Many people choose to invest in property in Australia for
their retirement, as a source of income, or to assist their children with
somewhere to live. This is true of both local buyers and overseas purchasers.
When you do this however, you should turn your mind to how Australian family
law will consider this type property in the event that there is a separation
involving yourself or your children in the future.
If a parent buys a property for their child, their child
marries and then divorces, it is not as simple for the parents as getting...
Tuesday, 6 December 2016
Thursday, 3 November 2016
What is urgency for parenting cases?
Parents
in the heat of family law situations will often want to know if the Court can
help them with their dispute urgently. To a parent in the middle of a dispute
situation – they may not have seen their child for months, or they may want to
change their current arrangements – their situation may appear genuinely
urgent. However, this is not the test that the Court applies in determining
whether a matter should be listed urgently in front of a Judge or Registrar.
In the matter of Fowler & Glover
(http://www.austlii.edu.au/au/cases/cth/FCCA/2016/2595.html),
the...
Thursday, 6 October 2016
Consistency and Understanding the Key for Courts Dealing with Family Violence
In August 2016, TC Beirne School of Law and
the Australasian Institute of Judicial Administration released (http://www.lawyersweekly.com.au/wig-chamber/19479-judges-draw-on-new-guide-for-family-and-domestic-violence) the initial version of their ‘bench book’ for Courts across Australia dealing
with family violence. A bench book is a guide to Judges and Magistrates to
assist them in applying risk assessment systems, case law, and making
suggestions in coming to decisions.
It is a difficult task for lawyer, judges
and people caught in the...
Monday, 12 September 2016
What age can my child decide which parent they live with or spend time with?
There is no specific age at which a child can decide who
they live with or whether they choose to exercise contact to the other
parent. Children are minors until they
reach 18 years of age.
A child can express a view generally in the context of a
family report writer’s meeting with them about who they want to live with and
whether they wish to spend time with the parent. However, any decision
regarding children's living arrangements must be made in the best interests of
the child.
If you require expert advice regarding parenting...
Wednesday, 10 August 2016
Two asset pools might not be better than one
Most family law property matters approach the division of
parties’ assets by adding everything together into one ‘pool’ of assets and
then dividing up the total value of that pool. However in certain
circumstances, a Court may take a different approach where the facts support
departing from the usual system.
One such case was the matter of Arthur and Arthur (http://www.austlii.edu.au/au/cases/cth/FamCA/2016/324.htm)
, decided by Judge Rees in Sydney in May 2016. In that case, Ms Arthur was due
to receive a sizeable - $535,000 – inheritance...
Wednesday, 13 July 2016
Wife takes a win after Husband’s failure to disclose his financial dealings
Judge Loughman
in the Federal Circuit Court at Sydney was recently called upon to consider a
matter where there had been very significant financial mis-dealings by a
husband, in the case of Rosario &
Rosario [2016] FamCA 170 (22 March 2016) (http://www.austlii.edu.au/au/cases/cth/FamCA/2016/170.html).
Over the
course of two years of litigation, the Husband appeared to disregard Court
orders providing for him to deposit funds, not deal with funds, or arrange for
the sale of shares and for funds to be paid to the Wife.
Instead,
funds...
Sunday, 3 July 2016
ChildSupportman v SpousalMaintenanceman: Dawn of Justice?
Child support and spousal maintenance in Australia are two
very different things and are administered in two very different ways.
Surprisingly to some lawyers, many people do not understand
the reason for the distinction between the two types of payments may arise or
that they are even separate things .
Child support is usually based on a formula and assessment
made by the Commonwealth Department of Human Services (formerly the Child
Support Agency).
This formula is based on incomes, nights of care and the
number...
Thursday, 16 June 2016
Superannuation – Cap and Trade
The federal government in its May 2016 Budget indicated that
it intended to make changes to the superannuation system that would limit the
amount of contributions people would be able to make above and beyond their
compulsory employer contribution, which may affect those engaging in a family
law property settlement.
The proposed change highlights the difficulty that separated
parties may have in re-earning superannuation post-separation.
This is particularly the case where one party decides not to
take any superannuation...
Monday, 6 June 2016
What should you do to stop a child you have parental responsibility for from leaving Australia?
Make an application to the Family Court seeking an order that
your child be prevented from leaving Australia and that they be placed on the
Airport Watch List.
What do you need to
do to prevent a child’s passport being issued?
Seek a Court Order stopping a passport being
issued for your child; or
Lodge a “Child Alert Request” at the Australian
Passport Office (alerts do not prevent a child leaving Australia on a valid
Australian Passport or on a foreign passport or a passport issued by another
country.)
Applications for international
travel...
Thursday, 26 May 2016
A whole lotto luck for Mr Elford as Judges decide not to divide winnings to wife
Cases about lottery winnings often draw attention perhaps in
part due to the large sums of money that can be involved but also because they
require some very particular and detailed attention to be paid to how parties
in a dispute have organised their lives during their relationship, before and
after the win.
In a recent case, known as Elford and Elford (http://www.austlii.edu.au/au/cases/cth/FamCAFC/2016/45.html), a Wife appealed orders that
provided for her to, by and large, not receive the benefit of a lotto win that
happened very early in...
Thursday, 19 May 2016
How do you divide property when a relationship breaks down? Consider the family law four step!
It is with regularity that family lawyers are buttonholed at
social events to provide some impromptu advice to someone going through a
property division.
What is consistent through these conversations is how little
many people understand of the process, how much people cobble together their
own solutions based on what is ‘fair’, and how infrequently lawyers are
consulted at an early stage to provide some guidance and frameworks for
discussions between parties.
I can recall a matter that was brought to me where the
parties...
Thursday, 28 April 2016
Going to Court
What actually happens at Family Court? How should you
prepare for the day? Will the Judge listen to what you have to say? Find out in
this information video from our lawyer Richard Hamilton or call us for advice
on your circumstances on 03 9614 7111
...
Friday, 8 April 2016
Won’t somebody please think of the children? – issues to consider when wanting to relocate interstate
Parenting with a separated former partner can have its
challenges, and one of the most polarising can be the decision of one parent to
relocate across the country.
The guiding principle in this area of the family law is the
best interests of a child, with the two competing primary considerations being
the benefit to a child of having a meaningful relationship with both parents,
and the need to protect a child from risk of harm in a variety of forms. The
second consideration is ‘weighted’ more heavily than the first. There are a
number of...
Sunday, 20 March 2016
The Internet, titillation, and the Family Court of Australia
Does a predilection for masturbation mean that someone
should not spend overnight time with their children?
Judge Ryan of the Family Court of Australia at Sydney
delivered a judgment in a case that concerned this issue in January 2016. The full text of the judgment is available here(http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCAFC/2016/3.html
).
The case was an appeal from the initial decision in the
Federal Circuit Court.
In brief, it is a question that turns very much on the facts
– in this situation, there was...
Tuesday, 15 March 2016
Honesty is the Best Policy
In family law cases, many clients think that some
information they have available to them is not relevant, are ashamed to admit
something, or are actively trying to disguise their true intentions from a
lawyer.
You may be aware that your lawyer has a duty to not mislead
the Court and so you may withhold information from them as a result.
However your lawyer is the person best positioned to advise
you as to whether something is relevant or irrelevant.
For example, in parenting cases, sometimes a response to
your Court documents is...
Monday, 7 March 2016
Interstate Relocation
What do I need to do if I want to move interstate with my children? Communicate your intention, communicate your reasons, focus on the benefit to your children and get permission to relocate to avoid being dragged back interstate. Most importantly, speak to a good lawyer before you do anything. Call Richard Hamilton at Nevett Ford Lawyers on 03 9614 711 or email Melbourne@nevettford.com.au for more information or to discuss your situation.
...
Sunday, 21 February 2016
How to Speak when your Family Lawyer is Listening
The Australian Institute for Family Studies (“AIFS”) has
just recently released its report (https://aifs.gov.au/publications/evaluation-2012-family-violence-amendments)
into the 2012 changes to the Family Law system that brought in, amongst other
things, more of a focus on family violence in the family law area, as well as
‘screening’ for family violence in all cases.
Despite these changes, a significant proportion of those
involved in family law disputes, or even in families that never enter the
formal family law system of mediation,...
Wednesday, 3 February 2016
#instafail - Posting on Social Media during your Family Law case
The rise and rise of social media sites
including Facebook, Instagram, Twitter, Snapchat, WhatsApp and WeChat has
presented significant challenges for lawyers practising in all areas of law, but
particularly in family law.
Social media sites are more and more
attractive to people wanting to vent their anger, frustration or
disillusionment with what is going on in their lives, and this is reflected in
what practitioners see.
Often nowadays instant messages,
Facebook chats and emails between parties are submitted to Court as part...
Sunday, 24 January 2016
Know Your Deadlines – Property Division pursuant to the Family Law Act 1975
It is important to know that there are time limits on making
applications under the family law for a property division. If you are unaware or not advised of these, there can be
serious repercussions leaving you significantly worse off.
For defacto relationships, an application cannot be made
under the Family Law Act 1975 more than 2 years after separation. For married couples, the time limit is 12 months after your
divorce is made final. For this reason, many family lawyers will not encourage
people to actually obtain their divorce...
Sunday, 17 January 2016
Combined Defacto and ‘Pre-nup’ Pre-Marriage Financial Agreements Determined to be Valid
Talking with your partner
about entering into a binding financial agreement, or a ‘pre-nup’ as they are
sometimes known, is a difficult enough conversation.
Making it more difficult, the
Family Law Act 1975 provides that if you are in a defacto relationship,
and enter into an agreement under the defacto sections of the law, that agreement will come to an end and cease to be
effective upon marriage.
Quite why this is the case
has never been clear to the legal profession at large, but most lawyers have
advised then that parties considering...
Sunday, 3 January 2016
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 will regularly be 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...
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