Changes to promote domestic violence protection coming on 10 September 2019

The Federal government has enacted changes to the Family Law Act 1975 (FLA) that will prohibit the cross examination by self-represented parties in proceedings where there are family violence issues.

Family violence in the FLA means violent, threatening or other behaviours that coerces or controls a family member or causes them to be fearful.

The changes will apply when family violence is alleged in child custody, property settlement or spousal maintenance proceedings, and any one of the following situations also occur:

One of the party’s has been convicted or charged with an offence involving violence, or threatening violence to the other party. Typically, this would be a situation when a party has breached a domestic or family violence order or committed assault and has been charged or convicted.
A domestic or family violence order has been made under State legislation (such as a DVO, AVO or Protection Order – the terminology differs between States) and applies to both of the parties i.e. they are the aggrieved and respondent. While the new rules apply to family law matters which are under Commonwealth jurisdiction, domestic or family violence orders come under the powers of the States. Temporary orders aren’t relevant here, only a final order.
An injunction under Section 68B or 114 of the Family Law Act 1975 for the personal protection of either party has been made. This is effectively the Commonwealth version of a State domestic or family violence order.
The Court determines that cross examination by self-represented parties should not occur in the particular facts of the case. Thus, the Judge can decide the parties shouldn’t be permitted to cross examine each other.

Therefore, in family violence matters as set out above, the parties will need their own family law advice and divorce lawyer to conduct the cross examination for them.

We specialise in family law matters and can assist parties from Lismore to the Sunshine Coast, throughout Greater Brisbane, Northern NSW, Tweed and the Gold Coast with court representation and advice. Get in contact today and in an initial consultation we can give you guidance as to your options, likely outcomes and costs.

What if a party can’t afford legal advice or legal representation?

In these circumstances a party may apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme, to have a family lawyer and barrister appointed for them to conduct the cross examination.

Applying for a lawyer will be done via the state Legal Aid offices, is not merit or means tested and the application must be made at least 12 weeks before the final hearing.

This means that regardless of your financial circumstances you will be able to have the lawyer represent you for the cross examination.

We are Legal Aid Queensland panel solicitors and can assist you with applying for Legal Aid as well as Legally Aided court representation.

When is cross examination necessary?

Cross examination of a witness in family law cases usually only occurs at a final hearing.

Therefore, if you have reached an agreement via mediation or through consent orders or parenting plan, then cross examination won’t be necessary.

If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Mill Family Lawyers Coolangatta on (07) 5599 3026.

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Family Law Property Settlement without having to go to Court

Most people following marriage breakdown and separation wish to avoid having to go to court and want to resolve property settlement as quickly and as cost effectively as possible.

Separation is an emotional time and it is not uncommon for family law solicitors to encounter situations where poor communication and troubled relationships impede the party’s ability to resolve the dispute.

While people usually think of lawyers and Court, they think of court hearing and family law litigation, however when emotions are high, family lawyers and the Court Rules and procedures can assist in resolving the property settlement.

Family Court and Federal Circuit Court pre-action procedures

In the Family Court of Australia, there are strict pre-action procedures that have to be followed prior to commencing property settlement proceedings.

There are no such strict requirements in the Federal Circuit Court, however parties are encouraged to make a genuine effort to resolve the matter by Family Dispute Resolution prior to commencing proceedings.

Most Family Law matters would be filed in the Federal Circuit Court; however, it is helpful if the pre-action procedures are followed in all matters.

Explore Mediation and Family Law Dispute Resolution

Once you see your lawyer and get some advice as to where you stand it can be helpful to make contact with the other party and provide a copy of the pre-action procedures brochure produced by the Family Court and invite the other party to participate in a dispute resolution process. This can include a mediation, arbitration and/or negotiation through solicitors.

If the other party refuses to engage in negotiation, attend dispute resolution or attends but it is unsuccessful, then a written notice of intention to commence proceedings can be forwarded to the other party.

Family Law Rules 2004 r1.05.
Federal Circuit Court Rules 2001 r1.03
Family Law Rules 2004 Schedule 1 Part 1 (1)(a).
Family Law Rules 2004 Schedule 1 Part 3 (4).

This notice sets out the issues in dispute, the orders being sought and a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).

The other party should respond with his or her position. If no response is received proceedings could be commence if the party desires. The advantages of this are:

Extensive efforts are made in a structured way before the “last resort option” of going to court is commenced;
If you end up in Court most Judges will want to see that parties have made every effort to resolve the dispute before commencing family law proceedings. In some situations, there may even be costs orders made against a party who has unreasonably refused to participate in alternate dispute resolution such as mediation or refused to accept a reasonable offer of settlement; and
Following these procedures can make subsequent Family Court proceedings less expensive and more quickly resolved. This is because in conducting settlement negotiations the parties would have usually narrowed the issues in dispute and collected much of the information necessary for resolution.

Other steps to assist in resolving family law property settlement faster with less expense

Each party has a duty to make full and frank disclosure of all information and documents relevant to the dispute. This should occur when the negotiations are taking place and should include a schedule of assets and liabilities and supporting documents. It should also include income (i.e. tax returns) and details of any property disposed of or purchased since separation.

The best way forward is to produce a list of the documents you have for disclosure and provide the list to the other party. The other party should disclose documents relevant to the dispute that are within his/her possession or if he has the power to obtain them. However until a Judge Orders disclosure, there is no way to enforce the obligation. By providing your disclosure contemporaneously with a request the other party is more likely to comply and be less suspicious of the process. We generally recommend to self-represented people who are unsure about obligations to make disclosure to seek independent legal advice.

If a party refuses to make disclosure, Court action can become necessary to compel compliance. Thus, making timely disclosure makes commencing proceedings less likely to be necessary.

If no disclosure is ongoing there can be substantial consequences for non-disclosure, including that a party may not be able to rely on the document as evidence, client may face a costs order or be guilty of contempt or the court.

When pre-action procedures may not be appropriate

There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute. If the matter does not fall under one of the exceptions parties and lawyers should follow the procedures.

Family Law Rules 2004 Schedule 1 Part 3 (6).
Family Law Rules 2004 Schedule 1 Part 3 (5).
Family Law Rules 2004 r 13.01; Family Law Rules 2004 Schedule 1 Part 4 (1).
Family Law Rules 2004 r 13.01 (2); Family Law Rules 2004 Schedule 1 Part 4 (2)
Family Law Rules 2004 Schedule 1 Part 4 (2)(a).
Family Law Rules 2004 r 13.04.
Family Law Rules 2004 Schedule 1 Part 5 (b).
Family Law Rules 2004 r 13.07.

Blog, Child Custody

Parenting Process

How is a child custody dispute resolved in Queensland without going to Court?

Firstly, parenting disputes in Queensland are dealt with in the same way as for the majority of the Country.

This is because since most States referred their power over children’s matters back to the Commonwealth. Thus, the law concerning parenting after separation, parental responsibility, child support and custody come under Federal Legislation and Courts i.e. the Family Law Act 1975, Child Support Assessment Act 1989 and the Family Court and Federal Circuit Court of Australia.

Under the Family Law Act 1975 the focus is very much towards assisting parents to resolve parenting cases themselves, with the necessity of a Judge determining who children will live with and spend time with being a last resort.

The first step in Parenting Matters – Family Dispute Resolution and the Section 60I Certificate

Prior to commencing parenting proceedings,it is necessary to attend Family Dispute Resolution or FDR. This is in effect a Mediation where an independent mediator trained as a Family Dispute Resolution Practitioner (FDRP) assists the parties to make a parenting agreement, usually recorded in a Parenting Plan.

After the parties attend this mediation, the Registered Family Dispute Resolution Practitioner is required to produce a “mediation certificate” if requested by a party.^[1]These certificates are commonly referred to as section 60I certificates and can be issued on any of the following grounds:

The client did not attend FDR due to the other party’s refusal or failure to attend;^[2]
The client did not attend FDR or began attending FDR but the practitioner considered that it would not be appropriate to conduct or continue the FDR in the circumstances;^[3]
That the client attended FDR and made a genuine effort to resolve the issues;^[4] or
The client attended FDR but did not make a genuine effort to resolve the issues.^[5]

^[1]Family Law Act 1975 (Cth) s60I (7).

^[2]Family Law Act 1975 (Cth) s60I (8) (a).

^[3]Family Law Act 1975 (Cth) s60I (8) (aa) and (d).

^[4]Family Law Act 1975 (Cth) s60I (8) (b).

Exceptions to needing a Section 60I Certificate

The following exceptions allow a party to commence proceedings without a certificate:

There has been abuse of the child by one of the parties;^[6]
There is risk of abuse of the child if there was a delay in bringing the proceedings;^[7]
There has been family violence or risk of family violence;^[8]
The application is urgent;^[9]
One party is unable to participate effectively in FDR;^[10] or
One party has contravened Orders that were made within the last 12 months and the Application is in relation to that breach.^[11]

What happens if you don’t have a section 60I Certificate?

The court will refuse to accept an Application for filing that does not have a certificate attached or an affidavit of non-filing of dispute resolution certificate with the appropriate exception addressed.

If a party attends FDR but does not make a genuine effort, the court may make an order requiring the parties to go to FDR again and the court might make a costs order against that party.^[12]

Other issues before going to the Family Law Court

There are also strict pre-action procedures that have to be followed in the Family Court.^[13] These do not exist in the Federal Circuit Court;however, it is good practice to follow them.^[14]

Here a party must provide the pre-action brochure to the other party and engage in settlement discussions.^[15]Also, forward a notice of intention to commence proceedings.^[16] This notice must set out the issues in dispute, the orders being sought, a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).^[17]

^[5]Family Law Act 1975 (Cth) s60I (8) (c).

^[6]Family Law Act 1975 (Cth) s60I (9) (b) (i).

^[7]Family Law Act 1975 (Cth) s60I (9) (b) (ii).

^[8]Family Law Act 1975 (Cth) s60I (9) (b) (iii) and(iv).

^[9]Family Law Act 1975 (Cth) s60I (9) (b) (i).

^[10]Family Law Act 1975 (Cth) s60I (9) (e).

^[11]Family Law Act 1975 (Cth) s60I (9) (c).

^[12]Family Law Act 1975 (Cth) s117.

^[13] Family Law Rules 2004 r1.05.

^[14] Federal Circuit Court Rules 2001 r1.03.

The party receiving the Notice is required to respond to this with their position^[18]and hopefully this is a further incentive for the party to resolve their dispute without the Court making a decision.

There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute.^[19]

The pre-action procedures specifically state the parties must have regard to the following matters in relation to children:

The best interests of the children;^[20]
Maintaining good co-parenting relationship;^[21]
The potential damage to a child who is involved in the dispute;^[22] and
Not seek orders that are not in the best interests of the children.^[23]

The outcomes in custody disputes –without having to go to Court?

If an agreement can be reached between the parties in dispute there are several options for record the agreement:

Parenting Plan;
Consent Order.

A Parenting Plan is simply a written record of the agreement and only requires that the agreement be in writing, signed and dated.^[24] A Parenting Plan is not enforceable, however if there is a further dispute requiring Court action the Judge will have regard to the most recent Parenting Plan when making a Parenting Order.^[25]

^[15] Family Law Rules 2004 Schedule 1 Part 3 (1).

^[16] Family Law Rules 2004 Schedule 1 Part 3 (4).

^[17] Family Law Rules 2004 Schedule 1 Part 3 (5).

^[18] Family Law Rules 2004 Schedule 1 Part 3 (6).

^[19] Family Law Rules 2004 Schedule 1 Part 1 (4).

^[20] Family Law Rules 2004 Schedule 1 Part 1 (6) (a).

^[21] Family Law Rules 2004 Schedule 1 Part 1 (6) (b).

^[22] Family Law Rules 2004 Schedule 1 Part 1 (6) (c).

^[23] Family Law Rules 2004 Schedule 1 Part 1 (6) (d).

^[24] Family Law Act 1975 Section 63C.

A Consent Order is made with a higher degree of formality and is enforceable. Even though the Consent Order is the party’s agreement the Court can only make the Order if legislative requirements for Parenting Orders are followed, for example, the Court would only make the Order if the best interests of the subject children were the paramount consideration.^[26]

For a Consent Order an appearance in court is not necessary and the Orders can be made “in chambers” with the documents being sent to the Court by post.

Hooper Mill Family Lawyers at Victoria Point and Hooper Mill Family Lawyers on the Gold Coast can assist parents in mediation and to resolve parenting matters before you have to go to court. Peter Hooper of our office is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner able to provide FDR to people wanting to reach their own agreements.

^[25] Family Law Act 1975 Section 65DAB.

^[26] Family Law Act 1975 Section 60CA.

Articles written by Peter Hooper, Blog, Divorce/separation, Featured Articles

Trusts and Separation

Working with accountants – Family trusts and separation

“Family trusts” are a common structure through which people may operate a business or hold assets.

There are various reasons why people may choose to place assets within a trust structure, but how are these structures (and other trust structures) regarded in the event of separation, divorce and family law proceedings? Do they offer any protection from a claim by an ex-spouse with respect to assets held by the trust? And what issues arise in the family law context?

What is a family trust?

A family trust is typically a discretionary trust generally set up by a family member with other family members being the beneficiaries of the trust.

Primarily family trusts are established to achieve tax minimisation in the manner by which trust income and capital is distributed to the beneficiaries; and to provide protection to the assets of the trust. Protection of assets occurs because the legal interest in the assets is held by the trustee for the benefit of the beneficiaries.

Thus, trust asset protection can be achieved as assets are kept separate from the claims of the creditors of any individual beneficiary.

But do trusts protect trust property from a spouse of a person who may be a beneficiary or trustee of a trust?

What is property in the family law context?

For the purposes of the Family Law Act 1975 the term “property” has a very broad definition. The Full Court has said:

“The word “property” is the most comprehensive of all the terms which can be used, in as much as it is indicative and descriptive of every possible interest a party can have.”[i]

Property can be real or personal and has been held to encompass interests including shares in Pty Ltd companies, partnership interests, contractual rights, rights under trade licences, beneficial interests in administered estates and rights with respect to property held in trusts.

Therefore, in being called upon to determine whether trust assets ought to be regarded as property for family law purposes, Judges will take a broad approach to answering that question.

In determining whether the assets of a trust ought to be included as property of the parties available for distribution between them, Courts exercising jurisdiction pursuant to the Family Law Act 1975 will examine what “influence and control” a party may exert over the trust.

The types of factors that the Court will look for include:

What position or role within the trust do the parties have within the trust structure? (i.e. settlor, appointer, trustee and beneficiary)
What distributions have occurred in the past?
Are there debit or credit loans/accounts?
What benefits have the parties received in terms of payment of expenses or salaries etc?

The High Court has held that in a situation where neither the husband or wife is a beneficiary of the Trust, the assets of the trust can be available for the “matrimonial property pool” based on factors such as the assets having been built up by the contributions of the parties over a long period.[ii]

In Kelly and Kelly (No2) the husband had no interest in the trust however the Court determined control based on his relationship with those who had an interest and that he received indirect financial advances. In this case the directors of the corporate trustee were the husband’s accountant, brother and wife. The husband was not a settlor, appointer or beneficiary.

Where the Court does not consider that the assets of the trust ought to be treated as property of the parties (such as where a party has a beneficial interest in a discretionary trust), it may be still be relevant to consider whether the interest is a mere expectancy (and irrelevant) or a financial resource of a party leading to an adjustment of the percentages of the overall matrimonial property pool each party receives.[iii] This is a situation where the history of distributions will be important evidence in firstly determining whether there is a financial resource, and secondly the weight to be applied (i.e. the level of percentage adjustment).

Other issues for Gold Coast family law solicitors and accountants?

There are a number of practical issues that arise in terms of proving a party’s case with respect to the trust and its assets, and with respect to how property may be distributed from a trust to a party to the marriage.

Family Law Disclosure

To determine the question of control, determine what interests the parties hold, and/or gain an understanding of what assets the trust holds, documents and information will be required. Often these documents will be held by a party’s accountant, and it is not uncommon for a spouse to lack access to documents, information or an understanding as to how the family financial affairs are structured.

The Family Court and Federal Circuit Court Rules require parties make “full and frank” disclosure.[iv]

The types of documents family law solicitors will typically request from a party or their accountant are:

Tax returns with attached financials to determine what is the financial position of the trust;
Trust deeds (including deeds of variation) to determine the structure and issues of control;
For any corporate trustee a copy of the corporate constitution;
Bank statements and any credit card statements for trust accounts evidencing transactions;
Minutes of trustee meetings relevant to control and history of dealings;
Register of assets and/or register of distributions;
Loan agreements with respect to loan accounts;
If the trust is operating a business (as is commonly the case), disclosure of relevant business records to determine value, assets and financial dealings.

The above is not exhaustive, and disclosure will be required depending on the circumstances and relevance.

If a party refuses to disclose, it can impact negatively upon their case and cause the Court to draw adverse inferences in some situations.

Further, trustees have obligations under State and Territory legislation to maintain certain records which beneficiary have a right to inspect. Subpoenas are also an available remedy to compel a recalcitrant party (or a third party such as an accountant) to provide documents or give evidence.

Issues for family law settlements involving trusts and transfer of property from trusts to a spouse or former spouse

There are a number of issues that can arise in relation to transfer of trust assets and income at separation.

These types of issues include:

Capital Gains Tax (“CGT”) – where an asset pregnant with CGT is transferred from the trust to a spouse (or de facto spouse). In this situation the spouse takes the asset pregnant with the CGT however the transfer from trust to spouse attracts CGT rollover relief.[v]
Tax issues from settlement distributions – If as part of a family law settlement a distribution from a trust is contemplated, it will be important to determine whether the intended recipient is still a beneficiary. A spouse who was a beneficiary may no longer be a beneficiary as at the date of settlement. For example, if the parties are divorced and the former spouse doesn’t fit the definition of a class of beneficiary pursuant to the deed after the marriage is dissolved. This can create issues as to how the ATO will regard and tax the payment.
Tax issues from past distributions – If tax hasn’t been assessed on past financial years distributions, the tax needs to be considered in determining the overall pool available for distribution and whether the liable party will pay, or if the other party will be responsible for the tax. Sometimes it is an issue that tax on prior years distributions is payable, but that spouse party hasn’t received the distribution (income splitting between spouses). In this situation however, the beneficiary can enforce the actual payment of the distribution.
Division 7A Income Tax Assessment Act 1936 – In some circumstances where distributions have been made to a private company, but not paid (present unpaid entitlements or UPE), Div 7A tax may be payable.

It is important for family lawyers drafting orders to consider all the potential issues arising from the proposed transfers, and where applicable, ensure that clients obtain accounting advice before finalising property settlement orders.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice.

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

[i] In the Marriage of Duff (1977) 29 FLR 46 – approving the statement by Lord Langdale MR in Jones v Skinner 5 LJ Ch. 87.
[ii] Kennon v Spry (2008) FLC 93-388 – in this case the trust was set up by an expert on the law of trusts likely for the purposes of placing assets beyond the reach of the wife.
[iii] Kelly and Kelly (No2) FLC 91-108.
[iv] Family Court Rules 2004 R13.04 and Federal Circuit Court Rules 2001 R20.04.
[v] S 126-5 Income Tax Assessment Act 1997.

Blog

Common Family Law Questions and tips part 1

I have set out some common concerns and questions I’ve heard from people repeatedly over the years, and I plan on doing this in a number of separate articles.

It is impossible in an article such as this to provide definitive answers to every question, and everyone’s situation is different. However, I hope what follows might be a useful guide for obtaining preliminary information.

Affordable Family Lawyers

Legal services can be expensive and often people are afraid to get advice or approach a lawyer due to fear of costs.

Sometimes however poor advice or no advice can cost you more. Here are my best tips to minimise Family Law costs:

Have a discussion about costs up front. Ask the lawyer how they charge and what the rate will be. It is open for you to negotiate the rate or how the charges will be levied, for example, time costing or fixed fee. We find fixed fees for consent orders, pre-nuptial agreements and Divorce applications very popular with our Brisbane and Coolangatta clients.
If you are being time costed make sure you understand what work needs to be done in advance, and that you are “kept in the loop” with estimates for the cost of the work to be done. Lawyers are required to provide you with an estimate of costs at certain times and upon request.
Ask what you can do to reduce costs. One of the simple ways to reduce costs is present your instructions to the lawyer in an easily understood format. To assist our clients we have template documents, and detailed assistance to help our clients complete these documents themselves. We settle the final draft and the effect is a lot of our time, and your money, is saved.
Make sure your lawyer knows what they’re doing. Inexperienced lawyers can take a lot longer to complete a task and unfortunately you even get charged more with time costing. Bad advice can be devastating in terms of costs. Family law is a very complex area of practice and a specialist family lawyer can end up saving you a lot of money.

Of course, one of the absolutely best ways to save costs is to settle early, and minimise conflict, by taking a business-like approach to your separation, and following expert legal advice.

What if I have no available cash for legal fees?

This is not an uncommon scenario where one party may control the marital finances or be a primary income earner. The other party may have much less access to resources.

I have written a detailed article on what lawyers call a “Hogan” or “Barrow” Order on my site, situated at the following link:

https://hooperandmillfamilylawyers.com.au/applications-for-litigation-expenses-aka-hogan-orders/

These Orders allow for legal costs to be met by the other spouse.

Other options include the following:

Deferred fee agreements. This is where the family lawyer accepts payment in full after the matter is concluded. It is important to understand this is not usually “no win, no fee” for family law matters. The fee will be payable at the end and sometimes firms will charge a higher rate to reflect their risk, and impact upon the cash flow of their practice. It remains important to consider the ways to reduce costs discussed above, to ask for estimates as to what the costs are, and to ask where the account is at regularly.

Legal Aid preferred suppliers. If you meet the asset and income criteria, and your matter meets Legal Aid criteria, you may receive a grant of aid. Most commonly this is for parenting matters and you need to re-apply for the next grant of aid after each step is completed. Typically, the grant commences with a Legal Aid Conference (mediation) being conducted.

Litigation lending. This is another option where some lenders will provide funding for your matter. The down side here is interest and changes that can apply.

Like each aspect of your matter you need advice. When booking in for an initial attendance with your family lawyer costs should form an important part of the discussion and advice.

Who pays the mortgage after separation?

This is often an issue when one party moves out and suddenly has to meet their own rental costs. The reality is the home loan secured by mortgage is between the parties and the bank or lender.

The bank or lender won’t consider the separation should affect their rights, and if the bank/lender doesn’t get paid they can exercise their right of foreclosure and sell the property (usually at a lesser price).

The Family Law Act 1975 does allow for Orders to be made directing a party to continue to meet mortgage expenses, and this can occur in a number of ways such as Spousal Maintenance or as on Interim Property Order, however, you need to file an Application in Court before this can occur. Also, the evidence would need to establish why the Court should make the Order you are seeking.

Some simple tips for addressing this issue are:

Consider what will be the long-term option i.e. will the party remaining in the home retain it and refinance? Will it need to be sold? Looking at the long term might help in working out what the short-term arrangements will be. For example, if the party remaining at the home wants to keep it, it may make sense that they meet the mortgage costs.

Come to an agreement with the other party as to what should occur. After considering the potential long-term arrangements, make an agreement as to the mechanics of when payments will be made, what account they will come from and if a sale is necessary, how will that occur (agents, marketing plans etc). A property can be sold before a final property settlement occurs. In my experience when there is a pool of cash to be divided often parties are motivated to reach an agreement. The only issue here I would flag is to make sure that the proceeds of sale are held in a solicitor’s trust account, for both parties, pending final agreement. Once money is distributed it can be difficult to claw back. If the parties need to access some cash to re-establish it can be agreed that each party receives a similar small amount.

For difficult partners or people who stay at the home and will not/cannot contribute to expenses, you may need creative solutions or a Court. If there are children at the home with the partner living there, a creative solution may be to agree to mortgage repayments being made in lieu of child support. Provided there are no domestic violence issues, the ousted party moving back in may be an option. If there is no cooperation with reaching agreement or progressing to final settlement, then Court intervention may be warranted.

How the Court regards a party’s post separation payments to the mortgage is by way of “post separation contributions”. What this means is that these payments can be recognised by the Judge in determining how much of the property pool each party gets.

Similarly, if a party causes loss by negligently, recklessly or wantonly refusing to pay the mortgage (and for example a foreclosure occurs), the Court may penalise that party in the final settlement.

Should I move out of the family home, or be separated under one roof?

Usually family lawyers will say don’t move out.

The reasons why include some of the issues referred to above in relation to mortgage costs and incurring additional rental costs.

Also, you can lose control of maintaining the asset in a saleable condition, if a sale is necessary.

If there is a situation where the other party is difficult, sitting in the home comfortably having the mortgage paid, Court application may become more likely. In my experience these situations can stifle settlement and lead to Family Court or Federal Circuit Court proceedings.

Separation under one roof is usually less than ideal, and uncomfortable for both parties, which can be a good motivator for a speedy settlement.

The big caveat on the above is domestic violence and personal safety. These always come first and if you, children or pets are in danger you should immediately leave to a place of safety.

Hopefully the above answers some question but it is no substitute for proper advice tailored to your situation.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Brisbane office on 3207 7663 or our Coolangatta office on 5599 3026 for an appointment.

Need more answers? Read our blogs;

Going to Court? – What to expect in the Family Law Courts

How relevant is fault or bad behaviour in relationship breakdown?

Blog, Divorce/separation

How relevant is fault or bad behaviour in relationship breakdown?

It is not uncommon for people meeting with their family lawyer for the first time to raise issues of fault, wrong doing or poor conduct by the other party.

Many people automatically assume these are the types of issues that will be most relevant in the event that going to Court becomes necessary.

In my experience, if a party is suffering from the loss of the relationship, betrayal associated with an extra-marital affair or fear of change, retribution and validation of those feelings can also drive a client’s perception as to what is relevant or important. Again, in my experience, this often manifests as an aggressive approach to litigation, intractable positions, and allegations being raised in correspondence and court documents and in some cases harassing behaviour or family violence.

In general terms, what does the Family Law say about fault or conduct?

Prior to the Family Law reforms in 1975, there were 14 grounds for Divorce, the majority of which were fault based. This included conduct such as habitual drunkenness, physical cruelty, desertion, adultery, imprisonment etc.

The Matrimonial Causes Act 1959 was repealed in 1975 to remove the 14 grounds and introduce one ground, that is, “irretrievable breakdown of the marital relationship”.

Whilst proving fault under the 14 grounds was difficult and often unsavoury (imagine private investigators spying on people to prove an affair, or taking photographs etc), proving the irretrievable breakdown ground only requires a 12-month period of separation.

The general flavour of the reform across the wider areas of parenting orders, property settlement and spousal maintenance, was also to recognise the undesirability of “fault” paying a part and to move away from evidence relating to bad conduct being raised in proceedings.

Does fault pay any part now then?

The answer is yes.

In some circumstances fault still does play a role. Not with respect to divorce but in relation to certain aspects of parenting, property and spousal maintenance.

Parenting orders

As I have discussed elsewhere on this site, Family Court and Federal Circuit Court judges have a broad discretion to make Parenting Orders subject to the best interests of children being the paramount consideration, and considering the Objects and Principles underpinning the Family Law Act 1975 relating to children’s cases.

Often fault or conduct will be relevant in determining whether children are at an unacceptable risk of harm, whether a parent has capacity to properly care for children, maturity and lifestyle of the parents, family violence and other conduct depending on the circumstances.

Thus, conduct such as family violence, alcohol/substance dependency issues and poor lifestyle choices (for example surrounding neglect) can clearly be understood as being relevant in a child custody case.

In my experience however, it sometimes occurs that people will want to place greater restrictions on the other parent’s time as “punishment” for bad behaviour, such as extramarital affairs or re-partnering, and this is not something relevant to who children live with or spend time with.

Indeed, this type of anger can often backfire, with the party’s who’s conduct is creating high conflict being examined as a potential source of risk of emotional harm to children.

This is where a good family lawyer can help, by determining the relevant from the irrelevant and assessing the evidence which is the currency of any court.

Property settlement

In my view there is less scope for fault or conduct to be relevant in a property matter.

Again, anger over affairs, re-partnering, loss of a life partner etc is not directly relevant but it can certainly drive a dispute. Family lawyers can assist in filtering some emotion from communications and how your evidence is presented.

Mediators assist by diagnosing the underlying causes of a dispute and using interventions such as reframing to provide a more neutral or positive interpretation of events.

Some examples of the type of conduct that can be relevant is as follows:

Losses from reckless, wanton or negligent conduct. This would include deliberately destroying an asset, things such as gambling losses or behaviour such as removing or hiding property without sufficient explanation. The conduct would be relevant, but the judge retains a broad discretion as to how the conduct will affect distribution of assets.
Family violence in some limited circumstances can be regarded. Lawyers often call these cases Kennon cases”. In these situations, one party’s violence has made the other party’s contributions to the property pool, or welfare of the family, more onerous. From a practical perspective evidence may be difficult to obtain to establish the “special burden” and the weight this evidence will be afforded is at the judge’s discretion.
Generally, a Court will consider you take your partner as they are i.e. a spend thrift or a saver, however in some circumstances it may be possible to argue “negative contribution” due to excessive habits or poor judgement with money. While cases often interpret this type of behaviour differently it will usually come down to a question of degree in the context of the amount of property available for distribution.

How Hooper Mill Family Lawyers Gold Coast and Brisbane can help?

The Family Law jurisdiction is complex and often judges have broad discretion to weigh and interpret evidence. As experienced, specialist family law solicitors we can identify for you what is relevant, tell you how we think a Court will interpret the evidence you present us with, provide a filter for emotion or anger and move towards a faster resolution.

As identified above, sometimes placing evidence of irrelevant conduct or the making allegations of misconduct without sufficient evidence can back fire for your case and put you in a worse position. Thus, your choice of solicitor is an important one.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Coolangatta office on 5599 3026 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://hooperandmillfamilylawyers.com.au/

1 – Section 60CC(3)(m) refers to any other fact or circumstance that the court thinks is relevant. Thus, there is a potential for almost any other form of conduct to be raised if it’s is relevant.

2 – In the marriage of Kennon [1997]F.L.C.92-757

Blog

Family Law Courts reform

On 30 May 2018 the Federal Government announced a significant shake up of the Australian Family Law Courts system.

Currently the Courts primarily exercising jurisdiction pursuant to the Family Law Act 1975 are the Federal Circuit Court (formerly the Federal Magistrates Court) and Family Court.

The Federal Circuit Court is responsible for the bulk of cases while the Family Court hears more complex cases and is responsible for Appeals.

It is envisaged these two Courts will merge into one new Court, namely, the Federal Circuit and Family Court of Australia.

Court structure

Currently the Family Court and Federal Circuit Court share a registry, and this will effectively continue with the new Court having its own registry for all matters to be commenced in.

There will however be two divisions for the Court, with Division one consisting of the Federal Circuit Court judges; and Division two being made up of the Judges from the Family Court. A new Family Law Appeal division will be created within the Federal Court of Australia.

The details are not yet available however we can expect to see proposed legislation shortly.

One aspect that Family Lawyers will no doubt appreciate is moving towards one set of Court Rules as opposed to the current system operating under the Federal Circuit Court Rules 2001 and the Family Court Rules 2004.

What this means for our clients

Hopefully this means a timelier resolution of Family Law matters and giving greater identification and consideration to complex issues cases.

The attorney Generals Department Fact Sheet states the aim is:

“…will create a consistent pathway for Australian Families in having their Family Law disputes dealt with in the first instance. The reforms are designed to maximise the use of highly trained and skilled judicial officers…to significantly improve access to justice for Australian families…improve efficiency…remove back log…drive faster, cheaper and more consistent resolution of disputes…”

Hopefully these aims can be achieved, and as many of our clients (or people currently in the Family Law system) would know, there have been lengthy delays in many registries including Brisbane, Lismore and Southport.

The Attorney General’s department has issued two fact sheets with respect to the proposed reforms and the fact and figures underlying the reforms, the links appear below:

When will this take place?

Firstly, the legislation needs to be passed, but all going well the commencement date will be 1 January 2019.

If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Mill Family Lawyers Coolangatta on (07) 5599 3026.

Blog, Divorce/separation, Mediation

Family Law On The Gold Coast

Hooper Mill Family Lawyers has now set up our office in Coolangatta, Gold Coast. Family law covers a broad range of areas. We aim to bring our clients much needed advice and, if need be, representation in Court.

Consultations

Few people wake up one day and decide to separate. There’s different circumstances that lead to this decision. It’s important to approach such a significant life event with all the information you can obtain and thus it’s equally important to speak with an expert before making life changing decisions. Making an appointment with one of our team is the best first step to take. Consultations are on average 1 ½ hours. You will obtain the best legal advice that applies to your situation.

When you make an appointment with the Gold Coast office, make sure to fill out an initial attendance instruction sheet so your solicitor understands the background to your situation before we meet you.

Divorce and separation

If married parties have been separated for 12 months, this is evidence of irreconcilable differences allowing a divorce application to be made. Hopefully before reaching this point efforts have been made to engage in marriage/relationship counselling, unfortunately not always successfully. Our Hooper Mill Family Lawyers Gold Coast office can assist you with advice.

Mediation

Hooper Mill Family Lawyers also provide mediation services on the Gold Coast. Many family law cases are settled at mediation which means court involvement is not required. A mediator is a neutral third party who facilitates disputing parties to reach their own parenting or property settlement agreements. In parenting matters this is sometimes known as FDR or Family Dispute Resolution. Peter Hooper is an Accredited Family Dispute Resolution Practitioner able to provide private FDR in parenting disputes.

The main benefits of mediation are self-determination of the dispute, reduced costs, less delay and hopefully better relationship moving forward where children are involved.

Property settlement

There is no presumption of a 50/50 property split in Australia. There are a number of different factors taken into account by the Court in determining how property is divided between separating couples. If there are complex structures surrounding assets such as trusts or corporate structures or there is a business, it is very important to obtain expert advice early on.

Custody and parenting plans

Custody arrangements and parenting plans can be resolved at mediation. In some mediations the mediator might suggest a “child inclusive process”. Child-inclusive mediation via a specially trained expert, able to meet with the children, and report to the parties as to how the dispute might be impacting the children and assist the parties to place greater focus on the best interests of their children. Research indicates this helps in creating more amicable, longer lasting parenting plans and custody recommendations, with greater satisfaction for the parties.

Blog, Divorce/separation

Going to Court? – What to expect in the Family Law Courts

For most people going to court is a daunting experience. The gravity of the occasion, coupled with the formality of the environment can be extremely stressful and can cause a lot of anxiety.

The good news is you can prepare yourself for the experience, and hopefully reduce some of your stress/anxiety to give yourself the best opportunity of presenting well before the Judge.

The Family Law Courts

Before getting into the practical aspects of your court appearance, I think it is helpful to know a little bit about the background of the system you’re in.

The family law system in Australia is largely controlled by the Federal and not State Governments. This means most of the laws are made by the Federal Parliament, and the primary source of these laws is the Family Law Act 1975 Cth (“FLA” for short).

A number of different courts can exercise jurisdiction under the Family Law Act but the court that most people will attend in a family law parenting or property settlement matter is the Federal Circuit Court of Australia.

This court is where most of the day to day family law business is conducted and from here on when I say “court” this is the court I’m referring to.

More complex matters and appeals from the Federal Circuit Court are generally dealt with by the Family Court. In some circumstances State Magistrates Court can exercise jurisdiction and the High Court is the last avenue for appeal.

Thus, when you attend court in a family law matter it will usually be in different building to traffic matters, criminal matters and commercial law suits etc.

How does a matter come to court?

A matter comes before the court when a party files an application for final orders. This party is called “the applicant”.

When applying for final orders a party can seek interim orders as well. Final orders are the orders you want long term, while interim orders are orders you are seeking while you are waiting for the final orders to be determined.

Once the application is filed it will be given a court seal and a date to come to court. This date is usually referred to as “the first return date”.

The application is then served on the other party (“the respondent”), who will respond with the orders they are seeking (and hopefully state whether they agree to any of the orders the applicant wants).

Each court has their own Rules as to how this process is to occur and for the Federal Circuit Court the relevant Rules are the Federal Circuit Court Rules 2001.

What about once the matter is in court?

Once the application is filed, responded to, and the parties first come before the Judge, you can expect the court to direct a number of procedural steps before a Judge can be called upon to make a decision to determine the matter.

These procedural steps (called directions) generally relate to each party gathering the information necessary for the Judge to do his or her job in determining the case based upon the evidence produced by each party, and, most importantly, to assist the parties to explore alternate dispute resolution options.

Just because the matter is filed in court doesn’t mean it will go to a final hearing or trial. In a property matter (and sometimes in parenting matters) mediation will be ordered after proceedings are commenced and once there is sufficient evidence available for the parties to settle the dispute.

Resolution can occur at any time during the process and is strongly encouraged by Judges and most legal practitioners.

If the matter does proceed to a trial, there will be a number of different court hearings before your trial dates are set in the court calendar.

The court’s time is precious as there are a large number of matters and a limited number of Judges. Therefore, several appearances are usually necessary to ensure everything is ready before matters are allocated their trial dates.

So, I’m in Court…

At any time during the process when you’re in open court (i.e. your matter is called before the Judge) there are a number of important things to remember.

If you have a lawyer, you have an advantage in court because your lawyer will do the speaking for you.

If you have a lawyer rarely will you be addressed directly by the Judge. Obviously if you’re at the Trial and called upon for cross-examination you will need to speak at that point (a whole other blog), but for most of the procedural hearings you will not be required to speak.

Even if you have a lawyer, it is important to conduct yourself with proper respect for the Judge and institution of the court.

This means dressing appropriately, making sure your phone is off or turned down, no sunglasses on your head, refraining from making noises or facial expressions if something is said you don’t agree with, not fidgeting etc.

It is also important to remember that even when your matter is not before the Judge and you are waiting at the back of the court, the Judge can see you. This means be respectful and act appropriately at all times.

If you don’t have a lawyer, things can be a bit more difficult and my recommendation would be to consider the following:

Again, show respect for the Judge and court as set out above in relation to dress etc;
Don’t talk over the Judge or other party. Typically, the applicant speaks to the Judge first and then the respondent. You will have your turn to speak so remain patient;
Listen carefully to any questions the Judge asks you. Judges are busy, and they will have a good idea in advance how to manage your matter. Answer questions directly and don’t try to give explanations instead of answers;
At procedural hearings, it is not the time to tell the Judge about your whole case and your evidence. This only occurs at the trial. If there is to be an interim hearing for interim orders, stick to the facts and circumstances necessary to achieve the interim orders you seek. The Judge can’t make “findings of fact” anyway on an interim basis so usually you will be referring the Judge to the facts and circumstances that are agreed or not controversial;
Be on time; and
Never tell the Judge something that isn’t true. This is critical because if you lose credibility with the Judge they may not believe you on other issues after that.

One of the big disadvantages you have as a self-represented litigant is the Judge gets to see you perform at every hearing in the lead up to the trial.

If you have a lawyer, your case is filtered through the lawyer before you are called to be cross-examined at a final hearing or trial.

For the most part, the court is operated on a “docket system” which means that the Judge you have at the start of the matter will be the one who also hears the final hearing or trial. Judges are smart people and will remember you, if they have observed you to be calm, respectful and considered throughout the proceeding this will hold you in good stead in presenting your case.

If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663.

Need more info about what to expect in a divorce?

5 myths about property settlement, busted

What a divorce lawyer wants clients to know

Blog, Costs, Divorce/separation, Property

Separation And Joint Bank Accounts

“What’s mine is yours and what’s yours is mine” …but what about the joint bank accounts?

Most people who are married or in committed relationships intertwine their finances. Typically, this takes the form of joint ownership of the family home, motor vehicles and of course the joint bank account (or credit card).

While most people realise there is a process to divide assets and work out who receives what, in our experience there is often confusion regarding the law surrounding accessing jointly held cash.

Common questions people ask family lawyers are:

Can I take my half from the joint bank account?
Can I take all of it?
He/she has transferred it to their account, but I know the banking passwords – can I take it back?
How can I stop him/her accessing the joint account?

What’s ours is mine…

When people co-own a bank account both parties are equally entitled to access all of the money i.e. they don’t own half each. They each own the full amount.

This means that whoever gets to the bank first (figuratively speaking – probably the computer first) can legally clean out the joint account.

In this situation it would be necessary for the party who didn’t take the money to take further steps to protect their interests. Neither the bank nor the Police would bear any responsibility to rectify the situation.

Fortunately, however the Family Law Act 1975 does contain remedies and provide Judges with power to address this situation on an interim, or final basis.

For example, if someone was to transfer money to their own account from the joint account, the Court would be able to make Orders, such as, for some or all of the money to be paid to the other person, restrain a person from further dealing with the money, or Order that it be paid into a trust account pending the final determination of all of the issues.

What’s yours is mine…

It is also not uncommon for married couples or people in de facto relationships or other committed relationships to share passwords, pin numbers or banking details (their banks would be angry if they found out).

We have also encountered situations where some people regard being married, or in a de facto relationship (particularly for a long time) as granting equal rights to property. This is not the case.

Being married or in a relationship does not convey property rights.

People may have a common use of property, but ultimately if property is not jointly owned it generally belongs to one of them.

During the relationship it may have been ok to use credit cards, bank accounts or make bank transfers from your partners account but only because this was impliedly or expressly authorised.

If there is no authorisation from the owner, then accessing funds in the above manner may well be stealing, and land you in hot water with the police.

As a general rule, if you’re separated do not use the ex-partners cards or accounts unless there is an express authorisation (in writing).

What’s mine is yours…

The Family Law Act 1975 empowers the Court to adjust interests in property provided the Court does “justice and equity” i.e. the court can take what’s yours and make it his or hers.

The Court also has a number of powers (alluded to above) that can assist in making sure property that may be distributed between the parties to the relationship, is protected until such time as all of the matters are considered.

There is also steps that people can take themselves to avoid Court, unnecessary costs and inflaming the situations. Some examples are:

Contact the bank and see if they have an ability to “freeze” an account at the behest of one party;
Have a discussion with your ex-partner. Ask them whether they will agree to splitting the funds a certain way, or whether they will agree to having the money deposited to a neutral third party such as a solicitor’s trust account, to be held for both parties.

If in doubt and before taking action that you feel may not be right or may likely inflame your situation, please contact a family law solicitor at Hooper Mill Family Lawyers at Victoria Point or Coolangatta on 3207 7663 for advice.

Alternatively for more information we have many helpful resources on our website.

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