Who stays in the home?

When your Ex Won’t Move Out…..

There are times when both parties wish to remain in the family home post separation.  You may feel you have a greater right to remain in the home; maybe it was your home prior to the relationship or marriage.  You perhaps made greater financial contributions to the home or have primary care of the children, or you simply may have nowhere else to go nor the financial resources to leave.

Whatever the reason in the event of family law separation both parties are legally entitled to live in the family home.  It does not matter whose name is on the ownership of the house. 

If you leave the house, you do not lose your rights to a share of the house, or other property. You can also legally protect your interest in the family home if your name is not on the title by placing a caveat on the property which registers your interest in it.

You cannot be forced to leave the property at the mere demand of the other party in the absence of safety concerns.   If there are no safety concerns, no court orders have been breached, the removal of one party from the residence cannot even be enforced by the police.

Can you change the locks?

It is generally not advisable to change the locks as a tool to evict a party from the property, in addition to increasing the acrimony between the parties it can also reflect poorly in any subsequent court proceedings.

If the property is owned by one party, that party has the right to change the locks, if it is jointly owned then both parties are able to change the locks.  If the property is being leased then the landlord should be consulted about the lock change.   Even if the party who is remaining in the property is not the legal owner, it can nonetheless be justifiable for them to change the locks if the other party has moved out and has removed their possessions.  It is argued that the remaining party is entitled to the peaceful enjoyment of their residence, similar to that of a tenant.

How can I get my partner to leave?

To legally force your partner to leave the home and stay out, you will need to obtain an exclusive occupancy order from the court.  These orders are usually only made in circumstances involving threats, domestic violence and/or safety concerns for one of the parties or their children or whether the children are being exposed to parental conflict.  

We would need to explore the pitfalls of remaining in the home with your former spouse – weight it up against what you want to achieve by remaining in the property and is there a better option for you.  For example, if the costs of establishing a new household is a deterrent, we may need to consider whether an application for urgent or interim maintenance to fund relocation would be appropriate.

Can I take the children with me?

You can take the children with you if there are concerns about your safety and the children’s safety.  However, if you want to move away with the children and the move makes it difficult for the other parent to see them you need to try to get agreement first.

If you are afraid to try to get the other parent’s agreement and are worried about your safety, we can speak to you about your options.

If your former partner refuses to vacate the home or wish to discuss your options prior to separation and your matter generally, you should contact our office to make an appointment on 9614 7111.

“Pet-Nups” - who keeps the pet?

Under Australian family law, pets are considered property. But for many people pets are more than property and often considered a member of the family.  One of the hardest problems to solve at the end of a relationship or marriage can be who gets to keep the pet cat, dog, fish, turtle, axylotl or snake.

 This may be able to be avoided at the start of the relationship or marriage with a legally enforceable agreement in place specifying who is to keep the pet.  A “pre-nup” or in this instance a “pet-nup” or “pup-nup” if it is a dog may be advisable.   

 Binding Financial Agreements under the Family Law Act 1975, allow to agree at the start of or during the relationship or marriage on how assets are to be divided if there is a separation.   One of the problems in enforcing a pre-nup after a long term relationship is that you are uncertain what the futures assets will be.   

You could have a “pet-nup” (a binding financial agreement) limited to just one asset which simply specifies who is going to own a specified pet.  Alternatively you could potentially say in the agreement that if a pet is purchased during the relationship/marriage then the person with proof of payment of purchase gets to own the pet.

It is important to remember that the law only specifies who gets to own a pet, the same way they would consider who gets to keep an asset, the law is not able to enforce "visitation" rights for pets.

If you do not enter into a “pet-nup” the Court has the power to make the orders with respect to property. This allows the Family Courts to make orders about who will have ownership and possession of a pet.  In determining which party is to retain the pet the Court may have regard to the following:

-       Which parties’ name the pet is registered in;

-       Which party undertakes the majority of the responsibilities in the care of the pet; and

-       Which party has appropriate housing for the pet.

A referendum was held in Switzerland in 2010 regarding a proposal by animal rights activists to appoint independent lawyers for pets as to time spent with each party representing the “best interests” of the pet. This proposal has not been adopted in Australia to date.  To talk to our animal-friendly family lawyers, call us on 03 9614 7111 or send an email to melbourne@nevettford.com.au

 

Family Reports in Parenting Matters

In parenting matters, it is more often than not that the Court will make an Order for a Family Report to be prepared. Usually the Court will pay for a Family Report for the parties. However parties can engage a private family reporter where they have the resources to do so, or there is a need for an earlier report that the Court would not be able to obtain in short order. This means that parties might be able to have their parenting issues resolved quicker than otherwise.

A Family Report is a document written by a Family Consultant appointed by the Court. Family Consultants are generally qualified psychologists or social workers with experience working with families and kids. An independent assessment will be made by the Consultant about substantial issues pertaining to the matter at hand and in particular, it will assist the Court in making decisions about children’s arrangements.

Preparation for your family report interview

The primary focus of the report will be in relation to a child’s or children’s best interests and ultimately the report will contain the Consultant’s recommendations about arrangements (short and long-term) that will best meet their future care, welfare and developmental needs.

The Family Consultant would have before the interview read all parties’ materials as well as any materials that have been subpoenaed to best understand and explore the issues relevant to each case. It is therefore important that you read through both your affidavit materials as well as the other party’s materials before attending your interview.

What do you need to be mindful about during the interview?

In some cases, your child/children will be interviewed separately from the parents to give them the opportunity to express their views (more so when older child/children is/are involved). In other occasions, the child/children will be interviewed together with each parent in order for observations to be made of the interaction between each parent and the child/children. There may be some occasions where the Family Consultant will also meet other third parties such as step-parents (or a party’s new partner) or grandparents.

Please be mindful that whilst the Family Report is to remain strictly confidential between the relevant parties within the proceedings, what is said to the Family Consultant is not confidential and will be included in the report. If the matter reaches Final Hearing, it is likely the Family Consultant will be called to give evidence, or cross-examined.

It is important that you put your best foot forward in a Family Report interview. In saying that, here are a few pointers to bear in mind:

·         Prepare in advance by reading all relevant Court materials, make some notes and bringing them with you to the interview;

·         Always be honest. You should voice your concerns clearly but remain child-focused as opposed to engaging in a mouth-off contest about the other parent;

·         Listen and think about your answers carefully before answering them.

What happens after the interview?

The report will be formally released (usually prior to a substantial Hearing) to all relevant parties. This report is strictly confidential and is not to be shown to any third parties including other family members without the Court’s permission.

Judges will often place significant emphasis/weight on the recommendations and views of the Family Consultant due to their expert and impartial status in the proceedings.

If you have any questions about your Family Report or wish for us to prepare you or any other questions regarding your parenting matter, please do not hesitate to contact our experienced family law team on 9614 7111.

Divorcing Over 50 – The Grey Divorce

Do you stay in a marriage that is over or risk financial ruin for happiness?  Unless you are a highly evolved Zen master your divorce is likely to “suck” – most do.

Getting divorced at any age is difficult. Everyone wants their marriage to work however divorcing later in life presents unique challenges and being newly single can be terrifying.   It is sometimes thought people “your age” are not supposed to get divorced.

If you are divorcing after 50, chances are your children may be teenagers or older. Their reaction may be unfavourable and even hostile. Be prepared to help older children cope with the divorce.  It’s also important to monitor your children’s feelings. Your kids may be older, but don’t assume it’s easier on them than it would be if they were younger.   You may choose to end your role as husband or wife, but your role as mother or father does not end. Handling your divorce process with your children in mind provides opportunities to share in their lives without the tension.

The financial consequences of a divorce can be significantly more damaging for older divorcing couples.  You may have dedicated your entire life to the family and marriage and have no professional skills of any kind. You have have been hard at work earning good money to support a family that now you feel has disappeared.  You may even already be retired, your assets fairly fixed and your employment opportunities may be limited.  There are now two households to support. 

An amicable divorce process will limit the cost of suffering financially and emotionally.  As difficult as dealing with all of these issues will be, one of the most significant impacts that divorce over 50 will have on your life is the inevitable financial strain.  The equitable division of assets and liabilities is a concern in almost all divorces and generally the older you are the more complicated your finances have likely become.

Given the typical level of assets and complexities it is important that you get legal advice, but doing so doesn’t mean you have to go to battle. No matter what kind of grey divorce you may be facing you have the power to choose how you handle it and we can assist you accomplish a more comprehensive and cost-effective dissolution of your marriage.   Even if your split is amicable it is important to seek your own legal advice early on.

Call or email us now for advice from one of our experienced and knowledgeable lawyers.

Family law Courts to be restructured, given new name

The Federal government announced today its intention to combine the existing two-Court federal family court system in Australia into one, larger Federal Circuit and Family Court of Australia (“FCFCA”) commencing 1 January 2019.

What does this mean for you though? Currently, there are two Courts, one that is the ‘higher’ Court – the Family Court deals with complex property matters, serious allegations of child abuse or  particularly serious parenting arguments, International parenting matters and protracted disputes; and the Federal Circuit Court deals with the bulk of family law matters.

At present, your lawyer has to decide which Court you ‘belong’ in when starting your case. It is often not easy to know this at the first stage, and choosing the wrong Court may mean that you are sent between Courts while this is clarified or when new issues arise. Additionally, starting Court proceedings for property disputes in the Family Court is currently ‘easier’ than in the Federal Circuit Court, as you are not required to file an affidavit in support of your application at first. Drafting a good, comprehensive and accurate affidavit in support of your case can be time-consuming (and costly) and so it is a quick option for lawyers in a rush to simply go to the Family Court even if the property case is not otherwise complex enough to justify being in that Court.

The combined Court will mean a single point of entry for all matters, which will then be directed in the right place. This might be considered a bit like ‘triage’ that a hospital might conduct, prioritising and assessing cases as they come in and linking them with services, hopefully sooner than they would be otherwise.

The additional factor to consider in the government’s announcement is that appeals from the FCFCA will no longer be dealt with by an appeals section of the Family Court, but will be dealt with in a new division of the Federal Court of Australia. What does this mean? Family law judges in the Family Court who currently spend time hearing appeals will be available to hear cases from the start, potentially meaning more front-line resources in terms of time and Judges.

Of course, at present this is just an announcement. Once the government releases its proposal in more details, we will be able to assess how effective this might be at clearing some of the delays currently affecting the family law system.

Adoption Visa – Australia (Subclass 102 visa)

The Australian Adoption visa (subclass 102) lets a child come to Australia to live with their adoptive parent. The child can already be adopted or be in the process of being adopted. The adoptive parent sponsors the child for this visa and usually applies on their behalf.

This is a permanent residence visa. If the adoption is through a State or Territory adoption authority, you can lodge the application before the adoption is finalised.

To apply for the Adoption Visa (Permanent) (Subclass 102), the child must be:

  • outside Australia when applying for the visa
  • adopted:

- with the involvement of an Australian State or Territory adoption authority (either under the Hague Adoption Convention, a bilateral adoption with a competent authority of another country, or another adoption agreement)
- under the laws of a country other than Australia and their sponsor or their sponsor's partner has and been living outside Australia for the 12 months before the child applies for the visa

  • sponsored by their adoptive parent or their adoptive parent's partner
  • under 18 years of age when the application is lodged and when it is decided.

The child must also be sponsored by an adoptive parent who is:

  • an Australian citizen; or
  • the holder of an Australian permanent resident visa; or
  • an eligible New Zealand citizen.

What this visa lets the child do

It allows the child to:

  • travel to and stay in Australia indefinitely
  • work and study in Australia
  • enrol in Medicare, Australia’s scheme for health-related care and expenses
  • apply for Australian citizenship (if they are eligible)
  • sponsor eligible relatives for permanent residence
  • travel to and from Australia for five years from the date the visa is granted – after that time they will need another visa to enter Australia

Guardianship of children adopted from overseas

  •  If an adoption is not finalised or if it is not recognised by a state or territory adoption authority when the child enters Australia, the Minister for Immigration and Border Protection will be the guardian of the child. The guardianship powers are delegated to state and territory welfare authorities.
  • The minister stops being the guardian if any of the following occur:

- the child becomes an Australian citizen
- the child turns 18 years of age
- an Australian adoption order is made for the child

Adoptive parents living in Australia

Your relevant Australian State or Territory Central Adoption Authority (STCAA) must be involved in managing the adoption process with the country where the child is living.

If you are considering adopting a child from outside Australia, you should contact the central adoption authority in your State or Territory.

Privately arranged adoptions

Australian STCAAs do not generally support privately arranged adoptions either from in or outside Australia, including the adoption of children who are relatives. They are not able to help children or sponsors to meet the eligibility requirements for granting a visa to an adopted child.

Important: If you want to proceed with an adoption from outside Australia, which has not been arranged by your STCAA, it is strongly recommended you first seek legal advice both in Australia and in the country where the child lives.

Adoptive parents living outside Australia

Adoptions that are undertaken by Australian citizens, permanent residents or eligible New Zealand citizens who usually live in countries other than Australia, and that are arranged without the assistance of an Australian STCAA, are known as expatriate adoptions.

It is important to obtain appropriate advice before embarking on the adoption process.  Nevett Ford Lawyers has expertise in all aspects of the adoption visa process and can provide advice and assistance.

Please contact us today for further information:

Telephone: +61 3 9614 7111

Emailmelbourne@nevettford.com.au

Is your Recovery Order Application warranted?

Recovery orders are usually made for a child to be returned to their primary carer, or the parent with whom a parenting order states the child lives with or the parent who has parental responsibility for the child.

In Renald & Renald (No.2) [2017] FamCAFC 133 (14 July 2017) on appeal, Thackray J set aside a Magistrates’ Court refusal to make a recovery order for the Mother. In this case the Father withheld the children after the Mother agreed to him having the children outside Interim Orders, saying the children did not wish to return to the Mother. Thackray J said that an order requiring the child to be returned “may send a message to the legal profession and their clients that the Court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk”.

On one hand, parents should not be taking matters into their own hands, particularly swaying away Court Orders, including unilaterally withholding a child or removing a child from his/her primary carer where no evidence of risk is present. Aside from the fact that there is a potential breach of the Orders, you may run the risk of a recovery application with an order for costs made against you.

On the other hand, before rushing off and making an application for recovery order, it is always sensible to see if the situation can be resolved between the parents outside Court. It might be worthwhile sending a text to the other parent withholding the child setting a deadline, for example – “you are currently in breach of the Orders, unless you return the child back by 10:00am tomorrow, I will have to take legal actions in Court”. The Court would want to see that you have taken steps to find the child and made several attempts to negotiate with the other parent for the child’s return before taking appropriate action to involve outside authorities such as the Australian Federal Police to find, recover and deliver the child to you. It is also important that you collect as much information as possible about where the child is likely to be to increase your chances of recovering the child. Therefore your Affidavit material is absolutely crucial in this circumstance.

If all else fails and the child is still not returned to you, consider seeking legal advice from our friendly and experienced family lawyers who can assist you promptly through this emotional and difficult situation.

Same Sex Parenting

The law relating to same-sex parenting is complex and diverse. Firstly, we need to understand that in Australia, legislative power is divided between the Commonwealth and state governments. What that means is, whilst the Commonwealth Government is primarily entitled to legislate specific issues, those that are not expressly or impliedly vested under the Commonwealth remains within the legislation of the state government. In Family Law for example, the legislative power to determine whom a child should live with post-separation or declaration of parentage rests with the Commonwealth, whilst issues such as adoption, access to assisted conception procedures and surrogacy arrangements is vested in the states. This means that each state may pass legislation that may well overlap the Commonwealth legislation. Provisions in the Family Law Regulations 1984 (Cth) are established to create a link between the state and Commonwealth Family Law Act 1975 (FLA).

In circumstances where the law fails to recognise a person as a legal parent, it may nevertheless be possible for the Family Courts to make a parenting order in favour of such a person (section 64C of the FLA). Section 65C(c) of the FLA states that an applicant can be “any other person concerned with the care, welfare or development of the child”.

In Victoria, the Assisted Reproductive Treatment Act 2008 allows women and lesbian couples to access assisted conception procedures. Certain criteria must be met before a woman and her partner (if any) may access this procedure, for example Victorian Criminal (Police) Record Check and Child Protection Order check prior to commencing treatment. In other states such as New South Wales where Assisted Reproductive Technology Act 2007 applies, different legislation regulates access to assisted conception procedures.

The FLA in 2008 was amended to recognise both members of a lesbian partnership as parents of a child born of an assisted conception procedure (Section 60H FLA). This applies as long as the biological lesbian mother was married to, or is a de facto partner of the other intended lesbian co-mother, and the parties both consented to the carrying out of the procedure.

Meaning to say, in the scenario of a lesbian partnership who had a baby from an anonymous donor and raised this child at separation may apply for a parenting order under this Act – on the basis that the couple has been living together in a de facto relationship/marriage at the time of conception, and that both lesbian parties have consented in writing to the procedure/treatment being undertaken. Otherwise, the non-biological mother may not be legally considered to be the other parent of the child.

Section 13 of the Status of Children Act 1974 (Victoria) states that the man who produced the semen used in the procedure is presumed not to be the father of any child born as a result of the pregnancy, or has no legal status in respect of the chid, whether or not he is anonymous.

The scope of Section 60H of the FLA is limited to a child having two parents. The legislation approach proves to be challenging in more complex scenario, for example, where a lesbian couple and gay male couple choose to co-parent their child conceived through assisted conception procedure, as was in the case of Wilson v Roberts (2010). In this case, the Court found that the two women were the parents of the child, not either of the men.

In a scenario where a gay male couple have a child through ART, this child will have a birth mother (woman bearing the child) and two gay co-fathers. If the child is conceived through intercourse, the gay biological father will be the legal parent with the child’s birth mother. Whilst the birth mother will be the legal parent/mother of the child, the parenting presumption does not favour a gay co-father or gay couple, unless the birth mother allows the couple to adopt the child. Gay male couples also apply to the Family Court of Australia for a parenting order as ‘other people significant to the care, welfare and development’ of the child. Gay male couples who do not formalise their parental rights in this way will not have the legal right to make decisions in relation to their child.

It is also important to recognise that in States where commercial surrogacy is not permitted under State law, then parties who have entered into a commercial surrogacy arrangement (for example, overseas), will not be recognised as parents in the same way as couple who enter into 'altruistic' surrogacy arrangements can be.

Parenting orders covered under the FLA may include parental responsibility involving long-term decisions regarding the child’s welfare or where and with whom the child will live or spend time with. It is important to keep in mind that in considering all scenarios, the FLA makes the best interests of a child as a primary consideration in all decisions relating to children.

File an application immediately if your child is relocated away from you

Often, parents are so shocked or devastated when their former partner takes some sort of unilateral action with their child(ren) that they do not do anything for some months. Recently, an application to list a mother’s application urgently was declined even though her 12-year-old child was unilaterally moved more than 600km away from her by the father in January 2017. This was the matter of Quong & Bush [2017]FCCA1765.

The mother was not granted permission by the Court to have an urgent because the child was not at risk of harm in the current arrangement. These types of decisions are made in the first instance by a Registrar of the Court.

The mother decided to seek a review of this decision by a Judge. Judge Terry concluded that the child was not at risk of harm in the current arrangement and the Court has to prioritise cases involving those children who are at risk of harm. These might include babies who have been take from their primary carer, cases involving severe family violence, cases in which one and sometimes both parents are using ice, cases in which there are serious alcohol abuse issues and cases in which one and sometimes both parents have serious mental health issues.  Limited Court resources do not allow a case in which there are no risks of harm issues to be prioritised over other cases competing for judicial time. This emphasises why you should take action quickly, as it emphasises any perceived risk, and worst case, ensures you are listed for hearing sooner.

The Courts are however generally disapproving of a parent unilaterally relocating a child far away from the other parent concerned, unless the relocation can be justified by the existence of some form of emergency or threat to the child or the parent.  Each case is decided based on the individual facts of the case, and there is limited guidance from the Family Law Act as to how these cases should be determined. The discretionary nature of the child’s ‘best interests’ means that it is difficult for parties undertaking relocation to navigate the process on their own.

If you have separated and are thinking about relocating with your children, or you are aware that the other parent is, you should seek advice about the best way to go about it from our experienced Family Law Team by calling 03 9614 7111.

Don't assume your partner will get half of your asset's increase in value!

It is a prevailing shorthand for many family lawyers that a starting point in a property division for clients is to work out what each party had at the beginning of the relationship, apply a percentage to what they have now, and estimate that your contributions otherwise during the relationship are '50/50'. However, a new case has emphasised the risks in taking this shorthand approach in some situation.

In the matter of Anson & Meek [2017] FamCAFC 257 (http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/257.html), the trial Judge found that the Husband had brought in a property worth about $1,000,000 at the beginning of the relationship. That property had increased in value to almost $2,000,000 at the time of the family law trial. The assessment of contributions during the relationship, although not linked explicitly to this calculation, meant that the Wife was treated as having contributed half of the increase in value.

The Full Court took issue with this outcome, and identified that in fact the increase in value of the property was not solely due to the financial and non-financial contributions of the parties during the relationship (including homemaking duties), but also to prevailing market factors. In fact, a very large proportion of the increase in value was connected to the increase in the land value of this rural property, rather than the increase in value of the home itself. It would stand to reason then that the Husband should have a greater percentage contribution attributed to him, as without his initial capital to buy the property, the parties would not have been in a position to profit so handsomely.

The case seems to indicate that the Court should not neglect the concept of 'springboarding' when looking at assets such as these. It is important that you have a lawyer who understands these concepts and is able to dig into the detail of your assets, rather than treating your assets generically. Our lawyers at Nevett Ford Lawyers Melbourne are fully across this issue and will be able to provide you with the advice you need to get the outcome that is appropriate. You can call us now for more information on 03 9614 7111.

Australia said YES......to same sex marriage, and also same sex divorce!

Until now, same-sex couples who got married in another country where same-sex marriage has been available, but reside in Australia, were not able to obtain a divorce in Australia after their relationship had irretrievably broken down. This has changed overnight after the same-sex marriage bill passed the House of Representatives on the night of 7 December 2017.

Whilst Australian law allows people who entered into a polygamous marriage overseas to divorce here, it did not give the same right to same-sex couples. This was because the Family Law Act recognises polygamous marriages to be a marriage, but did not extend the same recognition to same-sex marriage. It has been 13 years since the Howard government changed the Marriage Act to ensure same-sex marriage could not be legal in Australia.

We are proud to confirm that after years of debate, a postal survey, and a long afternoon of amendments, same-sex marriage will be recognised in Australia from midnight tonight. What a day of cheers, applause and a great moment in our political history for love, equality and respect!

Announcements have focussed on the 9th of January 2018, when marriages will be able to start. There is a month delay from today because of the requirement for a Notice of Intention to Marry to issue 30 days prior to a wedding. But interestingly same-sex divorces can start to be filed straight away!

So whilst the Jensens might now have to plan their divorce, same-sex married couples who have separated but previously were in a legal limbo can now also legally file for divorce. Call us now on 03 9614 7111 or email Melbourne@nevettford.com.au to find out more information and to see how our friendly team can assist!

 

Pre-nups - Worth it or not?

Financial Agreements, when done properly, can be very powerful tools for the protection of assets and to provide clarity as to how assets will be divided upon a separation.  Under Australian family law, couples can agree to enter into a document called a Financial Agreement (you might know them as a pre-nup) which sets out certain financial arrangements in the event of separation.  These types of Agreements can be entered into before and during marriage and after divorce and before, during and after a de facto relationship

In order to be binding, the law requires that Financial Agreements meet very technical requirements, including that each party obtains independent legal advice.

In a recent case, Thorne v Kennedy, the Husband and the Wife met on a website for potential brides.  Mr Kennedy was a 67 year old wealthy developer worth between $18m and $24m, previously divorced with 3 adult children. Mr Thorne wanted protect his money for his children.

Ms Thorne lived in the Middle East with no substantial assets and no children.  They were set to marry and Ms Thorne was asked to sign a pre-nup and was told her that the wedding would be cancelled if she did not sign the document.  She visited a lawyer (arranged by Mr Kennedy) just days before the marriage.  She signed the pre-nup even though her lawyer told her not to because they were worried that the she was under 'duress' and advised her strongly against signing the agreement.   Despite her lawyers advice, the parties signed a Financial Agreement prior to and then again shortly after their wedding. The couple separated 4 years later. 

The High Court recently determined that the two financial agreements were voidable due to an inequality of bargaining power and a lack of fair or reasonable alternatives available to Ms Thorne. If there is a significant power imbalance, parties to a relationship should consider whether it is prudent to have a financial agreement, whether the agreement can be made to be 'fairer' to the other party, or if there may be preferable alternatives to quarantine their wealth.  Ms Thorne had been founded to be deprived of the ability to make a free choice as to whether she signed the agreements and that she signed them under duress. There is still significant value in 'pre nups', but parties need to sign them fully appreciating the risks involved.

The case reflects the need for parties and family lawyers to carefully consider whether a financial agreement is the best mechanism to protect their assets and to assess other available options.  If they had then separated after only a short period, it may be that Ms Thorne would not have made any significant contributions that would justify the courts awarding her a sizeable entitlement, or perhaps any entitlement at all, from Mr Kennedy’s estate.

Please do not hesitate to contact Richard Hamilton or any of our other experienced family lawyers if you have any questions about financial agreements or property settlement matters.

The Importance of Making a Will after Separation

Your Will should reflect any significant changes in your relationship status, whether you are getting married, having children, or breaking up.

If you made a Will whilst you were single but have now married, this automatically cancels your Will rendering it invalid.

Divorce affects your Will differently in each state. In Victoria, pursuant to the Wills Act 1997, upon divorce, any provision in your Will that relates to your former spouse becomes invalid. On the other hand, unlike divorce, separation does not automatically cancels the provisions in your Will relating to your former spouse/partner. This means that, if you separate, your former partner may still get a share of your estate (or your whole estate if you leave no children at the date of death) unless you make a new Will.

However, if you divorce but continue to maintain an amicable relationship with your former spouse for the sake of your children, and you intend to leave your former spouse as the executor of your estate after your death, your former spouse may encounter complications proving your intentions when you are no longer around.

Rather than leaving these issues to the Supreme Court to unravel, it would save one the hassle and legal fees to simply make a new Will to ensure your intentions are clear. If you think about this carefully, taking the time to draw up a Will or revisit your old Will each time a significant event occurs is worth taking the time for, particularly if you have children or family members or friends you wish to provide for when you are no longer around.

At Nevett Ford Lawyers, we always advise clients who are starting or have finalised property proceedings, and or applied for divorce to make a Will (or a new Will) and properly arrange their estate affairs. We cannot emphasise the importance of this enough!

So, the next time you update your relationship status on Facebook and/or on other social media, think about this article and remind yourself to also update your Will! If you have done the former but not the latter, call us now on 03 9614 7111 or email Melbourne@nevettford.com.au.

To Appeal or Not to Appeal, That is the Question

After a final judgment is made in a family law case, the parties have a short period of time in which to lodge an appeal and should consult with a family lawyer immediately afterwards to avoid missing out on a potential right to an appeal. Often clients will notice factual mistakes in judgments that occur for a variety of reasons. However, even when there is a clear factual error and everybody agrees that this is a mistake, this does not necessarily mean that the whole decision is invalid or an ‘appeal should be allowed’.

A recent decision in the matter of Henley (http://www.austlii.edu.au/au/cases/cth/FamCAFC/2017/142.html) illustrated this point. In that case, the Judge who heard the case got it wrong in their judgment about where the father lived. The father was said to live in a particular town when he in fact lived in another suburb quite close to the mother’s house.

On the face of it then this would appear fairly significant – that the father’s place of residence would be important in deciding where a child is to live. However Full Court of the Family Court found that this mistake did not “lead into substantive error”. Because there was no suggestion by the parties that the Father’s residence would make travelling between their houses impracticable, the Judge was not “led into error” by his erroneous factual finding.

This is important to emphasise when considering an appeal; you may be very right that there is an error, but has this error actually led to a decision being made incorrectly? It is important that you get considered, experienced legal advice before lodging your appeal because these can be very expensive and complex applications, and if you get it wrong, you can face serious costs issue. Call us now on 03 9614 7111 or email Melbourne@nevettford.com.au

Myths of Child Support

Myth 1: “I don’t see the kids, so I don’t have to pay child support.” Or “If you don’t pay child support, you won’t be able to see the kids.”

The Family Law Act 1975 recognizes that it is in the best interests of a child to have a meaningful relationship with both parents, and to be assured that he/she is supported financially, whether they are biological or adoptive parents, same sex or otherwise. Preventing your child from spending time with the other parent simply because he/she refuses to pay child support would be viewed by the Court as pushing your child/not acting in your child’s best interest.

Myth 2:Child support must always be assessed by the Child Support Agency of the Department of Human Service.”

If the parents are hostile and cannot reach an agreement as child support, Child Support Agency can assess how much child support should be paid. The assessment is formula based and takes into account several factors, including:

  1. Taxable income of each of the parents;
  2. Costs of raising the child or children;
  3. Percentage of time the child or children spend with each parent (usually only nights are taken into consideration);
  4. The age of the child or children;
  5. The cost of living of each of the parents;
  6. Whether there are any other dependant children.

Whilst either parent may request the Child Support Agency to make an assessment of the amount of child support one parent must pay to the other, parents can come to their own agreement about how much child support should be paid. Parents may negotiate a private agreement about child support. They may agree on a sum less than or greater than the amount assessed by the Child Support Agency. The parents may agree on the method of paying significant expenditures such as private school fees, uniforms, sporting fees, etc. They may also agree on a lump sum arrangement. In these circumstances, it is usually advisable for parties to enter into a Child Support Agreement.

There are two different types of Child Support Agreements: Binding Child Support Agreement and Limited Child Support Agreement.

Myth 3: My ex-partner and I can sign a piece of paper stipulating the amount of child support to be paid without getting lawyers involved.”

If parents decide to enter into a Limited Child Support Agreement the parties are not required to get legal advice before entering into a limited agreement however a child support assessment must already be in place and the annual rate payable under the agreement must be equal to or more than the annual rate of child support payable under the child support assessment.

Binding Child Support Agreements on the other hand can be made for any amount that the parents agree to. However, Child Support Agency will not accept a Binding Child Support Agreement without each parent first obtaining independent legal advice. They require legal practitioners to complete a Certificate to verify that parents received legal advice before entering into a binding agreement for Child Support.

You should contact one of our experienced Family Lawyers on 03 9615 7111 or email us out of hours on melbourne@nevettford.com.au for further advice with respect to the issues of child support or about which one of these Agreements is more suitable to your needs.

Would you sign a prenup if your fiance threatened to cancel the wedding?

Binding Financial Agreements (BFA’s) or prenups as they are commonly known are meant to be voluntary, and each party must enter into the agreement of their own free will, and not because they have been pressured into it by the other party.  The High Court will consider the issue of “duress” in the matter of Kennedy & Thorne [2016] FamCAFC 189 where Ms Thorne claims she was forced to sign the binding financial agreement — because her husband-to-be, “Mr Kennedy”, said he would cancel the wedding if she refused.  Her legal team argues that this meant she was “under duress”, and that the agreement should therefore be declared void by the court.

Mr Kennedy was a divorced, 67-year-old property developer worth between $18 million and $24 million, while Ms Thorne was half his age with no assets.   They met on a dating site and he organised to fly to her home country in the Middle East to meet in person, promising to marry her if they hit it off.  After a four-year marriage, she is contesting a BFA she signed on the eve of the wedding, which left her with just $50,000 of his fortune and she is now seeking a bigger slice of his wealth.

The High Court will examine the question of whether threatening to “cancel the caterers” amounted to “unlawful duress”.  Mr Kennedy has passed away while the trial was part heard and the case will be carried on by the husband’s estate.  The estate, it seems will counter that Ms Thorne willingly signed the agreement after obtaining independent legal advice, and was not concerned at the time about the amount of money she would be left with if the marriage ended. 

The High Court is due to hear the appeal on 8 August and will need to clarify issues around duress, undue influence and unconscionable conduct.

If your married, intending to marry, in a de-facto relationship, have assets or have been gifted an inheritance then it could be time to think about a BFA.  However please ensure that if you are considering if you want to have a BFA, don’t leave it until the day or two before the wedding, and don’t threaten to call the whole thing off if your beloved doesn’t sign. 

Be careful what you pay for – creating a pattern of dependence

People will often consult a family lawyer after a separation and be struggling as a result of now having to pay for two separate households, having become used to having to support one household for many years. Parties’ expenditure may have expanded during a relationship given the savings they were making in only running one household, meaning that post-separation the weekly budget becomes very strained.

It is important then to carefully consider what you do and don’t pay for post-separation, as this will likely become the position you have to keep up until there is a final settlement. If you start paying for the mortgage as well as for your rent in new premises, then you will have to convince a Court carefully and with proper detail of a very significant change in your financial circumstances. You will need to explain why you no longer have capacity to pay this amount in order to avoid having to continue with this arrangement for what is effectively “spousal maintenance” whilst proceedings continue. The recent case of Hogan & Orwell (http://www.austlii.edu.au/au/cases/cth/FamCA/2016/505.html) reviewed the party’s finances from the perspective of a spousal maintenance application and the Husband in that situation was required to continue with mortgage payments. The Husband had increased his credit card liability by about $35,000 but had produced no explanation for why this had increased by such a large amount.

This cost can become overwhelming for people, and if decisions are not made very carefully, you can be locked in to paying for two properties for a considerable period of time, particularly if litigation takes a long time to sort out. This is one of the many factors your sensible family lawyer should advise you about in considering how to run your case. Call us for more information or send us an email if you would like to discuss your situation in a confidential free initial assessment.

Husband’s Business Suddenly Gains Value Post Settlement – What’s a Wife to do?

$93 million dollars! The Age today made headlines with this splashy article about ongoing legal battle that was brought before the Family Court of Australia. The parties have been given the pseudonyms of Mr and Ms Wills, and you can read their case here http://www.austlii.edu.au/au/cases/cth/FamCA/2017/183.html

In this case, the parties were married for 35 years before they split. On 27 April 2015, their property dispute was finalised where the wife received a division of assets worth $15 million. The Wife has then filed an application for this agreement to be disregarded, claiming that the Husband had failed to disclose relevant information relating to an interest in a business which later resulted in him receiving $93 million.

As it appears to have turned out, on 1 May 2015 the Husband was said to have “determined to take the initial steps to the making of an Initial Public Offering (IPO)” for the business. Their property dispute was finalised on 27 April 2015.

Having not seen the full details of the case, it is hard to say exactly who said what, knew what and when, and so we cannot comment definitely on what will happen. But there may be some value in looking at cases where the property ‘pool’ consisted mainly of lottery winnings (bought by the husband), as in the case of Elford v Elford [2016] Fam CAFC.

In Elford the Appeal Judge upheld the trial judge’s decision that the winnings were not a joint endeavour but rather recognised that the husband made the sole contribution to the winnings – therefore dismissing the wife’s appeal to a greater share in the property pool.

The question then is whether the wife receives any entitlement to the $93 million.

Only an experienced lawyer such as one from our family law team would be able to navigate you through complex scenarios such as the above – we are contactable on 03 9614 7111 or otherwise out of office hours on melbourne@nevettford.com.au.

Risks in delaying property settlements

Risks in delaying property settlements

Parents, children and or family members who have endured or witnessed a relationship breakdown can certainly attest to the challenges and intimidation separated parties face as a result. Not only are they emotionally challenging, they involve life-changing and confronting decisions, particularly adjusting to the severance of any financial ties and or resolving care arrangements for the children.

It is not uncommon to come across clients who have separated and left finalising their property settlement for many years. Empathetically and understandably so, property negotiation with a former partner is probably the last detail on the minds of separated parties, given the need to also address emotional issues resulting from separation – however it is imperative that you know the considerable risks associated when discussions surrounding a family law property settlement are left for a significant period.

It is important to be aware of the time limits under the Family Law Act 1975 in bringing proceedings for property settlement or spousal maintenance before the Court, which is designed to promote property settlements within a practical time frame.

  • For married couples, you have 12 months from the date of divorce;
  • For de facto couples, you have two years from the date of separation.

For married couples, we do not recommend applying for divorce until property settlement has been finalised or proceedings commenced seeking property orders. For de facto couples, we commonly run in to the issue of being out of time and we see parties expending legal costs to argue the exact date of separation – therefore reiterating the importance of finalising your property settlement at the first available opportunity following separation.

These time frames exist under the Act to provide certainty to both parties and is beneficial in cases where one party is deliberately skirting the negotiation process (usually the party required to pay maintenance or the party who has smaller future needs) and delaying a property settlement.

In the event you wish to pursue a property or maintenance claim outside the designated time frame, you can only do so with the Court’s permission, that is, leave must be sought from the Court to begin proceedings. The Court must be satisfied that hardship will be caused to you or a child if leave was not granted. In maintenance proceedings, you must demonstrate that at the time the ordinary time limit expired, you were unable to support yourself without an income tested pension, allowance of benefit.

Another significant risk associated in delaying a property settlement is that values of assets, liabilities and or superannuation, as well as the parties’ financial circumstances may change between the date of separation and when negotiations begin and or the matter is brought before the Court –the law looks at and considers the asset pool at the time of any trial, not at the date of separation. This means that any lottery wins or inheritances accumulated may be included as part of the asset pool for division. Similarly, delaying a property settlement whilst meanwhile disposing of any matrimonial assets prior to a settlement can be treated by the Court as that the person has already received part of their property settlement entitlement, thereby reducing their entitlement in the final settlement.

When property settlements are left for a significant period, this also increases the risk that one party may die before proceedings are initiated. Any property owned as joint tenants such as the matrimonial home will be transferred automatically to the surviving tenant (usually the ex-spouse), regardless of what the deceased’s Will states and regardless of whether the parties have separated.

It is for these complexities and risks involved in determining the parties’ entitlements after a long period of separation that we advise you to speak to one of our experienced family lawyers post-separation. Or, if you are in a position where the ordinary time limit has lapsed, we can tailor our advice to you accordingly taking into account your circumstances.

On the same note, if you have managed to reach an agreement with your former partner about a property settlement, we encourage you to document it in a legally binding and recognised manner, either through Consent Orders or a Binding Financial Agreement. The risks you face otherwise is that your partner later decides to change the agreement, which was never formalised in the first place. Putting the terms of settlement in a legally enforceable way would save considerable amount of time and costs in the future if the “informal” agreement was challenged.

Please do not hesitate to contact us on 03 9614 7111 or email us out of hours on melbourne@nevettford.com.au.

The Nuts and Bolts of a Property Claim in a De Facto Relationship under the Family Law Act

De Facto Relationship

A De Facto relationship arises when two people, who are in a relationship, are not married or related by family, and having regard to all the circumstances of the relationship, are a couple who live together on genuine domestic basis. Circumstances of the relationship that the Court will consider in determining whether a De Facto relationship exists or not include the duration of the relationship, living arrangements, whether there was a sexual relationship, financial arrangements, property owned jointly or individually, any registration of the relationship under State or Territory law, any children and public representation of the relationship.

Grounds for Property Claims in a De Facto Relationship

If a De Facto relationship breaks down, the Family Law Act provides that a Court can make orders in relation to property of the relationship only if: -

  • The relationship has lasted for a minimum of 2 years; or

  • If there is a child of the relationship; or

  • A party has made a substantial contribution; or

  • The relationship was registered under a State/Territory law.

As a result, the De Facto relationship that last for less than 2 years, a property claim can only be made if there is a child of the relationship, the relationship is registered or if the concerned party has made a substantial contribution.

Substantial Contribution

Substantial contributions are contributions which are not ‘illusory’ and are ‘considerable or large’ having real worth or value. Contributions that would be considered by the Court as being substantial contributions include, but are not limited to, the following: -

  • Financial contributions made for acquisition, conservation or improvement of any property of parties

  •  Non-financial contributions made for the acquisition, conservation or improvement of any property of parties

  • Contributions made to the welfare of the relationship and/or children of the relationship including homemaker contributions.

When determining whether a contribution is a substantial contribution, the Court may also take into account other considerations, such as: -

  • Effect of any proposed order on earning capacity of any party

  • Matters such as age, health, income, care or control of child, any commitments, standard of living, extent of contributions to financial resources of the relationship

  • Any financial agreement/arrangement between the parties

  • Child support

There is a further requirement for claims based on substantial contributions. If a party makes a substantial contribution and in the absence of an order that party would suffer a serious injustice, only then can a claim for property be made by that party. The Court requires this injustice to be more than slight and a mere injustice will not suffice.

If you have been in a de facto relationship that has unfortunately broken down and you would like to discuss further what your entitlements are, please do not hesitate to contact one of our approachable family lawyers. The number to dial is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au.