Monthly Archives: April 2014

Parenting plans or Family Court Orders? – your choice

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parenting-plan-court-ordersIf you separate from your husband, wife or de facto partner and you have children together, you both have a continuing responsibility for the care of your children. So what are the options when it comes to figuring out the care arrangements for the children?

If you are unable to discuss those options between yourselves, you are encouraged to attend mediation.

The discussions will include:

who the children live with
when they see the other parent
the specifics of hand-over, such as where it will happen, who drives
providing for contact by other means (such as phone calls etc) when the children are with the residential parent
arrangements for special events like Christmas, New Year, Birthdays, Mother’s Day, and Father’s Day
arrangements for travel – domestic or international
schooling, religion, and medical care amongst other issues

The level of detail in the agreement will often depend on how flexible the parties are and how well they communicate after separation.

If the parties can reach agreement on the arrangements for their children at mediation, the mediator will usually encourage them to draft and sign a Parenting Plan. However, they do so at their own risk for one very important reason – enforceability.

If you and your ex agree on the arrangements for the children, and record this in a parenting plan, what happens if one party stops adhering to the plan? They might, for example, stop you spending time with your child. You cannot enforce the plan.

We always commend parties for being able to reach agreement on the arrangements for the children but we strongly recommend that the agreement/parenting plan is formalised by filing an application for Consent Orders at the Family Court of Western Australia.

The parties and their lawyers are not required to attend court. The process merely requires the details of the agreement/parenting plan to be filed at the Family Court. Assuming they are in the best interests of the children, the court will make the orders.

This way, if your ex becomes less co-operative (which can occur, for example, when one party starts a new relationship), you have the option of asking the court to enforce the agreement.

The Family Court requires, in the absence of urgency or other reason such as family violence, that all parties attempt mediation to resolve their issues before seeking its assistance.

If you have attended mediation and have not been able to reach final agreement, or if the other party refuse to attend mediation at all, you will be issued with a certificate which will allow you to file an application at court setting out your proposals for the future care of your children.

Thereafter, your ex will file their proposal in response and the matter will progress through the court which will assist you in your attempts to reach agreement. If that is not possible, it will make orders based on the best interests of the children.

If one party then fails to comply with the orders, whether agreed or ordered by the court, the other party can file an application to enforce the orders. The court can apply a variety of sanctions to ensure compliance.

The sanctions applied will depend upon the situation and the nature of the breach but can include paying the other party’s legal costs, paying compensation for lost time with a child, a requirement to attend a post-separation parenting program, a community service order, payment of a bond or fine or even imprisonment.

As time passes things might change. One or both of you could re-partner, you might have more children, your children’s needs might change as they get older. If orders were made by consent, or by the court, you may both agree to change the orders by consent. Again, any informal changes not recorded by the Family Court will not be enforceable.

It is only possible to change orders by consent and have these changes made into orders of the court where the original orders provide for this.

However, it is possible to seek an amendment to orders made by the Family Court, under section 65D(2) FCA.

As you might imagine, the court wants to limit litigation and therefore it is generally only possible to seek an amendment where there has been a significant change in the circumstances of the parties, or a material factor was not disclosed at the earlier hearing which would justify changing the orders.

This is so even where the parties both agree to a change in the orders but will also depend on the changes proposed as well as how long it has been since the previous orders were made.

Whatever you do, you need to remain flexible and reasonable as far as possible, whilst making sure you safeguard your own position in case problems crop up further down the track.

Related Family Law Information

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    • Family Court subpoenas – a guide for professionals

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    family-court-subpoenasDealing with subpoenas from the Family Courts is becoming a common occurrence for many professionals. Applications for financial, banking, insurance, superannuation or medical records are common place in the interests of full mutual disclosure by both parties in a relationship breakdown.

    Most professionals will simply hand over the requested material without any scrutiny of what is contained and in most cases this does not cause issues, however there is material which may be protected and should be objected to, and professionals should closely scrutinise what they are producing.

    Failure of a professional to object to a subpoena for their client’s information could expose the professional to a claim of negligence from their client. It is important, therefore, that professionals have an understanding of how subpoenas work, how they must be complied with and how to object to them.

    A subpoena is an order issued by the Court to compel a person or business to either produce records, or attend court as a witness, or both. The Court issues a subpoena at the request of one of the parties to the proceedings and the document will be served on the entity the party is seeking information from.

    You must comply with a subpoena, unless it was not served on you correctly under the Family Court Rules. The Rules require that the subpoena is served on you by hand, at least 7 days before the court date, and also pay your reasonable expenses (known as “conduct money”) for complying with the subpoena. If you have any concerns about the service of the subpoena you should contact a lawyer to discuss the matter.

    There are very serious consequences if you do not comply with the subpoena, including the Court issuing a warrant for your arrest or ordering you to pay any costs caused by your non-compliance. The court may also find you guilty of contempt of court.

    If you are a professional who has received a subpoena for your client’s information, the first step is to advise your client and seek their instructions about anything they are concerned being disclosed to the other parties. In addition to this it would be wise to seek the assistance of a lawyer to see if any of the material would fall into a category which could be objected to.

    If the subpoena is to give evidence, check the date, time and location that you are required to attend. The party serving the subpoena must also provide you with reasonable conduct money to cover any travel expenses, accommodation, meals etc. If they have not you can contact the party issuing the subpoena and request the conduct money.

    If the subpoena is for the production of documents you can either provide the originals or copies of the documents. Read the subpoena carefully, it will tell you when and where to produce the documents. An important point to note is that that the documents get sent to the court, not the other party. Again the party issuing the subpoena should provide you with reasonable conduct money to produce the documents.

    If you have concerns about the nature of the material that the other party has requested, because it doesn’t seem relevant, is privileged or somehow else sensitive, then you need to get independent legal advice as soon as possible. There are a number of legal grounds that you can object to the subpoena, but you have to let all parties know with adequate time. Arguing against a subpoena involves complex areas of law, so it is wise to have a lawyer handle this side of things for you.

    Normally the court will hold the material produced pending any objections being heard about it being produced to other parties. Once these issues are determined the court will either make material available for viewing, copying, or both, or else strike the subpoena out and have the material returned to you.

    Related Family Law Information

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    • Father wins custody of his abducted son

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    Passport-and-Child-abductionA child who was abducted by his mother and taken to Europe will live with his father full time in Australia — and spend no time with his mother.

    When the boy was three, the mother became convinced the father had sexually abused the boy and feared he had involved him in a pedophile ring. She ­secreted him to Europe for 2½ years, where his father ­found him in September 2010. The boy and his ­father returned to Australia in January 2011. The ­mother was extradited to Australia two months later.

    The mother has since been convicted in the NSW District Court of taking the child, now nine, out of Australia. She faces a jail term of up to three years.

    Family Court judge Garry Watts said he accepted the mother “unshakably and implacably” believed the boy was sexually abused by his father, but he found the mother suffered from a psychotic illness and sometimes was deliberately untruthful.

    “Placing the child with his mother in circumstances where there is no short or medium-term prospect that the mother will gain the insight to seek treatment for that disorder is in fact a highly risky position into which to place the child,” he said, adding a court would not grant custody or access to a child if doing so would expose the child to “unacceptable risk” of sexual abuse.

    “The decision about whether or not there is a risk and, if so, whether that risk is unacceptable, cannot be made lightly and can only be made after substantial consideration of the facts in a particular case,” he said.

    Justice Gary Watts found there was no unacceptable risk the father had sexually abused the child or that he had been involved in a pedophile group. He ordered the boy live with his father, and have only phone or Skype contact with his mother, when the child requested to do so. A photo of the mother was to be prominently placed in the boy’s bedroom.

    Justice Watts said the road back to the mother having a relationship with her son was for her to seek treatment for her mental illness. “I understand the mother will not be able to accept my findings at this time and that she ­believes I fit into a profile of ­judges which she thinks exist in the Family Court, who brand as ‘mad’ mothers who make sexual-abuse allegations against fathers of their children,” he said.

    Shared care and Family Tax Benefit

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    shared-care-and-FTBThis factsheet explains how Family Tax Benefit (FTB) works when the care of children is shared, most frequently in the event of divorce or separation. It also explains how to deal with problems that can arise, particularly when two carers do not agree on the “percentage of care” that should apply.

    Overview

    When two separated parents (or in fact any adult – like a grandparent) are sharing the care of a child, FTB can be split according to the percentage of time the child is in each adult’s care:

    If an adult has at least 35% care of the child, the FTB payment can be shared;
    If an adult has less than 35% of the care, they will not get a share of the FTB. However if they do have at least 14% of the care, they may be eligible for the rent assistance component and other benefits that normally attach to FTB;
    If an adult has less than 14% of the care, they cannot receive any family assistance for the child.

    Assessment period

    The assessment period for working out the percentage of care starts from the day care starts or changes, and runs until there is another change in care.

    A care period of 12 months will generally be used when the arrangements are ongoing. Generally for a 12 month period, the 35% minimum care rule is satisfied where a person cares for the child for at least 128 days in that year.
    Pattern of care

    To work out how FTB is to be shared, a “pattern of care” must be established to work out what percentage of time each adult cares for the child. This percentage is then applied when calculating the rate of Family Tax Benefit A and B that each adult can receive. The table below summarises the percentage of FTB that will be paid. If “number of nights” is not an accurate reflection of the pattern of care, in some cases, care can be expressed in hours and converted into days to establish a pattern of care.

    Shared-care-and-Family-Tax-Benefit

    Who decides what the percentage of care is?

    Centrelink’s Family Assistance Office or the Child Support Agency make a determination about the pattern of care that each relevant carer provides for a Family Tax Benefit child, and then informs the other agency automatically.

    This pattern of care then gets converted into a percentage rate that decides how the FTB is split.

    If both adults agree on the actual pattern of care for the child, the agreed pattern of care is used.

    If both adults disagree, Centrelink must decide what the actual pattern of care is, on the basis of available evidence, even if a formal care arrangement exists according to court orders.

    Each adult will be asked to provide additional evidence to support what they say in order for the Family Assistance Office to make a decision.

    If you do not agree with the percentage of care that Centrelink or the Child Support Agency decide you have, you have the right to appeal.

    An assessment by Centrelink or the Child Support Agency is binding for both agencies. If the decision is made by Centrelink, you can appeal to an Authorised Review Officer in Centrelink. If the decision is made by the Child Support Agency, you can lodge an appeal with the Child Support Agency or to an Authorised Review Officer in Centrelink.

    If that doesn’t work, you have the right to appeal to the Social Security Appeals Tribunal.

    How can I prove my percentage of care?

    When there’s a disagreement between yourself and another carer as to percentage of care, each person has the opportunity to provide verification. You could try to get evidence which might support what you say, such as:

    • any records of agreement between you and the other carer (a written agreement, an email);
    • a family law order or parenting plan;
    • confirmation of play group, kindergarten or school enrolment;
    • proof of attendance or membership of local organisations or activities;
    • receipts for things you paid for while caring for the child;
    • statements of close family friends or relatives who can confirm your percentage of care;
    • confirmation from any professionals who know your situation (a doctor, a family law solicitor, a teacher, a police officer);
    • proof of travel arrangements at contact times (rail or airline tickets); or
    • records from a government agency (like the Child Support Agency) who might be able to confirm current or previous patterns of care.

    A decision maker will usually speak to you, speak to the other carer, look at any evidence submitted, and then make up their own mind about what percentage of care to apply in your case.

    Who can help me with this?

    Welfare Rights Centres often can’t act for you against another carer. This is because we don’t want to be “conflicted out” of helping as many people as we can with their problems with Centrelink. You could contact your local Legal Aid Child Support specialist service to see if they could help you. Centrelink’s Family Assistance Office and the Child Support Agency can each make a determination about the pattern of car and this decision is then applicable to the other agency automatically. Legal Aid Child Support Service in NSW can be reached on 96339916 (Sydney) or 1800 451 784 (regional).

    Shared care debts

    Problems can arise when one person receives FTB by instalments based on a certain percentage, but then another person claims FTB later (eg at the end of the year) and claims to have a higher percentage of care than Centrelink had applied.

    For example, Susie receives instalments of 100% of FTB through the financial year on the basis that she has care of her son Tom 70% of the time. However at the end of the financial year, her ex-partner Jason lodges a claim for FTB stating that he has 35% care of Tom.

    If Centrelink assesses the care and decides Jason did have 35% of the care, Susie will incur a debt:

    • If Susie disagrees with Centrelink’s decision about the percentage of care, she may appeal to an Authorised Review Officer to argue the decision was wrong;
    • If she agrees with the decision, she might still have grounds to have the debt waived if it was caused by Centrelink error or if she has special circumstances.

    If you disagree with a debt raised on the basis of the percentage of care you had of a child over a past period, you have the right to appeal. You can present your case to a decision maker and ask them to make a decision that you had a different percentage of care. The same sorts of evidence referred to under “how can I prove my percentage of care” on page 2 would be relevant to your appeal.

    If you agree with the percentage of care basis for the debt, but would like the debt waived in view of your special circumstances and in view of the fact you did not realize you were being overpaid at the time, you have the right to ask that the debt be waived (meaning it does not have to be paid back). See our factsheet “Debts” for more information about this.

    Shared care and other payments

    Parenting Payment (for children under eight if you’re single) can’t be shared because it is paid to the principal carer, and only one person at a time can be the principal carer of a child. Where the care of a child is shared a decision has to be made as to who qualifies as principal carer. Where one person provides the majority of care they will generally be determined to be the principal carer, even if that person has not claimed Parenting Payment. Where the care is shared equally (eg, 50:50 or where there is less than a 10% difference in the level of care), Centrelink’s policy is to grant Parenting Payment to the parent who:

    –     claimed Parenting Payment, if the other parent does not claim; or

    –     is most in need of the payment.

    In determining need, Centrelink looks at:

    –     whether one of the parents already qualifies for Parenting Payment for another child;

    –     any other income or assets of the parents; and

    –     whether one parent has already been receiving Parenting Payment for the child.

    Child Care Benefit and Rebate are paid to the person liable to pay the child care fees.

    Appeal rights

    If you think a Centrelink decision is wrong, you have the right to appeal. Appealing is easy and free. To appeal simply tell Centrelink that you are not happy with their decision and that you would like to appeal to an Authorised Review Officer (ARO).

    You can appeal to an ARO at any time. However for an FTB past period decision, your appeal needs to be lodged within 52 weeks from the date of the decision, or by 30 June for the financial year after the one you are appealing about – whichever date is the later one. To claim FTB for a past period, you need to lodge your claim within 12 months of the relevant financial year you are claiming for. There is no time limit to ask to waive a family assistance payment debt. Different time limits may apply to appealing decisions through the Child Support Agency.

    If you think the ARO decision is wrong you have further appeal rights, and time limits apply. For more information see our factsheet “Appeals – how to appeal against a Centrelink decision”.

    De facto couples have differences to married counterparts, judge says

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    Close-up Of A Judge Hitting Mallet At Desk

    Close-up Of A Judge Hitting Mallet At Desk

    De facto couples – even those who have a child and live together – have significant social, financial and emotional “differences” to married couples, according to a Federal Circuit Court judge.

    Judge Joe Harman has ruled a man and woman who had a child, bought a home together, and lived in it for 13 years were not in a de facto relationship and had had sex out of “need”, not love.

    This meant the court had no jurisdiction to divide up their property under family law.

    The woman, “Ms Benedict’’, argued the couple were in a relationship and lived together from 1992 to 2010.

    Ms Benedict told the court they’d been sharing a bed and were in a marriage-like relationship, even though she had been claiming Centrelink benefits and filing her tax returns as a single parent.

    However, her alleged partner, “Mr Peake”, said they’d never been in a de facto relationship and simply lived together with their daughter for convenience, in separate bedrooms.

    Assessing whether they were in a relationship, Judge Joe Harman said Mr Peake mostly “attended to his own needs”.

    “This included attending to his washing at laundromats or at other premises, making his own meals (or more often than not taking meals outside of the home or buying takeaway) and by and large living and maintaining his own life and lifestyle,” Judge Harman said.

    He said the pair had not maintained a relationship that could be described “in normative terms” as marriage like.

    “Indeed, a de facto relationship may be described as ‘marriage like’ but it is not a marriage and has significant differences socially, financially and emotionally,” he said.

    But Forte Family Lawyers partner Jacky Campbell said many married couples stayed together for years for the same reasons Mr Peake and Ms Benedict lived under one roof: for financial reasons and the benefit of children.

    “The Family Law Act has been changing over many years to give de facto couples the same rights and responsibilities with respect to parenting and financial matters as married couples,” she said.

    “Judge Joe Harman seems to be saying that de facto relationships are different. I don’t know what these differences are. His comments appear to be contrary to the law and the general views of society.”

    The judge accepted Mr Peake’s evidence the pair had not held themselves out to others as being a couple and said their sexual relationship was “brief, sporadic and far from reflective of mutual commitment”.

    “In all probability for these parties and especially Mr Peake, engaging in sex with each other has met a need and has not imported or implied anything else be it emotion or commitment,” he said.

    The pair lived different hours: Mr Peake usually worked through the night and went to bed in the morning, and Ms Benedict woke usually in the morning and slept at night.

    They were largely financially independent, but Mr Peake had taken care of the mortgage.

    Ms Benedict paid some of the bills, helped to maintain and improve the home and had cared for their daughter.

    They had also been involved in a business together and took overseas trips with their daughter.

    However, Ms Benedict had failed to register Mr Peake’s name on her daughter’s birth certificate.

    Ms Benedict argued this was an oversight that occurred while she was heavily sedated following her daughter’s caesarean delivery. However, the judge found this was “substantially and significantly inconsistent with Ms Benedict’s evidence and assertions as to the level of closeness, joint purpose and intent and mutual commitment to relationship”.

    Legal Aid offices in WA may close due to budget pressures

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    simone-mcgurk-legal-aidBudget pressures have prompted Legal Aid to consider closing two of its metropolitan offices and centralise services at its Perth headquarters.

    The service is jointly funded by the state and federal governments and provides free services to people who cannot afford to pay for a lawyer.

    But the budget is under strain and the ABC has been told the service, which has an annual budget of about $65 million, will soon put a proposal to the Legal Aid Commission to close offices in Fremantle and Midland.

    There are no plans to cut jobs and staff would be relocated to the May Holman centre in Perth’s CBD, in a bid to save $600,000 a year.

    The Member for Fremantle Simone McGurk has described the proposal as a “tragedy”.

    “Remember that this service is being cut for metropolitan centres because the Barnett government has prioritised vanity projects over people,” she said.

    “The Government’s failed to manage their own budget and recipients of legal aid are paying the price. It’s a real tragedy.”

    She is also suspicious of the claim that jobs would not be cut.

    “Taking those Legal Aid offices out of the metropolitan areas will mean that some people are without proper legal advice,” she said.

    “We still don’t know whether the actual staff numbers will be reduced as a result of this decision but we’ll be looking closely at the upcoming state budget to see if Legal Aid’s allocation has been cut.”

    Attorney General Michael Mischin has blamed the previous Federal Government for cutting its part of the shared budget.

    “Whereas once the Commonwealth was contributing something like 60 per cent of funding for Legal Aid in Western Australia, in 2011-12 it was down to 37 per cent,” Mr Mischin said.

    “There are a number of pressures on Legal Aid but the assurance I’ve had is that the services won’t suffer.

    “The Government’s failed to manage their own budget and recipients of legal aid are paying the price. It’s a real tragedy.”

    “It was one of my concerns as to whether this would cause people to be disadvantaged, but as it was pointed out to me, there are duty lawyer services in Rockingham, in Mandurah, Armadale, they’re in Joondalup; all these are major areas which have their own significant problems.”

    He says Legal Aid director George Turnbull had to work with the budget available.

    “That is a matter for him as to how he handles the budget he has,” Mr Mischin said.

    “It’s true to say that every government agency and department needs to achieve efficiencies and economies in order to stretch dollars further.”

    The Opposition says the move will affect many vulnerable people, particularly with the busy Fremantle office also servicing the Rockingham and Mandurah courts.

    The Legal Aid Commission will consider the proposal at the end of this month.

    Property Settlement in Big Money Australian Divorces

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    big money divorce calculatorMost divorce cases of the mega-rich never reach court. The details are usually mediated by a retired judge.

    Head of Mills Oakley family law team, special counsel Michael Paul said going to court could sometimes be like rolling a dice in divorce cases of the mega-rich: there’s an element of chance in how the court will allocate the assets.

    Mediation is often the cheaper and usually safer option when it comes to deciding huge divorce settlements, Paul said. The mediator, in a position of authority, can evaluate the case and advise on what a court would be likely to do anyway.

    “What we’re all on about is if you possibly can do a mediation, there’s a bunch of retired judges out there who for about $5,000 to $8,000 a day will do a mediation, plus they will need a fee for reading time before hand,” Paul said.

    “Sometimes it is helpful to have senior counsel at a mediation and this adds to the expense.

    “You can do neither [go to mediation or court] until there has been what’s called appropriate disclosure of all financial records.

    “It becomes a pretty expensive process to get real estate valuations and forensic accountants to give an evaluation of companies and businesses, it’s very, very costly.”

    But mediation can fail, and some big money cases do end up in the Family Court.

    Paul said there were big unknowns in taking a big money divorce case to court.

    “If you ask half a dozen lawyers, given a certain set of facts, what you see the results as being, you would probably get about three opinions across a bit of a range,” Paul said.

    “The real concern is if you ask half a dozen judges you’ll get about the same range, and there are judges who have a predisposition one way, judges who are pretty straight down the middle, and judges who have predisposition the other way. They’re all known and I assume they know themselves.

    “That’s why it’s a bit of a roll of the dice. The judge now gets allocated to you quite early so you know what could possibly happen so you plan and negotiate accordingly.

    “But on the whole even when you go to court surprises do occur not withstanding discovery.”

    What’s interesting is in many of the multi-million dollar divorce cases which have made it to court, the wife has received less than half of the assets.

    This table gives an indication of how assets have been split in divorce cases where tens of millions of dollars are at stake. It first appeared in a case over which Justice Peter Murphy presided over in 2012. Justice Peter Murphy awarded the entrepreneurial husband 60 per cent of the assets and the wife has since appealed, so “it’s not the last word,” Michael Paul said.

    Family Court Smith & Fields

    When these big cases with asset values between $8.8 million and above $40 million have been decided by a court, the wife has in some of the authoritative cases received less a lot less than half of the assets.

    For example in the Lynch case, with an asset pool valued at over $40 million, the wife received 27.5 per cent or about $10 million.

    In that same case the couple were together for 20 years; the judge deemed the husband’s assistance with the children was “significant” and the wife did not work in the business.

    In the Ferraro case the court deemed the husband’s assistance with the children as negligible and the wife did not contribute to the business and she was awarded 37 per cent of the assets.

    But in the Phillips case the court found the wife made “significant” contributions to the business in its early stages, the husband’s contribution with the children was found to be “limited” and the wife was awarded 40 per cent.

    “If a wife has done significant work in the business then that should be looked at as a significant contribution on her part that cuts down on his,” Michael Paul said.

    “It doesn’t seem to have mattered whether you’ve worked or not, we say as a general rule the income earning of the partner who goes out to work is the equivalent of what the partner who stays home looks after the house and children.”

    What does matter, in terms of the multi-million dollar cases outlined in the table, and in Justice Peter Murphy’s arguments is the entrepreneurial skills of the husband.

    “Usually luck is something that doesn’t attract that appellation [of entrepreneurial skills], something that’s the result of intelligence and an unusual set of skills leading to a result in terms of the asset created that is beyond the norm,” Michael Paul said.

    In these cases the court found “special skills” of one party, in these cases the husband, have driven the wealth creation.

    Going back to basics the legislation outlines a four step approach, including creating a balance sheet of all the assets and liabilities, evaluating both direct and indirect contributions of both parties, and making adjustments in favour of the weaker financial party.

    Adjustments include if a person is caring for children, has a smaller income earning capacity or if one party has more property.

    But Justice Peter Murphy looked at what are called “special contributions”, and in the case of the rich “entrepreneurial type contributions have been rewarded”, Michael Paul said.

    “The argument about special contributions is a bit of a non-argument, it’s all about contributions in each particular case,” Michael Paul said.

    “You have to go back to the legislation, there’s nothing about ‘special’ in the legislation, and they’re both direct and indirect, domestic and other.

    “No one necessarily has a greater role.

    “It’s the result of one person doing what they do in their sphere enabling the other to do what they do in their sphere.

    “You’ve got to allow special contributions because to not do so you would be really ignoring something.”

    Paul explained that what does happen in a lot of cases is that a judge will find that the contributions have been equal.

    “That is the case absent either somebody starting with a lot more in assets then the other or somebody inheriting along the way,” he said.

    “If you start with a lot of assets and it’s a short marriage you probably keep them.

    “If it’s a long marriage after ten years or so there’s frequently little regard had for what you started with.

    “Although there are exceptions to that for example if the asset is still in the same shape, is it a house, a business, the court should give a bit more to the one that brought it in.

    “That’s one of the hardest things to work out.”

    The other source of wealth some divorces squabble over is inheritance.

    “People are always concerned about inheritances being gobbled up by the other party but it doesn’t happen that way because the court almost quarantines the inheritance if it was recently received on the side of the person who received it, it’s got to be more than five or six years ago I think before an inheritance starts to get divvied up,” Michael Paul said.

    But it’s all considered on a case-by-case basis.

    “Nobody is suggesting those cases [in the table] were wrongly decided, they’re all quoted as authorities for various propositions and I think an entrepreneur will still in an appropriate case, it’s almost back to the definition ‘what is special?’” Michael Paul said.

     
    Related Family Law Brief

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    • Father Wins Right To Vaccinate His Children

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    boy-getting-vaccinationA Sydney father has won the right to vaccinate his children after a drawn-out legal battle with their mother, who is strongly opposed to immunisation.

    The children, a son born in 2002, and a daughter born in 2004, now live with the father and have both had whooping cough.

    The Family Court rejected the mother’s claims that the children, who will turn 14 and 12 this year, were at an increased risk of experiencing ”vaccine damage” due in part to various allergies she believes they suffer from.

    Sitting at Parramatta, Justice Garry Foster said the 42-year-old woman, given the pseudonym Ms Duke-Randall, had submitted hundreds of documents about the risks of vaccination, such as the link to autism.

    Justice Garry Foster said much of it ”is comments, submissions, irrelevancies” and Ms Duke-Randall had become ”narrowly focused on it, perhaps to the point where the best interests of her children have been subsumed”.

    The father, Mr Randall, 52, said during their marriage he agreed with Ms Duke-Randall’s anti-vaccination view ”for the sake of peace in the household” but since their divorce in August 2011, he had come to realise his son and daughter were missing out on extra-curricular activities because they were not immunised.

    Some of his relatives were unwilling to have their children socialise with his children and he was worried they would be excluded from school during an outbreak of an infectious disease.

    But he said he ”was simply unable to negotiate with [the mother] on the issue”.

    While the parents fought over other issues including custody and property, the court restrained both parents from vaccinating the boy and his younger sister until a three-day hearing into the immunisation issue could be held in January this year.

    But last month Justice Garry Foster discharged the order, finding the mother had been deliberately delaying proceedings and ignoring directions, which led to the ”strong inference that she has done so to suit her own end that the issue as to vaccination be delayed for as long as possible”.

    The mother claimed any delay in presenting her case was caused by the court not permitting her to use medical evidence regarding her children’s susceptibility to being adversely affected by vaccines.

    Justice Garry Foster accepted evidence from a senior consultant in immunology, given the pseudonym Professor K, that both children are healthy and do not have any allergies or any other contraindications to vaccination.

    Both children had been kept on a low-salicylate and low-amine diet but once the father gained primary custody, they had begun to eat a normal diet, Professor K said.

    She recommended the children be bought up to date with the routine childhood immunisations.

    The case is the latest in several court judgments that have found on the side of the parent wanting vaccination.

    A report by the National Health Performance Authority last week found childhood ­immunisation rates have ­improved over the past year.

    Domestic violence study suspended by UNSW for breach of ethics

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    have breached the University’s code of ethics.An online ‘domestic violence study’ has been ordered offline by the University of NSW Human Research Ethics Committee.

    Flyers published by the survey organisers have been ordered destroyed.

    The study, being conducted by the Gendered Violence Research Network, White Ribbon Australia and Youth Action NSW, was found by the Ethics Committee to have breached the University’s code of ethics.

    The decision comes after a national coalition of men’s health advocates made a formal complaint to the University claiming the survey was gender-biased, poorly formulated and misleading. They argued it could not achieve its stated aims and any consequent findings would be unreliable and likely to mislead the public.

    Chair of the Ethics Committee, Professor Heather Worth, found that a quote on the original flyers claiming that “childhood exposure to intimate violence increased the likelihood of intergeneration violence particularly amongst boys” was incorrect. The ethics committee has ordered that the flyers be destroyed and replaced by a new flyer that has correct information, including any quotes.

    Professor Heather Worth also found that the participants’ information sheet referred to by the survey was not accessible as claimed. The Ethics Committee has instructed that the survey be suspended until the link is in place.

    Men’s Health Australia spokesman Greg Andresen said, “We congratulate the University for investigating our complaint so speedily and acting upon these ethical breaches. It is essential that domestic violence research, especially that involving young people, is conducted properly.”

    “The incorrect statement in question was lifted directly from current White Ribbon ‘Fact Sheets’ that haven’t been corrected. The University’s investigation determined that some of the methodological issues raised in our complaint would be dealt with in peer review of the findings when the authors submit publications for review.

    We trust that White Ribbon Australia plans to subject this study to the rigours of the peer review process prior to publishing any reports on its website. It is regretfully common that much gendered violence ‘research’ makes it into the public domain without going anywhere near peer review challenge,” said Mr Andresen.

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    Family Assets & Divorce – Keep it in the Family

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    dividing-gifts-after-divorceNO parent dreams their daughter or son’s relationship will end, but going in with a plan to protect assets is wise

    Family disputes over inheritances are nothing new. But parents planning their estates are becoming more wary about making sure inheritances stay with the sibling rather than potentially be hijacked by a partner.

    With one-in-three marriages in Australia ending in divorce, and defactos having the same rights as married couples, it’s important for parents to consider how estate plans are impacted if their child’s relationship ends.

    Both marriages and de facto relationships are subject to federal laws which govern the division of property and, without proper planning, it’s possible for beneficiaries to lose half of their inheritance in a future split.

    While we all hope it won’t come to that, when it concerns a legacy it’s best to play it safe, so here are three strategies to help keep your estate in the family.

    ESTATE PLANNING

    Every family is different and putting together a legally sound, tax-effective estate plan can be a big task.

    For families looking to protect their estate, RK Financial Planning’s Robert Reid says a practical option can be to set up a testamentary trust through their will instead of leaving assets directly to their chosen beneficiaries.

    Establishing a testamentary trust can protect assets from claims against beneficiaries, and can also be highly tax-effective compared with a direct transfer of ownership.

    As an example, say Scott has been married to Emily for five years and has recently received a $200,000 inheritance from his dad. Soon after the money arrives, Emily files for divorce.

    But if they’re held under a trust, Scott’s inheritance may be protected and considered separate from the matrimonial pool.

    If the assets are bequeathed directly in Scott’s name, they could easily be considered part of the matrimonial pool and be divided between the two parties. But if they’re held under a trust, Scott’s inheritance may be protected and considered separate from the matrimonial pool.

    That said, there are no hard and fast rules here, and it’s important to realise the Family Court has wide-ranging powers to decide which assets are included in any divorce property settlement.

    GIFTS AND LOANS

    Another common situation is when parents provide financial assistance to their kids, for example helping them out with a house deposit.

    This can be a dangerous game if their relationship is on the rocks and the money is simply gifted or lent under an informal loan agreement. If the relationship ends it could end up in their partner’s hands as part of the settlement.

    Say Louise is lent $80,000 by her parents to buy a house with her partner John, but no formal agreement is put in place.

    If the relationship ends, John may be entitled to his share of the equity in the house, including the loan amount, while Louise will still be liable for the informal loan from her parents, whose good deed has actually backfired and lost the family money.

    However, if Louise and her parents had organised a formal loan agreement complete with interest charges and set repayment dates, the loan would be much more likely to count as a personal liability for Louise and excluded from the division of property.

    Just don’t try and dress up a gift as a “loan” with some basic documentation. As Reid says, the more it looks and smells like a gift, the more likely it’ll be treated as such.

    BINDING FINANCIAL AGREEMENT (PRENUP)

    For people who have already received an inheritance and want to protect it from their partner should they separate, binding financial agreements (or prenups in Hollywood terms) are an option.

    These are signed by both parties before or during a relationship and govern how assets are distributed in the event of it ending. Although, again, the Family Law Courts can declare the agreement invalid if it’s challenged.

    While kicking off a relationship with one eye on the exit is never a good start, binding financial agreements can have their place.

    Whatever approach you take to protect assets, it’s best to get expert advice from a financial planner, as well as an estate planning lawyer, to ensure you’re covered.