A Rose By an Other Name

Most family law matters that come before the court regarding children concern disputes as to where a child is to live, or how much time they are to spend with a parent.  However in a recent Family Court decision, the Court not only had to rule on the amount of time two children were to spend with each parent, but was also forced to step in and choose the name of a two year old girl because her parents could not agree on a name.

The child’s parents separated before the child was born and there had been no agreement in what the child’s name would be.  The child had not yet been registered and the mother referred to the child by one name and the father referred to the child by another name.

The child already went by the father’s surname, however in an attempt to compromise, the mother offered to hyphenate the first name.  The father would not agree however, claiming that the name the mother picked (even the hyphenation) was blasphemous to his Islamic faith.

It became apparent to Justice Forrest that the father was somewhat controlling of the mother and her capability to act independently of him.

Justice Forrest stated, “I am drawn to the conclusion that the father’s opposition to the name (chosen by the mother) is yet another example of his determination to control the mother and her parenting of these two children.”

What was also interesting in this case was that the father was married to another woman at the time of his “relationship” with the mother and in a sense had two women “on the go”.  He also had children to his other marriage.

The Family Court decided that whilst the girl will ultimately decide for herself which name she preferred to be called, it was the Court’s decision that until such time, the first name chosen by the mother should be used and ordered that the girl be registered by that name.

Should you require Family Law advice, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.

Who Owns the Home?

There have been some concerns in recent years regarding the notion of “equitable” rights over property.  That is, the claim that one party holds a property “on trust” for the other party due to an alleged promise that the property would one day be passed on.  This issue has been raised particularly where one party has been allowed to live in a house (and undertake renovations etc), with the often argued expectation that the house would one day be theirs.

In the recent case of Wheeldon [2011], the wife in a family law dispute sought a declaration that the husband’s parents held a property on trust for the husband.  Following this the wife also sought orders  that the property  be transferred to the husband and a half share  be transferred to the wife.

The wife claimed that a month before the marriage, the husband’s father told the couple that they could live at the property if they paid its rates.  They lived there for 26 years and raised two children there.  The wife argued that the property was held in trust because they were encouraged that the property was a gift.

In taking into account the husband’s parents denials of any conversations that may have promised a gift of property, Fowler J rejected the wife’s claims and found that the husband and wife had been “given permission to occupy the property and no more.”

This case should act as a reminder to anyone entering into an arrangement for the occupation of a home to ensure that the terms of the occupation are well defined and preferably  documented.  The legal owner of the house should be very wary about anything that is said or alluded to, which may encourage the occupier to believe the property will be theirs.  Similarly, the occupier of a home that may be of the belief the property will be theirs should be cautious with any money they spend on improving the property on the (mis)understanding that the property will pass to them.

Should you require advice in relation to the ownership of property or what constitutes the assets of a marriage, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.

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Court Saves 14 Year Old Girl from Arranged Marriage

Whilst Australia prides itself on being a multicultural society and being accepting of the values of all cultures, the Courts have recognised that some practices may not always be in the best interests of children.

In a decision in late 2010, the Family Court of Australia restrained a 14 year old girl from leaving Australia, thus saving her from an arranged marriage to a 17 year old man she had never met.  The Department of Human Services was alerted to the problem when the girl stopped attending school.  After interviewing her, the Department was of the view that the girl did not appear to understand the consequences of marriage.

The Court accepted that it would be contrary to the girl’s welfare to permit her to be taken overseas for the purpose of the marriage.  The Judge was of the view that a 14 year old girl would not have the understanding of the significance of marriage, which would be attributable to an adult.  Given that the marriage could not be celebrated in Australia was another reason for the Judge’s decision.

The girl’s name was ordered to be placed on the Australian Federal Police Watch List and her passport was surrendered.

This decision demonstrates the Court’s views on both marriage and children.  Firstly, the Court highlighted the significant nature of marriage and that it should not be entered lightly.  Marriage is an institution, whereby both parties should enter it freely and with the proper understanding of all that marriage entails.

Secondly, the Court demonstrated that the best interests and welfare of children is the primary consideration in any proceedings in Australia, regardless of whether that conflicts with any cultural upbringing.

If you have any questions regarding any aspect of Family Law, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.

Click here for more information on Melissa Swain.