Does the amount of contact with your children affect your entitlement to receive Family Tax Benefit A or other Family Assistance Payments?

The short answer is yes.

A contact parent who has ”regular care” to the children i.e. 52 to 127 nights (2 to 4 nights a fortnight) may not get Family Tax Benefit A or other family assistance payments.

A contact parent who has “shared care” to the children, between 128 to 237 nights a year (5 to 9 nights a fortnight), both parents may receive family assistance payment and both parents can share in the Family Tax Benefit Part A.

A parent who has the children live with them over 86% of the time, i.e. 314 nights a year as a minimum, receive 100% of the Family Tax Benefit Part A.

The level of child support recognises shared parenting and the contact each parent makes towards the costs of the children through direct care. 

Please contact Nevett Ford Lawyers on 03 9614 7111 if you have queries about Child Support.

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Why Hire a Family Lawyer?

Why Hire a Family Lawyer?

Many people balk at the idea of hiring a family lawyer for a variety of reasons, including the cost of the exercise, and the feeling that they do not want to invite a stranger into the most intimate details of their lives. The Court has made services accessible to the public at large that helps to foster peoples’ easy and cost effective access to justice including:

• All Court forms being readily accessible online, with how-to guides for popular documents
• Providing ‘duty lawyer’ services at Court so that individuals can access basic advice even on their Court date
• Providing significant accommodation, time and patience to parties who are ‘self-representing’ when they are in front of a Judge

All a lawyer seems to do to most people is to manipulate words, and if you can speak, so the logic goes, you can be your own lawyer. There are fewer people who feel the same way however about accessing other professionals, and few are game enough to do their own plumbing or service their own car, despite the arguably ‘higher stakes’ involved in a bitter family law dispute. In short, investment in a lawyer for your family law matter has a significant number of advantages:

• Getting forms and documents ‘right’ the first time
• Knowing what is going to help, and what is going to hinder you
• Knowing from an early stage what the likely range of outcomes for your matter is going to be
• Accessing expert and experienced strategic advice in relation to your matter, and with the best law firms, expert advice on how various Judges, Courts, Registrars and Registries will react to certain issues
• Having an expert who is suitably objective to provide you with ‘reality testing’ at every step of the process

Hiring a lawyer does not have to be an all-or-nothing approach either; many law firms are now offering packaged work or strategic intervention, to assist you for example with finalising documents in preparation for trial, simply appearing for you and avoiding the cost of back-and-forth in letters, or reviewing your situation early so that you can negotiate an outcome directly with your former partner. We offer these types of services and encourage you to contact us to discuss your situation today.

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The Small Business Family Law Dilemma

Clients with small businesses often find themselves gobsmacked at the approach that the family law courts may take in relation to their business. A valuer is often appointed at significant expense and that valuer will place an astronomical value on a business that the client has no ability to sell, leaving them with a fixed asset of paper-worth but little by way of realisable value.

The situation that may result is a difficult one for many small business owners to face – that they will be left with just their personal-services business whilst their former spouse will keep the whole of a house and a significant proportion of their superannuation to boot.

Clients on the other side of this equation will often not appreciate the precariousness of the valuation that may come falling apart, or indeed how a business owner might readily lower their business incomes dramatically to avoid a genuine valuation of the business occur. Recent developments in the law regarding how ‘add-backs’ are considered mean that this becomes a particular risk for parties.

Not even considered in this situation yet is the impact such a valuation, or the forensic accounting exercise undertaken to get to a valuation, may have on the business partner(s) of a person undergoing a family law property division.

Judicious and early advice is the best answer to help you deal with the complex web of outcomes in such a situation, whether you operate the business or are the former spouse of such a person.

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Can I register for Child Support when one parent lives overseas?

Either parent may be able to:

• Apply for an Australian child support assessment;
• Register a Maintenance Order, Assessment or Agreement from another country for collection in Australia if the Order, Assessment or Agreement was established in a country listed as a reciprocating jurisdiction for Australia;
• Obtain an Australian Court Order requiring the other party to pay child support. An Australian Court Order can be registered with the Child Support Agency for collection. Collection options can be limited however, where a paying parent lives overseas especially if the parent lives in a country that is not listed as a reciprocating jurisdiction for Australia.

Please contact Nevett Ford Lawyers on 03 9614 7111 for further advice in this complex area.

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The Future of the Binding Financial Agreement

'Pre-nuptial’ Binding Financial Agreements are an important tool available to the cautious and well-prepared traveller through life.

They are particularly widely-requested from parties who have already been through one hotly-contested relationship breakdown and with good reason

These parties will often appreciate what people who have not been through litigation before will not; namely that any document or record of what happened at the beginning of a relationship is an invaluable tool should a relationship end.

They also have a more acute understanding of the legal system and the difficulties they may face in actually enforcing such a document, and so lawyers can take greater comfort in their client’s appreciation of this unavoidable difficulty.

The publicity surrounding swimmer Grant Hackett’s case, and his subsequently bringing claims against his former law firms will on the other hand give even greater pause to family lawyers than many already feel. Whatever the outcome, there will be valuable learning experiences in the case, and wise family lawyers will further strengthen and hone their advice as a result.

In the grand scheme of family law in Australia, the Binding Financial Agreement remains a novel document. Family lawyers should act accordingly cautiously, but at the same time take advantage of and advise about the advantages these documents can present to clients. They may form one part of a comprehensive asset-protection strategy, particularly for clients with an interest in a business or a small business with other partners.

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Parenting post-separation – don’t become a victim to statistics

The Australian Institute of Family Studies (AIFS) recently released research which showed that only 6% of children under 17 spent equal time with both mother and father. Yet regularly family lawyers will be regularly instructed to seek an equal shared care arrangement, or what many clients refer to as ‘shared custody’. Why doesn’t this frequent desire of separated parents often materialise in reality?

There are a variety of factors that the Family Law Act (Cth) 1975 requires be considered in making Orders concerning parenting arrangements, and a good family lawyer will advise their client of these factors early on in their consultation, including the paramount consideration of the best interests of the children. It is frequently not seen to be any easy experience for children, already dealing with the difficulty of mum and dad living in separate houses, to have to live out of a suitcase on a week-on week-off arrangement. Our lawyers are experts at identifying what issues preclude an equal shared arrangement early on, so that you can ensure that your situation is appropriately managed and directed so that you improve you can get the result you are seeking. 

One more issue to come out of AIFS’ research however should be kept in mind – half of children of relationships that have broken down do not spend any overnight time at their non-resident parents’ home. By even taking the step of seeking and maintaining regular time with your children, you will be significantly shifting the odds in your favour. Call our office today to seek advice on how best to progress your situation.

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Deane & Deane 2014 FamCA 869

A couple had been married for several years and had two daughter aged 7 and 3 years at the time of the hearing.  During one year the father’s own mother died and the father did not enjoy the Christmas period as he felt that his grief had not been adequately recognised, that there was no sexual intimacy with his wife, and that he would not be missed if he left the family.  The wife subsequently made allegations about three types of incident over the holiday period: that the father had thrown one daughter against a wall, that the husband had raped the wife, and that there was sexual abuse of the children.  Criminal charges did not proceed due to lack of evidence.  The parents separated soon after, with the father maintaining contact with his children.

Allegations by both children about sexualised behaviour by the father continued.  Allegations included that the father was naked in the bedroom of one daughter, and that the father performed an unusual exercise involving movement of his groin.

The judge found that too many concerning factors had been raised.  The judge ruled that the father’s access with his children should be supervised, but that evidence from the father’s own family had been too partisan for the judge to be confident that their supervision would be objective.  The judge ruled that the risk to the children was an unacceptable risk and that indefinite or ongoing supervision was required.

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Australian migration - Appeals and Reviews

If your visa application is unsuccessful (refused), it is normally possible to apply to have the decision reviewed. There are two major avenues through which to apply for review:

• The Tribunals (Administrative Appeals Tribunal (AAT)); and / or   
• The Minister for Immigration.

Our experience and services
As legal professionals, we are called on to represent applicants or companies in cases where:

• Applications have been unsuccessful
• Immigration department officials have taken action or are about to take action which is improper or beyond their power

How we are able to assist:

• Reviewing case to advise on prospects of appeal
• Advise on other immigration options – separate or parallel to an appeal or review
• Preparing all aspects of the appeal, including written submissions to the Tribunal/ Court
• Preparing the case and client for the Tribunal or Court hearing
• Preparing and collecting evidence to support the case
• Representing and advocating for clients at the hearing

We have assisted applicants with appeals and merits reviews in the following contexts:

• Health 
• Visa cancellations and refusals    
• Character
• Fraud
• Work experience
• Skilled migrants
• Language ability
• Genuineness of marital, spousal, de facto, same-sex relationship
• Genuineness of visitor/ student status
• Company sponsorships and nominations
• Eligibility of sponsors
• Persecution
• Credibility
• Whether notices from the Immigration Department were properly sent
• Breach of employer sponsorship undertakings or visa conditions and obligations

The Administrative Appeals Tribunal (AAT) 
Immigration Department decisions can be reviewed by application to the Administrative Appeals Tribunal. Generally speaking the Tribunal is able to reconsider all the facts, circumstances and the law in a particular case and make a decision on the merits.

The Minister for Immigration
The Minister for Immigration has a personal power to intervene and grant a visa, despite refusal by the Immigration Department and the Tribunal. However, this power is not used by the Minister very often and she/he is not obliged to use this power. The power may be used if the Minister considers it is in the public interest to do so, even if a person does not meet the legal requirements for a visa.

Courts
It is also possible that some decisions of the Immigration Department or the Tribunal can be appealed to the Federal Courts. This type of review is different because it is generally confined to whether an "error of law" occurred in the making of the decision, rather than whether the decision was correct based on the facts.

The review and appeals processes are complex, and any right to review or appeal must be dealt with comprehensively and quickly.
Why an application may be refused or a visa revoked
Applications may have been refused for a variety of reasons. Some examples include:

• Immigration officers may have misinterpreted and not properly applied the law to the facts or may have overlooked the facts
• The application was not properly prepared or presented
• The applicant was deemed not to meet visa criteria, including character and health
• The company/ employer sponsor was deemed not to meet sponsorship or nomination criteria
• The applicant was deemed to have provided false, misleading or insufficient information or documentation

Visas may be cancelled in the following contexts:

• Breach of visa conditions – eg work restrictions or study and attendance obligations
• Breaches of good character requirements
• Termination of employment, in the case of employer sponsored visas
• Termination of relationship, in the case of partner visas
• Discovery that false, incorrect or misleading information was provided in support of an application
• Allegations that the marriage, de facto relationship or same sex relationship was not genuine or did not really exist
• Visas were improperly granted – eg the Immigration Department made an incorrect decision in granting the visa

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What is a Binding Child Support Agreement?

A Binding Child Support Agreement allows you to make a financial agreement regarding child support payments and how they are paid. 

Each party wishing to enter into a binding child support agreement must obtain independent legal advice before making or entering into the agreement. 

You can also make a binding child support agreement that credits privately made lump sum payments or the value of a transfer of property against the liability that is payable under a child support assessment.  You can specify the rate at which the lump sum is to be credited at 100% or less.

If you include these provisions in the this type of agreement, you must have a child support assessment in place before the agreement can be accepted and the lump sum payment or value of the asset must be equal to or greater than the annual child support rate under the current child support assessment.

This is a complex area and we recommend you obtain legal advice from our Family Law Team by telephoning 03 9614 7111.

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How do you proceed with a divorce if you do not know where your spouse is?

You can still proceed with your Divorce application but you need to obtain an Order from the Court for “substituted service or dispensation of service”.

An Order for substituted service permits you to serve the Divorce documents on a third person who the Court is satisfied will bring the divorce documents to the attention of your spouse. 

An Order for dispensation of service gives your permission not to serve the Court documents on your spouse if the Court is satisfied that you have taken all reasonable steps to locate your spouse. 

An affidavit is required by you setting out the steps you have taken to locate your spouse.

For further assistance in preparing the affidavit, please contact the Family Law Team at Nevett Ford Lawyers on 03 9614 7111.

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Can Domestic Violence Increase My Family Law Property Settlement?

The short answer is yes.

In circumstances where the contributions of a party are made more “onerous” by the violence of the other party, the Courts may give more weight to that circumstance.

For example, if one party is subjected to verbal or physical abuse which causes difficulties for that party in carrying out their “role in the relationship”, this may be taken into account.  As well as being relevant to the party’s present health and their likely future employability, that party may get an extra portion of the property.

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