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Orders for family law property settlement may be made years after separation

Orders for family law property settlement may be made 20 years or more after a couple separate depending upon the circumstances. It is not a given however. The Court must be satisfied that it is just and equitable to make an order altering property interests.

In Orchide & Orchide [2017] FCCA 1833, a single judge decision in the Federal Circuit Court of Australia, the Husband was seeking property orders for family law property settlement 20 years after the parties had separated. The Court was willing to make orders but not of the kind that the Husband sought.

Background

At the time of trial in Orchide’s case, the Husband was 60  years of age, earning $70,000 gross per annum and the Wife was 61 years of age, earning $87,000 per annum. The parties’ daughter was over 18 years of age and independent.

The Wife and the daughter had remained living in the former matrimonial home at Property A (“the former matrimonial home”) after separation.  The Husband claimed that the parties had agreed that the Wife and daughter would remain living in that home instead of paying child support. The Husband claimed that because their daughter was at that time still in primary school and he did not want to cause upheaval for her as well as her having to deal with her parents’ separation, he had decided, even against the legal advice that he was receiving, that he would not then pursue property settlement.

The Wife maintained that when the parties separated, they had agreed that she would retain the former matrimonial home and that the Husband would retain another property (“Property C1”) and a business and that the Husband would be responsible for borrowings of some $150,000 from Bank B and an overdraft of some $15,000.

The Husband maintained that there had been no agreement such as the Wife asserted.

In the year following separation, Property C1 was sold and the Husband claimed (but did not evidence) that the proceeds of sale had been used to pay overheads for his business, to reduce loans from Bank B that had originally been taken to fund renovation and extension of the former matrimonial home and to purchase the Wife’s motor vehicle.

The Wife claimed that she believed that the proceeds of sale of Property C1 had been used to pay all monies owing to Bank B and that the mortgage and overdraft secured over the former matrimonial home had been discharged.

However, the Husband made further drawings on a loan facility from Bank B.   He also borrowed monies from Bank A to assist in the purchase of another property (Property D) where that loan was secured over that other property.  Th Husband refinanced the Bank B loan secured over the former matrimonial home with Bank A.  The Husband was described as the sole borrower and the Wife as guarantor. The Wife claimed that she was trying to assist the Husband and that she trusted that he would repay the loan when Property D that he had purchased was redeveloped and sold.  She said that she did not realise that the Bank A loan was secured over the former matrimonial home.

In 2014 the Husband asked the Wife to sign documents guaranteeing a loan from Bank A where the Husband was switching to interest only payments.   The Wife claimed that she had not realised at any time that the loan was $252,000. The Husband later contacted the Wife in May 2015 telling her that the former matrimonial home must be sold as he could no longer afford his high level of debt which then exceeded $400,000.

The Wife claimed that at no time after separation had the Husband told her that there was a mortgage over the former matrimonial home to Bank A which he was using to pay his living expenses  or to support his failed business ventures.

Court findings

Superannuation

Relying upon the decision of the Dull Court in Zaruba & Zaruba [2017] FamCAFC91, the  Court found that where the Wife’s superannuation was earned by her post separation and where the Husband has made no contributions to it whatsoever, it cannot be seen to be just and equitable to make orders that alter the Wife’s interest in her superannuation. The Court made a similar finding regards the superannuation of the Husband.

Motor vehicles/current bank accounts/tools

As with the superannuation, the Court found that where all of these assets had come into existence since the date of separation, it was not just and equitable to make orders altering the parties’ current interests in these assets.

Former matrimonial home

It had an agreed value of $1,325,000.

The Husband’s liabilities totalled $343,580secured over the former matrimonial home and credit card debt and tax liability which together with the debt over the former matrimonial home gave a total debt figure for the husband of $505,330.

The Court found that those liabilities were solely for the husband’s account as they had all been incurred by him after separation and he had had the sole benefit of the monies giving rise to the liabilities.

Regards contributions, the Court found that the Wife had made significantly greater contributions than the Husband post separation and gave her an adjustment of 25% of the net asset pool.

The Court did not accept the Husband’s contention that his “letting the Wife and [the child] remain in the former matrimonial home for nearly 20 years was somehow or other a contribution by him to the maintenance of [the child] throughout the entirety of her education.”

The Husband had had the benefit of the proceeds of the sale of Property C1 and of [Business A]. The Wife and [the child] remained in the former matrimonial home. The Wife had the sole financial responsibility for almost all of the child’s care after the parties separated as well as providing almost all of the child’s physical and emotional care as the Husband had spent such little time with the child. The Wife also maintained the former matrimonial home with only very limited assistance from the Husband

Regards section 75(2) Family Law Act 1975 (Cth) and future needs factors, the Court considered that the Husband had made lifestyle choices after separation having closed his business, travelling around Australia and undertaking study where he obtained qualifications. (omitted). He attempted to establish a business that had been unsuccessful and was now running another business. Since separation, and particularly since 2008, the Husband had incurred considerable debt in supporting his lifestyle and had done so knowing that he was not making sufficient income to meet his liabilities.

Whilst the Wife currently earned more than the Husband, the court was not satisfied that she had a superior earning capacity to the Husband who had the capacity to earn a reasonable living in the profession in which he was qualified but had chosen not to do so.

The Court considered that the Wife’s superannuation of $132,000 in comparison to the Husband’s superannuation of $1,187 was a superior financial resource available to the Wife and allowed an adjustment in the Husband’s favour for s 75(2) factors of 2.5%.

Just and Equitable

The Court concluded that there should be a family law property settlement involving a distribution between the parties in relation to the former matrimonial home. The Wife retained 72.5% of the value of that asset and the Husband retained 27.5%.

The Husband submitted that it was not just and equitable to make orders that would have the net effect of the Wife retaining a million dollar property and $130,000 worth of superannuation whilst the Husband was left with debts of over $500,000.

The Court acknowledged that whilst the Husband’s current financial circumstances were dire, the Husband was responsible for his financial predicament and that in all the circumstances, the Court considered that the outcome of the orders was just and equitable.

If you have concerns how to obtain a family law property settlement, contact our experienced Brisbane family law team or Brisbane Northside family law team and we will be happy to assist you to resolve your family law issues.

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Obtaining orders for equal shared parental responsibility

 

If you live in a different country from your child, can you obtain orders for equal shared parental responsibility?

The Federal Circuit Court in the case of Malone & Irwin [2018] FCCA 397 considered the question of parental responsibility.

The child concerned ([X]) was around 4 years of age at the date of the proceedings and lived with her mother in Australia whilst the father lived with his wife and child in another country. The father had never been resident in Australia.

The parties had had a relationship whilst the mother was working in another country. The father has remained living there and had re-partnered with a child to his wife, after the parties’ brief relationship had finished.

The child [X] had only ever spent time with the father when he had visited Australia and generally in the presence of the mother.

The mother argued against the parties having equal shared parental responsibility. The mother contended before the Court that she had always been primary carer for [X] and would remain so. The mother further contended that because the father lived in another country, it would be impractical for the parties to have equal shared parental responsibility and that she should have the final decision on matters involving long term decision making for the child because the child [X] lived with her.

The father submitted that the Court should make an order for the parties to have equal shared parental responsibility. He maintained that he wanted the  opportunity of having a say in long term decisions effecting the child [X], and that with his background, he could make valuable input into those decisions and give [X] opportunities that the mother could not by herself provide for the child.

The father proposed travelling to Australia two to three times per year to spend time with [X].

The mother proposed that  [X] spend time with her father on a graduated basis but initially in her presence, claiming that the child would be anxious about spending time with him as she did not know him .

The court was of the view that the mother did not understand the importance for the child [X] of a meaningful relationship with her father or how such a meaningful relationship could be best facilitated.

The reluctance by the mother to permit [X] to spend any time with the father to date without her being present was, on the evidence, not a reasonable stance for her to have taken. While the Court accepts that [X] has spent limited time with the father and that she is still very young, there is no objective evidence to suggest that the father was not capable of meeting [X]’s needs during short periods of time or that he somehow posed an unacceptable risk of harm to the child.

The Court considered that whilst there may be a period of adjustment involved for the child, so long as the relationship between father and the child was able to develop without is left to develop without improper interference or restriction, t the father would ensure that the child’s time with him was a happy and worthwhile experience. The Court also considered that the mother would facilitate the child’s time with the father once things settled down after the hearing.

The court referred to the presumption set out in the Family Law Act 1975 of equal shared parental responsibility which may be rebutted in certain circumstances. The presumption may be rebutted where there was reasonable grounds to believe that a parent has engaged in family violence or by evidence that satisfied the Court that it would not be in the best interest of the child for the parents to have equal shared parental responsibility.

In this case, the Court did not consider that the presumption of equal shared parental responsibility had been rebutted. Rather, the court found that  the child [X] would benefit from her father’s involvement in any long term decisions in respect of her welfare, health and development. Whilst the court recognised that the parents had some difficulty communicating with each other, the court took the view that the parents had the capacity to comply with their obligations under s.65DAC.

The court therefore made an order for equal shared parental responsibility will be made.

  1. Since the court made that order, the court was obliged to consider whether the child spending equal time with the parent was in the child’s best interests or reasonably practicable.. If it was found not to be so, then the court had to consider the child spending substantial and significant time with the parents under section 65DAA of the Family Law Act 195 (Cth).
  2. As the court considered that neither equal time nor significant and substantial time was practicable, the court considered that the best that could be done was orders being made which would facilitate a relationship between the child [X] and the father in circumstances where he lived in another country and would only be able to travel to Australia two to three times per year.

Contact us if you need assistance resolving parenting arrangements effecting your child.

domestic violence protection orders

Domestic violence protection orders: Part II

Domestic violence protection orders are available for the protection of someone who is suffering domestic violence. In Part II of our blog on this subject, we suggest help that is available. You may need to obtain a protection order or defend an application where you feel it is unjustly made against you.

Whatever your situation, you should obtain legal advice regarding your rights and the preparation of your court documents. Ideally, you will also have a lawyer representing you in the Magistrates Court where applications for domestic violence orders (known now as protection orders) are heard.

At LGM Family Law, we offer a fixed rate initial consultation where you can obtain advice about domestic violence protection orders, including:

  • advice about the document/s that will be involved in preparing your case;
  • the issues that need to be addressed in your documents; and
  • the orders that you may expect may be made by the Magistrates Court.

Our family lawyers Brisbane and family lawyers northside have the experience to assist you. We prepare the required documents, whether to obtain or to defend a protection order application and represent you in Court for a fixed fee. We can also do part of this work for you where your budget is limited but you want some legal assistance.

Contact us us now to book a consultation  Your initial call to our firm is without charge.

Having your own lawyer represent you regards a domestic violence order is the best course. We recognise though that not everyone is in a position that they can have a private lawyer do all or even part of the work required. If that is your situation, don’t lose heart.

You may apply for legal aid from Legal Aid Queensland in order to obtain a domestic violence protection order. Even where you may not qualify for legal aid, there are community legal services available that can provide support, without charge, for domestic violence victims as well as for someone finding themselves the subject of any allegations of domestic violence that they believe to be unjust.

The following are just some examples of the kinds of services that are available, some of them being accessible by anyone and others being targeted for the benefit of men or women only.

Community legal services accessible for all- examples only; there are many more community legal services!   

Nundah Community Legal Service is a community legal centre that provides assistance with legal issues by providing advice and referrals in most areas of law. The Service will not represent you and will refer you to another legal service or private solicitor if you require more specialised advice regarding a domestic violence protection order. You can see from their website their hours of operation, including for walk in evening consultations.

Pine Rivers Community Legal Service is a community legal service that provides general  regards what the law says in many areas of law including domestic violence; provide you with information giving you choices about what you can do; helps you to decide what you want to do and provides referrals to other services that may be of assistance to you in your circumstances.  See their website for what appointments may be available including walk in evening appointments.

For men only

DV Connect Mensline provides telephone, counselling, support and referral services for men.

For women only

DV Connect Womensline provides telephone, counselling, intervention, transport and emergency shelter for Queensland women and their children suffering domestic violence from a violent partner, ex partner or family member.

It is probably a function of the fact that more women than men suffer from domestic violence that there are very visible legal services provided for women only in this area such as:

Women’s Legal Service offers a help line as well as walk in in evening appointments where women can speak with a volunteer solicitor or barrister. The Service provides limited day time appointments. Advice in the area of domestic violence protection orders is available and in some cases, some assistance may be given with preparation of legal documents. See their website for full details of services provided.

Women’s Domestic Violence Court Assistance Service and Application Assistance Programme  provides assistance to all women who attend the Brisbane Magistrates Court for domestic and family violence matters. The service is available to all women whether applying for or responding to a domestic violence protection order (known also as a protection order).

Domestic Violence Prevention Workers are located on level 6, Brisbane Magistrates Court. (Phone (07) 3247 5437)

See also our Part I blog in this area.

Generally

This blog provides general information with examples of community services that are available in the area of domestic violence protection orders. However, LGM Family Law does not warrant what services may be available at any time at the services mentioned in this blog. In order to obtain the most current information regards the services offered by the different centres and entities referred to in this blog, contact the service/entity directly.

Contact our family lawyers Brisbane or family lawyers northside. If you are a victim of domestic violence and require a protection order or if you need to defend an application made against you for a protection order, our family lawyers Brisbane and family lawyers northside have the experience to prepare your court documents and to represent you at Court. We listen carefully to your instructions, what concerns you and prepare your case accordingly.