More people drift into de-facto relationships and many do not have an understanding of where they stand legally and financially, when the relationship ends.
It is worth noting that de-facto relationships can occur between heterosexual and same sex couples. They also exist even if one of the parties to the de-facto relationship is married to someone else or is in another de-facto relationship.
The Family Law Act states that for a de-facto relationship to exist, the parties must not be married or related to each other, and must be a couple living together on a genuine domestic basis, having regard to all the “circumstances” of the relationship. The circumstances may include for instance, the nature and extent of a common residence, the duration of the relationship, whether a sexual relationship exists, and/or whether there is a financial interdependence between the parties.
Furthermore, a de-facto relationship is deemed to exist if the total period of the de-facto relationship is at least 2 years, or where there is a child of both parties to the relationship. Additionally, if you do not meet the first two tests, but you are a party to a relationship where you made substantial contributions, you may also be entitled to be considered a party to a de-facto relationship.
The reason why it is important to determine whether you are in a de-facto relationship, is because a party will be able to make an application for a property settlement in the Family Court or Federal Circuit Court for financial orders upon the breakdown of the relationship.
A property settlement will legally finalise all financial matters between de-facto parties, including the ownership of property, repayment of loans and superannuation entitlements. Parties may also wish to seek a property settlement where one party has performed unpaid work in a joint business venture, or made significant improvements to the other party’s property, or where they have performed unpaid care of their de-facto partner.
Nonetheless, the court will only make financial orders in respect of a property settlement if it is just and equitable to do so.
It is also worth noting that you have a two year period from the date of separation in which to apply to the court for a property settlement in respect of the breakdown of a de-facto relationship.
At Everingham Solomons we have the expertise and experience to assist you with de-facto relationships and property settlements and any other family law matter because Helping You is Our Business.
The Family Law Act, which is the overriding legislation which deals with parenting matters across Australia, does not prohibit parents from relocating following the breakdown of their marriage or de-facto relationship.
Parents may wish to relocate for many reasons, including for new employment opportunities, seeking family support, commencing a new relationship, or to create a physical distance between them and their estranged partner.
At the end of the day, any relocation should not be merely about distance. It should be about what are the consequences on the children who are moving away from the former family home and the non-resident parent?
The Family Law Court deals with parenting disputes where parties are unfortunately unable to agree in respect of the formal parenting arrangements concerning their children. The Court may be required to make an order permitting a parent to relocate away from the other parent or indeed can order a parent to return to where the estranged parent is living.
The Court must ensure that whatever decision it makes in light of all the facts and circumstances of the case, that the child’s best interests are paramount.
Clearly, relocating to a different town or suburb, interstate or overseas, will impact a child’s ability to spend time with and communicate with the non-resident parent. The practical difficulties, inconvenience and expense associated with facilitating time with the non-resident parent may therefore, outweigh the perceived benefits of moving. Likewise, the commitment of the resident parent to facilitate such time may be an issue.
It is also worth noting that so long as there is no history of abuse, violence or neglect by a parent, the Court must consider the benefit of the child having a meaningful relationship with both parents. Ultimately, relocating children away from one parent, may have a minimal, or alternatively, a significant effect on the ability to maintain a meaningful relationship with both parents.
At Everingham Solomons we have the expertise and experience to assist you with relocation issues and any family law matter because Helping You is Our Business.
Where parentage of a child is an issue, an applicant may apply to the Family Court for a “parentage testing order”. Family Court will then be able to make a declaration as to the parentage of a child born where there is some doubt in regard to whom their parent is.
The court can order the child, the mother and any other person the court believes may assist in determining the parentage of a child, to undergo a parentage testing procedure, which invariably will be “DNA testing” due to its reliability and accuracy.
Parentage testing must comply with particular procedures set by the Family Law Regulations, therefore any results of testing performed outside of the ambit of family law requirements, may not be admissible to the court and consequently the results will have no legal validity when determining parentage.
If a party or parent of the child refuses to comply with an order for testing, the court may draw inferences from their behavior as per section 69Y of the Family Law Act 1975. Therefore whilst a contravention of a parentage testing order will not penalise the person not wishing to participate, it can certainly affect the court’s decision making down the track as to the making of a parentage declaration.
For example, in the 2009 case of Tryon and Clutterbuck (no. 2), the applicant, Mr. Clutterbuck, challenged the paternity of two children born to a married couple, Mr. and Mrs. Tryon. The husband and wife had 5 children in total and the husband was named as the father on all of the children’s birth certificates. Mr. Clutterbuck challenged the legal presumption that children born to a woman of a marriage are children of the woman’s husband, found in section 69P of the Family Law Act. Accordingly, Mr. Tryon contended that he was the father of the two youngest children of Mrs. Tryon, due to a long standing sexual relationship with the wife and because he was told by her on both occasions when the woman became pregnant, that he was the father of the two youngest children.
The husband and wife failed to participate in DNA testing ordered by the court. They also failed to put forward sufficient evidence to rebut the claim by Mr. Clutterbuck. Secondly, due to the conduct of the husband and wife to avoid and refuse DNA testing (based on religious grounds), the court made an adverse inference toward them and declared that Mr. Tryon was the father of the two children.
It is also worth noting that should a party to a parentage testing order be found to be the father, they may also be liable for reasonable expenses associated with the mother’s pregnancy and birth of the child. The costs may be liable from up to 2 months before and for 3 months after the birth of the child.
This case highlights the various elements involved in parentage testing. If you have any questions or require advice in regard to parentage testing at Everingham Solomons we have the expertise and experience to assist you becauseHelping You is Our Business.
Often, when parties decide to separate, one spouse decides to relocate in order to restart their life or to move to be with a new partner. When children move with the relocating spouse, be it interstate, overseas, or even to a new town or city down the road, recent case law suggests that judges are highly critical of parents who move their children without the other parent’s knowledge or consent.
The Family Law Act (1975) and accompanying regulations and rules, which govern family law practice in Australian society, does not explicitly state how the courts must deal with relocation issues. Consequently, there is no rule against the relocation of children, yet the court applies the same principles as it would in determining parenting cases. In other words, the court regards the best interests of the child as the paramount consideration when deciding where children should live, along with the presumption (unless rebutted) that parents are to have equal shared parental responsibility for the child concerned.
Recently the case of Sora & Mikan and Anor [2013] highlighted the Court’s position on the relocation of children without the consent of the non-relocating parent.
The case concerned an unmarried couple who had a child in Japan. The mother was Japanese national and the father a New Zealand national. Whilst in Japan, the parties separated after the birth of their child but later reconciled and planned to move as a family to Australia to start anew after the tsunami. Initially, the parties visited Australia with the child, yet after a short period, the father returned to Japan for work whilst waiting on his job transfer to Australia. The mother and child followed a short time thereafter.
The father upon his return to Japan commenced a new relationship with another lady. Consequently, he told the mother he was planning to raise their child with his new girlfriend in either New Zealand or Australia. By this stage the mother, father and child were all located in Japan.
Without consent or notice given to the mother, the father obtained travel documents and moved with the child and his new girlfriend to Australia where he sought for the child to live permanently.
In covertly relocating the child, the Court took a contemptuous view of the father. The judge said the father’s conduct was both “premeditated and deceptive”, and that the father had placed a low priority on the “maintenance of a continuing relationship” between the child and the mother.
Significantly, the judge said:
“The father’s view of his relationship with his son appears to be born of a misconception that somehow parents have proprietary rights in children.”
As a result, the court determined it was in the best interests of the child that the mother be granted full parental responsibility and she was allowed to return to Japan with the child on a permanent basis. Overwhelmingly, the father had demonstrated a lack of insight into his parenting responsibilities and of the child’s needs.
You should seek our advice if you are thinking about relocating or if your estranged partner is thinking about relocating with your children because at Everingham Solomons we have the expertise and experience to assist you becauseHelping You is Our Business.
In Eufrosin & Eurfrosin [2013] FamCA 311, recently decided in the Family Court of Australia, the court was required to consider the division of a $6 million dollar lottery win by a wife, six months after the parties had separated.
The facts were the parties married in 1987 and separated in 2008. The husband was aged 62 and the wife aged 55 at the time of the hearing. The parties had adopted “traditional roles” of the husband being the principal breadwinner and the wife being the primary home maker and carer of the children throughout the marriage. Their joint pool of assets had a net value of over $2.4 million at the time of separation.
The wife purchased a “gambling” ticket in early 2009 along with her sister and won $6 million, whereby $1 million was given to her sister and $5 million retained by the wife (paid to the wife soon after the win). The husband argued that he had contributed to the gambling win because the funds used to purchase the winning ticket had came from the parties pool of assets and as such the winnings should be included in the joint asset pool and divided accordingly.
The court concluded that the funds used to purchase the winning ticket, could have come from a number of sources of the wife, or from a combination of the sources. For example, the funds may have come from the wife’s sister, the wife’s tax return, or from money owed to the wife from her husband’s company.
The Judge found that it was “impossible to identify the precise source of the funds used by the wife to purchase the winning ticket”. Furthermore, “the husband could not simply assert that the purchase money came from ‘joint funds’ ”.
For that reason the wife was entitled to keep all of her gambling winnings which were placed in a separate pool of assets to the joint pool. That pool was not adjusted by the court owing to their being no contribution made by the husband toward the winnings. The parties each received 50% of the joint asset pool, however the court still made an adjustment of $500,000 in favour of the husband on account of the husband’s age, limited earning capacity and based on his future needs.
Ultimately, in property proceedings before the Family Court, the central principle which underpins any judgment is that the orders made concerning the property of the parties are just and equitable. If you require advice in regard to potential property proceedings, at Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
A recent article which appeared in the Sydney Morning Herald concerned a property case in the Family Court called Kane & Kane [2013] FamCAFC 205 . The judgment overturned an earlier finding in which a trial judge had assessed a husband’s financial contribution to a long marriage more favourably, due to the husband’s skill in “selecting and pursuing an investment”. The investment significantly increased the value of the couple’s family superannuation fund.
Kane & Kane concerned a 30 year marriage. The husband was aged 61 years and the wife 48 at the time of the trial. The parties were able to reach agreement in regard to dividing some of their joint matrimonial assets qually, but they could not agree on the division of their joint superannuation which totaled the sum of $3.4 million.
Whilst still married, the husband had extensively researched and considered a number of investment possibilities for the couple’s superannuation fund. His wife did not agree to him purchasing the shares in “Company 1” however he went ahead and did so. The purchase price paid by the husband was $539,500. The value of the shares on “Company 1” at the date of the trial had significantly increased to $1.85 million.
Significantly, the funds used to purchase the shares came from the couple’s joint funds. Yet, the allocation of funds deposited into the superannuation fund itself was unequal and significantly favoured the husband.
At trial, the husband argued that due to his “special skills” in selecting and purchasing the shares in “Company 1”, that he was entitled to a greater share of the superannuation funds. He sought a split of approximately 66% in his favour.
As previously outlined this matter went on appeal. The court stated that the husband was not qualified nor an expert in share investments. The judge said that the husband’s skills “did not prevent losses in other investments which he allocated not only to his superannuation fund but also to that of his wife”. The judge also commented more generally when he said that “special skills will not always produce significant financial results”.
The appeal court found that the husband’s contribution to the superannuation fund was not to be disproportionately weighted in his favour when splitting the funds between the couple. The court ultimately found that it was not a just and equitable outcome to favour the husband and that the principle of “special skills” in relation to assessing financial contributions, was not a settled doctrine advocated by the legislation.
If you require advice in regard to any aspect of property proceedings or superannuation splitting, at Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
During a family separation, there may be difficulties associated with a parent spending time with their child who lives with the estranged partner. Clearly, this can be a very frustrating and stressful experience. An interim parenting order may be necessary to ensure time spent with the child is maintained, only after such time that compulsory family dispute resolution (such as mediation), has taken place between the parties.
Whilst it is hoped that parenting disputes can be resolved at mediation, if this is not the case, in certain circumstances you must obtain a Family Dispute Resolution certificate (also known as a Section 60I certificate) prior to applying for an interim parenting order.
However, you will be exempt from providing a certificate in particular circumstances. For example if the matter is urgent, or if there are reasonable grounds to believe there has been, or there is a risk of abuse or of family violence, and if you live in an isolated area and/or are unable to participate in mediation.
Any decision made by the Court in regard to an initiating application for an interim parenting order, is governed by the Family Law Act (1975). The Act imbues a fundamental principle – that a court must regard the best interests of the child as the paramount consideration. This principle also extends to a presumption within the Act, that unless rebutted, it is in the best interests of the child to have equal shared responsibility with both parents.
Section 60CC of the Family Law Act sets out the relevant primary and secondary factors which the court must examine when making any parenting order. The primary consideration regarding interim proceedings is the benefit of the child of having a meaningful relationship with both parents.
Secondary considerations include the practical reality and expense of a child spending time with, and communicating with a parent and whether those financial or practical difficulties will substantially affect a child’s right to maintain a relationship and direct contact with both parents on a regular basis.
Clearly, preparing any interim or final parenting order is a complex process which must be approached with an
understanding of the underlying intent of the family law legislation. At Everingham Solomons we have the expertise and experience to assist you with parenting orders because Helping You is Our Business.
When parties enter into a relationship it is not uncommon for one party to earn a higher income than the other. In family law proceedings the court will consider any income earned by either party as a “contribution”, in addition to the real property held by the parties such as real estate and cars, when weighing up the asset pool.
It is section 79(4) of the Family Law Act (1975) which deals with contribution issues in regard to property settlements. The contributions can be either financial (such as income) or non financial (performing unpaid duties and making home improvements), and can relate to the welfare of the family (such as caring for children and home making).
The recent appeal case of Petruski & Balewa [2013], considered whether there should be more “loading” given to a wife’s contributions because she was the higher income earner at the commencement of, and during the short five year marriage. The wife argued that her greater financial contributions to the marriage should in turn diminish the husband’s entitlement to the asset pool.
The court agreed with the trial judge that the marriage was “a merging of effort, finance, risk and support…”. For example, throughout the marriage, the wife allowed for the intermingling of finances, the establishment of joint bank accounts and for her husband to receive distributions from her family trust. There was joint effort and joint responsibility toward the finances by both parties.
Furthermore, the husband, who along with the wife had worked to his full capacity and potential, was also held to have made significant non-financial contributions throughout the marriage including running the household for instance. This non-financial contribution could not entirely be overridden by the wife’s financial supremacy.
The court held that the wife could not simply treat the marriage as “an event without consequence, to be wound up at its conclusion by a distribution based on an audit of earnings”.
This case clearly illustrates that where one party makes a significantly higher income as opposed to the other, the court will not adopt a simple mathematical approach when assessing the asset pool. A decision will be made in light of the joint nature of the relationship taking into account both financial and non financial contributions made by the parties in order to achieve a just and equitable settlement.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
Property proceedings under family law which concern assets held overseas may be subject to Australian law regardless of property rights acquired under the foreign law where the property is located.
Whether an Australian court has the jurisdiction to make orders concerning international assets arises from section 31(2) of the Family Law Act (1975). It states that the jurisdiction of the Family Court “may be exercised in relation to persons or things outside Australia and the territories”.
The first step the Australian court must take is to apply the legal test known as “forum non conveniens” which requires it to ask whether the proceedings before it are clearly inappropriate, and whether they are oppressive or vexatious to the parties involved. The court considers the general circumstances of the case and takes into account the true nature and full extent of the issues involved.
For example, the court considers whether the foreign court will recognise the Australian court’s eventual orders; costs incurred; the connection of the parties to either jurisdiction; as well as the parties ability to understand and participate in the proceedings locally or overseas.
In the case of Vaden v Vaden [2007] FMCAfam 744, the parties were British citizens recently residents in Australia but whom had been married in the United Kingdom and owned a property there registered in the wife’s sole name. The wife wished to return to live in the former matrimonial home but the husband wanted to be declared a trustee owner of the UK property in order to obtain a rental income. The court held that the proceedings commenced in the Federal Magistrates Court of Australia should be stayed as any judgment made here may not be enforced by a British court.
Although in Vaden v Vaden the court declined to deal with the UK property, parties must be aware that assets located overseas will not necessarily fall outside the jurisdiction of the family law courts in Australia. Hence, the unique circumstances of each case and the appropriateness of the Australian court to hear the matter, will ultimately determine which jurisdiction – either local or international – has the power to make the final decision regarding the property in dispute.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
Property proceedings before the Family Court are often complex and can go beyond simple tangible property and financial assets. One such area of complexity relates to receiving, or potentially receiving, an inheritance during the course of a marriage or de-facto relationship.
Despite clear intentions set out in a will to leave property to a particular party, it is possible to argue before the Family Court that such an inheritance should be considered an asset of, or contribution by, both parties – not just a contribution made by the party who received the inheritance.
Ultimately, there are a number of factors which the court takes into consideration. For instance, the court may look at the timing of the inheritance (i.e. prior to co-habitation, during the relationship or immediately after separation); the length of the relationship; the size of the inheritance; and whether the non-recipient party could be said to have made a contribution to it.
In the interesting case of White and Tulloch v White (1995) FLC 92-640, the full bench of the Family Court considered a husband’s claim that his estranged wife had an expectation of inheriting a substantial amount of property upon the death of her mother, and that this should be a factor when assessing the asset pool. The Family Court determined that an expectant inheritance could not be a seen as a financial resource as the wife could not control or be certain that she would receive such property under her mother’s will, because the mother could revoke her will or completely alter how her estate was to be distributed upon her death, at any time.
There is no hard and fast rule when it comes to how the court will view an inheritance in relation to the financial contributions of the parties. Whilst the Family Court in White and Tulloch v White said that a prospective inheritance could not constitute a financial resource, it can still be taken into consideration under the very wide provision of s75(2)(o) of the Family Law Act (1975). This provision requires the Court to bear in mind “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. In other words, the Court will consider facts or circumstances (of a largely financial nature) when assessing the financial pool, which therefore may include a potential or expectant inheritance to one the parties.
Clearly it is always advisable to have a carefully written will which sets out your intentions in relation to the distribution of your estate. However due to the often unpredictable nature of the law you must also be mindful that the contributions made within a marriage or de-facto relationship may extend to inheritances and even to property not yet in your hands.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
More people drift into de-facto relationships and many do not have an understanding of where they stand legally and financially, when the relationship ends.
