When orders have been made by the Court in relation to the welfare of children and it is time to hand the children over to the other parent, what do you do when the child says “I don’t want to go”. Do you put the child back in the car or do you encourage the child to go?
This was addressed in the recent case of Raider and Raider [2011] by Justice Forrest. The facts of this case were the mother lived in Sydney with the two children, aged 13 and 11, and the father lived in Surfers Paradise, Queensland. The children were to spend time with the father during the school holidays and the mother was to give the father 28 days notice of when that was to occur.
The father alleged that the mother did not comply with the Orders because the children did not spend time with him over the holidays and he was not speaking to them on the telephone. The mother stated that they did not want to go nor speak to him.
Justice Forrest had to determine, in accordance with the Family Law Act, whether the mother had intentionally failed, or made no reasonable attempt to comply with those orders and if so, did she have a reasonable excuse.
To assist him in his determination, Justice Forrest relied on the Full Court’s decision of Stevenson v Hughes [1993] regarding the positive obligations to encourage access. He stated “They said that it is not a sufficient discharge … to say to the effect “you see, I tried, but the child does not want to go” and thereafter to figuratively fold their arms as if that were the end of the matter. They held that the custodial parent’s role is an active role with an obligation to positively encourage access.”
Justice Forrest determined that the mother had contravened three of the five allegations in that 1) she did not provide the father with the travel details 28 days prior, 2) she did not encourage the children to speak to their father on the telephone and 3) she provided the wrong days for the children to spend time with their father.
In relation to the last two allegations however, the Court found that the mother did have a reasonable excuse on the basis that the 13 year old boy had threatened self harm and it was in the childrens interest for them not to spend time with their father to protect their health and well being.
If you need assistance determining what is reasonable compliance of children’s orders you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.
In every family law property case there must be full and frank disclosure of all financial information.
The matter of disclosure and making informed decisions was raised in the recent case of Nyles & Nyles [2011] FamCA 565 whereby the husband sought to set aside Orders on the basis of the wife failing to disclose pertinent financial information.
The facts of the case were that the wife was a director and shareholder in a company which was possibly going to be placed on the public market. If this was to occur, the wife stood to receive significant financial gain. Despite this, the husband and wife entered into consent orders prior to the information relating to the public float being available.
The husband sought to have those Orders set aside on the basis that the wife failed to make full and frank disclosure and fraudulently misled him into entering into Consent Orders. The wife denied she did not make full disclosure and that she did not misrepresent the husband in relation to the float of the company.
The first question before the Family Court of Australia was whether the wife misrepresented her financial position to the husband. The Court found that the wife did engage in fraudulent conduct by failing to disclose updated financial information about the company float.
The next question before the Court was, did the husband who relied on the misrepresentation of the wife result in a miscarriage of justice enough for the Orders to be set aside?
The Court did not believe that the husband relied on the information that was provided to him by the wife to make his decision to enter into any agreements. At all material times, the husband was aware of the float and was provided with adequate legal advice.
This case illustrates two main points. Firstly, you must disclose all information particularly in the event that something material changes in your circumstances.
Secondly, you can make a decision prior to obtaining financial disclosure information, but it is not in your best interests to do so. The husband in this case may have been successful in his application had he waited for all information.
If you are considering separating or have separated and you need financial disclosure, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you.
There are instances whereby parents assist their children financially even when those children are grown up and have families of their own. Whether it be helping with mortgage payments, providing rent free accommodation, helping out with the groceries or an inheritance at the end, these may be significant from a Family Law perspective.
Parents usually don’t mind helping their children, but what happens when your child separates from their partner and they want to benefit from your generosity?
This was argued recently in the matter of Ross & Audley [2011]. The parties commenced cohabitation in 1986 and were married in 1987. There were 4 children of the marriage plus the wife had a child to a previous relationship who resided with them.
When the parties commenced cohabitation they lived rent free at property P, which was owned by the wife’s mother. In 1987, the parties moved to property C, also owned by the wife’s mother, and again rent free. The parties continued to reside at property C until 2011, when the house was demolished and another one built. During the time that the new house was being built, the parties resided at property T, also owned by the wife’s mother, and again rent free.
In 2004, the wife’s mother passed away and the wife received an inheritance of property C, a half interest with her brother in property T, a considerable share portfolio and antique furnishings.
The parties separated in 2008 and the wife remarried. The wife claimed that she should be entitled to 80% of the assets as it was her mother’s inheritance which provided much of the pool.
The husband argued for an equal split for many reasons but mainly that he had cared for the wife’s son from a previous relationship, he provided care of the wife’s mother in the 4 years leading up to her death, the length of the relationship, his earning capacity of working full time plus being the primary caregiver when the wife was in ill health, and his contribution to the care of the children when the wife left.
It was also argued by the husband that the parties were always aware that the wife would inherit from her mother’s estate and this is the reason why the parties never purchased their own real estate or shares. The husband also submitted that the inheritance was for the benefit of not only the wife, but him and the children as well.
Federal Magistrate Bender concluded that “whilst the husband argued the wife’s mother intended to benefit the family as a whole, I am of the view that the wife inherited from her mother because she was her mother’s daughter.”
In that regard, the Federal Magistrates ordered that there be a 75/25% split in favor of the wife.
When you are considering separating or have separated, and you have received financially from your parents, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you. Helping You is Our Business.
Your first marriage did not succeed but you have now found a partner with whom you want to share the remainder of your life with. You both have children from a previous marriage but no children together. Your only asset is the matrimonial home and life is pretty comfortable.
What happens when either you or your spouse need to leave the matrimonial home due to ill health? Who is going to pay the costs when the cash is tied up in the matrimonial home? What happens when adult children become concerned for the welfare of their parent, not the marriage?
This was a question for the Full Court of the Family Court to determine in the matter of Stanford & Stanford [2011] Fam CAFC 208 after the children appeared on behalf of their parents. The facts of this case were that the husband and wife were aged 87 and 89 respectfully. They had been married for 40 years, each having been married previously and each having adult children.
The wife was the husband’s carer for a number of years in the matrimonial home after he suffered 2 strokes. On 30 December 2008, the wife suffered a stroke herself and had to remain in full time residential care. The husband had recovered well from his strokes and he was able to remain in the former matrimonial home. He visited his wife three times per week and placed $40,000 into a trust account for her use.
The parties still were married but separated due to the ill health of the wife. The wife was in a nursing home which was paid for by her pension however her children were not happy with the level of care that she was receiving. Her children wanted to move the wife into a nursing home that required a $300,000 bond. The difficulty was that all funds of the wife were held in the matrimonial home and the husband did not want to sell as he was still able to live there.
In that regard, the Full Court of the Family Court had to decide whether it had the jurisdiction and the power to order that assets be divided when the marriage had not ended.
After much consideration the Full Court found that it did have the power to make Orders in circumstances whereby the elements of the marriage were gone despite the parties still being married. The Court outlined that it had to be just and equitable to make such an Order to ensure that both parties had the adequate support and financial provisions.
This is a significant case for those couples who have entered into second marriages and their funds have intermingled. Adult children may often seek to be involved to ensure that what they think is the best for their parent even if it may be to the detriment of that parent’s spouse.
If you have entered into a second marriage and want to protect your assets, or make provisions in the future for events such as above, please contact us to make an appointment because at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business
My name is Sara Burnheim and I have recently joined Everingham Solomons. I will be working mainly in the Family Law area.
It seems like a lifetime ago that I started my legal career here in Tamworth as a young undergraduate law clerk.
Now I am back some 6 years after leaving and I feel that I have come back home, a more experienced (and worldly) solicitor.
Since leaving Tamworth in 2005 I have had a variety of different experiences, from working in more remote communities, travelling overseas working and taking in the wonders of Europe, to a stint at Parliament House in Sydney.
Finally I have followed my true passion which is the law, and family law at that.
After working in Politics I came to the realisation that I am better at assisting individuals through their legal difficulties to bring them satisfaction and resolution, rather than being part of a global solution.
I am committed to ensuring that each client receives my full attention in their matter to give them the best results within the framework of the legislation.
I started my Family Law career when I was in Coonamble, principally working on children’s matters. When returning to the law, I worked for a Family Law firm in Bowral expanding my knowledge and confirming my dedication to that area.
I have commenced my Masters in Family Law providing me with the most up to date knowledge and practice to give clients the service that they require.
I am thrilled to be back in Tamworth and at Everingham Solomons as part of a dedicated and committed team.
At Everingham Solomons, Helping You is Our Business
When orders have been made by the Court in relation to the welfare of children and it is time to hand the children over to the other parent, what do you do when the child says “I don’t want to go”. Do you put the child back in the car or do you encourage the child to go?
