Family Law Cases

De facto Relationships – when does the law acknowledge my relationship?

Tue, 15 May 2012 11:20:00 GMT

Interestingly, the length of a de facto relationship is not the only criteria for determining its legitimacy in the eyes of the law.

Did you know that you can be in a de facto relationship provided that you meet the criteria specified set out in the Family Law Act? There are a number of indicative factors identified by Justice Powell in the case of Roy v Sturgeon (1986) namely...

a) The duration of the relationship
b) The nature and the extent of the common residence
c) Whether or not a sexual relationship existed
d) The degree of financial interdependence and any arrangements for support between or by the parties
e) The ownership, use and acquisition of property
f) The procreation of children
g) The care and support of children
h) The performance of household duties
i) The degree of mutual commitment and mutual support
j) Reputation and “public” aspects of the relationship

The Family Law Court will go to great length to question of facts in each particularly case.

From 1 March 2009, the jurisdiction for De Facto couples moved from the Supreme Court NSW into the Family Court. Accordingly, the Family Law Act now covers “the fields” in relation to applications relating to property and maintenance of de facto couples.

Section 90SB of the Family Law Act states that the Court can make a declaration as to the existence of a de facto relationship if the period (or the total of the period) of the de facto relationship is at least 2 years.

However, the Court may also intervene to declare the existence of a de facto (and start amending property interests or making orders for maintenance) if:

a) There is a child of the de facto relationship or a party to the de facto relationship has made substantial contributions to the relationship; or
b) A failure to make an order or declaration would result in serious injustice to the applicant; or
c) The relationship was registered under a prescribed law of New South Wales.

The law acknowledges de facto relationships that are at least two years of duration, but it may also chose to acknowledge de facto relationships of less duration.

Be Careful When Structuring Discretionary Trusts

Tue, 08 May 2012 10:33:00 GMT

A recent decision of the Full Family Court (Harris & Harris [2011] FamCAFC 245) has clarified the treatment of discretionary trusts in property settlements.

The case concerned a family trust which was established by the husband's father. After the husband's father's death, the husband's mother became the appointor of the trust. The principal beneficiaries of the trust were the husband's parents, their children, that is the husband and his sister, and the “lineal issue” of the husband’s father.

In Kennon v Spry the court held that in order for the assets of a discretionary trust to be considered the property of a beneficiary for property settlement purposes, there must be 'direct' or 'indirect' control of the trust by that beneficiary.
In the first instance the court held that the trust’s assets should be treated as the husband’s property because they were indirectly controlled by him. The assets of the trust were therefore held to form part of the pool available for division between the parties.

The husband appealed this decision on the ground that he did not have sufficient control of the trust. The wife argued that the husband had indirect control over the trust through his mother who acted as a “puppet” for his interests. However the wife failed to provide any evidence to support this argument and consequently the Full Court held in favour of the husband. It found that the husband had no indirect control of the assets of the trust and therefore they should not be considered as assets of the husband and thus should not be included in the property pool available for division.

Comment from Mark Streeter - Sydney Lawyer

Harris is significant because it explains the concept of indirect control as mentioned in Kennon v Spry. It establishes that in order to prove that there is indirect control of a trust, evidence must be provided to support a 'puppet' scenario.

It is therefore important when considering estate planning or business planning that careful consideration is given to the structure of the trust.

Share float complicates Binding Financial Agreement

Thu, 24 Nov 2011 05:09:00 GMT

The case of Nyles & Nyles highlights the importance of giving full and frank financial disclosure at the time that terms of settlement are being entered into of any circumstance which may impact the future value of an asset even if that event has not yet occurred and its future worth is unknown.

In this case the parties entered into consent orders and a Binding Financial Agreement (“BFA”) dealing with the adjustment of property interests in 2004.

According to the terms of settlement the husband was to receive 60% of the net assets which were set out and annexed to Binding Financial Agreement. At the time the parties entered into the BFA and consent orders the wife was a director of a public company and the shareholding in that company was disclosed to the husband in the asset schedule attached to the BFA.

Floating of Company on Stock Market

At the time the parties signed the terms of consent and the Binding Financial Agreement however, the wife’s company was in the process of converting from a private company to a public company. The company floated on the stock market less than 2 months after the Agreement was signed, the wife sold her shares and made a large profit.
The Husband then sought to set aside the Binding Financial Agreement by making an Application to the Court under s79A of the Family Law Act for reason of non-disclosure of relevant information and the fact that he relied on the wife’s assertion as to the value of the assets in making the Agreement.

Full and Frank Financial Disclosure

Full and Frank financial disclosure is a fundamental element of justice and applies as much to out of court settlements as it does to contested proceedings.

The complicating factor in this case was that the wife’s shares were subject to strict confidentiality obligations. The wife was not able to provide the husband with any documents with respect to the pending commercial transactions due to confidentiality issues. The Husband’s evidence was that the Wife disclosed the floating of the shares at the time it was occurring but alleged the wife said that the float would not happen for a number of years and that the value of the shares would be minimal. The wife’s evidence was that she directly discussed with the husband the possibility of the shares being floated and made an offer of settlement during mediation in which her proposal involved the transfer of some of those shares to the husband which he failed to take up.

The husband was advised by his solicitors that it was not in his best interest to enter into the Binding Financial Agreement until further disclosure was to hand. The husband therefore failed in his Application to set aside the consent orders and the BFA as it could not be said that he was induced to enter into the BFA by the misconduct of the wife and he had made an informed decision. This was despite the fact that the Court actually found that the wife had failed to make full and frank financial disclosure and to some degree acted fraudulently.

Power of Attorney can lose its Power

Mon, 29 Aug 2011 07:55:00 GMT

A Power of Attorney is a legal document enabling someone to act on another person’s behalf. It can be very useful and is worth considering. However the person who grants this ‘power’ needs to have the ‘capacity’ to do so.

In July 2010, a case in the Supreme Court of NSW, highlighted that a Power of Attorney can be considered void - even if they have been used over several years. The case of the case of Szozda –v- Szozda [2010] NSWSC 804 was decided by Justice Barrett. It has widely been reported as a significant “clarification” to the test of whether or not an individual has the capacity to create a Deed of Power of Attorney.

The case is a story of Polish immigrants, untimely family deaths, real estate properties, discretionary trusts, family business and the complications that can arise between siblings.

The widow Mrs Aneila Szozda executed 6 separate Power of Attorney Instruments between March 2004 and December 2007 for her children and grandchildren. One of these Power of Attorneys was used to exercise the proxy votes of shares owned by the Attorney to Mrs Szozda. The Application to the Court sought declaratory orders as to whether or not Mrs Szozda had the capacity to grant the General and Enduring Power of Attorney in September 2006.

At law, people over 18 are presumed to have legal capacity. However, having raised prima facie evidence of an individual’s incapacity (usually medical evidence) the onus then shifts back to the party seeking to assert the validity of the document and the capacity of the individual to execute it at that time.

The test of the validity of the capacity of a person to execute a Power of Attorney was generally considered to be: ‘an enquiry as to whether or not the principal’s understanding of the nature and effect of the Power at the time of execution of the instrument.’ It was presented to the Court that Mrs Szozda often forgot non-regular appointments (such as hairdresser appointments) although was able to remember things such as her regular Sunday outings with a friend.

His Honour Justice Barrett found that the decision to grant a General and Enduring Power of Attorney differs from that involved in making of a Will but should be regarded as a similar or even greater level of complexity.

If capacity, in the relevant sense, is absent when the Power of Attorney is granted, the general law position is that the Power of Attorney instrument is void.

• The Courts look at each case on its own facts and weigh up the evidence.
• In this case the Court found that Mrs Szozda did NOT have the capacity at the time of executing the document to understand the nature and effect of her actions.

HELPFUL TIP:
Ensure that your estate planning documentation is up to date before there are any risks or concerns over “capacity”.

Widow fights for multi million dollar estate

Thu, 02 Dec 2010 01:07:00 GMT

After 30 years of marriage what would you expect from your husband's estate? When your husband has a $15 million estate probably quite a bit.

In this fascinating case a widow turned to the courts for help in receiving a greater share of the estate. The case was reported in the Sydney Morning Herald on Monday 29 November 2010. This followed a decision of Associate Justice Macready on 25 November 2010 in determining a Family Provisions claim by the Wife against her late Husband's Estate. (Hoolahan v Scali [2010] NSWSC 1349) It is helpful to note that there were also 4 adult surviving children.

The late Husband died of cancer at age 63 leaving an estate of approximately $15 million.

The late husband left a Will which provided his wife with $100,000 and an annual stipend of $45,000 (indexed) until aged 70 and then decreasing to $40,000 (indexed) and after 75 the sum of $25,000 (indexed) until death together with the reimbursement of her residential outgoings. The deceased held the matrimonial home as joint tenants with his wife so this property became the wife’s upon his passing without going through the Estate. The wife also had the benefit of past contributions for her benefit to the superannuation fund made by the deceased. The matrimonial home had an estimated value of $900,000.

The majority of the Trustees of the Superannuation fund decided in January 2010 to pay the death benefit of the late husband of approximately $1,000,000 to the Estate rather than to the wife. The wife had an additional $700,000 of superannuation benefits in her own name. The wife was 59 at time of judgment and according to the life tables had a 29 year life expectancy. The wife had lived with her late husband for 35 years which included a 30 year marriage.

Comment from Mark Streeter Sydney Lawyer

The court found that there was a large estate and the provision for the wife was 'minimal'. Having regard to substantial evidence, the standard of living and the lifestyle enjoyed by the wife, the Court was invited by the plaintiff to make additional and ‘appropriate provision’. Accordingly, in lieu of the indexed annuity in the Will, the Court decided that an appropriate provision was:

(a) a bequest of a property estimated value of $3 million
(b) a bequest of the deceased’s boat – (a 2005 SeaRay Sedan Bridge boat estimate of $450,000)
(c) a legacy of $4 million

The balance of the estate was to remain in the Trust established by the Will and provided for benefits to the 4 surviving adult children and their children.

This decision is a reminder of the legal implications when writing your will. Wills are intended to represent your intentions. But this will was also seen as an attempt to continue to control the family after his death. As a result the wife and children have been drawn into a legal battle. Fighting over wills can divide families. It also makes personal information public.

Having a will makes very good sense. However having a lawyer's assistance in creating your will can help reduce the chance of it being contested in the courts.

Failure to transfer properties causes complications in defacto case

Tue, 07 Dec 2010 09:55:00 GMT

When a Dad lovingly gives his daughter two properties it seems simple enough. But what happens when he fails to sign a transfer, pay stamp duty nor change the registration details on the Department of Lands Torrens Title Registry? It gets complicated.

After the giving the gift, the Dad enters into a de facto relationship. Time passes. The Dad and his de facto separate. After the separation, the ex-de facto claims the properties as part of the ‘pool’ of assets to be divided.

The daughter approached Streeterlaw Sydney Lawyers and we agreed to help fight her case. Our argument to the Supreme Court was that the properties were hers and it was the ‘common intention’ of the parties that they be transferred. The decision of Justice Brereton was handed down on 26 November 2010. Holmes v Mack [2010] NSWSC 1365

This case started as a claim by the ex-de facto wife Laura Mack [surname changed by deed poll] against Donald Mack in the District Court of NSW seeking provision under the Property (Relationships) Act 1984. After a lengthy series of interim arguments, including an adjourned hearing date, the proceedings took an interesting twist. Streeterlaw received instructions to act for Sharon Homes, the daughter of Mr Donald Mack and the plaintiff in these Supreme Court Proceedings.

The brief facts are:
Laura came to Australia from the Philippines in early 1997 and formed a close personal relationship with Donald form August 1997. Laura's tourist visa expired and she returned to the Philippines but then returned to Australia in December 1998 sponsored by Sharon Homes (the daughter of Donald Mack). Laura resumed the relationship with Donald. Laura & Donald initially separated in January 2005 but after an attempted reconciliation separated on a final basis in June 2006.

Laura commenced proceedings in the District Court seeking provision from the ‘property’ of Donald which included the house he lived in and a commercial property.

Although the properties were registered in Donald’s name, Sharon claimed that they in fact belonged to her and that she had entered into an agreement with her father before 30 June 1996 in which Donald transferred these properties to her.

The determination of this issue was of real significance in the De Facto Proceedings because if it was determined the properties were held on trust by Donald, for Sharon, there would be practically no property in the divisible pool for the De facto proceedings.

The Court carefully examined the historical records evidencing the purchase of the commercial property and the ‘dissolution’ of an antique business operated as a partnership between Sharon & Donald.

On 28 June 1996 Sharon and Donald, without legal assistance entered into a “Deed of Dissolution of Partnership”, which relevantly provided that, with effect from 1 July 1996, Sharon would hold the trade names and business assets, and Donald relinquished all rights and claims to the business funds, assets, stock, furnishing and fittings, plant, goodwill, books, records and real estate at the commercial property.

In respect of the residential property, Sharon and Donald entered into a “Formal Contract Agreement” on 30 June 1996. This document again was not prepared with legal assistance but was witnessed by a Justice of the Peace. This agreement purported to transfer the ownership of the residential property to Sharon, with Donald being entitled to continue to live in the property until his death. Donald gave Sharon the Certificate of Title. The consideration for this transfer was that Sharon agreed to maintain and support Donald for the rest of his life.

The purpose of the transaction was expressed to be for the purpose of “protecting the family assets from all outsiders including those directly related to the mentioned parties within this agreement”. It was noted that this occurred before Laura was ‘on the scene’.

Decision
The Court found that the written instruments of 28 and 30 June 1996, were each witnessed by the same Justice of the Peace and whose affidavit evidence as to her practice in witnessing such documents was not challenged. There was no evidence, of forensic examination or otherwise, adduced to cast any doubt on the authenticity of those documents.

The Court based its consideration on the facts and applied the following doctrines of law:
1.      A specifically enforceable agreement supported by consideration, contained in the 30 June 1996 contract.
2.      A common intention constructive trust.
3.      Doctrine of proprietary estoppels.

The Court made following findings:
The “....property is vested in Sharon to the exclusion of Donald, and Donald holds upon trust for Sharon any legal interest he has in those properties. In respect of Kogarah, Sharon’s beneficial interest is subject to Donald’s equitable right of lifetime residence. Sharon is therefore entitled to the relief she seeks.”

Comments from Mark Streeter Sydney Lawyer

Before 1 March 2010 all de facto cases in New South Wales were heard in the State Court (Local, District or Supreme Courts). However, if the parties separated after 1 March 2009, the jurisdiction for determining disputes over property was the Federal Family Courts (Federal Magistrates Court of Australia & the Family Court of Australia). In this case, the parties separated prior to this critical date.

This was obviously an excellent decision for our client Sharon. It is also a reminder of the importance of properly dealing with property transfers and the legal complications which can arise in relationships.

Complications in declaring a marriage null and void

Wed, 17 Nov 2010 23:11:00 GMT

When is a marriage not a marriage?

A surprise trip to the Philippines reveals more surprises for a husband.

A recent Family Court decision of 11 October 2010 considered the very technical and legal requirements of an legal application to declare a marriage null and void (MONTY & VILLAMONT). There are very few grounds by which the Family Court may declare a marriage void.

Section 23B of the Marriage Act 1961 provides a limited ground. The full text of this section 23B is available here. The ground applicable in this case 23B(1)(a) either of the parties is, at the time of the marriage, lawfully married to some other person.

In the case of MONTY & VILLAMONT, the husband married a lady of Filipino nationality in October 2007. The wife then returned to the Republic of the Philippines.

The husband traveled to the Philippines on a surprise visit in 2008. He discovered that the wife was in a relationship with another man with whom she had two children. The husband then conducted a search with a Republic of Philippines national statistics office which provided a document evidencing the wife’s marriage to another person in May 1995. With the assistance of the Australian Department of Immigration the husband confirmed that the wife was still married to the other person at the time of their marriage in October 2007.

The primary evidence in support of the application were documents including documents from a foreign jurisdiction; Nevertheless the Family Court was satisfied that at the time of the marriage the wife was lawfully married to another person and granted an order of nullity and made a declaration accordingly.

Comment from Mark Streeter Sydney Family Law Lawyer

A further complicating factor in this case was the husband’s inability to ‘serve’ the Application for nullity upon the wife. The Court rules require that documents filed in Court including an “Initiating Application” must be personally received by the other person. The Family Law Rules further provide for the means by which service can be “proved” to the satisfaction of the Court. Rule 7.18 of the Family Law Rules 2004 however provides the Court with the power to modify the requirements of the rules relating to service or alternatively to dispense with it altogether. In this case the whereabouts of the wife was unknown.

An old facebook entry indicated that the wife was potentially living in Canada. The husband did not have the financial resources to conduct searches in Canada and enquiries with the relatives of the wife in the Philippines had indicated that she was no longer living in the Philippines and by the time of the hearing the wife’s facebook profile had been removed.

Justice O’Reilly was satisfied that the steps taken by the husband to search and serve the wife were exhaustive and ordered that the service of the Initiating Application and affidavit filed in support be dispensed with.

Castration decided in Best Interest of Children

Wed, 17 Nov 2010 23:28:00 GMT

Most parents want what is best for their child. If a child breaks their arm parents need no special permission to have it operated on and fixed. However consent to perform surgery on special medical conditions is not so easy. In a recent Family Law case [Sean and Russell (Special Medical Procedures)] the castration of two boys was presented to the Courts for a decision.

With headlines of “Judge Allows Parents to have Boys to be Castrated” Kim Arlington, journalist for the Sydney Morning Herald sensationally reports on a Family Court decision by Justice Murphy delivered 26 October 2010. The facts of this case are special, sad and serious and belie the sensationalist headlines.

In respect of 2 applications heard by the Court at the same time 2 young children known by the pseudonyms “Russell” (an 18 month year old boy) and “Sean” (a 3 ½ year old boy) had both been diagnosed as having Denys-Drash syndrome. It was the specialist medical advice received by parents of both these children that the gonads of the boys be removed for their own health and to prevent some of the effects of the Denys-Drash syndrome. It is thought that these two children are the only two people in Australia that suffer from this condition. The medical evidence was that the boys would develop of tumors (cancer) in their kidneys and their testes.

It was acknowledged that the removal of the testes would render both of the children infertile, however the consensus of medical opinion was that by reason of the syndrome each child was almost certainly likely to be infertile even without the proposed surgery. The parents of the children applied to the Family Court for approval and authorisation in order to instruct the treating doctors to conduct the surgery.

Comment from Mark Streeter Sydney Family Law Lawyer

Justice Murphy, after an extensive review of the previous cases and legislation relating to this area of the law found that the proposed treatment was more consistent with securing the children’s best long term outcomes both physically and psychologically and the authorisation of the proposed treatment was in the children’s best interests. The Judge made orders authorising the treatment.

In order to protect the identity of both the children, parents and treating doctors, the names of these parties were anonymised. Section 121(9) of the Family Law Act 1975 prohibits publication of information which identifies a party in Family Court proceedings.

Reducing violence against Women and Children

Wed, 17 Nov 2010 23:30:00 GMT

Protecting people from violence is a significant role of Australian laws. The protection of women and children from domestic violence is a topic often covered in the media. Sexual assault is another. A recent report is hoped to be a step forward in addressing inconsistencies or areas for improvement in our State and Federal laws. Many Family laws intersect or cross over with other laws which can create confusion.

The joint Australian Law Reform and New South Wales Law Reform Commissions delivered their final report to the Attorney General on 10 October 2010. The report was released to the public in November 2010.

This 1,500 page, 2 volume report sought to comprehensively review the various Federal and State Laws. It's objective was reducing violence in the community and particularly in relation to women and children.

This process is one of the ways in which changes to laws are made in Australia. This comprehensive review of the existing laws identifies weaknesses and areas of potential improvement and then made 186 recommendations for improvement.

Areas include confidentiality, rape, family dispute resolution, bail, trial process, homicide, breach of protection orders. For the full text of the report click here

Beware of Illegal Covert Surveillance

Wed, 17 Nov 2010 23:32:00 GMT

When is Covert Surveillance illegal and when does it serve a Legitimate Forensic Purpose?

Have you ever wanted to record a phone conversation as evidence for a family law dispute. How about discretely filming a video of a meeting of a spouse meeting someone else? What about recording what your children say when you are not there? Take care before you press record as you may be in breach of the law. It all comes down to consent.

Some legal court cases throw up cross-jurisdictional issues in which Federal Courts need to have regard to State Laws and vice versa. The Courts don't operate independently. A breach of an Australian Federal law may have impact on a State based Family Law matter.

A recent decision (5 August 2010) of Justice Fowler in the Family Court of Australia at Sydney considered the application of the Surveillance Devices Act 2007 (NSW) and its application in a case in respect of children’s “independent expert”. The starting point for His Honour’s determination was that a mother had procured, in contravention of the provisions of the Surveillance Devices Act 2007, a recording of the interviews between the Court appointed independent expert and the children of the marriage.

Section 7 of this Act prohibits a person from installing using or causing to be used a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party. The penalty is 100 penalty units or 5 years imprisonment or both. There are some limited exceptions but principally a party must consent to the listening device. No such consent was provided by the Independent Expert.

His Honour, Justice Fowler, had a case before him which had already run for 8 days. A transcript and copy of the recording were produced to the Court by the mother in response to a Notice to Produce. His Honour ordered that it was in the interests of justice, the public (who expect the Court system to act efficiently) and also in the interests of the parties that a copy of this transcript and recording be provided to the Independent Children’s Expert before she was cross-examined.

Comment from Mark Streeter Sydney Family Law Lawyer

This case illustrates an application of the principles of cross jurisdictional issues in the Family Court.

Anyone contemplating using Surveillance Devices (audio, video or data) should consider the law regulating this area and ensure they act lawfully. There remains the possibility the mother could face criminal penalties for potential breaches of the Federal Surveillance Devices Act regardless of what is decided in the Family Law Court.

Prenuptial Agreements Who When and Why

Thu, 04 Nov 2010 23:16:00 GMT

Prenuptial agreements have become more common and accepted in our society. yet many couples intending to marry feel they don't need a prenup. This post covers some of the Who, When and Why of arranging a Prenuptial Agreement.

Yes a prenup is not for everyone, but they are appropriate for a wide variety of people and you may find it applies to your personal situation. Importantly a pre-nuptial agreement is a legally enforceable contract. It does require each party to receive independent legal advice. It is not a quick list of who owns what.

Who should have a prenuptial agreement?

A prenuptial agreement is not necessary for everybody, however there are some personal and family situations where it is a very wise decision. In fact for many couple it can raise and deal with important concerns. it can also put into perspective or reduce anxiety related to "what if" situations and the unknown.

Common reasons for considering a prenuptial agreement include:

Owning a successful business
You are wealthy
You have children from a previous marriage
If you have elderly parents
If you anticipate a sizeable inheritance
If you are in a professional school
If one has sizeable debt
If you are pursuing a lucrative career
If you own stock, a home or retirement fund
Or if you want to avoid a costly divorce.

When should you consider a prenuptial agreement?

A marriage ceremony can be viewed as a contract where promises are made. In the same way, a prenuptial agreement is a contract where promises are made in the event of a marriage breakdown. The prenuptial agreement is best developed before the marriage, and is a legal process where both parties need time to join in discussion and come to agreement. It is best for both parties to have legal representation as the contract is drawn up, to ensure that the prenuptial agreement is enforceable.

It is a contract based on trust, where there is full disclosure and a clear understanding by both parties of the way things will be if the marriage does breakdown. The process does not need to involve conflict, but can provide a platform for open communication.

Why consider a prenuptial agreement?

Elderly parents, children from a previous marriage, assets and possessions can all be protected.

Fears of the unknown can be put to rest. Vulnerabilities and strengths are understood. A prenuptial agreement solves many serious problems before problems arise. A prenuptial is not an admission this relationship is likely to fail. Rather the discussion it generates can help unite a couple as they plan the future together.

See other Prenuptial Blogposts and Information:

Understand what makes a Prenuptial Agreement legal in Australia
Independent legal advice required for Prenuptial Agreements
Case - Court protects Russian Bride
Six types of Prenuptial Agreements

Family Court threatens imprisonment

Wed, 15 Sep 2010 23:40:00 GMT

Family Court takes the Compliance of Orders seriously

On January 10th, 2006, following their divorce, Mr Rand + Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property. On June 25th, 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia” .... potentially for the term of his natural life!

Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and didn’t travel outside Sydney.

Three years later on the 20th of April 2010, Mr Rand’s appeal was presented to the Full Court of the Family Court. Finally, on the 3rd of September 2010, judgement was delivered in favour of Mr Rand ensuring that the convictions for Contempt of Orders were overturned.

Interestingly, the reason that the conviction was overturned was that the Full Court found that the original order given on January 6th, 2006 was not sufficiently clear and was therefore too ambiguous to find a breach by way of contempt of the Order.

Whilst we agree that the current judgement rights a wrong, Mr Rand will not receive any compensation for the limitations placed upon his liberty for the past 3 years and to this extent, the delay has prejudiced his personal and financial interests.

This is a strong reminder the Family Court takes Compliance with Orders in relation to children and property extremely seriously.

Prenuptial Agreements general considerations

Thu, 04 Nov 2010 23:21:00 GMT

Marriage is a contractual arrangement and your rights and responsibilities do change after you walk down the aisle. From taxes to property ownership, from insurances to income, from inheritance to social security, marriage changes a lot.

Understanding at the start is a vital key to a successful union. Not understanding money and property can be at the core of what goes wrong in a marriage. Early discussion of these issues, even before the marriage, can help start couples off on the right foot and a prenuptial agreement is the ideal basis for this discussion. Creating a prenuptial agreement can be a very positive process to go through.

Strong marriages are built on trust. A prenuptial agreement helps brings things out into the open and can lay a healthier platform for your relationship. The process can help generate discussions and concerns about ageing parents, children from a previous marriage, owned businesses, inheritance expectations, acquired debt, retirement plans and even general lifestyle.

A prenuptial agreement clarifies the future and is an legally binding agreement reached when the couple are at their most amiable. Before considering credit cards, budgets, joint accounts, groundwork can be laid before the marriage to chart the course for the future and protect what is presently in our lives as individuals. Individual wealth and property are tender subjects, and it is far easier to talk about these issues BEFORE you are married, rather than when you are married or in the event you are contemplating a divorce.

There’s nothing romantic about money and property, but they are two very key issues in every relationship, and there is nothing wrong with being clear about these issues before beginning married life. Creating a prenuptial agreement is like buying car insurance. Hopefully you will never need it, but if you do, you will be very grateful that you had it.

For advice on a prenuptial agreement contact Streeterlaw Sydney Lawyers.

See other Prenuptial Blogposts and Information:

Understand what makes a Prenuptial Agreement legal in Australia
Independent legal advice required for Prenuptial Agreements
Case - Court protects Russian Bride
Six types of Prenuptial Agreements
Prenuptial agreements Who, When and Why

NSW Relationships Register Launches

Fri, 09 Jul 2010 01:03:00 GMT

The NSW Attorney General launched the “NSW Relationships Register” on 1 July 2010. This Register is managed by the NSW Registry of Births, Deaths & Marriages and allows unmarried couples in a committed, exclusive relationship to formally prove that they are in a committed or de facto relationship.

The Register is open for either unmarried heterosexual or same sex couples. Registrants will provided with a document which helps to prove their relationship avoiding the burden of constantly having to supply government agencies voluminous paperwork as evidence of their relationship.

For further information see Births Deaths Marriage / Relationships Register

One night stand impacts Child Support case

Mon, 05 Jul 2010 23:20:00 GMT

Man pays child support for six years before DNA reveals he is not the father

An expensive Child Support case shows it is not always worth recovering funds even if they are overpaid or incorrectly paid.

The facts of Forsythe & Latimer & Anor [2010] FMCAfam 478 (8 June 2010)

A recent decision in the Federal Magistrate’s Court (8 June 2010) concerned an application by the Child Support payer who had made payments over a number of years unaware that he was not the father of the child at the time that he made payments of child support.

The recipient of the funds was in strained financial circumstances. Although the father was determined not to be the father so for the purposes of this discussion he will be called the “payer”.

The mother commenced a relationship with the payer in November 1997 which continued to June 1998. They did not live together but they had a relationship which included sexual intercourse.

On an occasion in December 1997 the mother had a “one night stand” following an event at a pub. She does not recall this man’s name nor have any of his contact details. The child was born in late 1998 but the payer’s name was not recorded on his birth certificate until 11 January 2000.

After making private payments of child support, the payer then commenced paying through the Child Support Agency in October 2002. After suspicions were raised by the payer’s sister as to the paternity of the child, the payer requested the mother permit a DNA test in or about March 2008. Due to delays from the testing agency a conclusive report was not produced until 22 April 2009 which excluded the payer as being the biological father of the child. After some delays the payer commenced proceedings in the Federal Magistrate’s Court seeking a declaration under the Child Support (Assessment) Act and seeking a repayment order under that Act.

The entitlement of a party to “be repaid” is up to the Court who has an unfettered discretion as to whether or not to make the order in accordance with the criteria specified in Section 143(3) of the Child Support (Assessment) Act. The relevant criteria is as follows:

(a) whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;
(b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
(c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;
(d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;
(e) the relationship between the payer and the child;
(f) the financial circumstances of the payee and the payer.

Comment from Mark Streeter Sydney Lawyer

Having regard to all the personal and particular circumstances of this case and the conduct of the parties, their financial circumstances and applying them to the criteria referred to above, the Federal Magistrate ruled that of the $39,090.57 claimed only $9,743.30 would be ordered to be paid and then made provision for these to paid by instalments over 18 months.

This was an extremely expensive case to run and this case involved 3 hearing days and written submissions. There is no way that costs would not have exceeded the sum recovered and accordingly the commerciality of recovery proceedings in this jurisdiction must be carefully weighed up!