto Wife in retrieving the winnings from Tattersalls, the Court should assess the winnings as an equal contribution by the parties.

Federal Magistrate Lindsay in deciding the case had regard to the case of Zyk & Zyk[3] wherein the Full Court of the Family Court that lottery winnings are best considered as windfalls when assessing the contributions of the parties during step one (1) of the four (4) step process. The Full Court stated in that case the following in relation to assessing the lottery win, which in that case occurred some six (6) years prior to Mr and Mrs Zyk separating:-

"...windfall is used to describe a chance or unexpected benefit which the people involved neither anticipated nor made any effort towards...It is not a product of any particular skill but it is the product of the chosen expenditure of a small amount of money..."[4]

After referring to that case and various citations therein, Federal Magistrate Lindsay went on to say "...the conclusion to be drawn depends on the closeness to the end of the marriage..."[5]

The Court ultimately held that the lottery winnings ought be deemed an equal contribution by the parties given the source from which it was purchased, being joint funds, together with the parties conduct following learning of, and receiving, the winnings.

On a side note, the de facto Wife received a slightly higher entitlement to the property pool than the de facto Husband, however that was as a result of the disparity in their incomes, when the Court evaluated the future needs of the parties.

If you have any concerns or queries about potential windfalls, including inheritances, whether by yourself or your partner either now or in the future[6], please contact the writer or one of the other Wiltshire Lawyers to discuss your matter further.

Family lawyers Gold Coast , Family lawyers Toowoomba, Divorce lawyers South Port,

Relocating with a Newborn Child

2011-10-16T22:52:00.000-07:00

The Family Law Courts have power to prevent or allow a custodial parent to unilaterally relocate with the children of a relationship, from the town or district in which they have been living.

These orders, either permitting or denying relocation, are known as “relocation orders”.

On an interim basis the Court will generally make an order refusing relocation, and forcing the return of the custodial parent with the children if necessary, until the issue can be fully investigated and determined by the court (or the parents can reach an agreement).

This temporary restriction on the ability of the custodial parent to relocate with the children without the consent of the other parent is enforced for many reasons, with the overriding considerations being to:

Preserve the children’s stability (status quo); and

Maintain the ability of the children to have a meaningful relationship with both parents.

This approach was confirmed and explained by Her Honour Federal Magistrate Boland in the decision of Morgan & Miles (2007) FLC 93-343, where Her Honour said:

"The circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

It appears to me that the very difficult issues in cases involving a relocation, … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis."

However interim or temporary relocation orders are still parenting orders, and Section 60CA of the FAMILY LAW ACT 1975 provides:

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

What order is a Court likely to make if the child is newborn and does not know the father?

This issue was highlighted by the recent decision of the Family Court of Australia in Iris & Cohen (No 2) [2011] FamCAFC 120.

The facts in that case were as follows:

The parties’ relationship commenced in Townsville sometime in October 2009 and they separated on 5 February 2010. Throughout that time the parties lived with the father’s parents.

In July 2010 the mother moved from Townsville in North Queensland, to near Wagga Wagga in New South Wales.

The mother said she moved because she felt very stressed being in Townsville because of the behaviour of the father and his family.

The mother feared that she may miscarry because of the stress caused by the father and his family. She had previously suffered a miscarriage.

The child was born seven months after the parties’ separation.

The father had not seen the child.

The father said that despite making numerous enquiries he was unable to find the mother, although he believed that she was in Wagga Wagga.

The mother said that she had told the father where she had initially moved.

The mother was now sharing a house with her sister’s mother-in-law and had nearby family support.

The mother was dependent on social services.

The mother had received no money or other form of child support from the father since the birth of the child.

The Family Court decided that at this early stage of the proceedings it was not appropriate to require the mother and child to return to Townsville, particularly given the physical, emotional and financial circumstances that would confront them in doing so.

The Court explained that consideration had to be giving to the fact that this was not a case where the child was having a relationship with the father and was unilaterally being moved away from a settled environment.

There was no evidence to indicate that the mother was not properly caring for the child.

The Court decided that in this case the mother should be allowed to remain with the child in Wagga Wagga for the time being, and that an Independent Children’s Lawyer be appointed to represent the child, investigate the circumstances and assist the court in determining whether relocation is in the child’s best interests.

The Court decided it would be best to wait for an expert's report before making interim parenting orders for the relocation of the mother and the child to Townsville.

The court may very well order that the mother relocate back to Townsville at a further interim hearing or even at the final hearing, however this may become less likely as time moves on and the mother settles with her child in the new environment.

This case does however demonstrate the importance the court places on matters such as:

The age of the child and the presence or absence of an established relationship between the child and the father;

The father’s attitude towards the care of the child and paying child support;

Neglect of or indifference to the child;

The presence of domestic violence or other intimidating behaviour which may affect the child, directly or indirectly;

The family and other support networks the mother and child will receive in the new location; and

Whether the father had knowledge of or had consented to the relocation.

Our experienced team at Wiltshire Lawyers keep their finger on the pulse of relocation orders being made by the Family Courts, and can provide advice as to the approach that the Courts are likely to adopt in making a relocation order by examining the specific facts and special circumstances of each particular case.

Family lawyers Gold Coast, Family lawyers Toowoomba , Family lawyers Brisbane

Financial Agreements Getting It Right

2011-10-14T20:27:00.000-07:00

A financial agreement is a document which primarily records how the assets and financial resources of a couple in a marriage or a defacto relationship are to be divided if there is a breakdown of the marriage or the defacto relationship.

When can a Financial Agreement be made?

Financial Agreements can be prepared either:

before entering into the relationship, or
during the life of the relationship, or
after the breakdown of the relationship.

Second Relationships

For couples who are about to enter into or who are already bonded by a second relationship, financial agreements have a specific and practical attraction because:

all or some of the assets and financial resources which each introduces into the relationship can by a financial agreement be excluded from the asset pool to be divided if there is a breakdown of the relationship;
the assets and financial resources excluded in that way can therefore be preserved for the benefit of, say, the children of a first relationship.

Avoid messy, nasty and expensive litigation

From the practical viewpoint the attraction of a financial agreement is twofold:

it introduces from an early stage an element of certainty into the otherwise uncertain waters of a relationship; and
the fact that the parties have agreed in advance to a certain outcome, reduces the likelihood that they will become tied up with the significant emotional and financial stress of litigation if the relationship breaks down.

Putting it in perspective, it is not uncommon for financial disputes between separated couples to cost each party
between $25,000 to $200,000 plus. Clearly this is money better spent in rebuilding the future.

Doing it right

A financial agreement to be binding must comply with a number of technical and complex requirements that are set out in the Family Law Act.

Failure to comply with those requirements can be fatal because the agreement will then simply not be binding.

Where the financial affairs of a party or of both parties to a relationship are complex, complying with those technical requirements is also complex.

For these reasons a skilled and experienced family lawyer is best able to advise parties about a financial agreement, is best able to draw a financial agreement and will know about the technical requirements that must be complied with to make an agreement binding.

There is no point in wasting any time, effort or money in preparing a financial agreement which will not be binding or which will not have the intended effect.

We have Divorce lawyers who can assist you with your family law matters, find a Divorce lawyers Eastern Suburbs Vic, Divorce lawyers Melbourne City ,Divorce lawyers Mornington, Kliger Partners

Trust battle: Rinehart given seven days

2011-10-14T20:22:00.000-07:00

AUSTRALIA'S richest person, Gina Rinehart, has been given seven days to appeal a decision that refuses her bid to stop court action launched by her children over their multibillion-dollar family trust.

New South Wales Supreme Court judge Paul Brereton yesterday said if Ms Rinehart did not lodge an appeal within the time frame, a suppression order preventing publication of details of the case would expire.

Judge Brereton last week ruled against Ms Rinehart in her application to stay the proceedings, brought by her daughters Bianca Rinehart and Hope Rinehart Welker, and son John Langley Hancock.
Advertisement: Story continues below

Gina Rinehart wants to resolve the dispute through confidential mediation, arguing the matter can only be dealt with by the courts as a last resort according to a provision in a family deed.

Ms Rinehart is the only child of the late mining magnate Lang Hancock and Australia's richest person, estimated to be worth $10 billion.

Her children are trying to oust her as trustee of the multibillion-dollar family trust, set up by Mr Hancock before he died and of which the siblings are beneficiaries.

Judge Brereton said Gina Rinehart had one week to appeal his decision on the stay application from the time his reasons are published online.

The case has been suppressed from the beginning, with orders preventing publication of proceedings. It has meant much of the details about the court action remain confidential. The judge yesterday also allowed information to be provided to litigation funders and other third parties.

Previously Judge Brereton said it was a family dispute with ''no questions of public significance''.

''This is not the first occasion of discord in the family, which has immense wealth, no small part of which resides in the trust,'' he said in an earlier written judgment.

SMH 15 October 2011

We have Divorce lawyers who can assist you with your family law matters, find a Divorce lawyers Melbourne ,Divorce lawyers Sydney, Divorce lawyers Brisbane,

Financial Entitlements And Liabilities of De Facto

2011-10-14T15:52:00.000-07:00

Substantial legal changes to the financial entitlements and liabilities of de facto and same sex couples.

The laws governing de facto relationships, including those of same sex couples, changed on 1 March 2009 to allow couples to divide their property in accordance with the same laws that apply to married couples under the Family Law Act 1975.

The new law makes provision for the division of property between de facto partners after separation and, in certain circumstances, the payment of spousal maintenance.

If you are in a de facto relationship and that relationship has broken down on or after 1 March 2009, you will be eligible to apply to the Family Law Courts in relation to your property settlement and spousal maintenance matters similar to those of married couples.

Relationship agreements entered into prior to the commencement of a relationship will be similar to pre-nuptial agreements for parties contemplating marriage which are now enforceable under the Family Law Act.

If your de facto relationship broke down before 1 March 2009, New South Wales state laws will still apply to your relationship. However, you may wish to “opt in” for the new laws to apply to the division of your property, if so a written consent by all parties involved will be required. In this instance, you will both need to obtain a certificate of independent legal advice.

To come under the Family Law Act, you must satisfy one of the following:

You must have been in a de facto relationship for at least 2 years; or

there is a child of the de facto relationship; or

there has been a substantial financial or non-financial contribution to the property by either of you or as homemaker or parent and a serious injustice would result if an order was not made in the circumstance; or

the de facto relationship has been registered in a State or Territory. If you have already obtained final court orders in respect of your property or spousal maintenance, or you are party to existing binding financial agreement, you cannot seek a new property settlement incorporating the new changes.

On the other hand, if you do not wish to settle your matter under the new laws, you are still able to enter into your own binding financial agreements. A binding financial agreement effectively excludes the courts jurisdiction and enables you to enter into your own private agreement. It is important to note that property must be settled within 2 years of the end of your relationship.

We have Family lawyers who can assist you with your family law matters, find a, Family lawyers Newcastle, Family lawyers Hunter Valley, Emery Partners

A right to change the locks

2011-10-12T21:10:00.000-07:00

Properties are often owned “jointly” by parties married or de facto partners subject to any express written agreement both parties have a concurrent legal right to occupy the premises.

The legal basis of the right of a partner in possession to change is not clear. You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry to the premises.

Accordingly you should seek the assistance of either their expressed consent (not to re-enter) the property or alternatively seek the assistance of a Court.

The Family Courts will entertain applications by parties who seek the exclusive occupancy of the matrimonial home. The Courts will take the holistic approach that will examine the financial capacity of one party (or the other) to rent a property elsewhere, the arrangements for the care of the children (i.e. who is the primary caregiver) and how a “moving out” would affect the ability of this primary caregiver to continue in this role.

The Court will also consider violence or other conduct between the parties and their ability to self-regulate their behaviour. The Court will not consider it to be in the best interests that children be constantly exposed to loud, verbal altercations or arguments even in the absence of physical violence.

The Court may consider the physical layout of the premises to see whether or not it is possible to physically isolate a part of the house to continue occupancy but through a separate entrance with little or no common use areas.

Can my de facto partner lock me out if I am not on title?

In this case the husband or the wife has the house in their name and wish to exclude the other party from the house by changing the locks and seeking to exclude them. This situation is more difficult on the part of the person who is not on title (and is seeking to be excluded). The person on title has the “legal” right to exclusively occupy as owner of that property.

It may be that the other person has a “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or exclusive occupation of that site.

The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses in these circumstances. Please see factors identified above for consideration the Courts will make in deciding these matters.

What if my partner stops paying the mortgage?

The Courts will consider a holistic approach to the evidence as to the ability of one party to contribute to the joint debts and liabilities of the marriage.

In any event the bank is a independent third party and, in the normal form of mortgage, both parties have a joint and several obligation to pay the mortgage payments. In the event that one party needs to assume all of the parties until a final determination by the Courts, these additional contributions should be “added back” in any final accounting of the matrimonial property and financial resources of the parties to the relationship.

Usually, lock changes will be considered justifiable once:

The separation is clearly accepted by both parties.

Another residence for the departing partner is fully establish, and

All the possession of the departing partner has been removed from the joint residence.

We have Divorce lawyers who can assist you with your family law matters, find a Divorce lawyers Gold Coast , Divorce lawyers Toowoomba, Divorce lawyers South Port,

WHO CAN APPLY FOR CHILD SUPPORT?

2011-10-12T21:00:00.000-07:00

WHO CAN APPLY FOR CHILD SUPPORT?

A parent (or a non parent carer who is an eligible carer) can apply to the Child Support Agency ("the CSA") for an Administrative Assessment of Child Support ("the Assessment") for a child pursuant to the Child Support (Assessment) Act 1989 ("the Act"). An Assessment sets out the amount of child support a parent may be entitled to receive or is obliged to pay.

HOW DOES THE CHILD SUPPORT AGENCY DETERMINE WHAT AMOUNT OF CHILD SUPPORT SHOULD BE PAID?

When the CSA issues an Assessment there are a number of matters that the CSA considers.

First and foremost the child support formula is based on a shared income approach. That is, the CSA takes into account the income available (to both parents) to calculate a parent’s responsibility to pay child support. The legislation recognises shared parenting and the contribution parents make toward the costs of children through direct care and also takes into account the income and financial resources of both parents.

A parent’s child support income includes an adjusted taxable income less a “self support amount”, less any relevant dependent child amount less any multi case allowance.

When assessing a parent’s “adjusted taxable income” the following matters are considered by the CSA for each relevant year:

· taxable income;

· reportable fringe benefits;

· target foreign income;

· net financial investment loss

· total tax free pensions;

· employment benefits; and

This includes net rental losses and financial investment losses (eg. Shares, managed investment and forestry managed investments) which exceeds the gross income from those investments.

· reportable superannuation contributions

The CSA then divides each parent’s individual child support income by the combined child support income to get an “income percentage”.

It is then necessary to work out the percentage of care each parent has. This is used to determine the percentage of cost of a child that each parent is meeting through the care they are providing for that child. Schedule “A” sets out the care and cost percentages.

The CSA then subtracts the cost percentage from the income percentage for each parent. The result is called the child support percentage. If it’s a negative percentage, that parent may receive child support because their share of the costs of children is being more than met by the amount of care they are providing.

If it’s a positive percentage, that parent needs to pay child support because they aren’t meeting their entire share of the costs of the child directly through care.

The amount of child support a parent is liable to pay is determined by multiplying the positive child support percentage with the “costs of the child”. The costs associated with caring for children are set out in Schedule “B” to this paper. This final figure is the child support amount the paying parent needs to transfer to the other parent.

This includes salary sacrificed superannuation or other contributions made to a superfund on behalf of parent which is in addition to the minimum contributions an employer must make.

· reportable superannuation contributions

The CSA then divides each parent’s individual child support income by the combined child support income to get an “income percentage”.

If it’s a positive percentage, that parent needs to pay child support because they aren’t meeting their entire share of the costs of the child directly through care.

We have Divorce lawyers who can assist you with your family law matters, find a Divorce Lawyers Northern Beaches, Divorce lawyers Brookvale, Divorce lawyers Newcastle, Divorce lawyers Hunter Valley,