Posts

Property assets: future tax considerations

Can future tax liabilities be taken in account when reaching a property settlement with your former partner? 

What place can future tax hold in determining property assets?

Can future tax liabilities be considered in Family Law proceedings?

One of the first steps to be taken following a separation is to determine the assets and liabilities of the relationship – known as the “property pool”. Before the property pool can be distributed between the parties, the items which make up the pool must be established and valued. Attributing a value and determining the associated liability of an item is important as it allows us to work out the overall percentage of the property pool the parties will receive. This task has to be done fairly, first and foremost, so that the court can be satisfied that the division is just and equitable, but also so that each party can feel satisfied with the result and be able to move on to the next chapter in their life.

So, what about future tax liabilities?

In the matter of Rogers,1 a husband argued that the possible future tax liability of the family business (being transferred from the parties jointly, into the sole name of the husband) should be paid from the matrimonial property pool. If he were successful in his argument, the value of the property pool would be reduced by some $517,000. It is important to note that at the time of the trial, the tax liability had not issued and was anticipated only – no one could be sure what the liability would amount to if it became payable.

The Court held that liabilities that were vague or uncertain (such as future tax liabilities), could not be deducted from the property pool. In this case, as the tax liability was uncertain and could change in the future, the court found that it was not just and equitable to reduce the property pool on account of the future anticipated liability.

As seen from Rogers, we now know that future tax liabilities and other uncertain future anticipated liabilities, generally won’t be considered in a matrimonial property pool.

 

Sources:

1                  Rodgers [2016] FamCAFC 68

2              Glade-Wright, Robert (2016). “Future tax debts remain out of pool” in Proctor, Queensland Law Society, September 2016 – Vol.36 No.8.

Legal Costs

How can I keep control of my legal costs?

How can you keep control of your legal costs and ensure you’re getting the best results for your money?

Legal Costs

Keeping control of Legal Costs.

 

 

Retaining an experienced family lawyer will greatly help you through the legal process and reduce the stress that comes with separation and finalising agreements with your former partners. Family law proceedings can be costly but you should make sure that you are containing those costs where you can and avoiding unnecessary costs. Here are some things to consider to help you retain control over your legal costs:

1. Obtain legal advice from an experienced family lawyer early on about your entitlement

You do have the option of representing yourself but a family lawyer can advise you what is reasonable for you to expect, whether for arrangements for your children or for property settlement. This will go a long way towards helping you to reach an agreement with your former partner sooner rather than later. Time spent claiming more than your entitlement is likely to increase both the time taken to reach a settlement as well as your legal bill.

2. Instruct a lawyer to act for you

Make sure that you obtain advice from a competent family lawyer and have that lawyer draft and finalise your legal documents. One area of activity for family lawyers is applications to Court for people who prepared their own documents only to find that they were unworkable and that further orders of the Court were needed to correct errors that could have been avoided in the first place had a competent family lawyer been involved.

3. Be Specific

Remember that lawyers generally charge on a time incurred basis. You should certainly ask your lawyer whatever questions you may have. Be careful though not to provide them with information outside of what they request from you from time to time. You will be billed for your lawyer’s time spent reviewing material so it is important for you that time is not spent reviewing material that was not requested and which is not relevant. Remember that a lawyer is entitled to bill you for their time, including where you tell them about how you may feel about your former partner’s attitude towards you or about his or her behaviours. If your lawyer requires those kinds of details, for example for a domestic violence matter or where parenting is in issue, he or she will let you know. Otherwise, it is likely better for you to speak to a trusted friend about your feelings. You may also want to consider obtaining some counselling to help you through separation which is understandably a harrowing time for many people.

4. Prepare initial important information for your lawyer

This will save your lawyer time and time saved is money saved for you. We have set out below some information that you can prepare to give your lawyer at your initial meeting. There will be other information that your lawyer will request but being ready to provide this information will help in saving time.

  • Property Matters
        : If you have

    a property matter

      , take with you to the first meeting with your lawyer a list of all current assets and liabilities whether held in your name, in the name of your former partner or held jointly or by any corporation or trust which you own or control. It will also assist to provide at least an estimate of the current market value of those items. Don’t be concerned if you do not have all of this information at the outset. You can obtain the details of your former partner’s financial position by requiring his or her financial disclosure and your lawyer can assist you with that. You should also be ready to provide your lawyer with information about the financial and non-financial contributions which each of you and your former partner made to the relationship both at the date of commencement of cohabitation as well as during the relationship. This will include what assets and liabilities you each held at or during those times as well as financial windfall gains such as inheritances as well as information regards the role that you each took in care of the children; home duties; DIY work; home renovations and administration of your lives together.
  • Children Arrangements
      : If you are concerned with arrangements for your children, be prepared at the first meeting with your lawyer to provide details of your children’s full names and dates of birth; schools they attend & some information as to their progress as well as details of any special needs; the level and kind of care that each of you and your former partner provided for the children both during the relationship and since separation; time that the children have spent with each of you since separation; the current living conditions for the children whilst in your care and whilst in the care of your former partner; any child abuse or domestic violence (including details of reports to Police and any Protection Orders applied for or obtained) & information regards any alcohol or drug abuse by either you or your former partner.

5. Provide full and frank disclosure

Each of you and your former partner have an obligation to provide full and frank disclosure of your financial position. If you finally settle your matter without having done this, you risk having any Orders you have obtained or any binding financial agreement set aside and costs awarded against you on a future application to the family court by your former partner. Your lawyer can advise you regards the documents that you are required to disclose to your former partner.

6. Be considered about how you provide your instructions

After your initial meeting with your lawyer, where practical, give what information you can by email to your lawyer. Your lawyer can then let you know if he or she wishes to speak with you about the content of the email or requires further information. If you are calling to relate limited, concise information or to confirm a meeting, it can be more cost effective to leave a message for your lawyer with his or her assistant rather than speak directly with the lawyer.

7. Set aside your personal feelings as much as possible when negotiating with your former partner

This can be difficult to do but trying to use the negotiation or court process to punish your former partner or taking a “winner takes it all” approach to reaching final agreement with your former partner will very likely result in it taking far longer to finally settle your matter. The longer it takes, the more costly it is not only for your former partner but also for you. Doing what you can to ensure that both you and your former partner are not spending money needlessly on legal costs is going to benefit both you and your former partner and therefore your children also.

8. Be willing to compromise and settle your matter as early as possible

If your wish is to press your matter to its limits, your lawyer will follow your instructions. Sometimes though, it is better to compromise and concede on some points or to take something less in a property settlement in order to finalise an agreement with your former partner. This will be particularly so where the cost of continuing with your matter exceeds the benefit or amount of what you may be conceding. Again, this is where it is important to keep a level head. There are many examples of people who refused to settle their matter and continued on only to settle at the same level or less in their favour at a later point in time but after having spent considerably more in legal fees. There is too that once you settle your matter, you can get on with living and planning for your future. For many people, this is a reason in itself to compromise and settle early.

For more information on our legal costs and services, contact us today. Or, have a look at our range of services here.

Is it okay to use Social Media and Email during my family law matter?

 

We see people letting off steam all the time through social media platforms like Facebook, twitter and Instagram. Email and text messages too are an easy way to vent our feelings. In a matter of seconds, your comments may also be shared on Facebook; your tweets re-tweeted or your emails or texts received and forwarded. Beware that using social media, email or text to vent during a family law matter is definitely a perilous thing to do.

Can social media be used in a family law matter?

Guiding Principle

The guiding principle is fairly simple. You should not use social media, email or any form of messaging to discuss or comment upon your family law matter or anything or anyone involved in your family law matter. You should especially avoid comments relating to your former partner’s behaviour or requirements concerning your family law matter; your children in relation to your separation; anything or anyone related to a family law action or comments on any other subject relating to negotiations or agreements to be entered into with your former partner.

If you do this, you risk prejudicing or at least complicating your own case. Even where you are not in Court, these entries, emails or texts may prejudice any claims that you are making for property settlement or damage your claim for arrangements that you seek for your children by revealing information that may undermine your case. Those entries may also lead your former partner or his or her solicitors to make enquiry about matters that would not otherwise have come to their attention but for the communications that you may have made.
If you are in Court, you may well find that your social media entries or emails or texts are reproduced in your former partner’s affidavits to your detriment.
You may also be committing an indictable offence under section 121 of the Family Law Act 1975 (Cth).

Prejudice to your case/Live Examples

Imagine for example that you are claiming that you are available to care for your children and are therefore seeking that they spend time with you for five nights every fortnight. An entry that you made on facebook some time previous however refers to your plans to work interstate on a fly in fly out basis. It may be that those plans have been aborted or it may be that your fly in fly out arrangements do not interfere with the care arrangements that you are seeking for your children. Either way, production of that facebook entry by your former partner or his or her lawyers may well complicate your claim.

Another example would be facebook posts or tweets that refer to your recent overseas travel at a time when you are claiming spousal maintenance from your former partner. You are entitled to enjoy a holiday. It may even be that the particular holiday was done on a close budget. However, whilst you must disclose details of your financial circumstances, facebook entries of this kind in the hands of your former partner or his or her solicitors may again complicate your claim, possibly raising the spectre that you may not have the required financial need for spousal maintenance or causing your former partner or his or her solicitors to make enquiry requiring further disclosure of any other funds that may be available to you.

Risk of breach of Family Law Act and possible prejudice to claims you are making

Comments that you may make through social media, email or messaging, for example, sharing a post on facebook or instagram or tweeting, may involve a breach of section 121 of the Family Law Act punishable on conviction by imprisonment for a period of up to one year. There may be a breach of that section where those comments identify any parties; related persons (such as children; an Independent Children’s Lawyer of Family Report Writers) or witnesses to proceedings before the Family Court of Australia or the Federal Circuit Court of Australia. You should be aware that your former partner and his or her lawyers may be looking at your facebook entries. This will be a risk even where you have strong privacy settings or you have set up restricted groups to share information.

The safest policy

…is to avoid using social media during your family law matter and not to make any comment about it; your former partner or any other person connected to your family law matter in any emails or messages that you may send.

If you need advice or want to learn more, contact us today and receive a free 15 minute consultation.

Family Court

What Happens in a Family Court Trial?

Preparing to go to the Family Court? Find out what happens in Family Court to make sure you’re prepared.

Family Court

What happens in Family Court?

 

A trial in the Family Courts occurs only after various steps in the Court process have been completed.

This article is a general guide concerning certain of the major steps in family law proceedings in the Federal Circuit Court of Australia. The process in the Family Court of Australia is somewhat different. What happens in any particular case will depend upon its particular circumstances.

Commencing Proceedings

Unless there are circumstances of urgency (including in a parenting matter, the risk of child abuse), we suggest that you should explore other avenues for resolving family law issues before resorting to court proceedings. For example, you may have negotiations with your former partner, directly or through your solicitors or go through a mediation or collaborative law process. Generally, we recommend that court proceedings, which can be lengthy and are expensive, should be approached only as a last resort.

If you find that it is necessary to initiate an action seeking parenting orders, before filing your application, unless certain exemptions apply, you must obtain a certificate from a family dispute resolution practitioner. That certificate in then included with your application. If you do not file a certificate or an affidavit which demonstrates that the requirements for an exemption apply, the Court cannot accept your application.

There are a number of steps involved before a matter will come to trial. You have the opportunity to reach agreement with your former partner and settle your matter throughout the court process. If you do this, the Court will then issue Consent Orders which confirm your agreement with the other party. Most parties engaged in a court action will settle their matter this way. In this situation, they will not then need to go through to trial but the court action concludes with the issue of the Consent Orders.

Documents

The documents to be initially prepared and filed with the Court in property and parenting matters include:

For the person starting the Action (the Applicant)

  • An Initiating Application – This document includes any interim orders as well as the final orders that the person starting the action (the Applicant) is asking the Court to make. These orders can be orders concerning financial matters and/or maintenance or orders concerning children or both;
  • An Affidavit – This document sets out the evidence of the Applicant as to why the orders which the Applicant seeks should be made.
  • Financial Statement – This document sets out the financial information concerning the Applicant and is filed in a case where property or maintenance orders are sought.

For the Applicant’s former partner (the Respondent)

  • A Response – This document includes any interim orders and final orders that the Respondent is asking the Court to make.
  • An Affidavit – This document sets out the evidence of the Respondent as to why the orders which the Respondent seeks should be made.
  • Financial Statement – This document sets out the financial information of the Respondent and is filed in a case where property or maintenance orders are sought.

First Court Date

When the documents are filed, the Court allocates the first Court date. The time and date for this hearing is included by the Registry on the first page of the Initiating Application.

The first court date will generally be about 6 weeks after filing, allowing time for the Initiating Application to be served and for the Respondent to prepare, file and serve the response documents. The first court date may be earlier for more urgent applications.

On the first Court date, the parties advise the Court about the issues. Generally, the Court will address the following areas:h

  • Procedural Matters – The Court will make procedural orders for the further progress of the matter (such as dates by which certain steps in the proceedings are to be completed). In property cases, these orders will often include a timetable for the provision of information; the exchange of valuations and relevant documents. They will also often provide for a process for determining the assets and liabilities which comprise the net asset pool of the parties as well as for determining the value of relevant assets where value is in dispute between the parties. In property cases, the orders may also provide for conciliation conference where the parties have an opportunity to agree a final settlement or to narrow the areas in dispute. In parenting cases, the orders made at this stage may include orders requiring the delivery of a family report. This is a document which is prepared by a family report writer after he or she has interviewed each of the parents and the children (at an age appropriate level). You will find further information concerning family reports elsewhere in our blog;
  • Interim Orders – The Court will consider any interim orders that may have been sought by either party. Interim Orders may be made at that time or the Court may adjourn hearing of any argument concerning those orders to a later date.There is an opportunity on the first Court date for parties to reach agreement whether on an interim or final basis. If this occurs, the parties present the proposed consent orders to the judge requesting that they be issued whether on an interim or final basis.

Conciliation Conference

The next formal step after the first Court date in a property matter is generally the “Conciliation Conference”.

A Conciliation Conference provides the parties with a formal opportunity to negotiate and reach final agreement or to narrow the matters in issue. Even where parties cannot agree a full settlement of all matters, it may be possible to reach agreement on some issues and to clarify what issues remain in dispute.

If all issues are not settled so that the matter must proceed beyond the Conciliation Conference, further procedural directions will be made (such as dates by which certain steps in the proceedings are to be completed).

Trial

The final step in the proceeding is a trial which is held before the Judge. Each party gives their evidence and makes their submissions. The length of a trial varies dependent upon the complexity of the issues which remain in dispute at the time of trial. Unless the Judge otherwise approves, all evidence must be presented to the Court by way of affidavit.

At the final hearing, the Applicant (or his or her lawyer or Counsel) will outline the Applicant’s case and the Respondent may cross-examine the Applicant or his or her witnesses. The Applicant (or his or her lawyer or Counsel) may then re-examine those witnesses. In the same way, the Respondent (or his or her lawyer or Counsel) will outline the Respondent’s case and the Applicant (or his or her lawyer or Counsel) may cross-examine the Respondent or his or her witnesses. The Respondent (or his or her lawyer or Counsel) will have the opportunity to witnesses. You may then re-examine those witnesses.

Any independent children’s lawyer who may have been appointed may also present evidence to the Court and cross-examine witnesses. Any single experts who prepared a report may be cross-examined by the parties. For example, in a case where parenting orders are sought, parties may wish to cross-examine a family consultant may have prepared a report including certain recommendations for arrangements for children. In property proceedings, the parties may wish to cross-examine single experts who provided reports as to the value of certain assets.

Each party also has the opportunity to give a final address to the Court making final comments in support of his or her case.

Judgement

The Judge will give a decision, including reasons for the decision, following the conclusion of the parties’ respective submissions. However, the decision is often “reserved” so that judgment is not given until a later date. This is usually within three months of conclusion of the trial or at a later date where the Court has a heavy workload. Parties will be informed of the date for delivery of the decision and are required to attend at Court on that date.

Preparing to go to the Family Court can be a stressful time, but one way to reduce that stress is to feel confident and prepared on what will happen during your Family Court matter. If you need advice or are considering taking a matter to the Family Court and want legal advice, contact us. We provide free 15 minute consultations over the phone, so get in touch today.

Queensland Family Law

Queensland Family Reports and how to deal with them

Wondering what happens in a Queensland Family Law Report? For a parent, a family report may cause considerable anxiety or relief depending upon the recommendations that are made for children’s living arrangements. Find out from our Queensland Family Law Team the process of a family report, and how to deal with them.

Queensland Family Law

Queensland Family Law Team

This article looks at Queensland family law reports; the degree of their importance in any legal action where a party seeks Orders concerning children and whether there may be scope to challenge recommendations made by a family report writer.

At LGM Family Law, unless there are particular reasons not to do so, we will recommend to our clients that every effort is made to negotiate an agreement with the former partner about children’s living arrangements, without going to Court.

However, if agreement cannot be reached and it is necessary that a Court action is instituted, it is important to realise that it is very likely as part of that legal action that the Court will make interim Orders for a family report to be delivered by a family report writer.

The Queensland family law report writer may be appointed by the Court or may be a private report writer jointly instructed by you and your former partner.

The report writer will interview you and your former partner separately and will also see the children. He or she will likely also want to observe each parent in company with the children.

Depending upon how your action develops, it may be that there are a few family reports delivered before you reach any trial or agree Orders with your former partner and finally settle the legal action.

The report delivered by the report writer forms an important piece of evidence at any trial of your matter.

You can expect that the report will include recommendations to the Court as to the time that the children spend with each parent.  Other recommendations may relate to the number of phone calls that a parent may make to the children whilst they are in the care of the other parent.

Some reports will make general recommendations, for example, for  the children to spend three to five nights per fortnight with the parent who does not have primary care and for that parent to be entitled to make phone calls at least once every second day to the children when they are in the care of the parent with primary care.

Other reports will include much more specific recommendations, by way of example only, that the children spend four nights per fortnight with the parent who does not have primary care, even specifying the actual days on which those four nights occur in each fortnight as well as the specific days and time of day on which a parent may make phone calls to the children.

Depending upon the kind of recommendations made in a report concerning your children, as a parent, you may feel positive about the report or its recommendations may cause real despair.

However, it is important to appreciate that a family report, whilst often of real assistance to a trial judge and often a large piece of the evidence, is still only one piece of the evidence before the Court. It is always for the trial judge to determine what the children’s living arrangements will be, after the judge has assessed all of the evidence before the Court.

Whether you like the Queensland family law report writer’s recommendations for your children or not, you may miss important opportunities to properly prepare for a trial if you or your lawyers focus solely on the content of those recommendations and assume that those recommendations will be accepted by the trial judge. It will be very important, for example, that your lawyers carefully consider whether or not the recommendations made by the report writer are supported by the facts and fall within the area of the report writer’s specialised knowledge.

The trial judge will consider all of the evidence, including the family report, and assesses what weight or importance he or she will give each piece of evidence.  As part of this process, the judge sees the cross examination of parties and other witnesses who may include the family report writer. If your lawyers wish to do so, they may arrange for the report writer to be called to attend at the trial to answer questions about the report writer’s recommendations and the basis upon which he or she made those recommendations.

Many family reports are well written, including details of the family report writer’s area of expertise and the facts and/or academic research upon which the report writer has based his or her recommendations for your children.

Generally at law, evidence of an opinion is not admissible and will not be allowed by a Court to prove a fact about which the opinion was expressed. However, that rule does not apply to opinions of an expert where the opinion is based wholly or substantially on that expert’s specialised knowledge.

Important case law in this area has set out in detail what are the requirements to be met for expert opinion evidence to be admissible (ie., broadly, for it to be allowed to be considered by the judge).

The basic principle is that the opinions given by a family report writer must be based upon facts.

The family report writer must have an agreed or demonstrated field of “specialised knowledge”. It  must be demonstrated that the report writer has become an expert in an identified aspect of that field. His or her opinions or recommendations included in the family report must be wholly or substantially based upon that expert knowledge. If they are not, there may be grounds upon which a party may attack the validity of a family report or aspects of it.

Family report writers fall within the broad area of social sciences, an academic discipline which does not necessarily admit of one right answer. It is an area where different experts may vary greatly in their individual assessment about the same set of facts.  It is for this reason that it may be appropriate for your lawyers to consider questioning a family report writer about very specific recommendations;  for example, recommendations that children spend 4 but not 5 nights with one parent or attend one  particular school but not another or receive phone calls from a parent only on specific days of a week.

If a report writer reaches an opinion based upon facts which he or she has “observed” during interviews with the family, the report writer must identify those facts which must be proven.

If the report writer’s opinion is based upon “assumed” or “accepted” facts (such as research), those facts must be identified by the report writer and be proven in some other way. The report writer is required to refer to research and literature on which he or she has relied in reaching opinions concerning your children as well as setting out any that they have considered but not accepted or given lesser priority. These considerations of the report writer are another area where your lawyers may consider it appropriate to question or cross examine the report writer about his or her reasoning processes in making the recommendations in a family report.

If a report is not favourable to your case, your lawyers should also give careful consideration to what parts of the report may be challenged on the ground that opinions or recommendations expressed by the report writer are not supported by facts in a form which is admissible (ie., in a form which may be considered by the Court).

In summary, it will be important that your lawyers carefully assess whether or not any recommendations made by a family report writer are properly supported. Even if those recommendations support your case, you need to know what if any weaknesses there may be in the report. Your former partner may try to rely upon any such weaknesses in order to challenge any or all of the recommendations made. You will want then to shore up any of those weaknesses to the extent that you can do so to more fully support your case.  For example, further affidavit material may be necessary in order to evidence facts upon which you rely.

A knowledge of the relative strengths or weaknesses of a family report will also allow your lawyers to make an assessment of the likelihood or otherwise of recommendations in the report being accepted by a trial judge. That assessment and the consideration of other evidence before the Court will assist you in determining whether the likely outcome at a trial warrants continuing to trial or whether it will be better that you compromise and settle with your former partner, thereby avoiding  a trial.

For more information about our services, click hereOr, to get tailored legal advice, contact our Queensland Family Law Team today and receive a free 15 minute consultation.