Monthly Archives: April 2019

Break-up coaches are exploiting the vulnerable

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break-up-coaches-family-law-expressHas the love of your life broken up with you? It hurts, I know. It’s fantastically painful. You’ve lost your other half, your best friend, the life you thought you’d have. You’d do anything to stop the pain. You’d do anything to get them back.

Well, according to the internet – and a variety of “break up coaches” – you can. You could read the Five Step Plan to Get Your Ex Running Back to You! by dating coach Matthew Hussey, or watch The Number One Secret to Getting Your Ex Back! by Brad Browning. You could go with Kevin, from the website Ex Back Permanently, or get private coaching from online service, The Art of Love.

You will generally begin with a 30 day “no contact” period, to give your ex-partner time to miss you. (The idea that they may be perfectly delighted to be free of your daily phone calls isn’t generally up for discussion.)

When the campaign for reconciliation begins, there are a variety of techniques to try.

Women can use social media to “re-seduce” their ex with enticing pictures of their exercise and travel. Men can use their “emotional masculinity” to “re-attract” their ex whilst at the same time letting the woman “feel like she’s in control”.

None provide statistics on how many clients succeed in “getting their ex back”, or follow up with happy couples who have worked through the techniques.

Of course, many couples do reconcile after a breakup, but it depends largely on the reason for the split.

According to Elisabeth Shaw, CEO of Relationships Australia NSW, many couples separate because they’ve reached a relationship impasse – a destructive conflict cycle, or infidelity, or betrayal. Others end their relationships due to anger, frustration or resentment, rather than a lack of love.

Some couples, however, break up for a simpler reason: one partner has fallen out of love, or feels the relationship has run its course. And in these cases, Shaw tells me, trying to call the other partner back into the relationship is not in your interests, or theirs.

“If you did manage to talk them into coming back it won’t have a great chance of success,” she warns. “It might work for a while if they are lonely or nostalgic, but then you’ll encounter the same problems and break up again.”

So when and how can one get their ex back? What actually works, when there’s still love and hope?

Well, even when there is a possibility of reconciliation, the path lies not in the tricks recommended by the breakup coaches. The path, according to Elisabeth Shaw, is self-reflection and hard work, and, possibly, couples counselling.

Some couples, however, break up for a simpler reason: one partner has fallen out of love, or feels the relationship has run its course. And in these cases, Shaw tells me, trying to call the other partner back into the relationship is not in your interests, or theirs.

“If you did manage to talk them into coming back it won’t have a great chance of success,” she warns. “It might work for a while if they are lonely or nostalgic, but then you’ll encounter the same problems and break up again.”

So when and how can one get their ex back? What actually works, when there’s still love and hope?

Well, even when there is a possibility of reconciliation, the path lies not in the tricks recommended by the breakup coaches. The path, according to Elisabeth Shaw, is self-reflection and hard work, and, possibly, couples counselling.

“Take stock of yourself and your own behaviour,” she advises. “Have a good hard think about why the relationship failed. The only way forward is to do the work and do the relationship differently.”

If you are keen to get your ex back, you will to bring something to the table, not just hollow seduction.

 “It’s not about promising things your partner wants to hear,” Shaw explains. “It’s about working on yourself and making changes.”
Ultimately, however, all the self-improvement in the world won’t work if your ex has shut the door on your relationship. As hard as it is to be rejected, sometimes there is no “getting the ex back”. You can choose to spend hours frantically googling strategies, or you can get on with the process of acceptance and recovery.

Your ex may find their way back to you one day, but it has to be through growth, and not manipulation.

Either way, the solution to the pain of a breakup isn’t to get your ex back. The solution is to get yourself back, and rebuild your life.

 

High Court to decide if a sperm donor can be a parent

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A man who donated his sperm to a lesbian couple so they could have a child will argue in the High Court today that he is legally the girl’s parent and should be able to object to her moving overseas.

A contest over two little girls, the women who raised them and the elder child’s biological father has framed the terms for a High Court showdown over what it means to be a parent.

Robert Masson is trying to block the mother of his biological daughter from moving to New Zealand with her partner and the girls, claiming that his role in their lives has always been larger than that of a “sperm donor”.

“We went away on holiday together and cooked up that we would have a child, and the stipulation from my side of it was ‘I have to be Dad,’ ” Mr Masson said.

“I have to be part of that child’s life because I didn’t know my own father.”

Mr Masson and Susan Parsons (using their court pseudonyms) had been friends for 20 years when they conceived a baby “privately and informally” in December 2006, at a time Ms Parsons was beginning her relationship with her current partner, Margaret Parsons, the Family Court found.

Mr Masson has been involved in the girl’s life since he cut her umbilical cord 12 years ago, which has included overnight visits, attending countless ballet rehearsals – “it takes over your life” – and fostering a close relationship between the girl and his mother. His name is listed on her birth certificate and she and her younger sister, who is not his biological child, both call him “daddy”.

It was not until he took legal action to prevent the women from moving to New Zealand that he saw himself referred to as a “sperm donor”, he said. “Every time I read it I get upset about it.”

The case has implications for hundreds of single women whose children were conceived with known donors and responds to a phenomenon that has outpaced legislation.

Single women make up the largest proportion of women who have undergone artificial insemination with donor sperm.

Under NSW state law, a sperm donor is presumed not to be the father of any child conceived using his sperm unless he is the husband or de facto partner of the mother and the presumption is “irrebuttable”.

But Family Court judges have relied on Commonwealth laws that do not define the rights of a sperm donor if the mother does not have a partner at the time of conception. Nowhere is the term “parent” defined.

La Trobe University law lecturer Hannah Robert said the clash between state and Commonwealth laws had left families “in a very uncertain position” and there should be legislation to provide for preconception agreements or the ability to list more than two parents on a birth certificate.

“In a lot of families, particularly gay and lesbian families, the donor is known but they’re not a parent,” Dr Robert said.

“It’s the sort of halfway space between donor and parent and I don’t think the law has kept up with that.”

Justice Margaret Cleary applied the Commonwealth law and found in October 2017 that Mr Masson was the father of the girl, taking into account his intentions at the time of her conception, his involvement in her life and his genetic contribution.

But the full Family Court overturned her finding, concluding that the state act should be applied and Mr Masson could not be considered the girl’s parent.

The potential ramifications of the case have prompted an intervention from Attorney-General Christian Porter, who has argued that the state act should not apply and the term “parent” should bear its “ordinary, contemporary” meaning.

The Federal Government has intervened to support the man, saying he was legally the child’s father under the Family Law Act.

The state of Victoria has taken the more radical position that the court should make an explicit finding that sperm donors cannot be parents to give more clarity to birth mothers and sperm donors.

Related Family Law Judgments

Nine most common traps for DIY wills

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DIY-WillsWhile more Australians are aware of the importance of having a will, simply buying a do-it-yourself will kit from a newsagent and filling it out yourself can cause more problems than it solves.

The main concern isn’t that you end up with a will that is ineffective or invalid. It is that you end up with a valid will that is legally binding but doesn’t achieve what you wanted.

If there is a “rule 101” of estate planning, it is that the document itself isn’t important – it’s the advice that goes with it. The following are some of the most common mistakes with DIY wills – whether from a newsagent or not.

  1. Not dating the will

This becomes a problem if two or more versions of a will are located, but one is not dated. A court will need to ascertain which document was intended as the last will and testament, and is required to review all wills and question all beneficiaries to determine which document is to be recognised as the will.

There is no such thing as a “test” or “draft” will – if there is a document in existence that is signed in some way and appears to be intended as the final will (even if the person who signed it did not intend for it to be so), there are obligations on the executor to put it forward to be interpreted – often at significant expense.

2. Leaving wrong assets

It is surprisingly common for people to leave assets in their will that they don’t actually own. Superannuation is the classic example. A will cannot bind a trustee of a superannuation fund to direct a member balance to a certain beneficiary. This can only be done via a binding death nomination to the superannuation trustee.

Another common example is business assets. A person may own the business, but this doesn’t mean that he or she owns the assets of the business, and they can’t therefore be left to a beneficiary separate to the business.

3. Misunderstanding legal definitions

People often don’t realise that there are legal definitions of certain terms that could cause serious confusion for beneficiaries. Take the situation where a parent had left “all their shares” to one child and other assets to the other child. By this, they had meant their shares in companies listed on the ASX, but legally speaking, the term “shares” also encompassed their shares in a private company which was the trustee of their family trust.

4. Losing the will

There have been numerous instances of family members knowing that a person had written a will, but not being able to find it after they die. In this situation, there must be a search made for a will, including advertising for witnesses or law firms who may have been involved to come forward. This may involve significant costs and delay in administering an estate.

5. Not witnessed properly

All wills require two witnesses. If there is only one (or no) witness then it becomes an “informal will” and needs to be tested in court.

In addition, the details of the witnesses should be recorded so that they can be contacted. If they can’t be easily identified, the executor will need to prove that they have made every effort to track down witnesses, and this can become very expensive and time-consuming.

Another consideration is that a will can’t be updated or edited after it has been witnessed. The document that the witnesses viewed and signed is a legally binding document, and any changes must be witnessed again.

6. Unintended tax consequences

One area where advice can be particularly valuable is when different classes of assets, with different tax consequences, are directed to specific beneficiaries. Generally speaking, most assets can be transferred to beneficiaries without any immediate tax liabilities, but there are exceptions. For example, the transfer of assets to a beneficiary via a deceased estate is not generally a capital gains tax (CGT) event. This is not the case for a person who is not an Australian resident for tax purposes. In this case, CGT must be realised at the time it is transferred to the beneficiary and must be paid by the estate.

Testamentary trusts also allow for streaming of income to minor beneficiaries who are then taxed on that income at adult tax rates, thus potentially minimising the amount of income tax paid. Without advice, a person writing their own DIY will may create unintended taxation liabilities for their beneficiaries that a testamentary trust could have avoided.

7. Appointing the wrong executor

There are a number of misconceptions about executors. One is that an executor can’t also be a beneficiary of the will. This isn’t true but it does mean that people sometimes don’t name the most appropriate person as their executor, because they also want to ensure they benefit from their will.

Another mistake is choosing multiple children as executor, but not taking into account wider family conflicts or the fact that the children do not get on with each other. This can cause all sorts of problems when it comes to estate administration. While many will makers are concerned about the expense of a professional executor, the reality is that there is often a cost saving overall as the estate can then be efficiently and effectively administered, without family conflict.

8. Ignoring potential beneficiaries

While most people would consider that they have a right to distribute their estate in whatever way they want, this is overlaid by obligations to certain beneficiaries – for example, financial dependents.

It may be impossible to prevent a challenge to an estate but obtaining proper legal advice will minimise the chance of a successful challenge – and at least people will be aware of the potential issues that may occur.

9. Guardianship of children

One of the most common drivers for those drafting a will is to ensure that their chosen guardians will be in place for their children. Unfortunately, the reality is that the guardians listed in a will are only ever a “wishlist”. The Family Court will consider who the most appropriate person is at the relevant time, taking a number of factors into account.

By getting proper advice, an appropriate support document can be developed to explain why that guardian was chosen (or, potentially, why another one was not).

Identical twins both pay child support after inconclusive paternity test

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baby dummyIdentical twin brothers in Brazil have both been ordered to pay child support for a baby after allegedly impersonating each other to trick as many women as possible into sex.

The twins, identified only as Fernando and Fabricio, tried to shirk responsibility for the newborn as DNA tests came back inconclusive, reports The Sun.

The mystifying results are said to have failed to provide a solid answer because the men are so genetically similar.

Each brother tried to blame the other, Brazilian news outlet Globo reports.

But a judge ruled they were denying the innocent child a right to know her biological dad.

District judge Filipe Luis Peruca, at the Cachoeira Alta Court in the central state of Goias, said both brothers must be included on the girl’s birth certificate.

The ruling forces both men to pay maintenance of 30 per cent of the minimum wage — 230 reais ($AU84) a month.

Luckily for the tot this means she will get twice as much as other children from the same economic background.

“It was clear they each used the other’s name, either to attract as many women as possible, or to hide betrayal in their relationship,” the judge concluded.

The mother of the infant told the court she had a brief relationship with the father, who she thought was Fernando.

In her testimony she said she had met the man at a mutual friend’s party.

She said: “He told me he had a twin brother, but I did not get introduced. At the time I did not suspect anything.”

But she later began to question the man’s identity, adding: “The strange thing about the day is that he presented himself as Fernando, but he was with the yellow motorcycle that he said was Fabricio’s.

The judge continued: “One of the brothers, in bad faith, seeks to conceal fatherhood.

“Such behaviour, of course, should not receive a guarantee from the judiciary which, on the contrary, must repress clumsy behaviour, especially in the case in which the defendants seek to benefit from their own clumsiness.

“Given the peculiarities of the case, I believe the decision that most embodies the concept of justice is the one that honours the interests and rights of the child, to the detriment of the tortuous defendants.”