Brisbane Family Law

When Harry Met Sally | Part Two | Settlement of Property

This week we continue our weekly series concerning the dilemmas faced by each of Sally and Harry after the breakdown of their relationship. We consider issues facing Harry and his viewpoint in relation to the final settlement of property that Sally is wanting to arrange with him.

Harry does not agree with Sally

Settlement of Property

Settlement of Property

This may not surprise you in itself. However, Harry’s first and foremost issue is not how property should be divided. As far as Harry is concerned, he does not accept that he and Sally are even officially separated.

Harry doesn’t dispute that they are now living in separate places. Harry had moved out to live with his parents but he believes that this was only a temporary measure whilst he and Sally sorted out their differences.

However, since he moved out, tensions between them had reduced and Harry had continued visiting Sally and the children at the house where she still lived with the children, evening staying for dinner with them and sometimes staying overnight. In fact, there had been a period of a few weeks about two months ago when he had stayed with them for a continuous period of a few weeks.

There had been a few occasions when they had talked about Harry moving back in and acknowledged to each other that they still had feelings for each other. They had not been sexually involved for a long time but Harry and Sally had slept together on a number of occasions since he moved out when he had stayed overnight with Sally and the children.

Harry had continued to financially support both Sally and the children, paying the mortgage and rates at the house where they lived as well as paying for groceries, health insurance for them all and other living expenses not only of the children but also for Sally.

Although their family and friends knew that he did not live full time at the house, Harry and Sally continued to socialise together with the children amongst family and friends.

What can harry do where he does not want to finally resolve property matters with Sally?

Unfortunately for Harry, if Sally is of the view that their relationship has broken down irretrievably and has conveyed that to Harry, she will be entitled to pursue a property settlement.

However, the question of whether or not they are considered to be separated at law will be important in determining when it is that either or both of them can apply for a divorce.

We would recommend to Harry that he has an initial consultation with a family lawyer experienced in family law, including property settlement matters so that he can obtain some preliminary advice about how his entitlement for settlement of property is worked out and what he could expect in a property settlement with Sally as well as obtaining advice about when and under what circumstances Sally may apply for a divorce if she wishes to do so.

At LGM Family Law, we offer a free phone consultation for up to 15 minutes. However you should be aware that we cannot act for both parties to a relationship or former relationship so that if Sally has already sought advice from us, we cannot also provide advice to Harry.

If you would like to learn more about settlement of property following a separation, click here.

However, since our Sally and Harry are only fictional characters, each week during this series, we will develop on Sally and Harry’s situation and discuss issues effecting each of them.

 

 

Property Settlement

When Harry met Sally: Follow their story in Family Law Property Settlement

Follow Sally and Harry’s story each week: How will Sally resolve her family law property settlement claim against her former partner Harry?

Sally’s story so far

It’s April 2017 and Sally has just returned home from dropping her little ones off at school. The start of a new term and Benny and Izzy had been so excited to be back amongst their friends. The twins were only 5 years old and loving being at Prep school.

It was a constant struggle for Sally since she had separated from Harry just over a year ago now.

They had been married for 10 years. The first few years of their relationship had been carefree and without children, they had mostly just concentrated on each other and having a good time.

Sally had continued in full time employment before the twins were born. She had worked in the fashion industry as a buyer for one of the large department stores and had loved her job.

Sally has stopped work just before the twins were born. She hadn’t full appreciated what having children would entail but she and Harry could not have been more delighted when they were born. Sadly though, over the last 5 years or so, they had gradually grown apart.

It wasn’t easy now being effectively a sole parent. The children did spend time with Harry but only when he said he had the time. Sally didn’t doubt that Harry loved the children but his time was so limited. He was constantly travelling away from Brisbane on work and often working long hours even when he was at home.

It was hard for Sally then to know when she could be available to commit to regular work hours, even on a part time or casual basis.  But she was feeling very much that she needed to organise her financial affairs and to reach some property settlement with Harry. Unless she could that, it was just so difficult to plan for the future.

Sally was feeling very burdened, not knowing where she stood or how to go about making a property settlement with Harry.

She didn’t know what she would be entitled to from their property. Sally still held some shares that she had bought before she married Harry but otherwise, most of their property- essentially their house and superannuation- had been accumulated from Harry’s earnings during their relationship.

What should Sally do towards obtaining a family law property settlement?

We would recommend to Sally that she has an initial consultation with a family lawyer experienced in property settlement matters so that she can obtain some preliminary advice about how her entitlement for settlement of property is worked out and what she could expect. Next week in this series, we will look at some family law issues that Sally will need to consider.

At LGM Family Law, we offer a free phone consultation for up to 15 minutes when we can give Sally some general advice.

It is likely though that Sally will need more detailed advice than can be given over that time so we would recommend that Sally book a longer initial consultation with us when we will generally be able to give Sally an indication of her range of likely entitlement for property settlement based upon the information Sally gives us during the consultation. We can also work out a plan for Sally at that meeting as to how she can go about achieving that property settlement. That longer consultation is for up to 1.25 hours and is provided at a discounted fixed rate from our usual charge rate.

Each week during this series, we will develop on Sally and Harry’s situation and provide family law advice for each of them in their particular circumstances.  Next week, we will focus on concerns that Harry has around his concern for a family law property settlement.

 

 

 

testing evidence in family law cases Brisbane divorce lawyers

Superannuation and Property Settlement

The family courts have power to divide payments made or to be made from a superannuation interest, between parties to a former relationship (called a “splitting order”) or to make an order which in effect restrains a trustee of a superannuation fund from paying out a party’s interest in superannuation or which precludes that party receiving his or her interest, pending further order of the Court (known as a “flagging order”).

Dividing superannuation

Dividing superannuation

The court cannot make orders of that kind though if the superannuation interest is “not splittable” or “not flaggable”. Payments that are not splittable payments include certain payments made on compassionate grounds (for example to treat a life threatening illness or a payment made to a member because of severe financial hardship).  An unflaggable payment will often be a pension.

In the past, superannuation was treated as a financial resource of the parties to a former relationship and not an asset as such. This was because the superannuation interest did not actually become a real asset until the interest vested on the retirement of the person entitled to the superannuation.  However, this could cause difficulties for a party in a family law property settlement, particularly where the superannuation formed a significant part of the asset pool that was available to be divided between the parties.

Today, however, the court has power to deal with a superannuation interest as though it is “property”.

Whether you and your former partner are involved in court proceedings or wishing to obtain consent orders (without actually going to court), in an appropriate case, an order may be obtained which effectively gives one party an interest in the other party’s superannuation.

Orders providing for a payment split of superannuation in favour of one party to a former relationship can be binding on the trustee of the superannuation fund so long as the trustee has been afforded what is known as “procedural fairness”. This involves ensuring that certain items are addressed, including ensuring that the trustee is given the appropriate period of notice of the intended orders.

There are different types of splitting orders that can be made. The most common method of splitting is the “base amount” approach. This is an order that gives the non-member partner an entitlement to be paid an amount (called the “base amount”) calculated in accordance with the regulations and there is a corresponding reduction in the entitlement of the member.

Where a splitting order is made, many funds have rules which allow the non-member spouse to have their interest in the superannuation rolled over into their own fund.

It is also important to consider whether you have grounds to obtain a splitting order or a flagging order. See our other blogs following on that area.

If you would like advice concerning how you may access part of your former partner’s superannuation as part of your property settlement, contact us and we will be happy to assist you. 

Child Custody Lawyers Brisbane

Relocating a Child

On 4 April 2017, Queensland footballer and Melbourne Storm superstar Cooper Cronk announced that in 2018, he would be relocating from Melbourne to Sydney with his fiancé. With the issue of moving inter-state currently in the media, we wanted to look at relocation in Family Law on our blog this week, and in particular, how it works when parents are separated and one parent wants to move and take the children with them. Read on to find out from our Child Custody Lawyers Brisbane.

Child Custody Lawyers Brisbane

Child Custody Lawyers Brisbane

 

Sometimes, a parent may wish to relocate with the children interstate or to a place which is not within easy reach for the other parent to spend time with the children. If this is your situation and you and your former partner cannot reach agreement or resolve matters at a mediation, you will need to file an Application in court.

It is important to remember that as an adult, you have the right to pack up and go wherever and whenever you choose. However, as a parent, your child’s best interests must be considered. It may be that your child’s best interests lie in making the move that you wish to make. However, if the other parent objects, you may find that resolving this issue sees you in Court unless parents can reach agreement.

In most cases, you must attempt a dispute resolution meeting with the other parent before seeking the assistance of the court. However, this may not apply if the other parent has already relocated with the children without your consent. You may then apply to the Court seeking a recovery order and other parenting orders. You may wish first to try to reach agreement with the other parent. You  should be mindful though of not leaving it too long to go before the court if agreement cannot be reached. You will want to avoid a situation where your children become established in their new environment, possible involving a new school or kindergarten.

If you are the parent wanting to move, where agreement cannot be reached with the other parent through negotiation or a dispute resolution meeting, you will need to apply to court seeking a parenting order which provides for the children to relocate with you.

Once you get to Court

All parenting cases are determined on the facts of the case. There is no pre-determined outcome for a matter regarding relocation nor a formula that can be applied.  The Court will consider all the usual factors that are relevant in a parenting case.

The Court will need to determine whether it is in the best interests of the child to spend equal time with each parent and whether equal time is reasonably practicable. If it is not, the Court must consider whether the child spending substantial and significant time with each of the parents is in the best interests of the child and whether it is reasonably practicable.

The paramount consideration for the Court will always be what is in the best interests of the child. When determining what is in the child’s best interests, the court will consider the benefit of a child having a meaningful relationship with both parents, whether there is any risk of or actual family violence or neglect and numerous other factors.

As the parent wanting to relocate, you do not need to provide a compelling reason to the court for wanting to move. That being said, it can help when attempting to persuade the court that it will be in the child’s best interests to allow the child to relocate to demonstrate your reasons for wanting to relocate. Those reasons may for example effect your capacity to parent and this will be of relevance in determining what is in the best interests of the child.

Case Study

Sally and Mike have been married for 14 years. They have a 5 year old child, B. The family moves to a rural mining town for Mike’s new job. Sally really struggles with living in a rural town and decides to return to Brisbane with B. Sally and Mike separate shortly after. Mike applies to the court for a recovery order – to have Sally return to the rural town with B. This order was made, and upon returning to the town, Sally could not find a full-time job or a house for her and B to live in.

Upon appealing the recovery order, the court finds that although it was in the best interests of B to be able to spend equal time with both parents, it was not reasonably practicable for that equal time to occur in these circumstances. In circumstances where the relocation meant that Sally was living in a caravan and relying on Centrelink for income, the court ought to have considered alternative orders.

Get in Contact with our Child Custody Lawyers Brisbane

If you or someone you know is going through a similar situation, it’s important to seek legal advice early on. Our Child Custody Lawyers Brisbane, offer professional and experienced advice that can help you and your family to move forward in life. For more information on Child Custody, click here. Or, give our Child Custody Lawyers Brisbane a call today for a free 15 minute consultation.