Monthly Archives: June 2018

Domestic violence offenders no longer allowed to question abuse victims in Family Court

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dv-shadow“I wanted to end my life the day that our community allowed this man to cross-examine me in court.”

Eleanor (not her real name) is a mother of four and a primary school teacher in regional Victoria.

She escaped an abusive relationship about a decade ago — a relationship in which she had been repeatedly raped and kicked by her partner wearing steel cap work boots.

But that was not the end of the trauma she experienced at the hands of her former partner.

“When I turned up for the Family Court hearing, I found out on the day that he had become a self-litigant, and that he was going to be representing himself, and that he was going to be given the privilege of being able to cross-examine me directly,” she told the ABC.

“Why would they give him the right to cross-examine me in court, knowing the trauma that women have faced?”

Self-represented litigants have had the ability, in certain circumstances, to cross-examine their victims during family law matters.

But the Federal Government will today introduce legislation scrapping the practice, citing significant community concern and a desire to avoid further trauma of victims.

“In the criminal jurisdiction, many years ago, the practice was ended where a self-represented litigant would be able to cross-examine their victim in a sexual violence or in a rape matter,” Attorney-General Christian Porter told ABC News Breakfast.

“That situation, unfortunately, persists in a very small number of incidences in the Family Court.

“For those very small number of cases where there are clear allegations or indeed convictions of violence, the perpetrator of the violence should not be able to cross-examine the victim of the violence.”

Eleanor’s case would have been one of those covered by the new proposal.

“In the very same court room, only a couple of weeks before, a judge had actually said it was unsafe for him to be within 200 metres of me,” she said.

“And then in the very same court room, with a different court, they then said it was appropriate for him to be able to cross-examine me directly.

“I can remember nearly running out of the room, and seeing people to the sidelines looking at me going ‘what’s wrong with her’, as I was hyperventilating.”

Courts would also have the discretion to stop the direct cross-examination where domestic violence was alleged, and would be required to put in place extra protections for alleged victims — including screens or video links in court rooms — where questioning was allowed to occur.

Where questioning is allowed, it would have to be done by a lawyer, including legal aid lawyers where an alleged abuser does not have their own representation.

“In those circumstances, cross-examination can and should probably still happen, but it will have to be conducted by an independent counsel,” Mr Porter said.

A meeting of state and territory leaders in October 2016 called for direct cross-examination to be banned, and was met with widespread support from the legal community.

“I do think that people are surprised, with all of our knowledge about domestic violence, that the court is a place where this can still happen,” Angela Lynch from Women’s Legal Services Australia said.

“It’s basically using the court system to abuse your victim.”

Ms Lynch said it was not a case of denying alleged abusers their day in court, but argued the practice of direct cross-examination meant the court was not getting the full picture of abuse because victims would hold back on sharing all information.

“If your abuser is asking you those questions, the victims of violence are scared about the repercussions for them, for them and their children, after the court proceedings have been finalised,” she said.

Ms Lynch argued there were ongoing concerns with the announcement last month that the Family Court and Federal Circuit Court would be merged.

Critics of the changes claim that domestic violence allegations, many of which are frivolous, malicious and false, are being made at an alarmingly escalating rate, precisely because there are very little checks and balances, and ultimately consequences, to weed out the false allegations from the genuine ones.

It is claimed that this new restriction will make it even more difficult for innocent victims of false allegations to challenge these allegations with facts, doing even more damage to the relationship of that parent with their children, simply because the system does not place any importance on dealing with false allegations as seriously as it deals with genuine allegations.

Allegations of domestic violence will ultimately become even more difficult to be tested in Court, despite growing evidence that many allegations are false, malicious or misleading.

A wide-ranging review of the family law system is due to report to Government next March.

Protecting your SMSF savings in the event of a divorce

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self-managed super fundThe prospect of a divorce is not something that most people getting married would be contemplating and when it comes to your client’s SMSF things can become more complicated.

Whilst it is said that around 50% of marriages end in divorce, the actual number is around 1 in 3.

Of course, just because the real number is less than perception, this is nothing to be applauded. The real statistic, perhaps, is the obvious fact that 100% of divorces start with a marriage.

The prospect of a divorce is not something that most people getting married would be contemplating, but for those entering second or subsequent marriages, protecting assets and wealth built up in the past may be a higher consideration. The same considerations should apply for those entering de-facto relationships as well.

When it comes to your client’s super, and if your client is in a self-managed super fund (SMSF), things can become more complicated. There are considerations not only about what happens to your client’s super, but also their ongoing membership of the SMSF.

Dealing to your client’s super

Superannuation savings (whether in accumulation or pension) have been regarded as “property” for divorce purposes since late 2002. This means that not only can they be taken into account when valuing combined assets for determining a split upon divorce, but the savings themselves can also be split.

Now, how the split actually occurs may be determined through Family Court proceedings, or could be by agreement between the members of the couple. And obviously it’s possible that your client could be on either side of the equation – the one losing some of their super, or the one gaining. So what’s important to know?

Firstly, the amount to be split could be a percentage or an agreed figure, and the split could take effect now, or the split could be flagged to take effect at a future point in time. Flagging may be more likely to occur where the superannuation interest can’t be easily split now, or can’t be valued until some future point in time. A defined benefit pension, which is really only valued when it commences is a good example of where a flag may be used.

Secondly, your client can’t choose the components of what is split. For example, if a person’s super comprises $300,000 tax free components and $200,000 taxable components (a 60:40 split), and it is determined that $200,000 will be transferred to a receiving spouse, the $200,000 will be comprised of $120,000 tax free and $80,000 taxable components – retaining the 60:40 ratio. Your client can’t choose to split / receive all of the tax free or all of the taxable components.

In addition, the split occurs in proportion to the preservation status. Using the example above, if the splitting member had access to all their super (for example being age 65 or older), but the receiving spouse wasn’t yet able to access their own super, when the receiving spouse received the $200,000 they will have access to it, even though it may have remained within the super system.

The SMSF specifics

Life can be a bit more complicated with an SMSF. Whilst your client’s super in an SMSF is dealt with under the same rules outlined above (that apply in other superannuation environments), when it comes to an SMSF, you need to remember that your client’s responsibilities extend beyond just their own account balance.

As a member of an SMSF, they are also a trustee. This means they have ongoing obligations as a trustee and they need to decide if they want to remain in that fund, open a new SMSF, or move to a different super fund.

The answer for this differs for each person, as it can be affected by how amicable (or not) the split is with their former partner, and possibly by the underlying assets. For example, even though your client is getting divorced, they could still be on good terms with the other fund members / trustees and therefore happy to remain in the fund. There may also be certain assets in the fund that would need to be sold if they were trying to leave the SMSF and move to another fund, but now might not the right time to liquidate them.

And if there are other members, such as children, involved – which fund should they be in?

Divorce can be difficult at the best of times, and can become more complicated when it comes to the impact on your client’s super. If so inclined, they can put in place a superannuation agreement up-front (before marriage) that details how their super will be split in the event of a future relationship breakdown. Most importantly though, your client should consider access to legal advice through a marriage breakdown to help support the financial advice you could offer them.

Bryan Ashenden is Head of Financial Literacy and Advocacy at BT Financial Group.

Karl Stefanovic’s and Cassandra Thorburn’s Divorce Details Revealed

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Karl Stefanovic and his ex-wife Cassandra Thorburn at the 2011 Logie Awards. Picture: Barbour/Getty Images

Channel 9 presenter Karl Stefanovic will reportedly pay his ex-wife, Cassandra Thorburn, $35,000 of child support a month, following the recent divorce of the couple.

The 43-year-old, who is the highest paid person on Australian television, making an estimated $3 million a year, left his wife of 21 years in September 2016.

In total, Stefanovic has left $6 million in assets to his wife.

According to a friend, Stefanovic put up little resistance during the negotiations with custody of his children being the main priority. In what was described by friends of the pair as a “tough settlement”, Stefanovic walked away from the marriage with about $500,000 in cash and assets including his white Mercedes.

“There was always the sense that it would be a big settlement and obviously not in his favour,” a friend of Stefanovic said.

“He was quite prepared to walk away with nothing, hand everything over with the one condition that he be able to see his children whenever he wanted.

“And I think they have managed to agree on that.”

The couple will reportedly share custody of their three children, Jackson, 17, Ava, 12 and River, 10.

In an interview with Woman’s Day in 2017, Thorburn opened up about the divorce.

“There were days in the beginning I would get up, put on a brave face and drop the kids at school, then I’d get to the back door and I would lie in a heap for the rest of the day unable to move,” she said.

“I slept on the couch in front of the fire for months because I didn’t want to go near the marital bed. I was in a very dark place.”

“I realised I was going through stages of grief, and to me it was like someone had died.”

“The children still have a father but I don’t have a husband. “He really is dead to me and no, we won’t ever be friends again,” she continued.

More recently, Karl Stefanovic has also opened up publicly about the breakdown of his marriage to ex-wife Cassandra Thorburn in a tell-all radio interview with Kyle Sandilands and Jackie O.

The Today host said, ‘It’s hard. I think for some out there, what happened is here was a guy a couple of years ago who was married with three kids.’

He added, ‘I think this happens to people, and I’m sorry for any hurt that it caused and causes. But this happened to me…and I fell in love not long after that.

‘At the end of the day, it is what it is and I’m sorry if that causes anyone hurt. But I won’t be apologising to my nearest and dearest because I don’t need to.’

Cassanda Thorburn was given the couple’s $8 million waterfront mansion in Cremorne in the settlement. The waterfront mansion was another of the high-priced assets the former journalist walked away with in the divorce.

The former couple has sold their old family home in Linfield for $3.8 million, and Thorburn now resides in the family’s Cremorne home.

Earlier this year, Stefanovic and his 34-year-old girlfriend Jasmine Yarbrough exchanged vows at a commitment ceremony in Sydney’s Palm Beach.

The ceremony, in which the pair exchanged vows and rings, was not believed to be legally binding.The couple is getting married in Cabo, Mexico, later this year.

Woman wins right to dead boyfriend’s sperm

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Jocelyn Edwards & Mark Edwards

 

Back in 2011, Jocelyn Edward‘s applied to the NSW Supreme Court to “claim” her late husband’s sperm, in order to travel interstate to have pregnancy treatment, because NSW law prevented her from having an IVF baby without written consent from the donor.

Mr Edwards, 39, died after falling from a balcony the day before the couple were to sign consent forms to undertake IVF treatment.

Ms Edward’s lawyers sought an application in the NSW Supreme Court for it to make her husband’s sperm her property.

In that case, the Court made the order that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband, Mr Mark Edwards.

In an eerily similar case yesterday, a Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby.

Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested.

Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic.

The court heard Ms Cresswell and Mr Davies were in a relationship for three years, were saving for a house and planning to get married and have a family.

ayla-cresswell-joshua-davies

Ayla Cresswell & Joshua Davies

The judgement said Mr Davies “without any apparent warning signs or any obvious trigger, took his own life” and had sought help for depression.

On the day of Joshua’s passing, Ms Cresswell told Mr Davies’ father, John Davies, that she wished that she was pregnant.

John Davies spoke with his wife Iona Davies and they decided to support Ms Creswell gaining a court order.

The early hours of August 24, 2016, Ms Cresswell instructed her legal representatives to file an urgent application to the court, seeking orders for the removal of sperm.

Mr Davies’ sperm was removed some 48 hours after his death.

Justice Brown said she agreed with submissions made on behalf of Ms Cresswell that the way in which the sperm was removed meant it was capable of being classed as property.

The court previously heard Ms Cresswell had the full support and blessing of Mr Davies’ family as well as her own, and several of Joshua’s friends provided affidavits that shortly before his death, he expressed a desire to settle down and have children.

Last year, Ms Cresswell’s lawyer Kathryn McMillan QC told the hearing the passage of time was important.

“She’s thought about it, had counselling, gone through many hoops, and had many tests to see if she can conceive.”

The court made the orders subject to a number of conditions, including that Ms Cresswell was the only person who had a relevant interest in the sperm and the practitioners who removed the sperm did so for her benefit.

The court further decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it.

Ms McMillan said while the child would not have the benefit of a father, there was support from a paternal and maternal grandfather.

Queensland Law Society deputy president Bill Potts said it was a “landmark decision”.

“Never before in Queensland has the sperm of a dead person been allowed to be extracted and then used for the purposes of procreation,” he said.

“It is indeed an historic and very interesting decision that’s been made, which has significant implications both for family law and for succession law.”

Mr Potts said legislation needed to keep up with the technology and “developing morality” around this area.

“Whilst I’m sure the applicant is overjoyed and she has every right to be, this is an area which is ripe for legislation,” he said.

“In the last 10 years, the technology has developed where a baby can be born literally from a sperm extracted from a dead person.”

Related Family Law Judgments

How to Protect Your Child’s Inheritance from a Future Divorce

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testamentary trustMore than 50 per cent of wills are being contested in courts, typically by family members fighting over how parents’ estates should be divided between siblings.

Disputes over potentially trillions of dollars worth of savings, investments and assets are generating a mini-industry of lawyers offering “no win, no fee” offers to aggrieved family (or friends) of the deceased who think they deserve more.

Courts are unwittingly encouraging the litigation boom by ruling in favour of the parties bringing the actions in about three of four cases, according to University of Queensland research.

“While nearly 60 per cent of Australians have a will, many still remain vulnerable to having their wills contested,” says Adnan Glinac, Australian Unity’s general manager of life and super. “Ensuring safeguards are in place so that the money goes where it is intended is a big part of estate planning. This means financial structuring to protect the transfer of wealth from one generation to the next.”

He recommends reviewing a will every three years and making required amendments with a codicil, a document that makes minor changes.

Greater control

Grantley and Judy Selth, a retired couple from Mount Eliza, 48 kilometres south-east of Melbourne, are aware of what a poisoned legacy a deficient will can leave and are determined they will have the final say  over their estate.

The couple, who have three adult children aged between 39 and 45, have added a testamentary trust to their will that provides a greater level of control over the distribution of assets to beneficiaries.

It’s estimated about $2.4 trillion worth of assets – equivalent to the gross domestic product of Spain – will be transferred from Baby Boomers (those born between 1946 and 1964) to their successors.

But big estates are creating even bigger headaches for brawling beneficiaries, which courts often have to resolve.

For example, successful television producer Reg Grundy died in 2016, aged 92, leaving his second wife Joy beneficiary of his $715 million estate, including a luxury mansion in Bermuda.

Her husband’s only child from his first marriage, Viola La Valette, is contesting the will in a court case scheduled for later this year.

The estate of famous racing car driver Peter Brock took several costly Supreme Court appearances, teams of lawyers and nearly a decade to settle between his second wife and children from the previous marriage.

Modest assets

Lawyers are even fighting it out over modest estates when families believe parents failed to adequately consider a loved one’s needs.

Julie Ward, chief judge in equity for the NSW Supreme Court, recently ruled on a case involving a son contesting an estate that included just $8000 cash and a 99-year leasehold in a retirement village bequeathed to his second wife.

“It cannot seriously be suggested that community expectation would be that the deceased should put his long-standing wife in a position where she is required to vacate her villa in the retirement village,” Judge Ward said.

Legal fees can rip shark-bite size chunks from an estate that different sides are  attempting to maximise for their own benefit.

For example, a barrister will cost between $5000 and $10,000 a day in court. Instructing solicitors will add to the legal bills arranging the action, briefing counsel and preparing pleadings, briefs and mediations.

Some solicitors will charge $9 for merely reading clients’ email – a reply costs extra.

A typical dispute costs individuals and the estate about $26,000 and takes nine months to resolve, according to University of Queensland research.

“Contested estates end up a free-for-all,” says Glinac. “Your wishes and what’s outlined in your estate often is not met,” he says. “It happens a lot.”

Blended families are adding to the toxic mix of bitter disputes as children of one, or both,  partners dispute a will.

“Often traditional will structures lack the flexibility to meet the changing needs,” Glinac says

More equitable

The Selths believe their testamentary trust strategy will make it more transparent and equitable for all beneficiaries.

Grantley, a former dentist who retired about eight years ago, says:  “We had a will but it didn’t embrace everything we wanted. We knew where we wanted the money to go but we wanted to be sure the beneficiaries were our kids but that they were protected in the case of divorce.”

Their testamentary trust, which was written with the assistance of a lawyer, holds their financial assets until the children reach 50.

“We told them all. We felt they should know if anything happened to us where the will was kept, what was in it and that there was no disagreement,” says Grantley.

Testamentary trusts have tax advantages because income distributed to minors is taxed at full adult marginal rates, according to chartered accountant William Buck.

Each beneficiary is eligible for the $18,200 tax-free threshold and the relief afforded by the lower tax scales. The income distributed is known as “excepted trust income”.

Beneficiaries under 18 who receive income from other types of trusts only receive $416 tax-free before penalty tax rates apply.

Judy says a key consideration was devising a strategy that lowers the risk of disagreements between siblings.

“I don’t think there is any way they could dispute the proportions they’re getting,” she says. “It’s set up evenly, and they know that. There is no point not telling them and them fighting over the assets. Until they’re 50 they’ll just be able to draw income from the trust.”

The assets include property, which will have to be sold and split three ways, and shares held in a self-managed superannuation fund.

Testamentary trusts can be tailored to meet the executor’s requirements.

For example, under a discretionary trust the beneficiary has the power to remove and appoint the trustee, including appoint themselves to manage their inheritance inside the trust.

A protective trust requires the beneficiary to take their inheritance from the trust and excludes options to appoint or remove trustees. This is popular where the beneficiary is unable to responsibly manage their inheritance. For example, they might be a spendthrift or addicted to drugs.

 
Related Family Law Judgments

Sweeping changes to family court announced

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family-courtThe Family Court and Federal Circuit Court will be combined as part of sweeping changes to the financially and emotionally crippling family law system, in an announcement by the Attorney-General Christian Porter today.

The decision comes before a broader review, which looks into the painstakingly slow way in which the nation’s strained family law system operates, delivers its findings next year.

The changes will come into effect from the beginning of 2019, in what the Federal Government is arguing will speed up the process of settling family disputes.

“We have two parallel courts, different rules, forms, procedures, individuals who are in the system get bounced around like Family Law footballs from one court to the other — terrible outcomes for them,” Mr Porter told the ABC’s AM program.

The Family Court currently hears family law cases involving complex financial arrangements, trusts, serious parenting arguments, allegations of child abuse in custody arrangements and protracted family disputes.

The Federal Circuit Court deals with the rest.

Appeals from the newly formed court, to be known as the Federal Circuit and Family Court of Australia (FCFCA), would also be heard by the Federal Court under the new arrangements.

Nearly a year-and-a-half wait to reach trial

Some 22,000 cases are filed across the two courts each year, and Mr Porter said delays in the family law system meant most cases were taking almost a year and a half just to reach trial.

He argued the merger was warranted given there is already significant crossover in jurisdiction and procedures of the two courts, and could result in an extra 8,000 cases being resolved each year.

“Twenty-two thousand matters are listed for final order in these courts every year, representing tens of thousands of Australians, and our priority is to get better outcomes for those Australians.”

Funding pressure, delays in appointing judges

It is unclear whether the changes will satisfy critics of the way the family law system, who argue funding pressures and delays in appointing judges to the bench are key reasons why the system is inefficient and struggling to cope with case loads.

Last year, the former Chief Justice of the Family Court demanded more funding.

The former attorney-general, George Brandis, announced a “long overdue” review of the family law system in September — the first since the dedicated court was established in the late 1970s.

The Australian Law Reform Commission is due to report back to the Government by March 2019.

Mr Porter defended making the announcement before those findings were delivered.

“It was a matter of such obviousness that the present structure was not working and was causing inefficiencies and duplications and delays that we considered that we could make the structural change,” he said.

Shadow attorney-general Mark Dreyfus cast doubt on the merit of the merger.

“We’ve got concerns about the near-complete lack of consultation that’s occurred here,” Mr Dreyfus told ABC Radio Melbourne.

“It appears that judges were not consulted, that family groups and the sector weren’t consulted, family lawyers were not consulted.

“And the Government has decided that this is somehow the result of inefficiencies in the court system.”

The current Chief Justice, John Pascoe, was appointed to the role last year after being the head of the Federal Circuit Court.

But he will be forced to retire by the end of the year, as he hits the statutory retirement age for judges.

One Nation leader Pauline Hanson has campaigned for changes to the family law system, including calling for the abolition of the Family Court altogether.

Can I See My Grandchildren if their Mother Says “No”?

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grandparents-and-child-contactIt’s been 18 months since Anne last saw her grandchildren.

“They’re never far from my mind, in any situation,” she says.

The Brisbane woman had a falling out with their mother, her daughter, when the children were just a couple of years old.

Since then, Anne’s daughter has barred her from seeing the kids.

“My family was very important to me … and I spent a lot of my life as a lot of mums do making sure it went well for my children. And to find now that there’s disrespect and [a] break down in communication is difficult,” Anne said.

It’s a situation faced by many grandparents around Australia, who are cut off from their grandchildren through divorce of the parents, custody issues, or estrangements from their own adult child.

It can be a harrowing experience, but there are legal options available.

Anne’s story is all too familiar to family law specialist Sandra Kelly.

She hosts information sessions on the subject to grandparents at local libraries in the Moreton Bay region, north of Brisbane.

She said the Family Law Act acknowledges the importance of children having a relationship with their grandparents.

Ms Kelly said grandparents could use the act to apply to court for orders that their grandchildren live with or spend time with them.

It can be done whether the parents of the children are together or separated.

“Often that’s one of the things that’s said to me at my information sessions is, ‘I didn’t know I could do anything, I didn’t know it was my place’. And they absolutely can.”

Ms Kelly said the Family Law Act was very clear.

“The court recognises it’s vital for children to know where they come from.

“But pragmatically and practically it does require someone to take that quite aggressive step.”

Sandra said grandparents can make an application without having any prior contact [with the grandchild].

However, she said it could also be expensive and harrowing experience.

“I’ve had matters with grandparents that have gone to $90,000 to $100,000 in fees over five years where people have sold their boat … just everything,” she said.

Before a grandparent makes their own application to the court, they first must go through family dispute resolution conference or mediation.

“If you don’t get a resolution there, you can make an application to the court. Or you can try a couple of different attempts at family dispute resolution as well,” Ms Kelly said.

Ms Kelly said anyone needing legal advice could make an appointment with a family law solicitor, go to a legal community centre, or go to Legal Aid and see a solicitor.

What to do when mediation fails

Anne said she and her partner had tried mediation with their daughter through government-funded Relationships Australia, but it failed.

“We were given a certificate to say we’d tried for mediation, and that certificate was to last for 12 months as I recall if we wanted to go to court in that time,” she said.

After mediation failed, Anne said they chose not to go to court.

“We thought if we put our daughter through that process it’d be the last nail in the coffin if there was any hope of any reconciliation,” she said.

In addition to mediation they have written apologies, and sought out counselling for guidance on how to better relate to their daughter.

In this situation, Ms Kelly recommended trying again with a private mediator.

“It’s their training, it may be that it’s worth approaching a private mediator, asking them to send out an invitation. She may attend another interview and it could go differently for you.

“Private mediators … they’re not always lawyers but often they are and they’re family lawyers with lots of experience in that area.

“Solicitors engage private mediators all the time. You can also find them on online as well.

“There’s a lot of them around and they have very specific qualifications. And they’re very effective if you get a good one.”

She said it was worth seeking out a private mediator with a family dispute resolution practitioner qualification.

“They deal with children’s matters specifically … it’s an industry and university qualification.

“Some of them can be $1,000 a person, some are $6,000. Lots of barristers do it, it depends on what that particular mediator’s rates are.”

She said it was also possible to try again through Relationships Australia with another mediator.

Support important when fighting to see grandchildren

Another grandmother, Narelle, went through a similar situation to Anne.

But she’s come out the other end with a desirable outcome.

“My son separated from his partner [and] as a result of that the entire family was alienated. As a part of the court proceedings that my son was going through I put in a request for time and that was granted,” Narelle said.

“It was my son’s barrister that suggested that can be done. Otherwise I would’ve had no idea.”

Narelle said it was 18 months from when she last saw her grandchildren to when supervised visitations were granted.

“About eight months of that was being on a waiting list for supervised visitation during the court proceedings,” she said.

She said supervised contact at a supervision centre went well.

“It resulted in a much better outcome at the final court orders because I had reports done on how the children interacted with me,” she said.

These days Narelle enjoys unsupervised visits with her grandchildren.

Her advice for grandparents in similar situations? Get support.

“It’s a very difficult situation to be in and to follow through with the court. It’s definitely worth it,” she said.

“I had a lot of very good family support which was fantastic.”

Judge critical of barristers’ audacious ‘cancellation’ fees

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barrister fees in family courtA family court judge has taken a swipe at barristers who charge cancellation fees after a case in which the mother clocked up almost $1 million in legal costs.

Justice Robert Benjamin said barristers should not claim “disappointment” fees because they have so much else to do.

“I have grave difficulty in endorsing, as fair and reasonable or proportionate, terms in fee agreements which provide for barristers to be paid for doing nothing,” he said in a recent judgment.

“Their work is not all appearance; it inevitably includes advising, conferences, preparation and research. There is little or no reason why these busy barristers cannot apply the time lost on other matters.”

The husband’s barrister charged $7000 a day, or $850 per hour (plus GST), in a fee agreement that allowed him to charge cancellation fees if the case settled or was adjourned.

Justice Benjamin said cancellation fees were “a very common provision in barristers’ fee agreements in family law, and perhaps more broadly” and should be reviewed by bar associations. He noted High Court judge James Edelman had refused a cancellation fee when he served on the WA Supreme Court.

He added the fees could be contrary to public policy as a barrier to settlement. “If a party knows he or she can save many thousands of dollars by settling, that circumstance may lead to that negotiated outcome,” the judge said. “If, on the other hand, the party has or will be liable to pay the barrister irrespective of the settlement, the cost-saving inducement is lost.”

Justice Benjamin said the husband, Mr Foley (a pseudonym), had “inflicted serious family violence on the children and on the wife”. After the police took out an apprehended violence order, he ordered his counsel to aggressively cross-examine the wife in court. He then pursued parenting orders for his 17-year-old daughter when she wanted nothing to do with him.

Out of kilter

The father’s behaviour was so bad during a custody hearing that the judge ordered him to pay his wife $359,712. It was two thirds of the wife’s “party to party” legal costs of $539,568.26 and wiped out the $338,000 in cash he was awarded in the property settlement. He must now pay his wife the difference, more than $21,000.

Justice Benjamin said costs were sometimes “out of kilter with the reasonable expectations of parties and the community to enable accessible justice.”

He noted the wife’s legal bill was $930,648.46: “This amounts to approximately $600,000 in solicitor costs, around $200,000 in barristers’ costs and the balance in joint expert fees, single expert fees, shadow expert fees, transcript fees, a proportion of the Independent Children’s Lawyer’s fees, a fee for bill of costs in relation to interim orders, searches and other disbursements.” The husband’s costs were much lower at $385,000, including $140,000 for his barrister.

However, the judge said the wife’s lawyers had helped track down funds.

“One example of this was the expenditure of money in Country U, which although a small sum was telling. The second was the purchase of a second boat without notice to the wife. The third was the extensive time the husband was absent from the business which, to some extent, explained the significant downturn in the business and enabled the husband to assert that the business’ value was far less than that asserted by the wife.”

He said the wife’s spousal maintenance application was “wholly unsuccessful”, as was the husband’s parenting application. It was a 65-35 property split in favour of the wife, with the husband keeping his business, superannuation, and $338,381.

She married me for a Visa – can you declare a marriage null & void in Australia?

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Can a marriage be legal if your new wife or husband refuses to have sex with you – not just on the wedding night, but ever? Well, according to a number of recent cases, the answer is “No!”.

Disappointed husband tries to have marriage declared void on basis of fraud

The question arose in a Family Court case when a 68-year-old Tasmanian man described his new 31-year-old Filipina wife as a “classic mail-order bride” who refused to have sex with him. As soon as she got her marriage visa, she left him.

The man wanted the marriage declared void, as he believed the marriage was a scam to get her a residency visa as his wife. He argued that a section of the Marriage Act 1961 says a marriage is void when the consent of either party was obtained by fraud.

Judge finds that marriage was not invalid

Marriage AnnulmentHowever, the judge declared that fraud in the Act ­referred to things such as impersonation, where there is the ­appearance of consent, which in reality hasn’t been given

The fact that no sex occurred in the marriage was irrelevant, as Australian law does not require a marriage to be consummated to be valid. The judge ruled the marriage was not invalid, it was simply that the man’s expectations of the marriage had not been met.

Until the Family Law Act 1975, marriages could be voided if either party at the time of the marriage was of “unsound mind” or a “mental defective”, if one of them had venereal disease, or if the bride was pregnant by a man other than the husband.

Requirements for a man and a woman to be legally married

The Family Law Act ended all that. Under the law, to be legally married in Australia, you must:

  • not be married to someone else
  • not be marrying a parent, grandparent, child, grandchild, brother or sister
  • be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old
  • understand what marriage means and freely consent to becoming husband and wife
  • use specific words during the ceremony
  • give written notice of their intention to marry to their authorised celebrant, within the required time frame

No fault needs to be attributed for divorce to be granted

Under the Family Law Act, all that is required for divorce is 12 months’ separation. Nobody has to be proved to be at fault for the marriage breakdown. It put many private detectives who used to tail suspect spouses for photographic evidence of extramarital dalliances out of business. They were probably the only ones who were sorry when the divorce laws changed.

However, some people from certain cultures or religions still feel that there is a stigma attached to divorce and may seek to have their marriage annulled or voided, so that in the eyes of the law it was invalid and never took place.

Decree of nullity can be granted by Family Court in certain circumstances

The Family Court can find grounds for a decree of nullity, which is an order saying there was no legal marriage between the parties even if a marriage ceremony took place, on the following grounds:

  • At the time the parties were married, one of them was married to someone else
  • The parties are in a prohibited relationship
  • The parties did not comply with the laws in relation to the marriage in the place they were married
  • Either party was not of a legal age to marry
  • Either of the parties did not give their real consent to the marriage because consent was obtained by duress or fraud, or one party was mistaken as to the identity of who they were marrying or the nature of the ceremony, or one party was mentally incapable of understanding the nature and the effect of the marriage ceremony

Insufficient reasons for declaring a marriage invalid

The Family Court says it will not declare a marriage invalid merely because it was not consummated, because the couple never lived together or because there was family violence or incompatibility.

In another case involving a claim for nullity of marriage, Hosking v Hosking, the husband claimed he was the victim of fraud after marrying a Chinese woman who really only wanted a residency visa.

The man claimed that he believed the woman would live with him as his wife, but the marriage was never consummated and she left him soon after getting her visa. Again, the application was dismissed, as the judge found that the bride had not committed fraud under the law in this case.

Decree of nullity not the same as divorce

It is important to know that a decree of nullity does not dissolve a marriage like a divorce. Nullity decrees are relatively rare. Between 2009 and 2012 there were 76 applications for nullity of marriage. Just 33 were granted, 22 were dismissed, eight withdrawn, 11 discontinued, and two were settled.

In other words, a same-sex marriage conducted overseas where it is legal is not recognised as legal in Australia. The same goes for all the other requirements relating to age, relatives and consent.

Evil ex-wife seeks to inherit deceased ex-husband’s fortune, despite years of false allegations

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The Facts

They met in 1984, when he was a doctor and she was his patient. They had a daughter in 1986 and married in 1988, but the marriage lasted only 19 months.

Separation, divorce, property settlement and appeal

someone-who-hasnt-written-a-will-intestateThe couple officially divorced in 1995 and the Family Court made orders awarding the former wife $164,000, which equated to about 38% of the asset pool of the parties.

She appealed this decision, but the appeal was dismissed. She then phoned her former husband and threatened to “destroy his life” and “make his life a misery” if he did not pay her an additional sum.

Ex-wife proceeds to carry out threats

She carried out her threats in a campaign of what the court described as “relentless hostility” and “relentless persecution” of her ex-husband, taking professional disciplinary action against him, applying for reviews of child support, initiating legal action against him for damages and refusing to allow him to see his daughter.

In addition, she complained to police and sought an apprehended violence order against her ex-husband. Those proceedings were dismissed. The ex-wife also alleged that her husband had sexually abused their daughter. The husband was interviewed by police at that time and no further action was taken.

Man dies intestate

In 2014 he died intestate, that is, without a valid will. He had only been married once and their daughter was his only child. While the man had instructed his lawyers to draw up a will, he had never executed it.

The draft will set out his reasons for not leaving anything to his ex-wife, among them that she made “many and false allegations against me which were proved groundless and made a false complaint against me to the police alleging that I had sexually abused my daughter and these allegations have caused me great distress”.

Former spouse makes claim on late ex-husband’s estate 25 years after separation

Under the laws of intestacy, the deceased’s daughter was entitled to the whole of his estate, which was worth approximately $5 million. The daughter was estranged from her mother when her father died and her mother demanded that part of the estate be distributed to her. She claimed she required funds to purchase a property to live in and for future medical costs. At the time of trial she was unemployed and relied upon a disability support pension.

The case for the ex-wife

  • My ex-husband was able to accumulate the wealth he did precisely because I did all the caring for our daughter after our divorce. The breakup also had long lasting consequences for me that further reduced my ability to generate wealth.
  • My ex-husband understated his income in the Family Court proceedings, which amounts to fraud, suppression of evidence and/or non-disclosure. I would have received a much larger settlement if he had told the truth.
  • My ex-husband had an obligation to leave me a share of the estate to atone for his professional misconduct in engaging in an improper sexual relationship with me while he was my physician, causing me psychiatric injury.
  • I have significant health problems and substantial financial need. It’s unfair that my daughter should get everything when I was the one who raised her on my own.
  • For all these reasons my ex-husband had a moral obligation to provide for me. His estate is ample and warrants provision being made for me.

The case for the daughter as administratrix of the estate

  • Following separation and divorce, my parents never resumed their relationship and neither was dependent on the other.
  • My father was wealthy because of prudent decisions and many years of hard work, whereas my mother’s financial predicament is due to her spending vast sums on unsuccessful litigation and making poor lifestyle choices.
  • If my mother genuinely believed that my father had understated his income in the Family Court proceedings or that she had rights against him for psychiatric injury, there were legal avenues available to her that she could have taken while he was alive, but she did not do this.
  • My father had always complied meticulously with his obligations to provide financial support for me, despite my mother’s persecution of him by all imaginable means.
  • My father had no further obligation, moral or otherwise, to provide for his ex-wife after their divorce was finalised by the court.

So, which case won?

Well, initially, the ex-wife did in fact win, as unpalatable as that may sound. But on appeal?

First instance decision awards ex-wife 0,000 plus costs

At first instance, in the case Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10, the ex-wife was awarded $750,000 plus costs. Even though there had been a property settlement between the parties following their separation, the court found there were factors that warranted the making of the former spouse’s application.

The ex-wife had substantial financial need. Following the property settlement, the ex-wife had struggled, while the deceased had prospered. He had accumulated significant assets which greatly exceeded those at the time of the property settlement.

Ex-wife’s care of their child facilitated accumulation of wealth by deceased

The deceased’s ability to accumulate wealth was facilitated by his ex-wife’s assumption of responsibility for the care of their child (who was not quite six years of age at the time), until she became independent at the age of twenty-one.

The court also took into account the fact that the break-up of the marriage had unusual and long-lasting consequences for the ex-wife.

Noting that there was “something unbecoming” about an arrangement which would leave the ex-wife in financial need, reliant on a social security pension, while the daughter whom she raised would inherit in excess of $5 million, the court decided that the deceased’s estate was ample and this warranted provision being made for his ex-wife.

Court of Appeal overturns Supreme Court decision

In the case Lodin v Lodin [2017] NSWCA 327, the estate of Dr Lodin appealed the Supreme Court decision on several grounds, among them that the decision was “so divorced from reality, so unrepresentative of community standards or expectation, and so totally inconsistent with the objects and principles of family provision legislation as to be wrong and thus deserving of appellate correction.”

The court allowed the appeal and dismissed the proceedings by the ex-wife. An order was made for the former wife to pay her daughter’s costs.

Deceased had no moral obligation to leave anything to ex-wife in will

The court found the difficulty with the decision at first instance is that it presumed the deceased had a moral responsibility to make testamentary provision for his former wife because his estate was significant and the sole beneficiary of his estate, being his daughter, was a member of the deceased’s family for whom the former wife had had responsibility.

According to the Court of Appeal, the fact that the deceased’s former wife was responsible for raising their child did not create any social, domestic or moral obligation for the deceased to make testamentary provision for her.

Another factor which the court took into account was the fact that the ex-wife had made serious allegations against the deceased which were not upheld.

The financial position between the deceased and the former wife had been determined by Family Law Court orders made in 1992 and the deceased had always complied with his obligations to provide financial support for his daughter. The former wife’s financial need, medical problems, inability to support herself and poor relationships with others were not in any way related to the conduct of the deceased or her relationship with him.