School bullying has become an issue for many parents, particularly, with new technology and accessibility to social media websites. As bullying becomes a concern for parents, often the decision has to be made as to whether the child should continue in their current school or change.
What happens though if separated parents cannot decide whether the child is to leave one school to attend another. This was argued in the recent Federal Circuit Court of Australia decision of Bardot and Benjamin (2013) FCCA 1024. The facts of this case were the parties were married in 1998 and separated in 2006. There were final children’s orders made in 2008 which included, amongst other things, equal shared parental responsibility for the long term decisions of the two children.
It was submitted by the mother that the youngest child was attending school and was a victim of bullying.
The issue in dispute for the Court was whether the child was still experiencing bullying and whether or not such bullying was impacting on her physical and/or psychological welfare. If so, would moving the child to the new school assist her?
The primary consideration is, and always will be, the best interests of the child. The mother argued that the child should attend at the new school as she believed that their “no bullying” policy alleviated the mother’s concerns that the child would be protected. The father claimed that the bullying had been exaggerated and had been resolved at the existing school. The father submitted that it was in the child’s best interests to remain at her current school and continue to work on her vulnerabilities with her school counsellor.
In evidence, it was explained to the Court that the child described the current playground as a war zone involving shifting alliances that added to her feelings of anxiety and uncertainty.
Whilst taking into account the principles in the Family Law Act, Her Honour came to the conclusion that the weight of evidence shown was that it was in the child’s best interests to be given the opportunity to change schools due to the bullying.
If you have any issues in relation to your child’s best interests and you cannot make a decision with the other parent, you should contact Everingham Solomons because Helping You is Our Business.
After a long marriage Mr and Mrs Pratt separated, following which property settlement and spousal maintenance proceedings were listed for a three day hearing.
At the commencement of the hearing, the wife sought an adjournment for a significant period, being two years. The trial judge ordered the proceedings be adjourned for at least three years. Also, the husband’s application for a reduction in spousal maintenance (he was paying $6,500.00 per month) was dismissed.
The application for a lengthy adjournment was provided for under Section 70(5) of the Family Law Act. In general terms,
this section of the Act provides that if there is likely to be a significant change in the financial circumstances of the parties to the marriage and having regard for the time when a change is likely to take place, it is reasonable to adjourn proceedings. Also if the
significant change in the financial circumstances is more likely to do justice between the parties than an order that the court could make immediately with respect the division of property.
The facts of the matter were as follows:
The parties owned a large landholding in the Northern Territory used for cattle grazing. In 2010 the properties were valued at $26 million. 11 months later a different valuer said the property was worth $16.4 million. It was common ground that the large Northern Territory cattle property had fallen in value. There was a loan facility from the parties’ bank for $34 million and interest at 9.52% was accruing. As at October 2011 the interest would have amounted to about $3 million.
The wife submitted that “the cattle area valued” could be expected to increase over a two year time frame when the live cattle market would ease or new markets would open. On the other hand, it was argued for the husband it was unknown how long it would take for the market to adapt to change.
The trial judge concluded that given the parlous state of the parties’ finances, he was not satisfied that within two years an increased value was feasible, but hoped an increase would occur over three years, when the parties would be able to get something for their endeavours. Thus the trial judge exercised his discretion and adjourned for a period of three years.
On appeal, the Full Court found against such lengthy adjournment. The Court held that the section required an affirmative opinion that there was likely to be a significant change in financial circumstances that made it reasonable to adjourn the proceedings. The Court accepted, that the expert evidence did no more than speculate an improvement in the market for rural properties if a number of events occurred, none of which was expressed as a certainty. The Full Court held that the hearing should proceed.
At Everingham Solomons we can assist you with all your family law matters including situations which involve complex issues because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
The Family Law team at Everingham Solomons continues to expand it’s knowledge base after I successfully graduated with a Master of Applied Law (Family Law) through the College of Law on Wednesday, 16 October 2013.
I commenced studying my Masters in late 2011 when I started working at Everingham Solomons. This involved combining full time study with full time work to successfully complete the course in a two year period.
Undertaking a Masters through the College of Law has assisted me considerably in being able to provide my client’s with up to date advice. The knowledge and practical training that I received was invaluable.
At the graduation for all of the College of Law Master of Applied Law programs, the graduands were treated to a formal address by Professor Gillian Triggs who is the current President of the Australia Human Rights Commission.
I believe that it is important for Lawyers to enhance their skills in their areas of expertise. The College of Law offers the Master of Applied Law courses in Commercial Litigation, In-House Practice, Wills and Estates and Family Law. There were six graduands in Family Law who attended upon the ceremony.
Throughout the course I undertook advanced children and property subjects, advocacy and general conduct of matters.
I am delighted to have finished my Master’s. Perhaps in 2014 I will look at further studies but in the meantime, I look forward to using my increased knowledge to work with my client’s to achieve the best possible outcome for them.
If you have any issues in relation to any Family Law matter, you should seek legal advice from Everingham Solomons as we have the experience and expertise to assist you because Helping You is Our Business.
Under the provisions of the Family Law Act is that “the welfare of the child is paramount.” However, circumstances may exist in upholding the principle, where it may be necessary that when deciding with whom a child or children should live, circumstances may outweigh a parent’s submission that it is in the best interest of the child to live with that parent. A court may order that a child reside with some person other than a parent.
In the recent decision of Withall, Richardson and Powles [2013] which was before the Family Court in Western Australia, the judge was required to decide whether the children should reside with a parent or a person who was not a biological member of the children’s family. The mother, the father and another significant person in the children’s lives whom I will refer to as ” the intervernor ” presented their individual cases that “it was in the best interest of the children” that they live with only one of them. However, during the course of the proceedings the natural father did not press his application.
It is not practical to outline the facts of this matter, other than to say the parents were separated, each of the parents had suffered ill health, the parents had overindulged in drugs and alcohol and there was reference to child pornography being found
in one of the parents home. The mother sought an order that the children live with her, but the court declined to make such an order. The Court made an order that children live with “the intervernor.” Included in the judge’s findings “the intervernor ” was a person who was likely to promote the relationship of the children with both their mother and there father.
The Court found “the intervernor“ had the capacity to promote the emotional and intellectual needs of the children and was a person who had previously been responsible for parenting the children.
It is noteworthy that it was held that the children were 13, 12 and 11. These children wished to live with “the intervernor” The Court found significant weight should be given to the children’s wishes.
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.
Click here for more information on Jennifer Blissett.
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 determining the live with and spend time with arrangements for children, one area that the Courts must look at is whether it is “reasonably practicable” for Orders to be made.
Reasonable practicality is outlined in Section 65DAA(5) of the Family Law Act and takes into account issues such as how far apart the parents live from each other, whether the parents can afford to undertake what is being Ordered, the capacity for the parents to communicate, the impact Orders may have on the children and any other matter the Court deems necessary.
This issue was raised in the Family Court appeal decision of Ember & Assadi [2013] FamCAFC 107. Orders were originally made in this case for the children (then aged 3 and 2 years) to live with the mother but to return from Melbourne to Sydney so that the father could spend time with them.
The mother did not agree with the Orders for her and the children to move back to Sydney and she argued on appeal that the Federal Magistrate failed to consider the “reasonable practicability” of her returning to live in Sydney and that there was insufficient evidence to determine what her financial situation would be.
The evidence before the court on this occasion concerning the financial situation of the mother was that she was living in a Department of Housing house in Melbourne and was working only three hours per week.
Further, whilst there were comments that the father would pay to the mother $110 per week, there was no order to that effect nor was there any consideration as to whether the father could actually afford to give the mother that amount of money as he was only working 2 days per week and living with his parents. Again, the mother’s financial position was not fully determined.
The Full Court concluded that there was merit in the appeal because they did not find that there was enough evidence for the Federal Magistrate to determine whether it was reasonably practicable in the circumstances for the mother to be required to move back to Sydney and financially what that impact would be.
If you have any issues in relation to the reasonable practicality of the spending time with your children, you should seek legal advice from Everingham Solomons as we have the experience and expertise to assist you 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.
In situations where one of the parties lives a considerable distance from where the children reside, the question may arise as to which parent or carer is to pay the costs of travel to spend time with the children?
This question was raised in the appeal case of Lorreck & Watts [2013] FamCAFC. In June 2012, the Full Court of the Family Court allowed the children to move from Canberra to Cairns with the mother and the father was to spend seven block periods within every two years with the children. The father had remained living in Canberra.
The mother, who was reliant on Child Support and Government Benefits at the time, argued that she should only pay for one return flight per two years until she was earning $1,300 per week. The father’s position was that the mother should pay 2 of every 3 trips considering that she had moved away.
The court made orders that from July 2013, the mother and the father should bear the costs of the travel equally. The mother appealed this decision.
Her Honour, on appeal, found that the court at first instance did not provide sufficient reasons for why he made the orders for the joint payment of the travel expenses.
Her Honour looked at whether the mother would be willing and able to actually earn $1,300 per week. Whilst not demeaning the mother or her ability, the court found on appeal that it would be more prudent for there to be a start date on the mother’s payment of the costs of travel as it may have potentially been disadvantageous to the father in the future if the mother never earned that allocated amount of money per week.
For the above and other reasons, Her Honour made orders that from 1 January 2014, being the start of the two year period for the father to spend time with the children, the mother shall pay for three of the seven return trips. Prior to that, the mother only had to pay for one trip due to her financial circumstances.
We have the experience and expertise to assist you with all your Family Law needs 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.
School bullying has become an issue for many parents, particularly, with new technology and accessibility to social media websites. As bullying becomes a concern for parents, often the decision has to be made as to whether the child should continue in their current school or change.
