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

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

 

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!

Shared property gambled away may need to be repaid

An issue may arise as to a particular person’s conduct either during the marriage or after separation that disposes of matrimonial property. The Family Court is a Court of Equity i.e they will not permit a party to take an unfair advantage because of unilateral action for their own benefit without bringing these funds to account. This concept is often called “wastage”.

In determining whether or not a certain expenditure or disposal of asset is classified as “wastage” and attributed wholly to a particular party the Court considers the following questions (insert A/B and G/B criteria).

Examples - The most common example alleged to constitute “waste” in the context of Family Law property resolutions is gambling. Gambling in its own right is not necessarily wastage.  It has been accepted by the Courts that for some, this is a form of entertainment and it is a question of degree to be assessed in every case on its own circumstances.

The Court has also found conduct which reckless, negligent or wanton and reduced or minimised the value of the assets should also be held to account.

If a finding has been made that quantifies a “wastage” amount, these figures will be “added back” into a notional pool of assets for consideration of division.

Comment from Mark Streeter Sydney Lawyer

One of the difficulties in preparing the case in wastage is it the innocent party’s “onus” at least at the first stage to prove on the balance of probabilities, that the other party has “wasted assets”. 

This investigation, may involve quazi fraud investigation and detailed examination of betting accounts, electronic records, and may include the “reconstruction” of financial accounts.  Accordingly the process is time-consuming and if it requires forensic accounting to verify the waste the investigation process will be be expensive to present this evidence in a form that is admissible before the Court.
 

Who has a legal right to stay in a home?

This area of law is know as Right of Occupancy. Before you go and change the locks take care.

Can you lock your ex-partner out of the home?

Properties are often owned “jointly” by parties married or de facto partners subject to any express written agreement both parties have a concurrent legal right to occupy the premises.

So can I lock my ex-partner out? The answer is maybe.  You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry to the premises.

Accordingly you should seek the assistance of either their expressed consent (not to re-enter) the property or alternatively seek the assistance of a Court.

The Family Courts will entertain applications by parties who seek the exclusive occupancy of the matrimonial home.  The Courts will take the holistic approach that will examine the financial capacity of one party (or the other) to rent a property elsewhere, the arrangements for the care of the children (i.e. who is the primary caregiver) and how a “moving out” would affect the ability of this primary caregiver to continue in this role.

The Court will also consider violence or other conduct between the parties and their ability to self-regulate their behaviour.  The Court will not consider it to be in the best interests that children be constantly exposed to loud, verbal altercations or arguments even in the absence of physical violence.

The Court may consider the physical layout of the premises to see whether or not it is possible to physically isolate a part of the house to continue occupancy but through a separate entrance with little or no common use areas.

Can my de facto partner lock me out if I am not on title?

In this case the husband or the wife has the house in their name and wish to exclude the other party from the house by changing the locks and seeking to exclude them. This situation is more difficult on the part of the person who is not on title (and is seeking to be excluded).  The person on title has the “legal” right to exclusively occupy as owner of that property.

It may be that the other person has a “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or exclusive occupation of that site.

The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses in these circumstances.  Please see factors identified above for consideration the Courts will make in deciding these matters.

What if my partner stops paying the mortgage?

We are often asked whether or not this permits the innocent party to kick them out of the home or alternatively to get an order forcing them to pay.  Again the Courts will consider a holistic approach to the evidence as to the ability of one party to contribute to the joint debts and liabilities of the marriage.

In any event the bank is a independent third party and, in the normal form of mortgage, both parties have a joint and several obligation to pay the mortgage payments.  In the event that one party needs to assume all of the parties until a final determination by the Courts, these additional contributions should be “added back” in any final accounting of the matrimonial property and financial resources of the parties to the relationship.

Be Prepared when Appearing before the Guardianship Tribunal

The Guardianship Tribunal serves an important role. These 11 points will help prepare you. There are things you need to DO and other things you should NOT do.

1.   READ THE HEARING NOTICE

1.1   The Tribunal sits most often at 2a Rowntree Street, Balmain.  However, the Guardianship Tribunal may also travel and hold temporary sitting rooms in hotels or conference rooms around New South Wales depending on the needs and location of the person who is the subject of the Application.

2.   DO NOT FORGET FIRST PRINCIPLES

2.1   Section 4 of the Guardianship Act 1987 sets out the principles under which the Guardianship Tribunal operates and makes decisions.  These principles are as follows:
(a)   the welfare and interests of such persons should be given paramount consideration,
(b)   the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c)   such persons should be encouraged, as far as possible, to live a normal life in the community,
(d)   the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e)   the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f)   such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g)   such persons should be protected from neglect, abuse and exploitation,
(h)   the community should be encouraged to apply and promote these principles.

2.2   Every submission and piece of evidence should be made through a filter which considers these principles.  Overall, and before all else, the Tribunal is a jurisdiction which is concerned about the “best interests” of the person who is the subject of the Application.  It is uninterested in the personal private interests of a particular party to the Application except in so far as it relates to and is connected with the interests of the person who is the subject of the Application.

3.   JURISDICTION

3.1   Remember what Application it is that you are making.  Is it one about Financial Management or Guardianship?  Or is it a review of an existing Power of Attorney under the Power of Attorney Act 2003?  There are different questions to be asked (and answered) depending on the type of Application. Read the Guardianship Act 1987 and Power of Attorney Act 2003!

4.   PRACTICE NOTES

4.1   As a Tribunal that most practitioners have little practical experience of appearing in, it is important that each practitioner potentially advising their clients or are seeking to appear should have regard to the conventions and manner in which the Tribunal conduct itself from a practical Hearing matter.  Read the Practice Notes.  They’re available on the Guardianship website at www.gt.nsw.gov.au.

5   APPEARANCE

5.1   There is no right of appearance by legal practitioners in this jurisdiction!  Appearance as an advocate for a party who is a participant in this jurisdiction is by way of leave only.  There is no inherent right for one party to be represented and accordingly make submissions.
5.2   Have regard to section 58 which sets out the terms under which a Guardianship Tribunal may permit legal representation of parties involved in an application before the Guardianship Tribunal.

6   JURISDICTION

6.1   Remember the jurisdiction of the Guardianship Tribunal is very narrow.  It has quite discrete questions and powers under the Guardianship Act 1987 and the Power of Attorney Act 2003.  
6.2   It cannot deal with concurrent issues involving Corporations Act or “equity”.  If there are intractably intertwined legal and factual issues which require a judicial determination under legislation or in law that are outside of the jurisdiction of the Guardianship Tribunal – consider whether or not this is the appropriate jurisdiction for the dispute resolution.  The Supreme Court has concurrent jurisdiction under the “protective division” of the Supreme Court.
 

7.   WHAT IS A SEPARATE REPRESENTATIVE AND WHAT DO THEY DO?

7.1   Separate Representative is appointed by the Tribunal if the Tribunal has concerns that the interests of the person the subject of the Application should have an independent advocate to lead evidence and make submissions on behalf of the Concerned Person before the Tribunal.
7.2   The principles and guidelines for Separate Representatives are found in PVP and are as follows:
(a)   Act as an independent and unfettered way in the best interest of the Concerned Person.
(b)   Act impartially but if thought appropriate, make submissions suggesting the adoption of a particular course of action if such a course is in the best interest of the Concerned Person.
(c)   Inform the court of the wishes of the Concerned Person.
(d)   Arrange for the collation of expert evidence and otherwise ensure that all relevant evidence is before the court.
(e)   Test by cross examination where appropriate the evidence of the parties and their witnesses.
(f)   Ensure that the views and the attitudes brought to bear on the issues are drawn from the evidence and not from a personal view or opinion of the case.
(g)   Minimise the trauma to the Concerned Person associated with the proceedings.
(h)   Facilitate an agreed resolution to the proceedings.

8.   RULES OF EVIDENCE

8.1   The Tribunal is not limited by the rules of evidence.  Evidence can be adduced in forms that would not otherwise be admissible in a Court.

9.   THE INQUISITION?

9.1   The nature of the Tribunal, and the manner in which the Hearings are conducted are very much by way of an “inquiry”.  The members of the Tribunal actively intervene and direct questions and seek to elicit evidence addressing their particular concerns.  The “control” by a party or their legal representatives over the Hearing process is much more limited than in a conventional Court room environment.

10.   THE BENCH

10.1   The Tribunal will conventionally (for non-procedural matters) be constituted by three separate individuals, who collectively are the Tribunal in relation to an Application.  The Tribunal members will each have a particular area of expertise but generally their three roles are as follows:
(a)   A Presiding Legal Member
(b)   A Community Member
(c)   A Professional Member (Doctor or other suitably qualified medically qualified person)

11.  INVESTIGATION OFFICER

11.1   Each application before the Tribunal will be “case managed” by an Investigation Officer.  The Investigation Officer’s role is to ensure the relevant information and material is available to the Tribunal for its deliberations and considerations.
11.2   If necessary, the Investigation Officer will contact medical service providers and seek to elicit medical reports and other documents relevant to the decision of the Tribunal.

Is a doctor to be held responsible if they fail to diagnose something?

The case of TABET V GETT [2010] in the High Court of Australia (12 APRIL 2010) investigated this.

Facts behind the case

On 11 January 1991, the appellant was admitted to the Royal Alexandra Hospital for Children with symptoms of headaches, vomiting and nausea after suffering from the chickenpox.  She was examined by the paediatrician respondent and provisionally diagnosed as suffering from chickenpox, meningitis or encephalitis.

On 14 January 1991, the appellant suffered a seizure, and was diagnosed with a brain tumour following a CT scan and EEG.  The appellant suffered irreversible brain damage after undergoing treatment and an operation to remove the tumour.

The appellant argued that the respondent breached his duty of care and skill by causing or contributing to her injury.  The appellant alternatively argued that the respondent’s breach of duty of care and skill led to “the loss of an opportunity to avoid injury, loss and damage”.  The appellant submitted that if the respondent had performed the CT scan earlier, she would have had a better medical outcome.  

High Court Decison

The High Court unanimously dismissed the appeal.

Legal Question about Doctor's Negligence

Does the common law of negligence in Australia recognise a less than even chance of avoiding an adverse health outcome as an interest of value to a patient, the loss of which by reason of a doctor’s negligence, can be compensated as damage suffered by that patient? [Heydon J, para 71]

Threshold test proving medical negligence

KIEFEL J:
(a)   The three elements of a cause of action in medical negligence, necessary to be established in order to recover compensation, are:
(i)    a duty owed by the medical practitioner to the plaintiff to avoid harm which is reasonably foreseeable,
(ii)   a breach of that duty and
(iii)   damage which results from that breach.  [para 108]

Causation & analysis of loss of opportunity

The majority judgment of HAYNE & BELL JJ set out the law of relating to the ‘loss of chance’ as follows:
(a)   The Doctor should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was. [para 68]

(b)   It need only be observed tha the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant’s negligence was more probable than not a cause of damage (in the sense of detrimental difference).  The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so. [para 69]

Justice KIEFEL J added his further comments that:

(a)   Properly analysed, what is involved in the chance referred to in this case is the possibility, to put it at its highest, that no brain damage would occur or that it would not be so severe.  They are the “better medical outcomes” involved in the chance.  Expressing what is said to be the loss or damage as a “chance” of a better outcome recognises that what is involved are mere possibilities and that the general standard of proof cannot be met.  Thus the appellant could only succeed if the standard of proof is lower than the law presently requires. [para 143]

(b)   The requirement of causation is not overcome by redefining the mere possibility, that such damage as did occur might not eventuate, as a chance and then saying that it is lost when the damage actually occurs.  Such a claim could only succeed if the standard of proof were lowered, which would require a fundamental change to the law of negligence. [para 152]

Why can't children use the same lawyer as their parents?

Unfortunately parents often take adversarial and diametrically opposed positions in respect of what is in the “best interests” of children in Family Law Parenting Cases. As a result children are required to have separate legal representation in the Courts.

Accordingly it is practice for the Court to appoint an “ICL” i.e an Independent Children’s Lawyer to represent the Children’s best interests in any contested hearing before the Court.

The Independent Children’s Lawyer operates as a “Separate Representative” to ensure that submissions are made and evidence brought before the Court in order that a determination may be made in accordance with law and the principles of the Family Law Act.  The overriding responsibility of the Separate Representative is to ensure evidence is presented and submissions made as to what is in the best interests of the children.

Guidelines for the role of the Separate Representative or Independent Children’s Lawyer were set out in a Full Court Family Court decision of P and P in 1995.  They are as follows:

"The separate representative ought:-
1. Act in an independent and unfettered way in the best interests of the child.

2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.

3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the  instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court. 

4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.

5. Test by cross-examination where appropriate the evidence of the  parties and their witnesses.

6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal  view or opinion of the case.

7. Minimise the trauma to the child associated with the proceedings.

8. Facilitate an agreed resolution to the proceedings."

Comment from Mark Streeter - Sydney Family Law Lawyer

The Independent Children’s Lawyer is not “bound” to take an adversarial or contradictory role and may either support one parent’s application over the other or alternatively submit a completely new third version of proposed orders in respect of children.

The Independent Children’s Lawyer is an incredibly powerful and influential role in parenting matters in the Family Courts. It is an important safeguard to ensure a “neutral” party is presenting as objectively and as “disinterested” submissions in the interests of the child (or children) as is possible in the circumstances.

When you separate who makes the decisions about your children?

As a parent you have responsibility for your child. When couples divorce or separate deciding who looks after the child is determined by what is in their best interest. Equal Shared Parental Responsibility is one arrangement in what is usually referred to as child custody..

Parental responsibility in relation to a child is defined by s61B of the Family Law Act 1975 as “all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to children.”

Parents automatically have parental responsibility for their children from birth. Unless there is a parenting dispute resulting in Orders of the Court, each parent will continue to have equal shared parental responsibility for the child following separation or divorce.

Parental responsibility and making decisions with regard to the day to day conduct of the child’s life are often confused. It is usual for the parent who is caring for that child, at any given time, to be responsible for decisions with regard to the day to day welfare of that child. An order for shared parental responsibility, or child custody, does not mean that the other parent must be consulted on every minor issue in a child’s life.

Parental responsibility is a responsibility to make decisions in relation to the long term issues in a child’s life such as where the child lives, what medical treatment they will receive, educational issues such as where they will attend school, the nature and degree of religious upbringing, the child’s name, passports, and the child’s social conduct and interaction.

Significant changes were brought about with the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 in July 2006(“The Amendment Act”). The Amendment Act saw a shift in the focus of the Court from the rights of parents; toward the rights of children and the responsibility of parents.

The Court must now apply a “rebuttable presumption” contained in s61D of the Family Law Act that it is in the best interests of children and parents to have a shared parental responsibility. This cannot be confused with the additional consideration of equal time. The presumption for equal shared parental responsibility is rebutted in circumstances whether there are reasonable grounds to believe that a parent of a child (or a person who lives with the parent of that child) has engaged in:
a) abuse of that child; or
b) family violence.

The Court will not make an order for equal share parental responsibility if they exercise their discretion that making that order would be contrary to the child’s best interest.

Orders relating to parental responsibility may be made on an interim basis in matters of urgency but the Court must disregard such an interim order when considering a final order to avoid prejudice against the other parent.

Social scientific studies have demonstrated that in situations where there is a high level of conflict between the parents, where consultation on significant issues relating to the child would place the other party or the child at risk of harm, it may be considered appropriate to award sole parental responsibility of the child to one parent.

There are times when Unsupervised Child Visitation will be denied

An issue often raised in disputed children’s cases is whether or not there is an “unacceptable risk of abuse” to the child if time the child spends with one of the parents is not supervised. This language comes from the High Court Decision M v M. In that respect it mirrors the language of the legislation Section 60CC(2)(b).  Behaviours that have been found to constitute unacceptable risk include history of physical abuse, illicit drug or abuse of prescription medication, sexual abuse.

It must be demonstrated, on the facts and evidence before the Court that accumulatively and collectively there is an unacceptable risk abuse of the child to have unsupervised time with the specified parent or individual.

The Court starts with an acknowledgment and recognition that abuse of children (both sexual and physical) does occur in the community.  The Courts however approach these allegations with a heightened vigilance on the basis that:
·         Not all allegations of abuse are true.
·         False allegations may be made by either parents acting in good faith or as a result of misperception of information.
·         Sometimes (and hopefully rarely) parents deliberately fabricate allegations.

The Courts balance the risk of harm to the child having contact with the benefits of that contact.  In each case the evidence is meticulously examined by the Court.