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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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 so that they can retain another item, for example the family home. 

 

It is important to note however that the family law system has taken some pre-emptive action in this regard a number of years ago.

Cases that go to Court and are decided by a Judge will now often have superannuation earnt during a relationship split between parties.

This has the effect of ensuring that both parties are put in a position where they can save for retirement, even if it means some short term difficulty with property.

 

With that said, it is still entirely possible for parties to organise and come to an agreement between themselves to arrange their assets how they like.

The government’s proposed changes to how superannuation work should be fully considered by your family lawyer and incorporated into your family law settlement.

You can call our experienced lawyers to discuss your situation and whether you might be affected by the changes on 03 9614 7111.

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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?

1. Seek a Court Order stopping a passport being issued for your child; or
2. 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 or preventing children leaving Australia require applications and affidavits in support of such applications. 
   Please contact our Family Law Team on 03 9614 7111 if you require further assistance.

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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 the relationship.


Ordinarily, you might think that if a lotto ticket is bought by one person in a relationship and the winnings are received during the relationship then those funds should be put into the parties’ joint assets and simply divided.


This is not necessarily the case though.

In a case known as Zyk  and Zyk (1995) FLC 92-644, the Court said that it was preferable to approach the issue as one of “contribution” rather than as a “windfall”.

That is, the Court should look at how the ticket was purchased, how were the funds used to buy the ticket were sourced and were generally or otherwise used, and what happened with the winnings afterwards.

It should also look at how the parties’ relationship was structured at the time to determine their intentions.

Applying these principles, the Court in this case noted that the parties had kept their finances very  separate throughout their ten year marriage; they had separate accounts and kept no joint accounts; the Husband purchased the ticket from his money that was not mingled together with the Wife’s; that the parties did not ‘hand each other’ their pay at the end of each fortnight; and when the Husband received an inheritance during the relationship, he deposited that inheritance into his own account with the lotto winnings and kept the monies separate.

In total, the parties’ conduct seemed to demonstrate that they very much kept their finances their own and separate both at the time of the win, and afterwards.

The way the parties organised their affairs was so clearly separated that it does appear to be notably different to the majority of cases that family lawyers would see.

This justified the Husband receiving a very large recognition for his contribution of both his lotto winnings and the inheritance.

The Wife was provided with an Order that meant she received 10% of the total assets.

Missed in much of the online commentary about this case is that the Husband had also suffered a stroke some 12 months before the separation that left him blind, unable to drive or read and required kidney dialysis three times a week.

The case means that lawyers and parties should very carefully and realistically assess what actually happened in a relationship and not look to simply say that all of each other’s property is shared.

Our experienced family lawyers know the questions to ask you to keep you informed and up to date with these issues.

You can contact us on 03 9614 7111 or Melbourne@nevettford.com.au to discuss your situation.

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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 had been spending an inordinate amount of time dividing and ascribing value to each and every item of furniture or household appliance and dividing these in a way that was reflective with their respective incomes; but had no idea that they might be entitled to some of each others’ superannuation, a significant oversight that would have resulted in one party missing out on almost $100,000 of superannuation.

 

So what is the broad overview of the process that family lawyers will apply?

1. Identify your assets, liabilities and superannuation as at present. This is commonly called the ‘asset pool’
2. Identify what contributions were made into the relationship, including both financial and non-financial contributions. This will mean knowing what you had at the beginning, what you had at the end, and how you got between those points.
3. Identify what your and your partner’s future needs are – whether they relate to income disparity, care of children, ill-health and medical costs, or your age.
4. Determine whether it is just and equitable to proceed with any alteration of your existing legal rights at all, as well as whether the final result as determined by the above 3 steps results in an outcome that is just and equitable and also practical.

These steps are simple in some senses but as with everything, the devil is in the detail of the implementation and the ‘edge cases’.

Consulting a family lawyer early for guidance to inform your discussions, identify any problematic issues and define your expectations is one of the most sensible investments of your money post separation you can make.

Call our family law team on 03 9614 7111 or email Melbourne@nevettford.com.au.

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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

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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 secondary considerations in the Family Law Act 1975 that are also taken into account.

From a practical standpoint, what this means is that there must be a compelling reason that a move would not benefit solely or simply a parent, but more importantly the child. Very clear consideration must be given to how, in the event of a move, a relationship with the other parent is maintained.

Reasons for a move might include greater cultural and educational opportunities, specialised services being available in the new region not available in the previous region, better family and emotional support for a child being in one region or another, or a parent being able to obtain much more fruitful employment in a new region, meaning that their child has a better chance at a greater quality of life.

Incidences of family violence and isolation for a parent in one region can also play a significant role in a proposed move. There may be very good reasons not to move as well, including cultural ties that would not be available in a new region, the loss of Indigenous connection to country should a move occur, and estrangement from a parent.

It is important if considering such a move that there be very clear communication with the other parent involved, and that intentions and reasoning are clearly set out for discussing.

You may not find that a parent confronted with such a proposal necessarily acts rationally or calmly at first, but it is important that a solid foundation and clear communication is established early on.

Every situation is different of course and you should obtain expert advice specific to your circumstances. The guide in this article is at a general level and should not be taken as legal advice for your specific circumstances. We are available to discuss these issues with parents considering making, or responding to someone proposing, such a move, at any time on 03 9614 7111, or by email at Melbourne@nevettford.com.au

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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 it appeared no evidence that the children would be exposed to the material that the father accessed, and that if they were to do so, every indication was that the father would act promptly to correct the issue. Additionally, there was no evidence that the children were aware of the father’s habits, and there was no evidence that they had ever interrupted the father during masturbation.

No material appeared to be permanently stored on the father’s television, phone or tablet.

It also seemed that although there was reference to pornography by lawyers acting for the parties, the material concerned may have been at least in part more properly described as television shows containing sex scenes, which would have passed censoring of some sort, rather than wholly pornography.

The father would it appears watch a show on the TV or tablet, and sometimes masturbate in the bathroom afterwards. The mother in the situation was highly critical of the father’s other parenting skills as well, which may have contributed to a perception that her concerns were out of line with wider community expectations.

The Court made a careful consideration of the facts, and the children were permitted to spend time with their father for one overnight per fortnight on an alternate weekend, and for three nights per week during school holidays.

Media reports on the case have missed some of these subtleties and may inadvertently misdirect a party as to what is acceptable conduct and how to conduct yourself during Court proceedings. Broad sweeping statements about what type of behaviour is or is not permitted can lead people astray.

It is for these types of reasons that detailed, specific and expert advice tailored to your particular circumstances is important to reach a happy ending.

Contact our Liz Hall and Richard Hamilton on 03 9614 7111 or Melbourne@nevettford.com.au to talk through your situation.

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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 received that suddenly raises allegations of drug use, alcohol use or a prior criminal history. When asked about why the client did not mention this to you previously, the response might be that ‘it was irrelevant’ or a client felt ashamed about their situation. This leaves you and your lawyer having to perform a great deal of work to catch up and explain why there was not disclosure initially.

It also feeds into a perception that you are not being upfront or able to deal with problems, or that you will not openly admit to any difficulties that may arise in the future.

If you tell your lawyer early on, they are able to provide you with guidance to help you address any drug or alcohol issues, or direct you towards appropriate resources such as counsellors to support you to avoid delays.

Similarly, a business deal or written agreement might not be mentioned to a lawyer in a property proceeding because you did not want to bring a third party into your personal life. Again, your lawyer is best positioned to assess whether this is necessary; they can then give you all the options and you can make a conscious choice, instead of regretting a failure to even discuss the issue latter.

Having to disclose such a document later in proceedings ignites accusations from other parties that the document may have been prepared after the fact or that there has been an attempt to ambush. A failure to disclose may also result in another party to your case seeking costs against you for your conduct of the case.

As a rule of thumb, it is better that you are transparent and honest with your motivations, history and difficulties you are currently facing to your lawyer, so that you and your lawyer aren’t caught off-guard.

To find out more or for specific advice about your circumstances, call us on 03 9614 7111 or email Melbourne@nevettford.com.au.

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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.

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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, lawyers and Court, did not report family violence or safety concerns that they held.

In 2014, it was found that 38% of parents holding either family violence or safety concerns did not report those concerns to lawyers or Court officers; a very considerable 46% of parents involved in family dispute resolution / mediation did not report their safety or family violence concerns.

This type of information is sure to give family lawyers pause and should cause them to rethink how and how often they are asking their clients whether they have safety concerns.

This is a very real and concerning issue for lawyers, as a failure for a client to disclose that they are fearful, and potentially intimidated, may compromise a client’s ability to give instructions or make good decisions.

For clients, this revelation opens a discussion of a common practice I see day to day – where clients decide that they are going to hold back some information from their lawyers for one reason or another.

In situations where family violence has been a factor or concern, this is often out of embarrassment, shyness, a feeling of some sort of shame at having lived through such a situation, or refusal to believe that this type of thing would happen to you.

This affects people coming out of relationship no matter their gender.

Whilst these are understandable reactions, withholding information from your lawyer puts you at a disadvantage because you cannot prepare yourself, or take remedial action to address the issues that may be of concern.

Your lawyer is left fighting with one arm tied behind their back.

Additionally, if actions are taken without these concerning issues being raised at an early stage, Courts and lawyers will often regard later disclosures by you with a great deal of scepticism, thinking that the information is only coming out at a stage when it can be used to delay proceedings rather than for a genuine safety reason.

Whilst it may be confronting and difficult to raise issues of family violence or abuse from a relationship, your lawyer will have heard these issues, and unfortunately much worse, in their career, and you should find a lawyer with whom you feel comfortable raising and discussing these issues so you are prepared and on the front foot.

Call our senior lawyer Richard Hamilton or accredited specialised Elizabeth Hall on 03 9614 7111 or email Melbourne@nevettford.com.au to discuss your situation in an obligation-free call and get a better understanding of how the family law would take into account your particular circumstances and history.

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#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 of the evidence gathering process.

It is particularly dangerous for people engaged in negotiations or in Court proceedings to be continuing to post about their situation on social media.

Posting Court documents on social media can be a criminal offence under the Family Law Act 1975, whilst discussion of proceedings or children involved in proceedings may contravene family law or intervention orders.

These types of breaches can attract serious penalties including periods of imprisonment!

Most of the material posted on social media is not quite as clear-cut as this, but can still cause very serious damage to a case.

If a person, for example, posts about their drinking habits or who they are socialising with, allegations of inappropriate conduct with children might be raised.

Delicate and already damaged feelings may be further hurt by frequent posts concerning new partners, resulting in an escalation of hostilities and tension in family law negotiations.

Even posts that do not directly relate to a case may indicate somebody’s state of mind, preparedness to compromise or wanting to ‘give up’.

For these reasons, and very many more, it is a golden rule of family law to minimise and ideally cease social media posting at least during your case.

At the very least, parties should be aware of the risks and lawyers should advise of the risks, so that people can make informed decisions about their actions.

To speak more with our family lawyers about these types of issues, including what social media posts can be used as evidence and how, call our Richard Hamilton, Senior Family Lawyer, on 03 9614 7111, or email melbourne@nevettford.com.au

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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 until their property settlement is finalised or very near to being finalised.

 

While the deadline is clear cut for divorcing couples, the time limit on defacto relationship can cause more difficulties, particularly if there is a disagreement about precisely when your separation occurred. Parties will of course be more likely to recall a separation date in a way that is advantageous to them.

 

In the event that the deadline passes in either case, the Court may grant leave to a party to apply even if they are out of time, but you will need to explain to the Court the reason for the delay. The Court may grant leave to you to proceed out of time if it is satisfied that:

• Hardship would be caused to a party to the relevant relationship or a child if leave were not granted; or
• If applying for an order for spousal maintenance, that at the end of the limitation period, the circumstances of the person applying were that the person applying would not have been able to support themselves without an income tested pension, allowance or benefit.

The definition of hardship is a vigorously contested one. The Court will take a variety of factors into account when considering these issues, particularly what exactly is meant by ‘hardship’ but it is important to seek legal advice and act quickly if you are approaching or have just passed one of these deadlines.

Call us on 03 9614 711 or email Melbourne@nevettford.com.au.

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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 marriage with an existing agreement should re-enter a new agreement at that time.

This often doubles the cost of getting a financial agreement and both parties have to attend at lawyers again to obtain what often amounts to very similar advice.

A newly-published case (Piper & Mueller [2015] http://www.austlii.edu.au/au/cases/cth/FamCAFC/2015/241.html)  however states that a financial agreement is able to be both a defacto agreement – pursuant to s90UC of the Family Law Act – as well as a pre-marriage agreement – pursuant to s90B of the Family Law Act.

The rationale is that the agreements do not conflict with each other because the portion of the agreement that relates to being under the defacto laws ‘falls away’ when the parties marry, as a result of that same troublesome piece of the law that caused difficulty above.

This means that parties can save considerable cost, as well as time and stress, by having an agreement drafted during their defacto relationship that is put into operation with marriage.

Our lawyers would be pleased to assist you with that type of agreement and answer any questions you have about these agreements.

You can call us on 03 9614 7111 or email Melbourne@nevettford.com.au

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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 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 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 a 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 occurring. Recent developments in the law regarding how ‘add-backs’ are considered mean that this becomes a particular risk for parties to family law disputes.

 

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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