GAY AND LESBIAN DE FACTO COUPLES AND PARENTING

  

Elton John and his partner David may not be considered the parents of their children in Australia.

Under the provisions of the Family Law Act parents are responsible for the care, welfare, and development of their children. The parents may be married or living in a de facto relationship. In both instances, the children of that relationship are recognized as the children of their parents. This extends to a lesbian couple living in a de facto relationship. The mother of a child in a lesbian de facto relationship is the parent of that child if the child was conceived by artificial insemination. The partner of the mother would also be considered a parent of the child under the provisions of the Family Law Act. The child is of course the child of the mother who gave birth to the child.

Gay and Lesbian De Facto Couples and Parenting

This does not extend to males in a gay de facto relationship even if one of the males donated sperm for the conception of the child. The biological mother and if in a relationship with her partner are deemed to be the child’s parents even if it is the intention of the biological mother and the gay male father that the child born will be living with the father of the child and his gay partner. It will be necessary for the gay male partners to legally adopt the child or apply to the Family Court for parenting orders of the child. The process of adopting a child is subject to the review of the relevant State department. Alternatively, an application may be made to the Family Court for the formal parenting of a child by a gay male couple. The normal considerations for parenting of that child will be made by the Court.

If a gay male couple raised a child without seeking formal parenting orders in relation to the child and if the relationship breaks down then either partner may apply to the Court for parenting orders on the basis he has been a significant person in that child’s life.

It may be prudent for lesbian and gay male couples to formalise the parenting of any child raised by them by seeking appropriate parenting orders in the Family Court.

Article Source: De Facto Couples

What do the Federal Government amendments to the Family Law Act mean for Superannuation?

   

Superannuation and Family Law

In 2002 there were amendments to the Family Law Act which allowed superannuation to be treated as property. The Court was empowered to make Orders splitting superannuation entitlements, transferring entitlements from one party to the other. Of course, the splitting of a person’s superannuation entitlement and a transfer of that entitlement does not mean that the person receiving the benefit of that entitlement could immediately draw down on the interest received. The normal provisions for drawing down on superannuation would. Under the legislation, if a splitting Order was made then one person would obtain an interest in the other person’s superannuation fund. A party could retain that interest in the fund or roll it out into a fund of their own choosing.

Prior to 2002 and the reason why this legislation was introduced into the Family Law Act was that in many cases married couples have had small property interests but large superannuation entitlements. At this time, the Family Law Act only applied to married couples. For instance, a person’s employment may have entitled that person to the benefit of a large superannuation fund such as airline pilots. As well parties to a marriage may have salaries sacrificed their income into their superannuation fund thereby creating a large superannuation interest. The remaining assets may have been meager. The Family Court prior to 2002 did not have the power to deal with superannuation which meant that one party would walk away with a large suppuration interest and the other party would only have a small interest in the remaining assets of the marriage. If a party was retiring in the near future then the Court had powers to prevent a party from dealing with their superannuation entitlements and when that party retired, the Court could then make Orders for monies to be drawn down from the superannuation fund and paid to the other party. This created difficulties in enforcing such Orders. For these reasons, the Family Law Act was amended to enable the splitting of married couple’s superannuation funds.

The legislation was further changed in 2009 which enabled de-facto couples and same-sex couples to have the same rights as a married couple under the Family Law Act. This allowed them to also have the benefit of the change in legislation enabling the splitting of their superannuation funds.

The Recent Federal Budget Made Changes

The recent federal budget made substantial amendments to superannuation which greatly affect separating parties. What is even more alarming, is that this legislation affects divorcing couples who suffer emotionally and financially when there is a breakup in their relationship. The legislation of the Government makes this far worse.

The Federal budget has made substantial difficulties with changes to its superannuation policies. Pursuant to such changes the maximum amount a person can put into a superannuation (non-concessional contributions – after-tax dollars) is $500,000.00 per member of a fund and pursuant to the legislation this is a lifetime limit that becomes effective from the budget night of 03 May 2016.

Prior to the changes being made a person’s limit was $540,000.00 every three (3) years (if that person was under 65 years of age) or $180,000.00 per year. Many people took advantage of the legislation as it then was to contribute $540,000.00 every three (3) years is the maximum allowed at that time. If such contributions were made then the entitlements of that person now exceed the newly introduced lifetime cap. If the total amount paid into super exceeded the $500,000.00 after the date of the budget then that person is now required to draw down the excess paid into superannuation cannot contribute any more non-concessional contributions to his/her fund. There would no penalty in drawing down the amount required. Once the limit of $500,000.00 has been paid into a superannuation fund, then no further non-concessional contributions can be made.

Further, the limit on the allowable before-tax concessional contributions is to be reduced from $30,000.00 to $25,000.00 per year from July 2017.

Because the Family Law legislation allows for the splitting of superannuation funds, many couples now separating may lose the ability to replace the entitlements in their fund if a splitting Order is made by the Court.

Because of the changes to the superannuation legislation, people in a relationship, after separation will find it harder to rebuild their superannuation if a splitting Order has been made on their fund.

Are there ways to protect yourself from the Superannuation Changes?

Alarm Bells are ringing – Nicole Pedersen in a cent article suggests 4 ways of minimizing the impact:

1. Split your pre-tax super contributions equally in marriage – the main goal may be to equalise balances so, as a family, pay in and amass as much as possible under the proposed stringent limits. Contribute as much as concessional – salary sacrifice – contributions as you can for a lower-earning spouse (from July 2017 it’s planned you’ll no longer have to do this through an employer).

2. Equalise your pre-tax contributions in marriage – if you and your spouse have unequal balances, you could also use the once-a-year opportunity to help even out balances by splitting concessional contributions paid into the higher balance account across to the other spouse’s super. Under the super splitting rules, you can move up to 85 percent of contributions into the other spouse’s account.

3. Split your post-tax contributions equally in marriage – this way, in the event of a subsequent relationship breakdown, neither spouse loses the right to make future non-concessional contributions. When making after-tax contributions progressively over time, share them between accounts. Also get freebies and tax benefits via after-tax spouse contributions (attracting up to a $540 tax rebate if, from July 2017, your spouse earns under $37,000) and a $1000 annual non-concessional contribution (to get the government’s co-contribution of up to $500 into the fund of someone earning under $50,454).

4. Split your super equally on divorce – possibly the only way to ensure both parties still have some capacity to rebuild their super if they have the money to do so. We’ll need to see the legislation to know if divorcees will be disadvantaged.

Article Source: the Family Law Act

Warning: Delays in Court Expected

  

Families and Children look set to suffer more in Queensland than anywhere else in Australia Court.

If you are contemplating going to either the Family Court of Australia or Federal Circuit Court of Australia to settle issues relating to the breakdown of your relationship including issues surrounding who your children spend time with, you could be in for a rude shock.

It now seems certain that timeframes for your matter to be heard will increase considerably due to the movement away from the Brisbane Registry of the Family Court and to the Appeal division of such Court.

Justice Graham Bell retired last year and it was announced in late 2015 that Justice Michael Kent was promoted to the Appeal division of the Family Court.  Judge Demack of the Federal Circuit Court in Brisbane has accepted a permanent posting in Rockhampton further depleting the stock of family law judges in Brisbane. This means that now there are only two judges sitting in the trial division of the Family Court in Brisbane to determine matters in the Court.  Subsequently, the already overwhelming demand on the Family Court in Brisbane will be stretched further, undoubtedly pushing back hearing and trial times which already can be set down for a time more than 12 months in the future.  Further to this, any judgments made by these judges post-trial may also be delayed as the judge’s workloads increase.  It is already not uncommon for a judgment to be handed down more than 12 months after the trial of a matter.

As a result of this, the Federal Circuit Court of Australia (which deals with the majority and less contentious of family law disputes in Australia) will be placed under more pressure to handle its caseload as the Family Court will not be able to assist in determining as many cases.  The Federal Circuit Court is already experiencing similar delays to that of the Family Court of Australia.

When you consider that this will leave Brisbane with 10 Judges in the Federal Circuit Court, two in the Family Court and two in the Appeals division of the Family Court (who only hear appeals to decisions and not cases at first instance), compared to 15 Federal Circuit Court Judges in Melbourne and 21 in Sydney (not to mention the further judicial members of the Family Courts and Appeals Courts in both other cities), it seems clear that the Brisbane families will experience long delays.

All of this could very easily mean that from the date you file your Initiating Application with the Court you may be waiting in excess of three years to have a result.

Consider what this will mean for family relationships.  A father or mother who may be fighting to see their young child may not see them for all of this time.  By the time the parent and child are reunited the child may have no understanding of who that person is and will have no bond with that person.  On the other hand, if the child is 12-14 once proceedings commence the child may well be nearing adulthood by the time a decision has been handed down, and thus the parent and child will have lost the final years of childhood with that parent.  Scary stuff indeed.

Consider also the dramatic increase in cost over this time of retaining legal representation over that time.  IT will cost significant time with family members, substantial cost and untold stress on Queensland families.  Suffer the little children indeed.

For a Delays in Court which holds the best interests of the children as their paramount consideration, it seems clear that something must be done to increase judicial staff in Brisbane and that is a cause we should all consider our role in supporting.

So how do we avoid these delays?  Read Family Lawyer Charles Noble’s next article on Alternatives to Court and how it can save you time, money, and stress.

Article Source: Family court Australia

2015 Family Law Review: What A Year It’s Been

  

What a year it’s been. Winding up the practice in South Brisbane and moving to the big smoke in March this year.

2015 Family Law Review: What A Year It’s Been and to have their assistance when dealing with the complex issues which can arise in the breakup of entities, partnerships and trust and determining the best ways of restructuring such entities after a family break up. The knowledge of the lawyers in the firm has been invaluable in dealing with the complex issues which arise from time to time.

The Family Law Section of the practice now has 2 Accredited Family Law Specialists and a very experienced family solicitor who practices exclusively in Family Law Review. We also have the benefit of a very experienced Family Law in house counsel. It has been invaluable to maintain the family law matters “in house” when dealing with a matter in the Family Court. The benefits and cost savings to our clients have been appreciated.

Our family lawyer Charles experienced many successful outcomes for his clients in the Family Court. Some of his achievements were the recovery of children from Victoria who were returned to the care of their mother. He helped an African mother keep her young children when the Department of Children’s Services intervened. Her African customs in raising children differed from the parenting we experience in Australia. The mother benefited from expert advice from Charles and the Court was satisfied the children would be well cared for in the mother’s care.

We achieved successful outcomes in negotiations and collaborative matters when both parties were happy with the settlement which they themselves achieved.

We provided many 20 minute free consultations to parties affected by recent breakups in their families. These consultations helped them to deal with the many issues which arise in such circumstances. We were only too happy to give our advice and assistance to them.

I have enjoyed the various networking events with my fellow collaborative practitioners. I have re-joined the committee of Queensland collaborative law which celebrated its ten year anniversary this year. It’s incredible how collaborative practice has grown over this short period of time. A very successful celebration was held at the office of Vincent’s Accountants in the city. To me, it is one of the most satisfying ways of negotiating family law matters. Generally, we have been able to maintain a genuine working relationship between the parties who will be involved in their children’s future for many years to come.
We have maintained our involvement with Brisbane South Bank (BSB) a viable business networking group for the South Bank precinct. We enjoyed their many networking events and in particular, the “showcases” held each year where we were able to network with the 50 business owners who participate. It is a fun event and provides a chance to get to know the business owners ranging from large corporations to small business owners which include, Qpac, the Art Gallery, GOMA and the Convention Centre.

I continued my Notarial work throughout the year and assisted many clients with the completion and authorisation of overseas commercial documents.

I appreciate the efforts and support given to me by the professional and administrative staff that work with me and we enjoy a very harmonious and enjoyable office relationship.

We are grateful for the support of my clients throughout the year. We look forward to providing positive and beneficial outcomes for our clients in the New Year.

We extend our best wishes for the festive season and wish everyone a prosperous and happy New Year.

Article Source: Family Law Review

RESERVE BANK OF AUSTRALIA (RBA) RATE STILL AT AN INCREDIBLE HELD AT 0.10%

 

The world knows all too well about how your interest rates can dramatically change from one month to the next and if you get yourself in a good position, you lock that RBA interest rate in for a few years to protect yourself from being knocked out by a rise in the RBA interest rate (RBA cash rate).

For 3 years the RBA rate remained at 1.50%, which for some was great as no rise in an otherwise ever-changing world meant that homeowners could keep their properties. For others, the cost of living was still too high to save a deposit for a house. Then in mid-2019, we saw a drop of 0.25% bringing the rate down to 1.25% which for anyone struggling to pay their mortgage meant this was a big stress relief or for some of us, helped to apply for a home loan to be more achievable.

The rate continued on this downward trend dropping by 0.25% again and again which brings us to today at an incredible low of 0.10%. On top of that, the Government is currently offering $15,000 to First Home Owners for contracts entered into from the 1st of July 2018.

What does this mean for you? It means anyone who has been looking to buy a property, can now get a home loan with an extremely low-interest rate making it more affordable for the average income earner.

But do your research. Check out the different offers from the banks and get one that suits your needs. We suggest you do your calculations before applying for a loan. Get advice on your contract before signing it.

Does your property lie in a flood zone? There are so many possible questions with buying a property that you may not know what are the correct questions to ask.

Contact Aylward Game Solicitors for a 20minute free consultation or for $440 for up to 90minute consultation before you sign a contract.

Article Source: RBA Interest Rate

FINANCIAL WINDFALL: A JOY OR TRAGEDY

   

Financial Windfall: A Joy or Tragedy

What to do if you win the lotto? How does the Family Court view it?

A windfall is either a sizable inheritance or a lotto win. In the eyes of the Family Court, an inheritance is treated differently to a lotto win.
The Family Court has great difficulty in distinguishing a lotto win by one party as a sole financial contribution by that party to the assets of the marriage and in most cases treats lotto wins as joint contributions. That is, that if during the period of a relationship be it a marriage or de facto relationship, one party receives a sizable lotto win and that win is then applied towards the improvements or acquisition of matrimonial assets, the Court would deem that both parties have equally contributed to both the acquisition and improvement to those assets.

In one case a wife and husband maintained sole financial estates. They owned property in their respective names solely and operated their own bank accounts. The wife in that relationship purchased a lotto ticket and won a substantial prize. She argued that the lotto win came from her finances which were totally separate from that of her husband.

The Court deemed that because the ticket was purchased during the course of the relationship that it was a joint contribution and they equally shared. The lotto win became a part of the assets pool and the normal principles for a division of the net matrimonial assets were applied on the basis that the lotto win was a joint contribution to that asset pool.

It may be different if the parties are living separate lives in that they have separated but there has not been a divorce in the marriage for example. In those cases, the Court may consider that as a lotto win was obtained outside the relationship that this win is deemed or could be deemed a sole contribution by the party who won the lotto prize.

The Family Court when considering the contributions by the parties to a relationship would take into account the respective value of the contributions made by the parties and that such contributions depend entirely on the facts of the case and the nature of a Final Order by the Court. The Court has a very wide discretionary power when considering such matters.

The contributions by the parties are assessed at the date of trial and not at the date of separation. If an agreement is reached between the parties prior to any litigation in the Court and prior to any trial then the value of the contributions would be the values on the date of any agreement entered into by the parties.

The Family Court when considering inheritances and the contributions attributed to such inheritances adopt in most cases a holistic approach to a division of the assets including any inheritance received.

The relevant decision in regard to this set out the principle, “however, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represents the equity in the particular circumstances of this particular relationship. The essential task is to assess the nature, form, and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.”

How does this affect Court decisions when considering inheritance and a division of the net matrimonial assets?

In regard to inheritances, a later receipt of that inheritance during the relationship is usually given more weight than if such inheritance was obtained earlier in the marriage or relationship and therefore deemed an earlier contribution to the net matrimonial assets pool.

In a number of decisions where the inheritance was received shortly prior to or after separation the entirety of that contribution was granted to the person who was in receipt of the inheritance and the inheritance was effectively quarantined from the net matrimonial asset pool. The Court considered in one case that it was preferable to treat the inheritance as a separate asset, “that is because the inheritance was received after the separation of the parties, and the wife made no contributions, direct or indirect financial or non – financial to, its acquisition, conservation or improvement. In those circumstances, however, viewed, it is considered, the significance of the inheritance alternately turns on its impact as a financial resource of the husband pursuant to s75(2) of the Family Law Act”. On appeal, the husband was successful in keeping his inheritance out of the net matrimonial pool.

The above examples are cases where the inheritance was received shortly prior to separation or after separation. The relevance of s75(2) of the Family Law Act is the Court’s consideration of the future financial position of the parties. The inheritance is considered in these circumstances as providing a case where the husband had a resource that could be invested and provide a safe and secure future for him. Because of this the wife did not have that benefit and was given a slightly higher interest in the net matrimonial assets apart from the inheritance.

The Hudson Institute

I’m a member of a financial advising group, The Hudson Institute. I came across a recent article in the newsletter written by one of their financial advisers, Michal Park which deals with “Windfall” it is an interesting article and for this reason, I make it available to download the article in its full context.

It is interesting to note in this article, “there are some legendary stories of lotto winners squandering their winnings and ending up in a worst financial state (a common statistic is more than 75% of a windfall are squandered).”

The article then goes on to provide some handy hints as to what a person should do if they do receive a windfall and provides some advice on the investment of the proceeds of that Financial Windfall.

I have dealt with many cases where parties have squandered their winning or their inheritance. Many are left in a worse financial position than the position they were in prior to the receipt of the windfall. The windfall has led to heartbreak and tragedy, the relationship has broken down and the parties are left fighting over the assets that remain. It is heartbreaking to deal with such cases when in fact the parties if they had wisely invested their winnings or inheritances, could have lived a very comfortable life for the remainder of their relationship.

I have also dealt with cases where the parties have wisely invested the winnings or inheritances but still could not maintain a relationship with each other.

Article Source: FINANCIAL WINDFALL

A DISCUSSION ABOUT CHILD CUSTODY

  

Did you know the term ‘Child Custody’ is no longer referred to in the Family Law Legislation?

It was the term used previously by the Family Court. It was considered that Child Custody donated property rights to children that are that one party owned the children whilst the other party had the rights to have the children visit from time to time.

It was considered that the term should be changed to the children living with one party and spending time with the other party. These are the terms that are now used by the Court when making parenting orders. This came into effect in 2006.

Decisions in cases involving disputes about where the children should live and how much time they should spend with the other parent or other significant adults in their lives are now made pursuant to the Family Law Act.

The Attorney General when making changes to the Family Law Act summarised the principles as follows:

“The law will take the view that parenting is a responsibility which should be shared and, in most cases, parents will need to consult and agree on major issues affecting their children.”

“Where both parents share responsibility, consideration will also be given to the children spending equal or at least substantial time with both parents providing that this is practical and not contrary to the best interests of the child.”

It was the intent of the legislation to changing the culture around family separation.

The changes to the legislation were designed to support and promote shared parenting and encourage people to reach an agreement about parenting of children after separation. Changes made were to encourage parents to take responsibility for resolving disputes themselves and not in an adversarial manner.

Has the Government’s wishes in this regard been achieved? I think not.

The Federal Government also introduced family relationships centres being centres where parties are required to mediate matters relating to the parenting of their children. A number of family relationship centres were established in the Brisbane area. It is a requirement now that where parenting issues cannot be determined that the parties must first attend a mediation to try and resolve the parenting issues amicably and the family relationship centres were established for this purpose. Unless there are urgent matters requiring urgent attention or where the welfare of the children is in jeopardy then the Courts may hear applications in regard to the parenting of children without the parties attending on mediation. The parties can attend mediation at other centres such as Relationships Australia if they so wish. The persons conducting the mediation must issue a section 601I certificate confirming that mediation had been appointed and this certificate must be filed with the Court with any application by a party concerning his/her children. A Court will not hear a child custody application regarding parenting without such a certificate being filled with the Court.

These principles relate to all children under the age of 18 years that is prior to children becoming adults, whether the parties are married or unmarried.

The Family Law Act and therefore the Federal Circuit Court (Family Court) applies in all states of Australia except Western Australia. Western Australia did not refer its legislative powers in regard to family law to the Federal Parliament and now operates its own Court system in relation to such matters.

When considering parenting issues the overriding principal the Court must apply is that the best interests of the children are the paramount consideration. That is the Court is required to protect the rights of children and promote their welfare. The principal overrides the wishes and desires of either the mother or the father. The principal was established in an English decision. ‘When all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course followed will be that which is most in the interests of the child’s welfare.

INTERESTS OF CHILDREN

Section 60B of the Family Law Act states that the best interests of children are met by;

1. ‘ensuring that children have the benefit of both of their parents, having a meaningful involvement in their lives, to the extent consistent with the best interests of the child’; and
2. protecting the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect, or family violence; and
3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
4. ensuring that parents fulfill their duties and meet their responsibilities, concerning the care, welfare, and development of their children.

Section 60B(2) of the Family Law Act states that except when it is or would be contrary to the child’s best interest;

1. ‘children have a right to know and be cared for by both their parents; and
2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents or other relatives);
3. parents jointly share duties and responsibilities concerning the care, welfare, and development of their children;
4. parents should agree about the future parents of their children; and
5. children have a right to enjoy their culture.’

In regard to the children having a right to enjoy their culture the rights of Aboriginal and Torres Straight Island children to access, explore and appreciate their particular culture is clearly, and distinctly, set out in the principles of the Family Law Act.

One wonders if this principal would also apply to other cultures such as the Muslim, Jewish, Hindu, or other such cultures in which the children have been raised or in which the parents have an interest. As stated it clearly applies to Aboriginal or Torres Straight Island children. I am unaware of these principals being applied in relation to other cultures.

Section 64B(2) of the Family Law Act sets out particulars of parenting Orders that the Court can make. The section sets out the following provisions;

1. the persons with whom a child should live;
2. the time a child is to spend with another person;
3. the allocation of parental responsibility for a child;
4. the form of consultations to be had between persons who share responsibility; and
5. the communication a child is to have with another person.

There is an underlying presumption in the family law legislation that the parents of a child have a shared parental responsibility that is that parents share a shared parental responsibility in making decisions about major long-term issues affecting their children. A parent cannot unilaterally make a decision in regard to such long-term issues without the consent and consultation with the other parent. A major long-term issue in regard to a child is something that could be related to the care, welfare, and development of the child and could include but would not be limited to the child:

• name, health, and education (both current and future);
• religious and cultural upbringing; and
• changes to the child’s living arrangements that may make it significantly more difficult for the child to spend time with either parent.

DAY TO DAY PARENTING

Day-to-day parenting of a child does not normally fall within the definition of shared parental responsibility. Parents are not obliged to consult each other on issues that are not major long-term issues. This means that the parent with whom the child is spending time will usually not need to consult with the other parent about the day-to-day decisions for that child in such circumstances in regard to the meals to be provided to the child, what the child wears, or what activities the child will be involved in, whilst residing with that parent.

However, unilaterally enrolling a child in a sporting or other activity which would affect the other parent’s time with the child may be considered a shared parental responsibility in which case the consent of the other parent should first be obtained.

If a court decides that the parents have shared parental responsibility for their child, the Court must consider whether the child spending equal time with the parents is in the child’s best interests and reasonable practicable and if so the Court must then consider making an Order for the child to spend equal time with their parents. If equal time is not practicable and not in the child’s best interests, the Court must then consider whether the child should spend substantial and significant time with the other parent.

However, the overriding principal of what’s in the child’s best interests must always apply when making decisions in regard to shared parental responsibility and the parties spending equal time with the child or significant time with the child.

Clearly, the Family Law Legislation covers every aspect of a child’s life and the parenting of that child.

The majority of matters proceeding to a trial in the Family Court relate to children’s issues, the requirements for parents to seek counseling or mediation prior to bringing any application in the Court has not deterred to any great degree, the number of applications which are made in the Court relating to parenting of their children. When considering the best interest of a child the Family Law Act set’s out other considerations.

These are:

• any views expressed by the child and any factors (such as the child maturity level or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
• the nature of the relationship of the child with:
• each of the child’s parents; and
• other persons (including any grandparent or other relative of the child);
• the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
• the likely effect on any child in the child’s circumstances including the likely effect of any separation from;
• either of his or her parents; or
• any other child or person (including any grandparent or relative of the child) with whom he or she has been living;
• the difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense with substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• the capacity of:
• each of the child’s parents;
• any other person (including any grandparent or other relative of the child); and
• to provide for the needs of the child, including emotional and intellectual needs;
• the maturity, sex, lifestyle, and background (including lifestyle, culture, and traditions) of the child and either of the child’s parents and any other characteristics of the child the Court thinks are relevant;
• if the child is an aboriginal child or Torres strait island child;
• the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parents;
• any family violence involving the child or a member of the child’s family;
• any family violence order that applies to the child or the member of the child’s family if;
• the Order is a Final Order; or
• the making of the Order was contested by a person;
• whether it would be preferable to make the Orders that would least likely to lead to the institution of further proceedings in relation to the child; and
• Any other factor or circumstances that the Court thinks is relevant.

The Court will also look at a parent’s involvement in the past parenting of the child and whether that parent has shown interest in the parenting and development of the child.

It is interesting to note that the legislation does consider other persons apart from the parents when making Orders in regard to children. That is persons that have a significant interest in a child’s life such as grandparents or relatives also have rights to that child and the Courts will consider any application by such persons to continue with their parenting or involvement in a child’s life. In most cases, persons who have a significant interest in a child apart from the parents are normally subordinate to the parents’ rights and in most cases, any application brought by such persons the Courts will consider their rights to a continuing relationship to the child and how that effects the primary parent’s roles in regard to such parenting.

Article Source: CHILD CUSTODY

PRENUPTIAL OR BINDING FINANCIAL AGREEMENTS

  

Prenuptial and Postnuptial Agreements and information relating to Pre Nups & Financial Agreements in Brisbane.
Prenuptial agreements and binding financial agreements will set out exactly how all or any of the assets, (owned by you at the date of signing the agreement or acquired after signing the agreement), will be divided between you and your partner in the event of breakdown of the marriage or the de facto relationship. The agreement may allow for maintenance issues to be dealt with in marriages and de facto relationships, after divorce or separation.

If you are contemplating marriage or entering a de facto relationship, it is a good idea to get a lawyer to draft and execute a prenuptial agreement/financial agreement for you. You can also have a prenuptial agreement/financial agreement drawn up during your relationship. This will safeguard your personal assets in the event your relationship does not work out.

Always know your legal options by consulting an Accredited Specialist Family Lawyer in Brisbane.

PRE-NUPS, POST-NUPTIALS & BINDING FINANCIAL AGREEMENTS BRISBANE (BFA’S)

Protect your assets and your financial future before, during and after the breakdown of a relationship, partnership or marriage.

If parties in a relationship (family, de facto, same sex couples) come to an agreement on how they intend to divide their assets, then they can enter into Consent Orders or a Prenuptial Agreement/Financial Agreement to make the agreement legally binding.

CONSENT ORDERS

Parties can enter into consent orders to finalise the arrangements in relation to property, children, and spousal maintenance by signing an Application for Consent Orders document and lodging the document with the Family Court of Australia. The Application is considered by the Court and the orders made by a Judicial Officer. Parties can apply for consent orders without the necessity of going to Court.

PRENUPTIAL, POST-NUPTIAL AND BINDING FINANCIAL AGREEMENTS IN BRISBANE

A Prenuptial Agreement is an agreement entered into between parties that relate to spousal maintenance and the distribution of property. A Prenuptial Agreement is not lodged with the Court. There are several types of Prenuptial Agreements.

IF YOU WOULD LIKE TO READ THE RELEVANT SECTIONS OF THE LEGISLATION IN REGARD TO DIVORCE PROPERTY SETTLEMENT PLEASE GO TO THE FAMILY LAW ACT. PLEASE REFERENCE SECTIONS 90 & 90U.

PRENUPTIAL AGREEMENT AND FINANCIAL AGREEMENT BEFORE, DURING AND AFTER RELATIONSHIP BREAKDOWN

Parties are able to enter into a prenuptial agreement or financial agreement regarding assets acquired:

• before and during the relationship; as well as
• after the relationship has ended.

Note: Brisbane Prenuptial Agreements and financial agreements can be particularly useful where you have inherited assets from a family estate, or where you have accumulated your own personal wealth from a successful career and making wise investments.

To make an appointment please call us on (free call) 1800 217 217

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BINDING FINANCIAL AGREEMENTS

Some helpful advice if you are considering entering into a Financial Agreement.

Financial Agreements under the Family Law legislation are not simple agreements, especially for same-sex couples. There are certain requirements that must be complied with if the agreements are to be binding. If these requirements are not properly dealt with the Court will have no hesitation in overturning a Financial Agreement should either you or your partner in the future not wish to be bound by its terms.

Solicitors are required to advise the parties entering into a Financial Agreement on the advantages and disadvantages of entering into those agreements. The parties sign a certificate attached to the agreement that they have received this independent legal advice. The solicitors also sign certificates stating that they did provide the advice required prior to the parties signing the agreement.

The advice not only deals with the terms of the agreement itself but also provides full advice on the legislation under the Family Law Act and the positions the parties would be in if they had not entered into the agreement.

Agreements are drafted to suit the particular circumstances of each case. The agreements come under different sections of the Family Law Act depending on whether the parties are in a de facto relationship and wish to remain in that relationship if the parties are in a de facto relationship and intend to marry, an agreement during marriage and also an agreement after a divorce setting out the terms of a property settlement dealing with the financial issues arising from the breakdown and the divorce in the marriage

When drafting the agreement and to enable a solicitor to provide the required advice it is necessary to obtain detailed instructions of the relationship, contributions made by the parties at the commencement of the relationship, and contributions made by the parties during the relationship. Without these instructions, full and proper advice cannot be provided.

Once a client’s instructions have been obtained in regard to the relationship and contributions it is then necessary to obtain the detailed instructions in regard to the wishes of the parties in regard to assets they wish to maintain full and legal control over and those assets which are to be joint assets. Instructions are also required in regard to superannuation, estate rights and spousal maintenance should the relationship break down or if there is a death of one of the parties.

Once the agreement has been drafted setting out the parties’ joint instructions to their respective solicitors it is then necessary to provide detailed advice on the terms of the agreement reached and on the advantages and disadvantages of entering into that agreement.

Unless all these steps are carried out and proper advice given there is a strong possibility that the agreement would be overturned by the Family Court if a party upon separation wishes to set aside the agreement and seek a greater property settlement than that set out in the agreement itself.

It is necessary for both parties to provide schedules setting out their present assets, liabilities, and resources including superannuation. The updated schedules are required to be attached to the Financial Agreement itself.

It is to be hoped that the parties agree on the values of the items set out in the schedules without requiring formal valuations to be carried out. The solicitor acting for the other party is required to give the advice that has been mentioned.

WHAT ARE THE ADVANTAGES OF ENTERING INTO A POST-NUP, PRE-NUPTIAL AND FINANCIAL AGREEMENT?

1. A financial agreement does not become a court record. There is no requirement for filing the financial agreement in any court and in particular, there is no requirement for filing a financial agreement in the Family Court.

However, it is necessary that the original agreement is given to one party and that a true copy given to the other party.  It is also necessary that the financial agreement is stored with a person’s important documentation.  The agreement does not come into effect until sometime in the future when a separation occurs and this may not be for a considerable number of years.  Therefore there is an obligation on the parties to maintain the financial agreement in case it does become relevant at some future time.

2. The parties can incorporate spousal maintenance terms into their financial agreement. The parties may wish to define the spousal maintenance to be paid should there be a breakdown in their relationship and should the financial agreement come into force.  Although the financial interests of the parties are clearly defined in the agreement a party in certain circumstances could apply for spousal maintenance after separation even if there have been terms included in the financial agreement preventing the party from applying.

It is advisable to define clearly the spousal maintenance to be paid should a separation occur.

However, the parties should be aware of the provisions of section 90F of the Family Law Act and other provisions where there is a de facto relationship.  These provisions state:-

1. No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage or a de facto relationship if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income-tested pension, allowance or benefit.
2. The assessment of the ability of a party to support themselves without an income-tested pension benefit takes place not when the agreement is made but when it takes effect.

ABOUT CHILD MAINTENANCE AND CHILD SUPPORT

In regard to child maintenance or child support terms for child support, terms can be inserted in a financial agreement but such terms must meet the requirements of the Child Support (Assessment) Act.  Effectively a child support provision in a financial agreement can only set out on a temporary basis the child support obligations of a party to the agreement.  Once a child support assessment is made by the Child Support Agency, any child support provision in a financial agreement ceases to have an effect and is unenforceable.

3. Provisions can be incorporated into a financial agreement to determine the superannuation interests of the parties. That is pursuant to the terms of the agreement the parties can determine how their superannuation entitlements will be paid if there is a separation of the parties and when the terms of the agreement come into effect.  However, careful consideration must be given to the drafting of terms in regard to superannuation.  A number of a person’s entitlements will only become known when the agreement comes into effect upon separation or the death of one party.  As in a court order, there can be a splitting of a person’s superannuation entitlements.  However, the drafting of such terms must satisfy the requirements of the trustee of the particular fund.  The superannuation determination will only affect the policy that is taken into account.  There may be other superannuation funds that a party enters into in subsequent years and therefore provides for these superannuation entitlements may not have been envisaged at the time that the agreement was entered into.  The agreement could take effect many years later.  Where a superannuation fund has not been specifically referred to the entitlements of a party to that fund upon death will be given to the nominated beneficiaries in the fund itself.  To ensure that a party obtains an interest in a person’s superannuation entitlements upon death then the party must be aware of the beneficiaries in his actual superannuation fund.  For the benefits in a superannuation fund to be paid to the other party upon separation,  the provisions must be specifically set out in the financial agreement and the trustee of the fund must be given procedural fairness to approve the provisions set out in the agreement.
4. The parties in a financial agreement can limit the agreement if it is their wish to do so to name only certain assets to be dealt with upon separation. For instance, if there is a family farm and the family requires that it remain in the family and not be given to another party then provisions can be set out in the financial agreement to ensure that occurs.  As well if there is to be a partial transfer of an interest in an asset upon a separation then again the provisions can be drafted to ensure that partial separation does occur.  A financial agreement may cover the assets of the parties or can be limited to certain assets if the parties so wish.  This means that the assets falling outside of the agreement will be dealt with under the general provisions of the Family Law Act and in relation to the law applicable at the time of the separation.
5. The financial agreement may include third parties and the third parties can be bound by the terms of the agreement. The Family Court does not have the power to make orders against third parties and therefore a financial agreement has a greater advantage over court orders in this regard.

WHAT ARE THE DISADVANTAGES OF ENTERING INTO BINDING FINANCIAL AGREEMENTS

Disadvantages of entering into a financial agreement:

1. The parties to a financial agreement clearly define what will happen to their assets and liabilities if a separation should occur in their relationship. This separation may occur many many years after the financial agreement is entered into.  The terms of the financial agreement only come into effect once that separation occurs.  There could be substantial changes in the person’s financial positions during the years after the agreement is entered into.  Although the agreement may be fair and equitable at the time the agreement was entered into it may not be fair and equitable many years later when the terms of the agreement come into effect.  This would mean that a party may suffer severe financial hardship because the terms of the agreement are not relevant at the time the separation occurs.  There could be substantial changes in the assets and liabilities of the parties or a party could make substantial contributions towards the acquisition and improvement of assets but would gain no financial interest in the assets although the value of the assets has subsequently increased.  A party could make substantial contributions towards the acquisition and improvement of the assets but gain no interest in the increased value of such assets at a later date.
2. The parties are required to obtain specific and detailed legal advice prior to and at the time of entering into a financial agreement. How can one party ensure that the other party obtains proper legal advice?  Even though one party does obtain the required legal advice the other party may not obtain legal advice that is sufficient and therefore the agreement can be set aside.  It is difficult to ensure that the other party does obtain the required legal advice.
3. As stated earlier, agreements are not required to be filed or lodged with any court. If the parties lose their agreements and if the solicitors’ copies cannot be obtained then the parties will not be able to enforce the provisions of that agreement.
4. There is a large cost in ensuring that the parties have been given the proper legal advice and in ensuring that the document has been properly drawn. Consent Orders at the time of separation are more binding than financial agreements because they are more certain.  There is always the uncertainty of entering into a financial agreement or having that agreement overturned at some later date.
5. A party must ensure that children born after the agreement has been signed are taken into consideration. Under the terms of the Family Law legislation, a party who has the care of children could gain substantial interests in the net matrimonial assets.  However, if parties enter into an agreement and do not cater for children being born at some subsequent time then they may be financially disadvantaged after separation in their relationship.
6. Full disclosure is required by both parties of their assets and liabilities. If at a subsequent time after the signing of the agreement or upon a separation a party becomes aware of other assets owned by the other party and not disclosed in the agreement then the agreement may be set aside.

BINDING FINANCIAL AGREEMENTS MAY BE SET ASIDE UNDER THE PROVISIONS OF THE FAMILY LAW ACT

The Family Law Act 1975 provides that a financial agreement will “end” in two circumstances.  It can be either “terminated” under s90J or 90UL or “set aside” under s90K or 90UM.  Termination is an action of the parties but setting aside is an action of the court.  A court may set aside an agreement if it is “void, voidable or unenforceable”.  If this ground is used, the parties or one of them may already consider that the agreement no longer operates.  A party may apply to the court for an order that a financial agreement is set aside in circumstances where that party already believes that the contract has been rescinded, breached or is otherwise unenforceable.

1. Sections 90J and 90UL of the Act specifically provides that parties to a financial agreement may only terminate it by:
   1. Including a provision to that effect in another financial agreement, or
   2. Making a written agreement known as a ‘termination agreement’.
2. Financial and termination agreements can be set aside under s90Kor 90UM:-

Article Source:  binding financial agreement

Child Custody | what does child support cover?

  

Aylward Game Solicitors Incorporating James Noble Family Law Brisbane is an Accredited Specialist Family Lawyer with Queensland Law Society.

Breaking up or separating is a traumatic and difficult time for any adult. But for couples with children, often the first thought is of the impact it will have on the children. The second thought is almost always to wonder what the law says about parenting arrangements and how the separation will affect future contact with the children. At all times, you should be fully informed about your legal rights and position as well as those of the children involved.

If you are separating obtain full details about the parenting of your children, your rights, and obligations. For more information please visit our blog on Child Custody.

At Family Law, our team can talk you through the underlying legal principles and explain what confusing terms such as equal shared parental responsibility, and significant and substantial time mean for you and your children in practical terms. We’ll guide you through all your options to finding parenting solutions that work for you and your partner.

We’ll tell you what steps you need to take and when you need to take them. We’ll also let you know what you should avoid so you don’t compromise your legal rights. When necessary, we’ll take steps to obtain you legal protection in situations involving family violence.

If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act.

Please reference Sections 60 – 70 inclusively.

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We support you with representation, advocacy, mediation, or collaboration to help you to attain your best outcome regarding parenting, division of assets, and spousal maintenance as painlessly and inexpensively as possible.

Family Law offers a free 20-minute initial Legal Options appointment for new clients.

This appointment allows you to discuss your situation with complete confidentiality and without any obligation.

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