New wife wins case against forceful husband

Imagine being pregnant, facing deportation and being given a Binding Financial Agreement by your fiance five days before your wedding and told to sign or the wedding is off.

The Situation Blackmore and Webber [2009] FMCA FAM 154

The couple entered into a Binding Financial Agreement (under Section 90G of the Family Law Act 1975) on 11 November 2004 just days before being married on 14 November 2004.

This judgment arose following an application by the wife to set aside a binding financial agreement on the following grounds:

a)    There was a failure to comply with the formal requirements of section 90G
b)    That the agreement was obtained by fraud under 90K (1)(a) including non-disclosure of a material matter
c)    That pursuant section 90K(1)(b) the agreement was voidable or unenforceable in that it was obtained under duress
d)    That pursuant to 90K(1)(e) the husband engaged in conduct that was in all the circumstances unconscionable

The Decision about the Binding Financial Agreement

The Court agreed with the wife that the agreement should be set aside on the basis of the husband’s “fraud” due to the non-disclosure (in circumstances where he had a positive obligation to disclose) of the value of the husband’s pension.  Although not required to determine the ultimate question the court also would have found that there was duress where:

a)     The binding agreement was first produced to the wife 5 days before their wedding
b)    The husband told the wife the wedding would be off if she did not sign the agreement
c)    The wife was four to five months pregnant with the husband’s child
d)    There wife’s visa was due to expire had the wedding not proceeded the Visa would have expired and the wife would have to leave Australia

Comment from Mark Streeter - Sydney Family Law Lawyer

The Court also concluded that it would have been satisfied that the husband engaged in conduct that put the wife at a special disability.

The Court found that at the time of signing the Binding Financial Agreement the wife’s command of the English language was limited, that she was pregnant, that she lacked close family support and faced possible expulsion for the country if she did not marry.
 
Call me for an appointment to discuss any Binding Financial Agreements you may have, or wish to create.

Surveillance reveals more than expected

The Situation

A wife suspected that her husband was having an "affair" online.

The Solution

By use of lawful surveillance methods it was ascertained that it was much worse than this. The husband was viewing child pornography. The matter was reported to the police and urgent action taken in the Family Court to preserve and protect the child of the relationship.

Testimony - Mark Streeter Sydney Lawyer

I recently agreed on a property settlement with my spouse. During the preparation beforehand and negotiation during the mediation, Mark Streeter was practical and results-oriented. He avoided the emotional issues that would have distracted me from evaluating my options clearly, and did not influence me to agree to further unnecessary litigation. Mark was focused on the best outcome for me and my child. Instead of a long emotional argument battled out in family court, we came to an amicable settlement. Many other less ethical lawyers would have encouraged me to continue the unnecessary litigation so they can charge their clients more money. Mark was truly concerned about my interests. 002

Note

The Family Law Act provides stiff penalties to any person who discloses the names or identities of parties in family court proceedings or who publishes sufficient information to allow for the identification of these individuals. Accordingly many of the case studies and profiles are of a very general nature as a number of the distinguishing facts have been removed to preserve the anonymity of the parties.

Handing over financial documents to an ex is hard

The need for full and frank disclosure by the courts often makes divorcing couples nervous. A common question is "Why do I have to give all my financial documents up to my ex-partner?  I’ve been told I’ve got to get my tax returns and my bank account statements and give them to the other side!"

The reason behind this requirement is referred to as Full & Frank Disclosure. Family Law Dispute Resolution seeks to resolve disputes before they get expensive, adversarial and litigious. The Family Law Rules actually require parties to engage in an exchange of information, including finances, before they start proceedings in the Court.

The parties must make a genuine attempt to resolve the dispute before starting a case. Accordingly, in property and financial cases this will require the exchange of financial and taxation records, details of income, liabilities and any businesses, companies or trusts.  The more complex the financial affairs are of the parties the more extensive these procedures will be.

Comment from Mark Streeter - Sydney Lawyer in Family Law

A dispute may escalate if the parties do not trust one another and in the circumstances “assume” the worst.  These worst case assumptions built upon worst case assumptions can make your negotiations very difficult.  That's why the philosophy, and justification, behind the implementation of these rules is to eliminate at an early stage as many of the uncertainties regarding financial matters as possible.

Yes it may seem hard to hand over documents but doing so actually reduces the time spent and therefore your legal costs.
 
Call me to arrange an appointment to work out your options.

Grandmother's bank accounts being raided

The Situation

“I am concerned my grandmother is being taken advantage of!  My cousin has moved into her house and is accessing her bank accounts what can I do?” 

Comment from Mark Streeter - Family Law Sydney Lawyer

The elderly are one section of our society that have a particular vulnerability to financial exploitation.  An elderly person can put into place legal documents such as an Enduring Power of Attorney and a Deed of Enduring Guardianship that will provide for the formal appointment of trusted individuals to perform the role of financial manager and guardian in times when they are unable to or are incapable of attending to these types of matters themselves. 

If an attorney / guardian, appointed under a deed, fails to protect the best interest of a vulnerable person or there is no formal appointment documents and the informal arrangements are not working an “interested person” may make an application to the Supreme Court or the Guardianship Tribunal for the appointment of an independent financial manager and / or guardian. 

From 1 July 2009, the NSW Trustee and Guardian Act 2009 came into effect and under this legislation a new organisation was created; The NSW Trustee and Guardian now performs the roles previously exercised separately by the Office of the Protective Commissioner (Financial Manager) and the NSW Public Trustee (Guardian). 

Usually it is preferable that a relative or friend undertake these roles however in circumstances of gross family conflict an independent person may be preferred.

From 1975 the Divorce Law in Australia has stipulated only one ground for a Decree of Dissolution on Marriage – i.e. that the marriage has broken down irretrievably [s48(1) Family Law Act FLA].

The sole evidence for establishing the breakdown is that the parties to the marriage have separated and continue to be separated for a continuous period of 12 months prior to the filing of the Application for Divorce [s48(2) FLA].

The jurisdiction of the courts exercising powers under the Family Law Act is enlivened if either of the parties to the marriage can establish that they are:-

1)    An Australian Citizen; or
2)    Ordinarily resident in Australia; or
3)    Present in Australia

In addition to the Application for Divorce, it is necessary to file the Marriage Certificate with the Court.  If the marriage occurred overseas a copy of the overseas Marriage Certificate will need to be evidenced before the court. If it is a foreign language, a certified translation will be required.

The question of whether or not the parties have “separated” for 12 months is a question of fact.  The onus is on the applicant to demonstrate, on the balance of probabilities, that the essential facts supporting the application have been demonstrated before the Court.  

An Application for a divorce order cannot be filed within 2 years after the date of marriage unless a certificate of a family counsellor or consultant stating that the parties of the marriage have considered reconciliation with the assistance of that person.

If there are children of the marriage under the age of 18 years, the Court will not make an order it is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the children [55A(1)(b)(i) FLA]. If the Court has doubts as to the adequacies of the arrangements for the children it may adjourn the Application and order that a family consultant may prepare a report regarding the arrangements relating to the children.

See also Family Law Divorce

De-facto relationship interim maintenance agreement

The Situation

A couple in a de-facto relationship were seeking to make an "interim" agreement for spousal maintenance pending final discussions and negotiations in respect of a property division.

The Solution

Streeterlaw were retained on an urgent basis in May 2009 to draft a binding financial agreement for a defacto couple under the new provisions of the Family Law Act which became effective 1 March 2009.

The parties to the agreement were proposing to be traveling overseas for extended periods of time in the near future. Accordingly the proper drafting and "capture" of the agreement they had reached between themselves within a legally enforceable form of a binding financial agreement was required.

The Result

Streeterlaw were able to take detailed and extensive instructions, draft the deed and return it to the parties overnight for their execution which, after final approval, was executed by both parties.

Testimony - Mark Streeter Sydney Lawyer

"We really appreciated your urgent attention to this urgent work. My friends can’t believe that you are able to turn it around in such a quick time frame. My ex partner agreed that you had "captured" the agreement and was able to sign the agreement the next day. Thank you very much for your assistance. I can now go on extended leave with my mind at rest! I already have another three of my friends who have asked me for your name so that they can retain you as well!”
Peta*

Note

* An alias to preserve confidentiality and privacy. The Family Law Act provides stiff penalties to any person who discloses the names or identities of parties in family court proceedings or who publishes sufficient information to allow for the identification of these individuals. Accordingly many of the case studies and profiles are of a very general nature as a number of the distinguishing facts have been removed to preserve the anonymity of the parties.