After Barnaby Joyce’s marriage split; What happens to his Superannuation?

on February 16, 2018 by admin

barnaby-joyce-superannuation One of the many questions around Barnaby Joyce’s marital split is what happens to his superannuation – especially because Australian politicians’ entitlements are particularly generous. How super is split is a key issue in separated households with children where one parent – often a woman – took time off to be the main caregiver and the other was the main breadwinner (and stasher of super).

In Joyce’s case, says financial planner Justin Hooper of Sentinel Wealth, his term began on July 1, 2005 so he is not part of the super-generous Parliamentary Contributory Superannuation Scheme (PCSS). This defined benefit scheme, which offers a lifetime pension, was available only to members in office before October 8, 2004.

Parliamentarians elected after that, says family lawyer Juliette Ford of Farrar Gesini Dunn, may nominate a complying superannuation fund into which contributions of 15.4 per cent are made by the government on their behalf. This is still generous compared with most other super schemes where employers contribute 9.5 per cent in compulsory super. “I would anticipate his superannuation entitlement will be a significant asset to be divided,” Ford adds.

Do couples in this situation need to wait for divorce before dividing super? No, says Ford. “Separation is the trigger point to negotiate a property settlement and not divorce,” she explains. “Once a relationship is finished, the parties can enter into negotiations immediately to finalise their property settlement or commence proceedings.” In any case, divorce is not possible until there has been a year of separation.

But if one partner has already started a relationship, says Andrew Yee of HLB Mann Judd, timing can be crucial.

Homemaker contribution counted

Are super benefits split 50:50? Not necessarily says family lawyer Marilyn Hauptmann. Two pools of assets (super and non-super) are taken into consideration, as well as how each partner contributed – both financially and as a homemaker. “In some super funds you can’t have a super split,” Hauptmann says. “Then just the non-super assets will be divided but [the agreement] will take into account that one party has a super entitlement worth x amount.”

So what do separated partners need to do about super?

“Generally it forms part of the usual pool of assets, but there is a specific process in dealing with it upon relationship breakdown,” says Yee. These steps include:

Either partner contacting the super fund to request information regarding the super interest.
The fund trustee responding with the valuation of the super benefit.
If needed, a payment “flag” may be served on the trustee to prevent any withdrawals being made from the account.
The couple (via a binding agreement) or the court (via a court order) can decide the settlement terms and the proportions of the benefit each spouse will receive. Normally, says Yee, a base dollar amount is transferred to the other spouse, or a percentage of the fund member’s benefit is transferred.
Instructions are then sent to the trustee indicating the method and proportion of the split.
Either part or all of the member’s super will be transferred to the other spouse, thereby reducing the member’s benefit.

There are risks in not formalising a property settlement as soon as possible, says Hooper. “You may not get stamp duty exemptions and capital gains tax rollover relief on the transfer of property. Each party remains exposed by a claim to the other which could capture future windfalls such as inheritances. And in the event of death, the new partner could be eligible to make a claim against the super benefits.”

The financial cost of death and dying

on February 15, 2018 by admin

the-costs-of-dying The death of a loved one can be hard enough to deal with without the extra worry about the cost of carrying out their wishes. Key decisions — including the executor of the will, whether to die at home or whether you are buried among the trees or cremated — all involve a financial burden and much easier made when family members are not bereaved.

Most choices to do with the end of life can be pre-planned and possibly prepaid which can go a long way to help surviving family and friends avoid an extra layer of stress at a time of grief.

Dying at home

The reality of the need for family caring is “rising like a wave in a high swell approaching the shoreline”, says CRH Law partner and elder law specialist Brian Herd.

It is estimated that 80 per cent of people receiving care and support in the community receive it from family members and other informal carers, such as friends and neighbours, reports the Australian Institute of Health and Welfare. Further, the number of people dying each year will double in the next 25 years from about 150,000 in line with the aging population, according to the Australian Bureau of Statistics.

Based on a US study, family caregivers could spend more than $9000 a year of their own money towards their caring role. If you want to be reimbursed for legitimate expenses, put arrangements in place.

Other key considerations are the financial impact if you have to quit your job to care for your parents, as well as the impact on your own retirement plans.

Retired Palliative care doctor and advocate Yvonne McMaster says most people want to die at home, until reality hits.

“It depends how much family help there is, but very rarely do people who don’t have two people available 24/7 die at home,” she explains. “What often happens is the nearer someone gets to the stage where they can’t get out of bed, they then they elect to go to hospital or enter residential care.”

She says the process of dying is very drawn out which can become very distressing for relatives not knowing if they are doing the right thing for someone at home, which is where palliative care specialists can help.

“Palliative care doctor and nurse specialists have expertise in controlling pain, delirium associated with dying and death as well as access to equipment, physiotherapists, social workers and nurses to assist with medication,” says Yvonne McMaster.

Palliative care services are employed and paid for by state and territory governments, although the waiting list, how they are accessed and their resourcing varies between jurisdictions.

Often it is a case of tapping into the relevant services via a hospital, general practitioner or specialist.

Not-for-profit community care group Silver Chain provides specialist home-based palliative care in Western Australia and NSW. The service is fully funded with no out-of-pocket expenses for the client, says Silver Chain Group, chief executive officer, Christopher McGowan.

Home care providers and aged care facilities are increasingly advertising that they do palliative care. In most cases, this will mean they are able to provide 24-hour care by experienced registered nurses who completed a course about palliative care. Any medication needed would have to be prescribed by the person’s GP.

Will administration

The decisions around who gets what assets after someone dies is one thing, but equally important is who is appointed to administer the will to ensure it is done appropriately and in accordance with the relevant state or territory law.

Depending on the will, the task of an executor can be extremely onerous and potentially costly. This is why it is worth including an independent and trusted person such as an accountant or solicitor, says law firm Cowell Clarke partner Natalie Abela.

“The executors may have to pay fees to obtain a grant of probate and other ongoing estate liabilities and costs until estate assets are accessible. The executors must then be reimbursed for payment of those costs out of the estate before any distributions can be made to beneficiaries,” she says.

This entitlement to be reimbursed may be helpful to the executor in the long run but it is another reason why careful thought should be given in the beginning about who is appointed.

If you appoint someone without the means to cover the necessary expenses upfront – which can run into thousands of dollars – then the whole distribution process will be delayed,” adds Natalie Abela.

Natalie Abela suggests appointing at least two people – in case one can’t or doesn’t want to do it – and if you are going to appoint an adult child, then it may be appropriate to appoint all of your children, so that upon your death, they can each decide if they want to take up that role.

“It can cause friction when close family members (such as siblings) are not all named as executors and therefore excluded from carrying out the terms of their loved one’s will,” she says.

“The role of an executor must not be taken lightly. The complexity of the will and the types of assets in the estate may dictate who a testator appoints as executor. It may be beneficial for the testator to notify the person or persons they have appointed to ensure they are willing to take up that role and properly administer the estate,” says Natalie Abela.

DSS Lawyers partner Rebecca Tetlow says that in most cases, the first step for an executor is to place a notice in the local paper or on the relevant Supreme Court’s website advising of the application to have the will validated. This gives anyone believing they are entitled to the assets a chance to come forward.

Application is then made to the Supreme Court for grant of probate which is the court’s determination that the will is valid and the assets of the deceased are vested in the name of the executor.

The court fee varies by state and depends on the value of the assets. For an estate above $5 million in NSW, for example, the filing fee is $5500.

Rebecca Tetlow says once probate is granted, further professional help may be needed to help deal with assets such as the transfer and release of bank account balances or shares.

With the exception of the money needed to pay for the deceased’s funeral expenses, all the other assets much stay untouched until probate is granted. Once probate is granted, all liabilities such as tax and the executors costs have to be paid before any distributions are made.

Funeral costs

By law every person’s estate must provide for a funeral but if you care about the kind of send off you have, then you may not want to leave it to others to decide.

The sudden recent death of a friend opened the eyes of Iean Ellery, 67, and his wife Margaret Ellery, 65, to what it meant for the surviving partner to have to unexpectedly plan and pay for a burial site at short notice.

“It made us realise we also weren’t prepared and that we hadn’t budgeted for it,” says Iean.

The couple toured Enfield Memorial Park in Adelaide where Margaret fell in love with the plans for the new garden, including the planting of the same trees they have at their own home.

They have now pre-purchased a burial site where Margaret will be buried and Iean will be cremated and memorialised.

“By pre-purchasing our site, as well as our burial and cremation fees, we have peace of mind knowing that our final wishes will be fulfilled. We will be together forever and laid to rest with other family members,” says Iean.

“We didn’t want our sons to be responsible for paying and arranging our burial site when we pass away. They don’t need that burden at such an emotional time,” he says.

Fergus Kelly, spokesperson for InvoCare’s online service Funeral Planner, says the average cost of a funeral is $6000. Invocare is a listed funeral and crematorium operator.

But the final cost will depend on the funeral director’s fees and personal choices around caskets, cremation or burial, church or funeral home, flowers, music and newspaper ads.

Basically anything is possible and it may or may not have a cost associated with it.

Another way to compare offerings is via online disrupter gatheredhere.com.au, which allows you to compare prices and reviews of funeral homes around the country.

Cremation is cheaper than burial — $400-$1000 rather than $4000-$50,000 — depending on the cemetery. For example, if you are buried in a crypt, it costs more to be buried above ground than below ground.

Adelaide Cemeteries Authority CEO Robert Pitt says each state and territory runs its crematoriums and cemeteries differently, which can impact on the cost.

It may be worth checking how long an internment right lasts before the cemetery re-uses your burial site. In South Australia, for example, an interment right lasts for only 50 years. After that, unless remaining family members arrange otherwise, the grave is shared and the memorial stone removed.

Natural or woodland burials are slowly gaining momentum as the most environmentally friendly way to deal with a body — but don’t expect them to be much cheaper than other burial options.

The cost of being buried in a shroud or cardboard coffin among the trees in the grounds of a cemetery can still be anywhere from $3000 to $5000 depending on the jurisdiction.

Pitt believes in pre-planning and pre-paying for many of the costs such as cemetery fees and caskets.

It avoids price rises, ensures the person dying gets what they want and helps the bereaved, he says.

The three main options for prepaid funerals are funeral bonds, funeral plans and F.

Funeral bonds are managed investments that earn interest. Most are capital-guaranteed and attract annual management fees of up to 3 per cent.

An initial investment of say, $500, is followed by regular contributions or a lump sum up to any amount someone wishes.

The interest earned on the bond is added to the capital and both are realised on death when it may be paid to the funeral director to cover expenses.

Prepaid funerals are different in that there is a contract between the individual and a funeral director.

The choices made — such as the type of service, the type of coffin, a minister or celebrant and cremation or burial — are paid for at today’s prices.

Funeral insurance is similar to other types of insurance where you pay monthly or fortnightly premiums for a fixed amount of cover.

Rather than saving for funeral costs, you are buying insurance to meet those costs at some future date. Depending on when you die, you could end up paying insurance premiums for years and possibly well in excess of the actual cost of your funeral.

Prepaid funerals and funeral bonds of up to $12,500 for an individual have the added benefit of being exempt assets under the Centrelink and Department of Veterans Affairs means test for the age pension. A burial plot is not included in your assessable assets, regardless of its value.

Bina Brown is a director of aged care services company Third Age Matters.

8 Tips On Admitting Audio Recordings In Family Law Hearings

on February 4, 2018 by admin

secret-audio-recording Approximately 3% of families embark on litigated family law proceedings. These families are often embroiled in intractable conflict, they are unable to work out parenting and property by themselves as their relationships are volatile and accusatory.

These families require the courts intervention and they are usually very troubled, with an alleged history of violence, safety concerns for children and parent/s, mental health issues, substance abuse, problematic social media or pornography use, which the child/ren may be exposed to. Its often difficult to obtain evidence that will assist our clients case, particularly when allegations of family violence are made. Can a spouse record conversations and then have that useful evidence admitted at final hearing?

In the recent case of Janssen & Janssen [2016] FamCA 345 this issue arose;

Counsel for the Applicant mother, on the first day of a four day hearing, indicated that the applicant mother would seek to tender voice recordings and transcripts of conversations between the parties that occurred in the period from 1 April 2013 until 24 August 2013.

The recordings and transcript were only provided to the other parties legal reps less than a week prior to the commencement of the hearing. This did not comply with the pre-trial directions for the filing of evidence. An Affidavit was filed by the mother setting out the context of the recordings.

Section 7 of the Surveillance Devices Act 2007 (NSW) (“SDA“) makes it unlawful to record private conversations without the consent of the other person unless it comes within one of the exceptions in subsections (2) & (3) of section 7 SDA. So what are some useful tips that arise from this case:

Section 7(3)(b) SDA provides that the prohibition to the use of listening devices to record a private conversation does not apply for reasons that include that it “isreasonably necessary for the protection of the lawful interests of that principal party,”
In the case of Corby & Corby [2015] FCCA 1099, Judge Sexton applied the decision of the NSW Court of Criminal Appeal in DW v R [2014] NSWCCA 28, to find on the facts before her:
23. …that the Mother had the right to protect her interest not to be intimidated or harassed, …..
In Huffman & Gorman (No. 2) [2014] FamCA 1077, the Court considered whether to exercise jurisdiction under section 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”), to admit a recording into evidence despite the possibility of it being found that it was illegally obtained. In deciding that it should be admitted on the facts before her, Hannam J noted that:
It is notoriously difficult to obtain evidence of family violence which takes place behind closed doors.
Submissions opposing admission were made by the Respondent fathers SC, that the ‘floodgates’ would open up to parties to obtain secret recordings if these tapes were admitted. McClellan J stated the decision to admit was based upon these particular facts, where the father had maintained a charming public face but had engaged in conduct within the family home that is alleged to have constituted family violence in terms of the provisions of section 4AB of the Family Law Act 1975 (Cth) (“the FLA”)
McClellan J had regard to the potential difficulty of obtaining evidence of alleged family violence when it occurs behind closed doors without any witnesses being present other than the alleged perpetrator and victim.
The court will have regard to section 69ZN the FLA, which provides that in exercising jurisdiction under this part of the Act dealing with children, the Court must have regard to the principles for conducting child related proceedings, and those principles include, that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and neglect as well as safeguard the parties to the proceedings against family violence.
The ICL’s Counsel submitted the recordings may also assist in determining whether the parenting abilities of the primary carer have been compromised as a result of the content and tone of the communication.
The Court can take into account the provisions of section 69ZT(1) & (2) the FLA, which gives the Court a discretion to give such weight, if any, as it thinks fit, to evidence admitted as a consequence of the provisions of the Evidence Act not applying.

Summary

It is highly recommended that a consideration of the exceptions found in section 7 (2) & (3) SDA are undertaken, when faced with a case where there are allegations of family violence (or other salient issues), as the difficulties of obtaining evidence, behind closed doors, is recognised by the Court.

S 69ZN FLA requires consideration, as the Court MUST have regard to these principles when conducting child related proceedings; to safeguard children (and parties) against family violence, child abuse and neglect.

Having knowledge of and applying the provisions of the Evidence Act in family law proceedings is valuable and required, including section 138 of the Evidence Act, in this type of case.

‘Greedy’ ex-NRL player’s wife avoids jail over Centrelink fraud

on January 26, 2018 by admin

David Fifita and wife Jade Fifita nee Robinson

Jade Robinson – also legally known as Jade Fifita – pleaded guilty in June 2017 to two counts of receiving financial advantage from a Commonwealth entity totalling almost $50,000.

In Gosford Local Court in November 2017, magistrate Jennifer Price sentenced the 26-year-old mother-of-three to eight months’ imprisonment, with a three-month non-parole period, for misrepresenting her true circumstances. Read the original article on her sentencing in November 2017.

However, the magistrate adjourned the matter until January so Robinson can be assessed for home detention, in which case she would avoid any jail time.

With husband, former NRL player David Fifita looking on, a relieved Jade Robinson bowed her head as a magistrate told her today that she would not be jailed for fraudulently pocketing almost $50,000 from Centrelink when claiming to be a struggling single mum.

Gosford Local Court Magistrate Jennifer Price on Thursday said she had decided to sentence Robinson – also known as Jade Fifita – to home detention despite the consistent and persistent way she had greedily rorted the system at taxpayers’ expense.

Robinson, 26, used the single-parent Centrelink payments to buy clothes and a new car to try to keep up an outward appearance of success.

She pleaded guilty to two counts of receiving financial advantage from a commonwealth entity after she was found to have fraudulently received $48,500 in Centrelink benefits over almost five years.

Robinson was sentenced in November 2017 to eight months’ jail with a non-parole period of three months but the case was adjourned until Thursday so she could be assessed for home detention.

Ms Price, who handed down her decision via audiovisual link from Port Macquarie Local Court, said she would exercise her discretion and allow Robinson to serve her sentence via home detention.

The magistrate said Robinson would have to contact the Blacktown Corrections Services department office as soon as she returned home from Gosford to alert them that she had started her home detention.

Part of Robinson’s home detention conditions included reporting to Blacktown police station within seven days to be photographed and fingerprinted.

Ms Price said if Robinson failed to abide by the conditions of her home detention, the Director of Public Prosecutions could apply to have the order revoked and have the mother of three sent to jail.

Robinson had first claimed her first single-parent payment in September 2011 and continued to receive benefits until May 2016.

She briefly stopped claiming the payments for a few months in 2013 when she lived in France where Fifita was playing rugby league for French club Lezignan.

Robinson had her payments reinstated on their return to Sydney in June 2013, despite Fifita signing with NRL club Cronulla.

Fifita, the twin brother of Cronulla prop Andrew Fifita, now plays for Wakefield Trinity in the English Super League and was given time off from pre-2018 season training to be with his family over the Christmas-New Year period before his wife’s court appearance on Thursday.

He and Robinson have been together for more than 11 years and have three young children.

Court records showed the couple were married in Thailand in 2014 but Robinson told Centrelink their wedding was in April 2016.

A psychological report found Robinson had “a personality profile that reflected a lack of maturity” and an “inability to extricate herself out of the situation she had caused herself to be in”.

The report stated she “felt the competition to clothe her children … buy a new car and to keep up with others in social activities” but had no narcissistic or antisocial indicators and showed good prospects of rehabilitation.

Divorce after 50: What I wish I had known beforehand

on January 20, 2018 by admin

divorce-after-50 Divorce is never easy, but couples over 50 who end their marriages face particular hurdles. Below, people who went through a late-in-life divorce share six things they would tell their younger selves, offering ways others can learn from their experiences:

“I wish I had known how the divorce would impact my oldest children even more than my youngest still at home.” Gail Konop, a 57-year-old yoga studio owner whose 2011 divorce ended a 25-year marriage, said her son who lived at home slowly got used to her new reality, which wasn’t as easy for her adult daughters. “He got to see us as individuals living in his life. He saw how there was less stress, and he got used to it. But my daughters are coming home periodically and they couldn’t keep up with the changes.” At one point, Konop says her daughter announced, “I don’t want to come home anymore — it’s so weird.” If you’re considering a divorce and kids are involved, don’t assume you are sparing your children by holding on, only to divorce once they’re out of the house.

“I wish I’d explored the job market before I separated; I think I would have worked harder to try to keep the marriage together if I’d realized just how bleak things are out here.” For older adults, especially women who have been out of the workforce, re-entering it can be more even more challenging than they expect. Look into getting advice from financial and career counselors to consider your options for long- and short-term planning post-divorce. Beth Hodges, a family law attorney at Horack Talley in Charlotte, N.C ., says the input of those experts can be helpful when negotiating the amount of alimony and property settlement.

“Sometimes when we’re negotiating, I have a client who wants to get her degree to increase her earning capacity. We’ll find out what the cost would be to go back to school and get statistics on what type of income my client can expect to receive once she finishes,” which then gets figured into the settlement package, so the main breadwinner will pay for her education instead of alimony.

“I wish I had known how painful it would be.” Kelly James, a ghostwriter who was 50 when she divorced after 19 years of marriage, was surprised by how long it took her to adjust to the loneliness of living alone.

“Even if you don’t have the happiest of marriages, there’s something comforting about having someone in your home, your bed. I’m lonely sometimes and miss being part of a twosome,” says James. “It’s also difficult to not have my kids with me all the time — their dad and I do a good job of co-parenting, but I miss them when they’re at his house.”

In addition to suggesting the pursuit of new hobbies and volunteer opportunities, Beth Hodges recommends therapists to her clients as a way of helping them adjust to their new life. “[Divorce] is a very traumatic, life-rattling experience, especially if you’ve been married for 25 to 35 years,” says Beth Hodges. She reassures her clients that in time, they’ll not only recover, but emerge stronger. “[Divorce] can be transformative,” says Beth Hodges. She tells her clients, “‘You’re going to survive and feel better about yourself and about your future.’ Almost to a person they’ll come back to me and say, ‘You were absolutely right.’”

“I didn’t think my friends would actually bail on me, but I was wrong.” Lynn Cohen, a Chicago-area divorce attorney who serves on the board of the women’s divorce support nonprofit The Lilac Tree, sees it all the time with her older female clients: “A lot of their friends cut them off — even their best friends. You might keep one or two close friends, but that whole crowd is not going to be there. They’ll help you while you’re going through [the divorce] but not after it’s done.”

She advises her clients to get ahead of this social shift and be proactive about expanding their networks by joining groups that set up travel opportunities for single people, and by volunteering. “If you’re not active in your community and giving back, you’re kind of by yourself,” Lynn Cohen notes. She also cautions against relying too heavily on divorced friends. “Every divorce is a different set of facts and circumstances and must be viewed individually. They’ll say, ‘When I was divorced, I was able to get everything in the house.’ That’s unnerving and usually bad advice. I tell people that they’re going to have to make their own life,” says Lynn Cohen.

“I wish I had known how expensive it would be.” James was shocked that her uncontested, relatively conflict-free collaborative divorce still cost nearly $35,000.

“In retrospect, a ‘traditional’ would have probably been a lot less expensive,” she says. Collaborative divorce eschews adversarial strategies and litigation. Lynn Cohen advises consulting a divorce attorney as soon as a client suspects she or he may need one to get a jump on figuring out how to pay for the divorce and life after. Alimony may be sparse if a couple already living on retirement savings splits, so would-be divorcées may need time for their exit strategy.

Beth Hodges has a simple tip when it comes to saving divorce attorney fees: stay off the phone. “Sometimes clients run up their bills because they’re constantly calling us and engaging us in half-hour consultations. We’re there to counsel and provide guidance to a client, but there is a cost,” says Beth Hodges.

The first thing you should do when hiring an attorney, she says, is “Ask questions about the attorney’s billing practices, how the lawyer charges. If there are things you can do for the attorneys, like gathering financial information, you can save money by doing that yourself.”

“I wish I had known how liberating it would be — and how that can be a little scary.” Says Gail Konop: “Being only responsible for myself (and my kids) has let me make decisions based on what I want. From little decisions like what to hang on the wall of my house to bigger ones like where to travel and what kinds of projects to do on the house, is all up to me. That feels good but can also be overwhelming. It was like I had a second adolescence. I had so much fun, I knew myself so much better. At first, it was really nerve-racking and the dating world had changed. It was energizing (until it got exhausting.)”

This article is reprinted by permission from NextAvenue.org.

The shocking rise of financial abuse involving wills

on January 18, 2018 by admin

Could you be a victim of financial abuse? A GOLD Coast woman and her elderly mum walked into lawyer Marie Fedorov’s office. Alarm bells immediately started ringing.

GOLD Coast lawyer Marie Fedorov “smelled a rat” when an elderly woman came into her office with her adult daughter to change her will.

The daughter did all the talking and told Ms Fedorov that her mother wanted her to be the sole beneficiary of the will.

“When I questioned the elderly lady to confirm that this was what she wanted, she appeared to not understand what she was at my office for. When I explained this to her she appeared very confused,” Ms Fedorov said.

“The daughter then said to her mother: ‘Remember mum, we’re here to change your will to leave everything to me.’ The elderly lady said: ‘Oh yes. I’m happy to do what my daughter wants me to do, so just tell me where to sign.’”

Ms Fedorov was concerned about the elderly woman’s mental capacity and so asked her some general questions, which she couldn’t answer.

“I recall seeing the daughter become very uncomfortable and she said: ‘Mum only has mild dementia, she is fine.’ But after I obtained the woman’s medical details from her doctor, and realised she was not able to make legal decisions, I refused to prepare the requested legal documents,” Ms Fedorov said.

Ms Fedorov, from Fedorov Lawyers, claims she’s seen a massive increase in financial elder abuse in recent months.

“I’m on the lookout now because I care about seniors and don’t want them to be left high and dry,” Ms Fedorov said. “Sadly, a large number of victims are too afraid or too ashamed to speak up while others fear being isolated from their family.”

A report by the Elder Abuse Prevention Unit, shows a 20 per cent increase in reported cases of financial abuse from 2014-15 to 2015-16. The report also found that more than three-quarters of perpetrators reported between 2015 and 2016 were related to the victims.

The NSW Elder Abuse Helpline was receiving up to 180 calls a month in 2017.

Ms Fedorov had another upsetting experience when a real estate agent organised an elderly couple appointment with his ‘friend’, an elderly woman. The man told Ms Fedorov the woman wanted to change her will and leave a large portion of her estate to him.

“Our meeting was at the woman’s home because she was unwell. She couldn’t walk and so she was confined to a chair in the living room,” Ms Fedorov said. “The man wouldn’t leave the room, even though I asked to speak to the woman alone. But, when I asked the man to get me a glass of water, I had a few minutes alone with the lady.

“She told me she’d only recently met the man, as he was trying to get the listing for her house and promised her that, if she put him in her will, he’d get her a better price for her house. I quickly organised to see the woman on another day, without the real estate agent, and we were able to finalise her will without the real estate agent being involved.”

The Queensland Government recently introduced tough laws offering sanctions for guardians, administrators or those holding power of attorney who are accountable for financial abuse towards seniors.

Anyone taking on the role as a paid carer for the elderly person within the previous three years would be excluded from holding such power.

Ms Fedorov believes a major cause of financial abuse of the elderly is “inheritance expectation”.

“Many people expect to receive assets from their parents and will coerce seniors into signing wills or enduring power of attorney in order to get all of their assets prior to the older person’s death,” Ms Fedorov said.

“Often, people are doing ‘dodgy deals’ so they can transfer all of the assets and put their parents in a nursing home.”

In another recent case, Ms Fedorov saw an elderly woman and her two daughters, who were trying to have the mother change her will to exclude one of the other sisters.

When Ms Fedorov asked why she wanted to leave her daughter out of her will, she explained her other daughters asked her to.

“When I spoke to the mother alone, she told me she didn’t want to change her will and that she only came to my office because her daughters insisted,” Ms Fedorov said.

“I explained to her daughters that their mother did not want to leave their sister out of the will. The daughters were not happy, but I was pleased the mother was able to leave her will as it was, to include all of her daughters.”

Ms Fedorov advises elderly people to see a lawyer without having friends or family in the room. Lawyers frequently come across the elderly being bullied, so they have developed strategies to help people through the process.

‘It’s mine, I got it after we broke up’, (Inheritance, Divorce & Property Disputes)

on January 13, 2018 by admin

court-judgment In family law disputes it is a common misconception that an inheritance or other large sum received after separation will be excluded from the property pool to be divided between the parties.

This issue was dealt with in the recent case of Calvin & McTier [2017] FAMCAFC 125.

The Full Court of the Family Court of Australia in Western Australia heard an Appeal by a husband who argued that an inheritance received 4 years after separation should not be included in the property to be divided between him and his ex-wife.

The parties were married for 8 years and were divorced in 2011.They had one child who was 5 years old at the time of separation.

In 2014 the husband received an inheritance from his father’s estate.

The wife commenced proceedings more than 3 years after separation and was granted the Court’s leave under Section 44 (3) of the Family Law Act to pursue a property settlement claim.

The trial Judge found that the net value of the assets to be divided between the parties was $1,340,319 of which, in percentage terms, the remaining inheritance of $430,686 accounted for approximately 32% of the asset pool. The husband tried unsuccessfully to exclude his inheritance from the asset pool. The trial judge assessed contributions as 75%/25% in the husband’s favour and, after making a 10% adjustment to the wife for future needs, divided the property 65%/35% in favour of the husband

The husband appealed the decision.

The central issue on appeal was whether the trial Judge erred by including the husband’s post separation inheritance within the parties’ property pool available for division. The husband argued that his inheritance should not be included in the pool because of the degree of “connection” or more to the point, the lack of connection, between the inheritance and the parties’ matrimonial relationship. The husband was unsuccessful in taking that position and his appeal was dismissed.

The Justices of the Full Court of the Family Court of Australia, Chief Justice Bryant, Justice Ryan and Justice Aldridge concluded that the Court retained a discretion as to how to approach the treatment of property acquired after separation.

The Full Court have approved this decision in two other cases, Holland & Holland [2017] FamCAFC 166 and Widmann & Widmann [2017] FamCAFC 602.

Interestingly in the NSW case of Holland & Holland [2017] FamCAFC 166 the inheritance was not included in the asset pool.

It is important you obtain legal advice about your particular circumstances before you make any decisions about dividing your property as a there is no one way the Court will deal with post separation assets.

Related Family Law Judgments

Bernard & Bernard [2019] FamCA 421 - Family Court of Australia - Henderson J - 05... - September 11, 2020
Calvin & McTier [2017] FamCAFC 125 - Full Court of the Family Court of Australia ... - July 12, 2017

Nationwide Domestic Violence Protection Laws come into Force

on January 11, 2018 by admin

A Gold Coast family law specialist has responded to a new law put in place for nationwide protection of domestic violence victims.

Pullos Lawyers’ Cassandra Pullos has commended the “new layer of protection” put in place which sees all domestic violence orders issued anywhere in Australia to be automatically recognised and enforced nationwide under a new National Domestic Violence Order Scheme (NDVOS).

Ms Pullos called the new law a landmark step in the ongoing campaign against domestic violence, explaining that the previous system was confusing and fell short.

The previous law meant that DVOs issued in Queensland and elsewhere were not automatically recognised in other states or territories, meaning that the victim wasn’t protected if they decided to cross the border where their DVO was issued.

“The Council of Australian Governments in late 2015 agreed each jurisdiction should introduce model laws to automatically enforce domestic violence court orders across state and territory borders,” Ms Pullos said.

“However, until recently the scheme was not fully co-ordinated nationwide.”

Under the new law, domestic violence victims will still be covered if they cross state or territory borders, resulting in much greater protection.

Ms Pullos said the new law means DV perpetrators will be held accountable for breaches of domestic violence orders or apprehended violence orders (AVOs).

“It’s about making DV offenders fully accountable for their behaviour,” Ms Pullos said.

“Existing state and territory laws to protect victims and affected family members from domestic violence have not changed. Local police will still enforce the conditions regardless of where the DVO was issued.

“However prior to 25 November 2017, DVOs applied only in the state or territory where they were issued. Now they automatically apply everywhere.”

Sydney lawyer Victor Berger struck off for overcharging elderly woman $137,543

on January 7, 2018 by admin

NSW Civil and Administrative Tribunal Sydney solicitor Victor Berger made regular phone calls to a frail and elderly client, checking on her health, her relationship with her children, and her housework.

Months before the woman died, aged in her 90s, Mr Berger sent her family members a bill for $176,800.

The June 2012 bill charged $90,527 for “non-legal work”, such as the personal phone calls to the woman, known as Mrs N.

After her unit was sold, Mr Berger directed the buyer to pay $154,000 into his bank account, despite it being trust money belonging to Mrs N’s estate. He later had $20,000 transferred from the trust money to his son-in-law.

An assessor found Mr Berger overcharged the woman by $137,543.

Five years earlier, Mr Berger went to an intensive care ward and oversaw an 84-year-old dementia patient sign over power of attorney to her daughter, without speaking to medical staff about her ability to understand the decision.

The daughter then took $1 million to put into her own superannuation, and sold millions of dollars’ worth of her mother’s shares.

The Guardianship Tribunal of NSW found the mother did not have the capacity to sign over power of attorney to the daughter, and Mr Berger was cautioned by the Office of the Legal Services Commissioner of NSW.

Those cases were among more than 70 complaints against Mr Berger between 1996 and 2013.

Last week the Civil and Administrative Tribunal of NSW ordered Mr Berger be removed from the roll of local lawyers, after finding him guilty of a wide range of conduct, including overcharging in the case of Mrs N, misappropriation of funds from various estates, and failing to disclose costs.

The tribunal found Mr Berger posed as a charitable, upstanding member of the community, while ripping off his clients.

Mr Berger provided the tribunal with 12 character witnesses from prominent people, including unnamed senior barristers, a federal MP, and a retired Supreme Court judge.

“The clients who were found to be victims of the practitioner’s misconduct and unsatisfactory professional conduct were not Rabbis; they were not members of parliament, judges, senior counsel or prominent members of the community,” the tribunal’s judgment said.

“Some of them were old; some were frail; some had cognitive decline; and some lacked the support of family and friends.

“The tribunal has concluded that the professional misconduct and the unsatisfactory professional conduct were aspects of the practitioner’s behaviour that he concealed from most of the people he mixed with in the community and in his charitable, professional and religious activities.”

How to have a Good Divorce

on January 5, 2018 by admin

Fergus Herbert says divorce cost him financially

Fergus Herbert says his divorce saw him to lose “financial momentum”. Photo: Jessica Hromas

Getting divorced is rarely a happy occasion, but many couples at least manage a civilised one.

Marriages that end in divorce typically last about 12 years, according to Australian Bureau of Statistics figures from 2014. That’s certainly long enough to build up joint assets.

If you can come to a fair settlement without involving the courts and minimising lawyers, everyone will be better off, both financially and emotionally.

Mediators and family lawyers say the key is to rebuild trust.

“If you wish to come to a settlement without the involvement of third parties or court, the financial needs of your ex will need to be accommodated,” says Jacqueline Wharton, the founder of Separation and Divorce Advisors with offices in Sydney and Melbourne.

“If things get nasty, hundreds of thousands can be spent on lawyers and court.”

Fergus Herbert describes his divorce four years ago, at the age of 50, as “relatively amicable”.

He remains on good terms with his ex-wife, who is the mother of his two children, and believes it was made easier by the fact they both received advice to help establish trust and reach a middle ground in negotiations.

He received advice from Wharton and his ex-wife from a financial planner.

“Receiving financial planning advice before agreeing to terms in a financial agreement is key to optimising your financial circumstances post-divorce” says Bill Savellis from the Financial Advisor. “Divorcees rarely consider the tax implications of the agreement, often leaving one or both of them with unforeseen additional expenses, sometimes in the hundreds of thousands of dollars.”

Both of teh Wharton’s children were over 18 at the time of the divorce. “We both went to Turkey to visit our children who were on a gap year to tell them personally about the split because they are more important than anything else,” Fergus Herbert says.

Herbert says he and his ex-wife were both dissatisfied with the property settlement, which probably means they struck the right balance.

But with the benefit of hindsight, Herbert says he was perhaps a little too quick to settle, leaving him with too little time to think through his post-divorce life.

“I’m a deal maker and just wanted to get it done,” says Herbert, who works in venture capital.

Herbert tells friends who are going through divorce to take their time.

The couple sold the family home in Sydney as part of the financial settlement and Herbert says it is “incredibly difficult” to afford to buy back into the Sydney market.

Perhaps the division of assets, which included investment properties, could have been configured differently to make buying back into the Sydney market a realistic option for him.

“When you have equity in real estate you can make further investments and grow your wealth for the future,” he says.

Herbert rents in Sydney and has a house in Byron Bay.

“The divorce has seen me lose financial momentum,” he says. “It will take years to get back to where I was with my ex-wife.”

Keeping it civil

Les Stubbs, the director of family law at Harris Freidman Lawyers in Sydney, says it’s important to gather as much financial information as possible.

Many people are not across the finances – they may not know how much is owed on the mortgage or how much the other person earns.

The law allows the asking of questions about the finances of the other person.

But the chances of an amicable divorce are much higher if both people are open and transparent about their finances, Les Stubbs says.

It needs to be everything – incomes, debts, superannuation, credit cards and inheritances.

If a lawyer has to write a letter asking for financial details that immediately puts that person on the defensive, he says.

Family lawyer, Geoff Wilson of HopgoodGanim Lawyers in Brisbane, says it’s no use hiding assets.

“People think that they are being clever when they start playing these games but they are just exacerbating the situation,” Wilson says.

Separating couples should not change their financial arrangements until there is a financial agreement in place, he says.

If one person is making the mortgage repayment they should continue to do so, he says.

Otherwise, sudden changes to financial arrangements, apart from creating chaos with the finances, just makes matters worse between the two people, Wilson says.

No-fault divorce

Wharton says it is important to recognise from the outset that it is unlikely that you are ever going to be thrilled with the financial outcome of your divorce.

While you have financial needs and wants, your ex-partner has valid interests too.

She says under Australia’s “no fault” divorce laws it is pointless thinking that the law will provide you with financial compensation for any emotional hurt or that how much money you receive will reflect your “worth” in the relationship.

“This means that your ex will not be financially punished by the law for having an affair or for walking out,” she says.

“Trying to use the law to punish the other side or for revenge is expensive and time consuming,” Wharton says.

Financial agreements

Ian Macleod, from RP Emery & Associates, a publisher of legal documents says lawyers can thrive on conflict. And with fees of about $400 an hour, a divorce can quickly become very expensive.

“I’m not anti-lawyer but people need to understand that if things cannot be worked out between you that you will be much better off using mediation, where you sit down and nut something out,” he says.

There are lawyers who offer mediation services as well as mediation services offered by others, including organisations such as Relationships Australia. There are even accredited “divorce coaches”.

Having a lawyer draw up a financial agreement, where both partners agree on division of assets, will likely cost about $5000. But it can be more if it is not relatively straightforward.

It is not absolutely necessary to have a financial agreement or court order but most people prefer to have the certainly of an agreement.

And a financial agreement or a court order may have to be shown in some states and territories to avoid triggering stamp duty when ownership of the jointly owned family home is transferred to one name.

And one or the other could be needed to defer the payment of any capital gains tax when transferring investment property from one party to another.

You don’t have to have a financial agreement drawn up by a lawyer.

Financial agreements can be bought online, such as through services like RP Emery & Associates, where assistance will be provided by a non-lawyer to help fill out the agreement.

To make an agreement valid, each party has to receive independent legal advice to ensure the agreement is completed correctly. The lawyers will also explain that by signing the agreement you are giving up your right to have the agreement changed later by a court.

Macleod says downloading the agreement kit and filling it out yourselves is only viable for amicable break-ups, where the finances are fairly straightforward.

But the total costs for straightforward cases, including the cost of independent legal advice, could be well under $2000, he says.

Child support

Child support and child maintenance (for over 18-year-olds) is separate from property settlements and is administered through the Department of Human Services (DHS).

There is a calculator for working out child support payments on the DHS website.

It is based on factors including income and percentage of care.

Even if a parent does not spend any time with their child, they will still be responsible for child support payments.

Parents can have a private agreement or have a written agreement.

Parents can arrange for the DHS to collect and enforce payments of child support and maintenance.