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family law matters

I’m going through a property division - should I quit my job to get more?

We get this question, or a variant of this question very commonly. Part of the stages of a property division in Australia is considering each party’s future earning capacity. In response, people often have some ideas about how they might maximise the funds they receive.

Someone might ask whether they should quit their job, as getting 5% more of a million dollar pool of assets seems attractive. Or they might decide not to start looking for work very hard during the course of the proceedings. Sometimes opportunities come up and clients think about whether they should postpone taking up those opportunities. It can happen that there is deliberate contact to reduce your earnings just to try to get a bigger slice of the pie. Sometimes clients are, unfortunately, not completely honest with their lawyers or with the Court, and may be earning cash from jobs that they do not declare.

In all of these situations, the Court is obliged to look at your earning capacity, not necessarily what you are earning right here and now on paper. A skilful lawyer will be able to identify a pattern of earnings you’ve had, and if those earnings suspiciously drop around separation, you will have to have an excellent answer for why that happened for your Judge. You may be compelled equally to reveal to your ex-partner and the Court what attempts you have made to get a job, and your efforts in that regard (or otherwise) could become a significant issue.

Not only that, but by not working if you are otherwise able to, and not earning what you genuinely are able to for the work you do, you are depriving yourself for potentially years of litigation while you await a decision, all while gambling on whether a Judge will find your actions to have been believable. It’s not a bet I would risk my house on!

My view is that you should take the work you can get, can reasonably perform with your health and skills, for fair pay. You will have more money in your pocket from salary and appear as an honest, sensible person to any Court looking through your affairs.

This is of course a general observation and you should always seek advice specific to your circumstances. If you suspect your former partner isn’t playing by the rules, or you need advice about your reported earnings, call our lawyers on 03 9614 7111 to speak with someone now.

New App to track family violence

Arc is a free interactive mobile phone app that assists women to collect evidence of family violence. 

Arc assists in keeping records of what happened, when, how it made you feel, and helps identify forms of behaviour with you.  You can upload photos, videos and record audio, record daily entries and create a report with selected entries.   Arc enables you to more easily identify and document patterns of violent behaviour.

Using this tool to collect evidence is a far less cumbersome way of recording what is happening to you and means you can have a dedicated space in your phone to record this, instead of having it mixed with all your other personal information.  This evidence can be particularly useful for court and legal events as often perpetrators will deny your experience or say that victims are exaggerating.  The app allows you to categorise the kinds of violence you may be experiencing such as financial, physical or psychological.

Arc was developed by Domestic Violence Resource Centre Victoria.  It was developed in consultation with women who had survived family violence. Search on the App Store or Google Play to find a copy and see if it is right for you.

At Nevett Ford Lawyers we offer a caring and practical approach to assist clients dealing with difficulties faced during relationship breakdown.  If you are interested to know more, please contact one of family lawyers on (03) 9614 7111.

For 24-hour assistance contact National Sexual Assault Domestic Family Violence Referral Service 1800 737 732 or call 000 if you are in danger.

Were you in a de facto relationship?

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.

But what counts as de facto? Does going to all the same events together, does attending family gatherings, does having a hild?

In Crick & Bennett [2018] FamCAFC 68 (13 April 2018) the Full Court (Ainslie-Wallace, Aldridge & Watts JJ) dismissed the De Facto Husband (DF Husband)’s appeal against Tonkin J’s declaration that a de facto relationship existed while he lived in the De Facto Wife (DF Wife)’s home from 2001 to 2014. He argued that despite having a child in 2003 they had lived apart under one roof since 2004, never acquiring any joint property or operating any joint account.

The DF Wife gave evidence that the parties went out to events where they ‘presented as a couple’ but the DF Husband denied this. The DF Husband accepted that the parties attended many family, social and school events with their child but denied that when they were at these events the parties ‘presented as a couple’. The Full Court indicated that the DF Husband “did not set out any facts or circumstances that could illuminate his assertion and it is impossible to attribute any probative weight to that evidence.”

In this case, the Full Court placed highest importance to the determination of whether the parties had ‘a relationship as a couple living together on a genuine domestic basis’ [s4AA(1)(c)) of the Act]. The concept of whether the parties are a ‘couple’ is part of the test. The primary Judge in this case found that between the alleged period the parties attended many social and family events including family Christmases, birthdays, events held at the parties home and at their relatives’ home as well as the child’s school functions. The Full Court continued to state “This was significant evidence of the public aspects of the . . . relationship and supported a finding that there was a de facto relationship. If the appellant wished to contend that the parties’ conduct at those events led to a different conclusion then it was incumbent on him to adduce evidence to support that proposition”.

Other than establishing that you were ‘living together on a genuine domestic basis’ you’re your former partner, you must satisfy the Court of all of the following:

  1. you meet one of the following four gateway criteria

    1. That the period for the de facto relationship is at least 2 years

    2. That there is a child in the de facto relationship

    3. That the relationship is or was registered under a prescribed law of a State or Territory

    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice

  2. you have a geographical connection to a participating jurisdiction

  3. your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

In the event of a breakdown of a de facto relationship, you must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.

If you are uncertain as to whether your relationship constitutes a de facto relationship, or if you are in one that has unfortunately broken down and you would like to discuss further what your entitlements are, please do not hesitate to contact one of our approachable and experienced family lawyers. The number to dial is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au.

Family Reports in Parenting Matters

In parenting matters, it is more often than not that the Court will make an Order for a Family Report to be prepared. Usually the Court will pay for a Family Report for the parties. However parties can engage a private family reporter where they have the resources to do so, or there is a need for an earlier report that the Court would not be able to obtain in short order. This means that parties might be able to have their parenting issues resolved quicker than otherwise.

A Family Report is a document written by a Family Consultant appointed by the Court. Family Consultants are generally qualified psychologists or social workers with experience working with families and kids. An independent assessment will be made by the Consultant about substantial issues pertaining to the matter at hand and in particular, it will assist the Court in making decisions about children’s arrangements.

Preparation for your family report interview

The primary focus of the report will be in relation to a child’s or children’s best interests and ultimately the report will contain the Consultant’s recommendations about arrangements (short and long-term) that will best meet their future care, welfare and developmental needs.

The Family Consultant would have before the interview read all parties’ materials as well as any materials that have been subpoenaed to best understand and explore the issues relevant to each case. It is therefore important that you read through both your affidavit materials as well as the other party’s materials before attending your interview.

What do you need to be mindful about during the interview?

In some cases, your child/children will be interviewed separately from the parents to give them the opportunity to express their views (more so when older child/children is/are involved). In other occasions, the child/children will be interviewed together with each parent in order for observations to be made of the interaction between each parent and the child/children. There may be some occasions where the Family Consultant will also meet other third parties such as step-parents (or a party’s new partner) or grandparents.

Please be mindful that whilst the Family Report is to remain strictly confidential between the relevant parties within the proceedings, what is said to the Family Consultant is not confidential and will be included in the report. If the matter reaches Final Hearing, it is likely the Family Consultant will be called to give evidence, or cross-examined.

It is important that you put your best foot forward in a Family Report interview. In saying that, here are a few pointers to bear in mind:

·         Prepare in advance by reading all relevant Court materials, make some notes and bringing them with you to the interview;

·         Always be honest. You should voice your concerns clearly but remain child-focused as opposed to engaging in a mouth-off contest about the other parent;

·         Listen and think about your answers carefully before answering them.

What happens after the interview?

The report will be formally released (usually prior to a substantial Hearing) to all relevant parties. This report is strictly confidential and is not to be shown to any third parties including other family members without the Court’s permission.

Judges will often place significant emphasis/weight on the recommendations and views of the Family Consultant due to their expert and impartial status in the proceedings.

If you have any questions about your Family Report or wish for us to prepare you or any other questions regarding your parenting matter, please do not hesitate to contact our experienced family law team on 9614 7111.

Family law Courts to be restructured, given new name

The Federal government announced today its intention to combine the existing two-Court federal family court system in Australia into one, larger Federal Circuit and Family Court of Australia (“FCFCA”) commencing 1 January 2019.

What does this mean for you though? Currently, there are two Courts, one that is the ‘higher’ Court – the Family Court deals with complex property matters, serious allegations of child abuse or  particularly serious parenting arguments, International parenting matters and protracted disputes; and the Federal Circuit Court deals with the bulk of family law matters.

At present, your lawyer has to decide which Court you ‘belong’ in when starting your case. It is often not easy to know this at the first stage, and choosing the wrong Court may mean that you are sent between Courts while this is clarified or when new issues arise. Additionally, starting Court proceedings for property disputes in the Family Court is currently ‘easier’ than in the Federal Circuit Court, as you are not required to file an affidavit in support of your application at first. Drafting a good, comprehensive and accurate affidavit in support of your case can be time-consuming (and costly) and so it is a quick option for lawyers in a rush to simply go to the Family Court even if the property case is not otherwise complex enough to justify being in that Court.

The combined Court will mean a single point of entry for all matters, which will then be directed in the right place. This might be considered a bit like ‘triage’ that a hospital might conduct, prioritising and assessing cases as they come in and linking them with services, hopefully sooner than they would be otherwise.

The additional factor to consider in the government’s announcement is that appeals from the FCFCA will no longer be dealt with by an appeals section of the Family Court, but will be dealt with in a new division of the Federal Court of Australia. What does this mean? Family law judges in the Family Court who currently spend time hearing appeals will be available to hear cases from the start, potentially meaning more front-line resources in terms of time and Judges.

Of course, at present this is just an announcement. Once the government releases its proposal in more details, we will be able to assess how effective this might be at clearing some of the delays currently affecting the family law system.