Archive for the ‘Family Law’ Category

Faster Court processes for small family law property cases

Dividing property after separation can be challenging and, while avoiding court is the preferred approach to finalise a property settlement, this is not always possible. Court proceedings can exhaust time and money. When the pool of assets is quite modest, the impact of excessive legal and court costs can put a significant dent in the value of the property a couple has worked hard to obtain.

To target these issues, the Government has introduced a Small Claims Property Pilot program to help parties with small asset pools reach a fair division of assets with minimal cost and without extensive delay, as is often the case for family law matters. Known as the Discrete Property List, the program has been implemented by the Federal Court registries in Brisbane, Parramatta, Adelaide and Melbourne.

The program commenced in January 2020 and will run for two years. Afterwards, its success will be assessed with the possibility of expansion into other regions and on a more permanent basis.

If you are separated with a net joint asset pool of $500,000 or less, you may be eligible to access the program and have your matter dealt with more efficiently and cost effectively by the Federal Court.

The Discrete Property List

The program forms part of the $98.4 million Women’s Economic Security Package (WESP) to fund services and initiatives aimed at supporting victims of family violence and resolving family law disputes.

Traditionally, apart from urgent matters, family law property cases progress through the court in the same manner and within the same timeframe irrespective of the size of the asset pool or complexity of issues involved. This approach has contributed to an excessive backlog of cases which could potentially be lifted by fast tracking some of the smaller, simpler matters.

The program deals with property related matters only, which are referred to as Priority Property Pools under $500,000 (PPP500) cases. A PPP500 case is one where:

  • the parties’ net property (including superannuation) is $500,000 or less; and
  • there are no entities owned or controlled by either party that will require valuation or expert investigation (for example, a family trust, company or self-managed superannuation fund); and
  • neither party is seeking orders for parenting or child support.

The objectives of the program are to:

  • fast-track and finalise simple property matters involving small asset pools at minimal expense for the parties involved;
  • reduce the current backlog of cases within the family law system and the waiting time for other matters;
  • assign a Magistrate to deal with smaller, less-complex matters while freeing up Judges to deal with more complex matters and children’s matters.

Processes and timeframes

The Federal Circuit Court has issued practice directions for parties involved in a PPP500 case. Rather than waiting to be heard by a Judge, matters in the Discrete Property List will, in the first instance be assigned to and case-managed by a Registrar.

In most cases, the matter will be dealt with exclusively by the assigned Registrar with an outcome anticipated within 90 days or the matter referred to a Judge for case management or listed for hearing.

The program fosters early dispute resolution and features intensive monitoring for compliance and exchange of documentation between the parties. To improve the potential outcome using these processes, there is close involvement to ensure cases are properly prepared before alternative dispute resolution takes place.

A PPP500 case will typically take the following path:

  • Proceedings are commenced by the parties filing an Initiating Application and a Financial Summary. Prior to the first court date, the case will be confirmed as a PPP500 and preliminary directions made by the Registrar in chambers for financial disclosure and the exchange of relevant documents, such as valuations and expert reports, between the parties.
  • On the first court date before the Registrar, and assuming the parties have exchanged the required financial information, a ‘balance sheet’ is settled and the parties may be referred to private mediation, a conciliation conference or Legal Aid conference.
  • Alternative Dispute Resolution may take place with a Registrar, external mediator or at a Legal Aid conference. Following, the parties may be in a position to settle the matter by consent, and in such cases, legally binding orders can be made.
  • If the matter does not settle, a second court date is arranged – factual issues are identified, the balance sheet is re-checked and settled, and the Registrar’s involvement comes to an end. The case is then referred to a Judge.
  • A procedural hearing is convened where issues are identified, and directions made for a final hearing. Parties may have the option to consent to a less adversarial hearing on the papers. If a traditional hearing is preferred, the parties should identify the issues in dispute and relevant evidence in support of their respective positions.
  • Final hearing takes place.

Conclusion

Legal and other costs for small property cases can be grossly disproportionate to the actual value of the asset pool. With cases taking up to two years to reach a final hearing, parties endure expenses in addition to legal and court costs such as maintaining and insuring assets pending their potential sale, storage fees and short-term accommodation costs. The parties must also contend with the emotional impact of court proceedings and the feeling of being ‘in limbo’ until a property division is finalised.

It is anticipated that PPP500 cases will proceed more expeditiously through to settlement, alleviating some of the emotional and financial stress to those with modest asset pools and freeing up the Court to deal with more complex family law matters.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Family Law and co-parenting in difficult times

The coronavirus (COVID-19) has brought additional stress and uncertainty to many families involved in co-parenting which, by its nature, can be stressful enough.

School closures, state and territory border closures, additional pressure on healthcare workers and providers of essential services, job loss and isolation all pose significant challenges to those families with shared parenting arrangements. This is a time to put conflict aside and take a practical and sensible approach to co-parenting.

If you or your children are in danger, please contact your local police immediately.

Parenting orders – managing in difficult circumstances

  • As always, the safety, welfare and best interests of the children should remain a priority. If court orders are in place, it is expected that they be complied with which includes facilitating time spent by the children with each parent pursuant to those orders.
  • Where strict compliance is not possible, or compliance puts the safety of the child at risk, the parties should wherever possible, communicate to identify practical and reasonable solutions.
  • Ideally, an agreement to vary the arrangements of existing orders should be in writing, whether by text message, email or other app.
  • Parents and caregivers can facilitate negotiations through their lawyers and applications to vary consent orders may be filed electronically with the Court.
  • Where an agreement cannot be reached, one party may seek leave of the court electronically to vary the orders.

 Co-parenting arrangements generally – practical tips and considerations

  • Be proactive – although agreed parenting arrangements may not have changed dramatically yet, anticipate that they may need to, and communicate now to put a plan in place. Obstacles to consider include school closures or extended school holidays, different changeover venues (with some venues now closed), potential lockdowns and additional demands on one or both parents such as health care workers and essential services employees.
  • Traditional work arrangements between parents may in fact reverse as full-time employees find themselves out of work and part-time and casual workers, for example nurses, become more in demand.
  • Compromise is key – accept that parenting arrangements will likely need to change during these circumstances, at least for the short or medium term. Having said that, parties should not manipulate the current crisis to leverage additional time spent with children when this is clearly not necessary.
  • With many travel plans cancelled, parents and caregivers may need to re-think planned activities with children. There are numerous resources online providing creative ways to keep little minds occupied during these times.
  • If one parent or caregiver is missing out on scheduled time with a child due to the current crisis, be generous in facilitating communication between that parent and the child – consider using apps such as FaceTime, Skype or Zoom, in addition to the usual phone contact.
  • Talk to your children about the current situation and try to remain calm and positive. How you explain what is happening to your children will depend on their age, level of maturity and the individual circumstances.
  • Be creative and resourceful but try to maintain, as far as practicable, regular routines such as personal hygiene, healthy meals and bedtimes.

Family Court arrangements

The Family and Federal Circuit Courts continue to operate but have made significant changes to their processes. How the Courts continue to function may no doubt change as the situation evolves.

Presently, only urgent matters will be conducted through face to face hearings for which strict in-court protocol to manage risk will be maintained.

Most other court hearings and events will be by telephone or video conferencing with some non-urgent matters to be postponed.

Documents will be filed electronically with registry services to be provided remotely by telephone or online.

We are here to help

The coronavirus pandemic is an evolving situation with a number of health and business orders issued at federal, state and territory levels. Government directions, advice and laws have, and will likely continue to change as new information and developments arise. It is important to stay informed of these updates through reliable sources.

Effective co-parenting means putting differences aside and working together to make decisions and care arrangements for children that are in their best interests.

We understand that this is a difficult and distressing time for many. Our firm infrastructure facilitates remote working conditions to serve our clients and assist them through these difficult circumstances. We will continue to provide advice and assistance through telephone and video conferencing across all areas of family law.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Where do the kids live after separating? The concept of shared parental responsibility

Many couples are able to agree on arrangements for the ongoing care of their children after they separate. These arrangements can be documented through parenting plans or formalised in consent orders without the need to attend Court.

Generally, parents are required to make reasonable attempts to resolve disputes about their children and, where agreement cannot be reached, must attend compulsory dispute resolution.

The Family Law Act 1975 (Cth) (the ‘Act’) provides a presumption of shared parental responsibility when considering the future arrangements for children. This concept however is sometimes misinterpreted as meaning that the children will spend the same amount of time with each parent.

This article provides an overview of how children’s matters are decided and explains the concept of shared parental responsibility.

How are children’s cases decided?

When negotiating children’s matters, the parties should take into consideration the way the Family Court would determine such matters should parenting issues not be resolved.

The overriding principles considered by the Court are that the best interests of the child are paramount. Essentially, this means that:

  • children should know and have the benefit of a meaningful relationship with both parents;
  • children should be protected from physical and psychological harm and harm resulting from them being subject to family violence;
  • children should receive parenting that allows them to reach their full potential;
  • parents should cooperate in determining what is best for the children;
  • unless a child is at risk, parental responsibility should be equally shared and children should have the right to spend time on a regular basis with both parents and other people significant in their lives.

What is shared parental responsibility?

The presumption of equal shared parental responsibility comes from ss 61DA and 65DAA of the Act. Section 61DA provides that ‘when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child’. The presumption is subject to exceptions such as where there are issues of family violence or abuse.

Equal shared parental responsibility means that each parent should be jointly and equally responsible for significant long-term matters concerning their children such as making decisions about their health, welfare, religious and cultural upbringing and education.

The principle of shared parental responsibility has often been misconceived with separating couples believing that it is a ‘given’ that a child or children will spend equal time living with each parent after separation. This is not the case – living arrangements are decided with the main objective of the best interests for the child and a practical approach to what is realistic in light of the family dynamics, work commitments and other responsibilities.

Section 61DA specifically states that the presumption of shared parental responsibility ‘…relates solely to the allocation of parent responsibility [and not] the amount of time the child spends with each of the parents.’

How are living arrangements determined?

The amount of time a child spends with each parent will depend on a number of factors.

In considering whether a child should spend equal time with each parent, the Court must be satisfied that it is in the best interests of the child to do so and that such arrangements would be reasonably practical. If equal time living arrangements are not appropriate, then the Court will consider the child spending substantial and significant time with each parent.

In addition to the matters already outlined above, the following will be relevant in determining the best interests of the child:

  • any views expressed by the child;
  • the nature of the existing relations between the child and his or her parents as well as any other significant people such as grandparents and other relatives;
  • the extent to which each parent has already participated in the child’s life;
  • the likely effect on the child or any significant change in circumstances;
  • the age and maturity of the child;
  • any cultural matters that should be considered.

Factors taken into consideration regarding the practicalities of an equal time arrangement include:

  • how far apart the parents live;
  • the proximity of each residence to the child’s education centre or child care;
  • the parents’ capacity to implement equal time arrangements;
  • the parents’ willingness and ability to communicate, resolve conflict and deal with any issues that may arise;
  • the availability of the parents both physically and emotionally with consideration to work commitments, commitments to other family members and before and after school care options.

Conclusion

Shared parental responsibility means working with your ex-partner to make important decisions about your child’s life.

The Family Court has significant discretion and will take a comprehensive approach to determine what is in a child’s best interests when deciding living and other arrangements.

Court proceedings should be a last resort to determine children’s matters and separated couples should be cooperative and flexible to ensure that the children’s best interest are the paramount consideration.

By resolving disputes through mediation, separating couples can avoid the cost and anguish of attending Court in circumstances that are usually already fuelled with emotion.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Affordable break-ups – the sensible approach to dividing property

If you have recently separated, one of the concerns you will probably have is the size of your legal bill after your property matters are sorted.

Below are our top tips for keeping your family law property costs down without skimping on sound legal advice.

Tip 1 – do the groundwork yourself

A specific process is used when negotiating a property settlement. The first step is to identify the parties’ assets, liabilities and financial resources. This information is critical to determine the division of your property.

Compiling your financial information early in your matter and presenting it in an organised fashion has many benefits. It can be used at any stage – from negotiations, during dispute resolution and if necessary, for Court proceedings. As well as having a snapshot of your asset pool to assist in negotiations, you will likely save on costs associated with others having to arrange the information on your behalf.

When listing assets include their approximate value. Most local agents will provide a written market appraisal for real estate at no cost. For motor vehicles, you can visit www.redbook.com.au and obtain a printout of private sale figures for particular models.

Remember to include all assets – those that are jointly and individually held as well as those that are held with a third party. Assets comprise real estate, motor vehicles, furniture, art, antiques and collectables, shares, investments, superannuation, cash and business interests.

When listing liabilities include mortgages, loans, overdraft facilities and credit cards and for financial resources include wages, and income from other sources such as rental properties, dividends, business and company interests. Bank statements, share information and superannuation statements can easily be downloaded from the internet.

If relevant, financial returns for companies or partnerships should also be included and, if possible, the last three years’ tax returns for each party.

Tip 2 – Don’t avoid or put off getting legal advice

The sooner you know your rights the better. Many separating couples attempt to finalise their own property settlement or avoid settling their financial matters altogether. This is dangerous for several reasons. Failing to close joint accounts or to transfer assets is messy, leaves the parties vulnerable to future claims and makes it difficult for them to move on. It may also preclude them from getting credit with a subsequent partner and opens the potential for dispute.

Do It Yourself property agreements made in the absence of legal advice, often contain ambiguous provisions and are unenforceable. Without a complying Financial Agreement or Consent Orders (see below) parties are generally unable to access important stamp duty and tax concessions when it comes to transferring real estate from one to the other.

Family law is discretionary, and no two cases are the same. Investing in an initial interview with a family lawyer will provide guidance as to a likely settlement outcome and a basis from which to start negotiations.

Your lawyer will recommend any urgent measures you may need to take to protect property, advise you of your legal rights generally, and discuss the financial and other implications of a likely settlement. Your lawyer will explain the impact that your separation has on your Will and provide guidance on reviewing your estate plan.

Money spent early after separation on sound legal advice can return significant savings down the track.

Tip 3 – If possible, avoid going to Court

Generally, Court proceedings should be an option only when urgent orders are critical, the matter is highly complex, or when one or both parties are intractable, and a settlement is impossible.

Court proceedings exhaust time, money and emotions, and can usually be avoided. Most matters can be (and are) resolved and legally finalised by entering into a Financial Agreement or Consent Orders.

A Financial Agreement is a legal contract between the parties that sets out how their property matters will be resolved.

The agreement may provide for the closing of bank and loan accounts, the payment of money by one party to the other, the retention by one party of certain property such as a motor vehicle or furniture, transfer of the family home in exchange for a sum of money or the marketing and sale of real estate and distribution of the proceeds.

The parties are expected to cooperate in good faith and to uphold their obligations under the agreement and fulfil all requirements.

Financial Agreements are not approved or registered in Court – to be enforceable they must comply with the formalities prescribed by legislation. Each party will need to obtain independent legal advice before signing the agreement.

Consent Orders are considered more formal than Financial Agreements because they must be approved by a Registrar of the Court. An application for Consent Orders must include full financial disclosure by both parties and will be approved if the Court is satisfied that the orders are just and equitable.

Consent Orders will provide for the same types of matters as a Financial Agreement and can also include orders concerning any children of the relationship.

Tip 4 – Don’t stress the small stuff

You should never forfeit your legal rights however there are times when it is practical to agree to disagree, let things slide and move on. When emotions are involved it’s easy to get bogged down in minor issues that get in the way of a resolution and ultimately have little impact on the outcome.

For example, the difference argued in the value of a motor vehicle can soon be depleted by the costs of disagreeing, particularly if lawyers are instructed to get involved. Formal valuations cost money and are justified in many cases, however unless the motor vehicle is an irreplaceable classic, a middle-range figure obtained from Redbook should usually suffice.

Of course, there is little you can do if your ex-partner is antagonistic and fails to relent but maintaining composure should eventually prevail.

Conclusion

In between an informal or non-existent property settlement and a protracted battle where the parties refuse to budge, lies a fair and effective resolution that keeps legal fees in check.

These are just some of the ways you can use your time and resources wisely to help finalise your matter cost-effectively.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

We’re still friends, why do we need a ‘legal’ property settlement?

Many couples separate on good terms, which is great. The breakdown of a relationship can be difficult, however putting differences aside to move forward can be beneficial, particularly where children are concerned.

Ex-partners who remain on good terms may choose to make informal arrangements regarding the division of their property. However, the failure to legally document a property settlement can be unwise, particularly where the parties have acquired assets and / or liabilities, or where either have had their own assets prior to the relationship.

In most cases, even if you are a ‘happily separated couple’, there are many reasons to seek independent advice and have your financial affairs legally finalised. Following are some of these reasons.

Stamp duty concessions

The transfer of certain property, particularly real estate, is generally liable to stamp duty. However, certain exemptions from duty apply for transactions that are documented in a financial agreement or consent orders pursuant to the Family Law Act 1975 (Cth).

The exemptions are reflected in stamp duty legislation across different jurisdictions in Australia and can result in substantial savings. An informal agreement does not meet the prescribed requirements to obtain these concessions.

Taxation implications

Understanding the tax implications of a proposed property settlement and structuring the division of assets accordingly can have a significant impact on the net result for both parties.

Capital Gains Tax (CGT) is the financial gain made on the disposal of an asset. It is assessable income and must be included in a tax return.

Although the transfer of a matrimonial home between a separating couple does not generally attract CGT under the main residence exemption provisions, CGT liabilities may be triggered when transferring assets such as investment properties, collectables and certain other personal items. The Income Tax Assessment Act 1997 (Cth) however provides roll-over relief pursuant to a financial agreement or consent orders made under the Family Law Act. This means that any CGT liability is deferred until such time as the asset is later transferred by the party acquiring it, although the asset will remain subject to the same CGT conditions as it was before the transfer.

A potential future CGT liability is an important consideration when negotiating a property settlement. Care should also be taken when dealing with companies and trusts where various transactions could raise CGT issues.

Although family lawyers do not provide financial advice, they can flag potential tax issues and recommend working with an accountant to ensure a property settlement delivers the most viable results and avoids, wherever possible, unexpected tax liabilities.

Claims on post-separation assets

An informal property settlement is not legally recognised as bringing the couples’ financial affairs to finality, even if negotiations have been put in writing. Not only is an informal agreement insufficient to obtain relief from stamp duty or relevant tax exemptions, the parties are unprotected against a range of potential issues down the track. These include a subsequent claim by either party on post-separation assets, income and inheritances. The parties are also left vulnerable should one of them become bankrupt and the joint ownership of assets has not been severed.

The failure to formally discharge obligations under a joint loan or guarantor arrangements can also leave a party in a precarious financial state.

An informal settlement may not preclude one party, particularly if his or her financial circumstances change, from applying for a different division of property through the Court at a later time.

Finalising your property division

Once separated parties have agreed on the division of assets and liabilities, and obtained independent legal and / or financial advice, the negotiations can be made legally binding through a financial agreement or by consent orders.

A financial agreement is a contract between the parties – each have certain rights and responsibilities and must perform their obligations according to its terms. Financial agreements are not approved or registered in Court but, provided they are properly prepared, and each party obtains independent legal advice, they are generally enforceable by a Court.

Consent orders are similar to financial agreements however a Court must approve the proposed orders. The parties to consent orders do not need to attend Court for the orders to be finalised.

Financial agreements or consent orders may provide for a range of matters concerning the division of assets and liabilities, including:

  • the transfer of property from one party to the other;
  • the payment of funds in exchange for the transfer of property;
  • the sale of real estate or other property including terms regarding the appointment of an agent, method of valuation and distribution of surplus funds;
  • the splitting of superannuation;
  • requirements for paying out loans, credit cards and closing bank accounts;
  • financial support (maintenance) of one spouse by the other; and
  • any incidental issues.

Conclusion

Generally, family lawyers will support a reasonable agreement reached between a separating couple. In doing so however, they will ensure their clients are fully aware of the implications of a proposed property settlement, flag potential taxation issues and address future matters that may not have been contemplated between the parties. The negotiations can then be recorded in a legally binding agreement that meets the requirements for stamp duty concessions and, where relevant, tax relief.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Can I secretly record my spouse?

We’ve all had times when we can’t recall a conversation someone else swears we had. Often, one person in a relationship is more adamant about their memory than the other person. Usually, those mini-disputes are minor blips in an intact relationship. But what if it’s no longer an intact relationship? What if the “he said/ she said” dispute becomes part of family law proceedings?

One party might be tempted to secretly record their conversations with their ex-spouse or partner. But, is that lawful, and even if it is, is it a good idea?

Is it lawful to intercept a phone conversation?

The short answer is no. It is a federal offence to intercept (or tap) a phone conversation or other form of telecommunication. There are, of course, exceptions for ASIO, the police and similar organisations, but those exceptions wouldn’t apply in a family law situation.

Similarly, Australian law generally prohibits the recording of a private conversation between other people, to which the person doing the recording was not a party.

But what if you’re a party to the conversation?

Whether or not it’s lawful to secretly record a conversation (phone or otherwise) to which the person doing the recording is a party depends on the State or Territory in which the recording takes place. That is, such secret recording are permissible in Victoria, Queensland and the Northern Territory. However, it is prohibited in the other States and Territories – the ACT, New South Wales, Tasmania, South Australia and Western Australia.

The penalties for breaching the laws about intercepting or secretly recording a conversation vary, but can include paying damages to the other person and a term of imprisonment.

Can a secret recording be used as evidence in the Family Court?

Again, that will depend on where the recording took place and whether it was lawful in that State or Territory. In other words, if the secret recording took place in Victoria, Queensland or the NT and was, therefore, lawful, that recording could be used as evidence in family law proceedings.

However, if the recording was made in one of the States or Territories in which it is prohibited (ACT, NSW, Tasmania, SA and WA), the Court would have discretion whether or not to admit the recording into evidence. The Court would weigh up the benefit to the determination of the case in admitting the recording evidence, compared to the detriment to the parties and the justice of the case in allowing one of them to rely on illegally obtained evidence. Further, just because the illegal secret recording is admitted into evidence, the person who made the recording may still be liable to prosecution or damages for their offence.

Even if it’s lawful, should you do it?

The answer to this question will, of course, depend on the particular circumstances of the individual case. In a case where there are serious, regular disagreements about who said what and when, perhaps because drug or alcohol abuse or significant mental illness are involved, secretly recording conversations might be justified, in those jurisdictions where it is legal to do so.

However, even in cases where the secret recording of conversations might be tempting or may even seem warranted, before embarking on that course of action, the person wishing to do the recording should consider the future impact of considerable breakdown of trust in their relationship with the other person. It would be difficult, if not impossible, to continue to trust someone if you find out they have been recording their conversations with you without your knowledge. Ongoing trust between a separating couple is particularly important where children are involved and the couple need to share a parenting relationship into the future.

A middle ground option to secretly recording conversations with an ex-partner, regardless of whether or not it is lawful to do so in the particular jurisdiction, would be to make detailed notes of the conversations, as soon as possible after the conversations have ended. Such notes would be of significant benefit in preparing evidence for any family law proceedings, without jeopardising trust by secretly recording the conversations.

Conclusion

Whether or not it is lawful to secretly record a conversation, phone or otherwise, with an ex-partner depends on the State or Territory in which the recording is made. If the recording is unlawful, not only is there a risk that it will not be admitted into evidence in family law proceedings, the person making the recording could be liable to both civil damages and criminal prosecution. Even if it is lawful to secretly record a conversation with an ex, it isn’t necessarily a good idea to do so. A safer course of action might be to make notes of, rather than secretly record, the conversation.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Risks of purchasing property after separation and before financial settlement

If you have recently separated and wish to move on with your financial matters, it is important to close off on your previous property affairs with your ex-partner first.

Whilst it might be tempting to purchase real estate or other assets, particularly if you find a ‘great buy’, there can be issues if you do so before finalising property matters with your ex.

What are the issues?

The Family Law Act 1975 (Cth) requires parties to make genuine efforts to resolve disputes and to follow pre-action procedures before commencing Court proceedings.

Part of this process includes a duty of disclosure – parties must exchange information and documents (whether or not these are known to both parties) that are relevant to an issue in the case.

The disclosure obligations exist from the beginning of the matter and continue until the case is resolved. This means that a party must disclose new information when certain circumstances change or further documents that come to a person’s attention.

Disclosure is important so that an understanding of the parties’ asset pool can be ascertained and the parties properly advised of their legal rights and entitlements.

The acquisition of a new property will certainly fall within the disclosure requirements whether or not you consider your ex-partner should be privy to the details. Consequently, if you purchase property, either alone or with a new partner, this fact will need to be disclosed and the property will become part of the asset pool.

Disclosure will mean providing the address, purchase price and details of any loan or mortgage over the property, and of course details of any third party who is registered on the title. This is unlikely to be ideal however failure to disclose the new acquisition will be considered non-compliance with your obligations and may attract serious penalties.

Whilst the Court has a discretionary role in family law matters and will take into consideration the circumstances and financial contributions towards the new asset, it is safer to be certain that the acquisition of new property does not adversely affect your property settlement rights. Consequently, it is advisable to wait for a clean break before jumping into the market again.

Settling your financial affairs out of Court

Even if you and your ex-partner agree on how your property should be divided it is important to formalise your negotiations through a financial agreement or by filing consent orders in the Court.

A financial agreement (often referred to as a binding financial agreement) formalises how property is to be divided. The agreement may include the transfer or sale of real estate or other assets, the distribution of proceeds from the sale, the paying out and closing of credit cards or other loan accounts, the transfer of liabilities between the parties and the ongoing payment towards certain expenses.

When negotiating the agreement, parties must be honest in their dealings and give proper disclosure of their assets and financial resources.

Each party must obtain independent legal advice and, if prepared in accordance with the statutory requirements, financial agreements can be a less formal and cost-effective solution to dividing property. The agreement will be binding on the parties with the same force as any other contract.

Alternatively, separating couples may be advised to have their agreement endorsed by the Court through consent orders. This is a more formal process because the Court will need to approve the proposed orders.

An application for consent orders must include full financial disclosure by both parties and the Court will only approve the orders if, on the information provided, it is just and equitable to do so.

Because of the Court’s involvement in consenting to the orders, in certain circumstances, they can provide greater finality than a financial agreement.

Time limits

Separating parties should be aware of the time limits applicable in commencing proceedings under the Family Law Act 1975 (Cth) for a financial property settlement.

The grant of a divorce triggers a 12-month limitation period within which to commence proceedings for property settlement or spousal maintenance.

For de facto partners, proceedings must be commenced within 2 years of separation.

Whilst the Court may grant leave to apply out of the statutory time limits for extenuating circumstances, parties should endeavour to resolve their financial affairs without delay.

Conclusion

Full financial disclosure is essential to enable a lawyer to properly advise a party on his or her rights or a Court to ascertain the property pool if proceedings are commenced.

Disclosure obligations must be followed even if the parties settle their financial affairs without going to Court, and the parties have an ongoing obligation to disclose matters until their property settlement is finalised.

The decision to resist purchasing a significant asset before you have finalised your property settlement is likely a wise choice.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Obligations and consequences of parenting orders

A separating couple with children will need to work out the parenting arrangements for those children – where the children are to live and who may make decisions about the children.
If the couple can agree, their agreement can be formalised as Consent Orders (ie Orders made by the Court by consent). If not, the Court can decide the parenting arrangements for them.
In either case, the Court will only make orders that it considers are in the children’s best interests.

Structure of parenting orders
Parenting orders, whether made by consent or otherwise, will cover topics such as with whom the children are to live and spend time, and which parent may make decisions in relation to the children’s day to day and long term care, welfare and development. Theoretically, each aspect of a parenting order, whether made by consent or after a contested hearing, is as binding and enforceable as a Court order about the parties’ finances.

Enforceability
Unfortunately, that theory is not always borne out in practice.
It can sometimes be difficult to prove a breach of parenting orders. How does one demonstrate to the Court that one’s former partner breached the order requiring him to communicate with you in relation to decisions regarding the children’s long term welfare?
Even if your former partner is completely unwilling to compromise, the fact that she attempted to “discuss” the issue with you may satisfy the Court that your right to consultation was respected.
Surely it would be easier to prove a breach of a parenting order relating to time with the children? It is likely to be obvious whether the children spent the ordered time with you.
However, before the Court will treat a parenting order as having been breached, it must first consider whether the “guilty” parent had a reasonable excuse for failing to comply with the orders. For example, was it reasonable for the “guilty” parent not to facilitate the other parent’s time with the children on the basis that the children allegedly don’t want to go and “I can’t make them”.
Whether or not that constitutes a reasonable excuse depends on the facts of each case, including the age of the children and the steps that the parent did take to try to encourage the children to spend time with the other parent.

Consequences of breach
If a Court is satisfied that a parenting order has been breached, it has a range of penalties available to it to either punish the “guilty” parent, to “compensate” the innocent parent or to enforce the parenting orders. Those options include:
• requiring one or both parents to attend a parenting after separation course
• ordering that the children spend additional “make up time” with the innocent parent
• changing the parenting orders. This could mean that the children ultimately regularly spend more time or even live with the “innocent” parent
• placing the “guilty” parent on a bond or sentencing him or her to imprisonment.
In relation to the last three of those options, the Court’s overriding consideration is still the children’s best interests. There have been a number of cases where, despite proven and repeated breaches of parenting orders by the parent with whom the children live, the Court has not drastically changed the earlier parenting orders, nor was the “guilty” parent put in gaol because the Court was concerned that the imposition of such consequences would not be in the children’s best interests.
Unfortunately, the practical outcome in those cases was that the “guilty” parent’s breach of the parenting orders went unpunished.
In such cases, the Judge must reconcile her desire to uphold the Court’s orders and punish any breach of them with the Court’s overriding obligation to only make parenting orders that it considers to be in the children’s best interests.

Consequences for taking children overseas
One type of breach of parenting orders which deserves special mention is where a parent breaches and tries to avoid the operation of Australian parenting orders by taking the children overseas. Such a situation is treated very seriously by the Family Court, the Federal Police and relevant international authorities.

Conclusion
Parenting orders can be made by consent or as a result of a contested hearing before a Judge. The enforceability and consequences for breach of parenting orders is the same, regardless of how those orders were made. Unfortunately, proving a breach of parenting orders and obtaining what the “innocent” parent might consider to be adequate redress can sometimes be difficult.
Given that all parenting orders, whether consent orders or otherwise, are made taking into account the children’s best interests, both parents would be better advised to comply with the orders, rather than litigate about an alleged breach of them, as such compliance ought to promote the children’s relationship with both parents and the children’s best interests.
If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Visas and domestic violence

Family violence is not acceptable or tolerated in Australia.

If you are living in Australia on a visa and experiencing family violence you will likely be very concerned, not only about your wellbeing, but the future of your residency here.

If you are on a temporary partner visa or you married whilst on a prospective marriage visa and you or your dependants have experienced abuse, the family violence provisions provide that the grant of a permanent visa may still be considered, despite the breakdown of your relationship.

In other words, you should not be prevented from continuing with an application for permanent residency, for having ended a relationship because of violence.

These provisions are aimed at ensuring people do not stay in abusive relationships simply for fear of being deported.

If you or your dependants have experienced violence and your relationship has ended, it is important to get legal advice, so you can consider your options and, obtain the relevant supporting information to make a family violence claim.

What is family violence?

Family violence is conduct, either actual or threatened, that causes you to fear for your safety or wellbeing. The conduct can be directed at you, your dependants (children) or your property. Family violence includes physical and psychological harm, forced sexual relationships, isolation and financial deprivation.

To continue with your visa application, you must prove to the Department of Immigration that:

  • your relationship was genuine until it ended; and
  • family violence took place during the relationship.

Proving family violence

A family violence claim may be supported by judicial evidence or non-judicial evidence.

Judicial evidence can be proven by a court ordered injunction or restraining order made against your ex-partner either under the Family Law Act 1975 or under a state or territory law. Alternatively, a court conviction or finding of guilt made against your ex-partner for assault against you or a dependant can be used.

Upon presentation of judicial evidence, a decision maker must make a finding of family violence against the victim. This of course provides a more streamlined process for an applicant to prove the existence of family violence and continue with the permanent residency visa application.

Non-judicial evidence requires the applicant to complete a statutory declaration. This is a sworn or affirmed statement made by you attesting to the truth of the facts contained in the statement. The statutory declaration sets out the events regarding the family violence and names the person alleged to have committed the violence.

The statutory declaration must be supported with two other forms of evidence from at least two of the following categories:

  • a medical or hospital report or discharge summary, or statutory declaration from a registered medical practitioner or nurse;
  • a record of assault, police report or statutory declaration by a police officer or witness statement provided to a police officer during an investigation;
  • a report or statutory declaration made by an officer of a child welfare or protection authority;
  • a letter of assessment or report from a staff member of a women’s refuge or family/domestic violence crisis centre;
  • a statutory declaration made by a social worker who has provided counselling and assistance to the alleged victim;
  • a statutory declaration made by a registered psychologist who has treated the alleged victim;
  • a statutory declaration by a counsellor or family consultant from a Family Relationship Centre;
  • a statutory declaration made by a school counsellor or school principal.

The documents must generally identify the alleged victim of violence and perpetrator. The Regulations set out the specific criteria to be addressed for each category of evidence. For example, medical documents should provide details of the physical injuries sustained or mental health treatment provided for a condition that would be consistent with the psychological abuse claimed.

What next?

Once family violence is established, a visa applicant may be granted the visa applied for, providing he or she still meets all other relevant criteria.

If the Department of Immigration is not satisfied, on the evidence provided, that family violence has occurred, it must seek, and rely on, the opinion of an independent expert.

Policy currently requires that all evidence submitted (even if more than what is required) must be considered by the decision maker. Accordingly, in some cases it will be beneficial to provide as much evidence as possible.

Conclusion

Special rules apply which allow victims of abuse who are on certain visas to qualify for permanent residency despite the breakdown of their relationship.

The regulations require proof of family violence before a permanent residency application can be further considered.

Victims of family violence are urged to contact an experienced migration agent or immigration lawyer to ensure that their rights are fully protected, and the  appropriate evidence can be obtained to support an application for permanent residency.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

How marriage & divorce can affect your Will

Why, you might ask, would marriage or divorce have anything to do with your Will? Why indeed! The reality is that only about one in two Australians, whether married or divorced, have a valid Will. Of those who do, many haven’t looked at their Will since they signed it, and perhaps have forgotten what it says. And they’re likely to be unaware of the unintended consequences that marriage and divorce can have on their otherwise valid Will.

In Australia, laws relating to marriage and divorce are made by the Federal government. Wills are governed by State and Territory laws. While similar, there are some important differences from State to State or Territory.

Marriage and your Will

Getting married is a time of joy, looking forward to a long life together, not a time when you want to be thinking about the end of your life. But when preparing to promise to be together until “death do us part”, you need to also think about what will happen when death does, in fact, part you. This is particularly important in the case of second marriages and blended families.

In general terms, marriage revokes a Will. That is, by saying “I do” you invalidate your Will. If you die without making a new Will, you could be leaving it up to the government, not you, to decide how your estate is distributed. If there’s just you and your new spouse in your family, perhaps that’s okay. But in today’s world, that’s often not the case.

There are some exceptions to the rule that marriage revokes a Will. NSW, Victoria, Tasmania, Queensland and the Northern Territory allow appointments of your spouse as executor and gifts to him or her in your Will to remain valid after a marriage. However, the rest of your Will would be revoked. That means some of your wishes may not be followed in the event of your death.

In ACT, South Australia and Western Australia even gifts to your spouse or appointing him or her as executor would be revoked by your marriage. The Will as a whole would be invalid.

It is possible to make a Will in contemplation of marriage – of a specific marriage or of marriage generally – which would still be valid after a subsequent marriage. Alternately, you could have Wills prepared to be signed at your wedding, immediately after signing your Marriage Certificate. Not very romantic, perhaps, but pragmatic.

 Divorce and your Will

Generally, divorce treats a reference to your former spouse in your Will as if he or she died before you. That is, the rest of your Will would still be valid, but your ex-spouse would not be appointed as executor and would not receive anything from your estate, regardless of what the Will says. However, there are some exceptions to this, which differ throughout Australia.

Firstly, except in Tasmania, if the Court finds that the deceased intended for his or her ex to receive a gift from the estate or be appointed as executor notwithstanding their divorce, that gift or appointment would still be valid. In South Australia, that intention must be expressed in the Will. Elsewhere, the Court may be satisfied about the deceased’s intention through other evidence. Of course, that opens up the possibility of a Court battle about the deceased’s intentions. Not what anyone would want to happen after their death.

Secondly, if your Will appoints your former spouse as trustee of a trust to benefit people including his or her children, in NSW, Victoria, Tasmania, the Northern Territory and Queensland that appointment would still be valid, despite your divorce. Be aware that this relates to a trust created by your Will whose beneficiaries could include people other than your ex-spouse’s children. After your divorce, would you really want that to be the case?

Finally, the laws about the effect on a Will of the ending of a marriage relate only to divorce or annulment, not separation. That is, if you separate but remain married, your Will would take effect as if you and your spouse were still happily living together. Would that really reflect your wishes?

Divorce and your Will – Isn’t a property settlement enough?

So, you’re divorced, you’ve had a property settlement and you’ve even made a new Will. Leaving aside child support, that’s the end of your financial obligation to your ex, right? Wrong.

Some Australian States and Territories allow former spouses to go to Court and seek part of the deceased’s estate, regardless of the terms of the Will. NSW, ACT and South Australia allow such a claim, even if you have already finished a family law property settlement and your ex was not dependant on you when you died.

In Tasmania, Queensland, Western Australia and the Northern Territory, your former spouse needs to have been receiving maintenance or otherwise dependant on you at the time of your death to be able to claim on your estate. Victoria only allows such a claim to be made if, by the time of death, the deceased and his or her ex-spouse had not started or finished a family law property settlement.

If you are separated but not yet divorced, the situation about whether your estranged spouse can make a claim on your estate is even more complicated.

Conclusion

Marriage and divorce can have unintended consequences on your Will. When preparing to sign your Marriage Certificate, you also need to prepare to sign a new Will. Similarly, if your marriage didn’t turn out to be “happily ever after”, when thinking about dividing your assets while you’re alive, you should also turn your mind to the distribution or protection of your assets after your death.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au