Protect Your Family’s Investment

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 their money back out of the property ‘dollar for dollar’. Australian family law will usually consider this assistance from a parent a type of financial contribution, not a loan, and is not inclined to repay the money as if it were a normal debt. Often people will walk away from a relationship having lost not only a lot of money themselves, but also a lot of their family’s money, resulting in increased family tension.

At Nevett Ford Lawyers, our large and experienced team advise and assist with a range of solutions to help to protect you and your family in these situations. When you purchase a property, we recommend considering a Binding Financial Agreement under the Family Law Act to protect yourself and your children, as well as ensuring loan documents are drafted to assist in recovering money if necessary. We are also able to draft Inheritance Agreements to help to protect inheritances from family law disputes in the future. We can even draft Agreements that will operate for couples who are not yet married but may do so in the future and want to make just one document to cover these different situations.

It is important to look at these types of documents and have them prepared when everything is going well, to protect you in the event of future uncertainty. Determining the right kind of document for your circumstances is a skill at which our lawyers excel, and we recommend you contact us to enable you to make this important decision in an informed manner. Our number is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au

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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 Court considered what test is, and should be, applied to determining whether something should be heard urgently when it is delivered to the Court Registry to file.

In that case, the Father had not seen the child concerned since separation, with there being a delay of some more than six years between separation and the Father seeking Orders. The Father was trying to get orders made in time for his planned visit to the area where the child lived. The visit was scheduled for only a month after the Court documents were being filed. The Court empathised with the situation, but emphasised that the reality of the Court’s resources were that the Court was already overlisted (above capacity) with other matters. Nevertheless, the Court clarified that it continued to overlist urgent matters, which were described as typically involving ‘allegations of serious and immediate risk of harm to children.’

This reflects our experience. The Court will largely only overlist / list urgently parenting situations where there is the immediate risk of harm to a child. An immediate risk will usually be a threat to the safety of a child well above and beyond any harm that is suffered as a result of a delay in that child’s relationship with a parent.

A good family lawyer will be able to advise you on how to identify what are, and are not, good reasons to list urgently, and be able to make a compelling case to the Court for why urgency is justified. Our lawyers will advise you on this and other practical measures to take in relation to your situation, and are available to speak to you on 03 9614 7111 (tel:0396147111) or Melbourne@nevettford.com.au

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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 family violence systems to ensure they can assess situations with the impartiality, reality-testing and credibility required of them, and the guide aims to simplify this process for the judiciary, resulting in a more consistent framework that better protects those in need, and better recognises when people are not being genuine in their desire for, or opposition to, an order being made.

Clients will often speak of a Judge or Magistrates having taken a view about them personally and not treating them, in their view, fairly. This guide should help in ensuring that there is a consistent and clear approach and restore damaged confidence in aspects of the system. 

Of course our lawyers (http://www.nffamilylawyersmelbourne.com.au)  have many decades of experience dealing with family violence matters and providing clients with realistic and sensible advice in obtaining, opposing, or renewing orders and if you do have a concern about your situation, we encourage you to call us to discuss your situation. 

We are available on 03 9614 7111 or by email on melbourne@nevettford.com.au.

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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 matters, please contact our family law department on 03 9614 7111.

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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 from her mother’s estate, her mother having passed away after the Arthurs’ marriage had broken down. The rest of the assets totalled approximately $800,000, meaning that this inheritance would have been a very significant factor in working out each party’s contributions, if it was included.

 

However Judge Rees determined that the inheritance should be kept separately and that Ms Arthur would be considered to have contributed 100% to that pool of assets, and that she should simply keep the inheritance. This was a practical way to deal with the matter, but had the effect of producing a note-worthy result in the rest of the assets.

 

Mr Arthur’s family had provided significant support to the parties during their relationship, transferring as much as 75% of a house to them without really expecting any payment back. In addition, the parties were allowed to live rent-free in the property for many years even though it was owned by family members of Mr Arthur.

 

Mr Arthur earnt significantly more than Ms Arthur, who had significant obligations as a carer and whose employment prospects were uncertain. Nevertheless, Mr Arthur received 80% of the non-inheritance asset pool. This is a high percentage of assets on a pool of this size, and Ms Arthur did not receive a larger percentage because she was going to have the benefit of the very large inheritance she had received and was going to retain, meaning the inheritance was a double-edged sword for her.

 

What does this mean for parties contemplating a separation? Look after your parents!

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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 were apparently applied to pay a debt to another company that was poorly described by the Husband.

In the meantime, mortgages were defaulted upon and the Wife was left to attempt to keep the banks at bay on her very modest income.

The Husband throughout this time failed to make adequate disclosure, explain to the court precisely what debts he claimed to be paying or provide appropriate evidence to the Court.

What makes the case somewhat unusual is that as a way of recognising the significant injustice to the Wife of this situation, Judge Loughman determined that a percentage adjustment of what was left in the asset ‘pool’ should be made in favour of the Wife in light of the non disclosure.

Making reference to the matter of Weir & Weir (1993) FLC 92-338, Judge Loughman, held that ‘The authorities have it that in the case of significant non disclosure, the Court should not feel unduly constrained in making provision, within the identified assets for the other party.’

Even though the parties had agreed to ‘add back’ some of the funds that the Husband had taken without the Wife’s consent, the Court found that the ‘extraordinary circumstances of the untenable debt are not resolved by $495,000 being added back to the balance sheet. The husband’s refusal to fully disclose the circumstances of the alleged debt prevents any scrutiny of transactions with matrimonial funds by the wife or by the Court.’

Making reference to section 79(4)(e) and to section 75(2)(o) of the Family Law Act 1975 which provides that matters to be taken into account include ‘any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’, the Judge made an adjustment of 5% to the Wife, even taking into account that the Husband received a small adjustment because he was eight years older than the Wife.

The case is significant because it provides some recourse or solution to parties who are struggling with a difficult or intransigent opponent who refuses to provide appropriate material.

Clearly every case is different and whether your situation meets the standard required in this case is a question that we can assist in answering – call Nevett Ford Lawyers Melbourne on 03 9614 7111 for a confidential discussion of your situation or email Melbourne@nevettford.com.au

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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 of children subject to the assessment; the obligation to pay child support arises from an acknowledgement, whether through a DNA test or simply agreeing, that a party is a biological parent to a child.

The amount is assessed and can be collected by DHS through regular voluntary payments, by garnishing wages from your employer, or in some cases by taking stricter enforcement action against bank accounts.

The payments then get sent to the other parent who has been assessed as requiring the child support and will last until a child turns 18 years old or finishes their last year of high school.

The family law courts usually do not apply except in circumstances where people make applications, often very costly in comparison to the cost of any assessed amount, for an order to vary the child support amount for one reason or another.

 

People can also enter child support agreements of varying types that allow the parties to either pay more child support (and direct those payments towards schooling , health, extra-curricular activities and the like), less child support or to pay lump sums to avoid having ongoing obligations.

These types of agreements are sometimes made as part of a parenting dispute between parties or as part of a property settlement in order to provide some ongoing assistance when that assistance is to be directed towards children directly rather than through their parent.

 

Spousal maintenance is a term for a few types of payments that somebody can agree to pay, or a family law court can order for parties who are engaged in a property settlement.

These are payments that are calculated looking at a person’s income and expenses, seeing if their legitimate expenses are higher than their income, and then examining their former partner’s income and expenses.

If the former partner’s income exceeds their legitimate expenses they may have ‘capacity’ to pay and may be required to do so.

The purpose of these payments is usually to assist the person with the ‘need’ to get back on their feet or to be able to live in a lifestyle to which they have reasonably become accustomed as a result of the other person’s actions.

Usually these payments are made only during proceedings / while a dispute is ongoing and are often ‘capitalised’ as a lump sum in a final settlement.

 

Internationally there are differing attitudes towards spousal maintenance or ‘alimony’ and whether these payments should be ongoing  and this may effect where you might start Court proceedings.

 

There are important differences between child support and spousal maintenance that may not be clear to people entering the family law system, and that lawyers may not realise they need to explain to their clients. 

If you would like more information, call our expert team on 03 9614 7111 or Melbourne@nevettford.com.au to discuss your situation.

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