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Family Law

Significance of Abiding by Property Orders

Significance of Abiding by Property Orders

It is vitally important for parties in proceedings to strictly comply with property settlement Orders.

If a Court Order required you to make a cash payment to the other party in the proceeding by a certain date, you should avoid making a late payment given the potential risks and negative impact involved to your case.

For example, in the case of Blackwell & Scott [2017] FamCAFC 77 a Consent Order provided that the Husband is to pay the Wife $130,000 within 90 days (so as to achieve an equal property division). The Husband was late in making the payment by approximately 13 months and over this period, the value of the property increased in value from $860,000 to $1 million. The Wife argued that the Order should be set aside as the increase meant that she would receive far less than an equal division of assets. The Family Court Judge granted her application. The Husband filed an Appeal which the Full Court dismissed noting that “The Husband’s delay in complying with the Orders was… substantial… By reason of the Husband’s default, the agreed equal division of the parties’ property did not take place”.

On the same note, it is equally important to ensure that you abide by Court Orders requiring you to maintain properties, or demonstrate that you are able to keep up with expenses involved – as otherwise you might face a serious risk of sale.

For example, in the case of Narkis & Narkis [2018] FamCA 1083 Consent Orders were made for the Wife to pay expenses for the said property including land tax, building insurance premium, and expenses relating to repairs. The Wife, unfortunately, left the land tax bill unpaid and outstanding for seven months. The Wife failed to provide an explanation for her non-compliance. Though the Wife ultimately paid the bill, she had deposed to the fact that she had borrowed funds from friends to pay outstanding expenses, which the Court found concerning. The Judge found that the Wife had ample opportunity to do what she was obliged to do. The Judge further noted that the Wife’s indication that she had to borrow monies points to the fact that she does not have the resources to keep this property. In all these circumstances, the Judge found that it was just and equitable to make Orders for the sale of the said properties.

In short, it is important that you engage a lawyer who sees the bigger picture and able to assist you in understanding exactly what you are signing up for to avoid a costly enforcement Application being made against you. Our lawyers at Nevett Ford Melbourne are fully across these issues and will be able to provide you with the advice you need to get the outcome that is appropriate. Call us on 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au to discuss your circumstances or for more information.

Forever young? Valuations and family law

The valuation of assets is a critical part of family law property settlements and divisions. Lawyers and clients are not usually property value experts, whether in the industry of real estate, businesses, cars or jewellery. You would be surprised how many people suddenly decide that they are experts in this field when they separate from their long-term partner! As a result, independent property valuations are commonly obtained when disputes arise about the precise value of items of property. But are those values, once obtained, set in stone

It is not unusual for valuations to be updated as a result of the passage of time – a property valuation that is two years old may not accurately reflect the current value. In what appears to be an uncertain real estate market at present, a valuation obtained even a few months ago may be able to be challenged based on new information and changes in market conditions. Business valuations also have a significant amount of complexity – sometimes it is best to obtain historic valuations of businesses ‘as at separation’ because of conduct by a party that has had the result of diminishing the value. It is extremely common for business owners to claim that their business has suddenly faced a downturn immediately after separation and the Court is increasingly sceptical about such claims, and so historic valuations may well be appropriate or useful to the Court. If you are on the other side of this equation though, an insistence on the current value may well be much more in your interests.

 

In short, you should engage a lawyer who is alive to these issues rather than blindly follows a set structure or path for every case. Tailored, specific advice is invaluable, and is something that we offer at Nevett Ford Melbourne. Call us on 9614 7111 to discuss your circumstances.

Divorcing Over 50 – The Grey Divorce

Do you stay in a marriage that is over or risk financial ruin for happiness?  Unless you are a highly evolved Zen master your divorce is likely to “suck” – most do.

Getting divorced at any age is difficult. Everyone wants their marriage to work however divorcing later in life presents unique challenges and being newly single can be terrifying.   It is sometimes thought people “your age” are not supposed to get divorced.

If you are divorcing after 50, chances are your children may be teenagers or older. Their reaction may be unfavourable and even hostile. Be prepared to help older children cope with the divorce.  It’s also important to monitor your children’s feelings. Your kids may be older, but don’t assume it’s easier on them than it would be if they were younger.   You may choose to end your role as husband or wife, but your role as mother or father does not end. Handling your divorce process with your children in mind provides opportunities to share in their lives without the tension.

The financial consequences of a divorce can be significantly more damaging for older divorcing couples.  You may have dedicated your entire life to the family and marriage and have no professional skills of any kind. You have have been hard at work earning good money to support a family that now you feel has disappeared.  You may even already be retired, your assets fairly fixed and your employment opportunities may be limited.  There are now two households to support. 

An amicable divorce process will limit the cost of suffering financially and emotionally.  As difficult as dealing with all of these issues will be, one of the most significant impacts that divorce over 50 will have on your life is the inevitable financial strain.  The equitable division of assets and liabilities is a concern in almost all divorces and generally the older you are the more complicated your finances have likely become.

Given the typical level of assets and complexities it is important that you get legal advice, but doing so doesn’t mean you have to go to battle. No matter what kind of grey divorce you may be facing you have the power to choose how you handle it and we can assist you accomplish a more comprehensive and cost-effective dissolution of your marriage.   Even if your split is amicable it is important to seek your own legal advice early on.

Call or email us now for advice from one of our experienced and knowledgeable lawyers.

Adoption Visa – Australia (Subclass 102 visa)

The Australian Adoption visa (subclass 102) lets a child come to Australia to live with their adoptive parent. The child can already be adopted or be in the process of being adopted. The adoptive parent sponsors the child for this visa and usually applies on their behalf.

This is a permanent residence visa. If the adoption is through a State or Territory adoption authority, you can lodge the application before the adoption is finalised.

To apply for the Adoption Visa (Permanent) (Subclass 102), the child must be:

  • outside Australia when applying for the visa
  • adopted:

- with the involvement of an Australian State or Territory adoption authority (either under the Hague Adoption Convention, a bilateral adoption with a competent authority of another country, or another adoption agreement)
- under the laws of a country other than Australia and their sponsor or their sponsor's partner has and been living outside Australia for the 12 months before the child applies for the visa

  • sponsored by their adoptive parent or their adoptive parent's partner
  • under 18 years of age when the application is lodged and when it is decided.

The child must also be sponsored by an adoptive parent who is:

  • an Australian citizen; or
  • the holder of an Australian permanent resident visa; or
  • an eligible New Zealand citizen.

What this visa lets the child do

It allows the child to:

  • travel to and stay in Australia indefinitely
  • work and study in Australia
  • enrol in Medicare, Australia’s scheme for health-related care and expenses
  • apply for Australian citizenship (if they are eligible)
  • sponsor eligible relatives for permanent residence
  • travel to and from Australia for five years from the date the visa is granted – after that time they will need another visa to enter Australia

Guardianship of children adopted from overseas

  •  If an adoption is not finalised or if it is not recognised by a state or territory adoption authority when the child enters Australia, the Minister for Immigration and Border Protection will be the guardian of the child. The guardianship powers are delegated to state and territory welfare authorities.
  • The minister stops being the guardian if any of the following occur:

- the child becomes an Australian citizen
- the child turns 18 years of age
- an Australian adoption order is made for the child

Adoptive parents living in Australia

Your relevant Australian State or Territory Central Adoption Authority (STCAA) must be involved in managing the adoption process with the country where the child is living.

If you are considering adopting a child from outside Australia, you should contact the central adoption authority in your State or Territory.

Privately arranged adoptions

Australian STCAAs do not generally support privately arranged adoptions either from in or outside Australia, including the adoption of children who are relatives. They are not able to help children or sponsors to meet the eligibility requirements for granting a visa to an adopted child.

Important: If you want to proceed with an adoption from outside Australia, which has not been arranged by your STCAA, it is strongly recommended you first seek legal advice both in Australia and in the country where the child lives.

Adoptive parents living outside Australia

Adoptions that are undertaken by Australian citizens, permanent residents or eligible New Zealand citizens who usually live in countries other than Australia, and that are arranged without the assistance of an Australian STCAA, are known as expatriate adoptions.

It is important to obtain appropriate advice before embarking on the adoption process.  Nevett Ford Lawyers has expertise in all aspects of the adoption visa process and can provide advice and assistance.

Please contact us today for further information:

Telephone: +61 3 9614 7111

Emailmelbourne@nevettford.com.au