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Elder Abuse

This  fact sheet is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Fur baby in family law tug-o-war

girl and puppy

The rise of the "fur baby" as an alternative to having children has been highlighted in a recent family law case.

In Downey & Beale (not Beagle), the Federal Circuit Court was asked to determine who was the owner of the dog, (name and breed omitted for privacy apparently so we'll call him Spot).

After a five-year relationship, Spot's parents managed to reach agreement about the division of all of their assets, including their jointly owned home, but neither could bear to part with their fur baby.

Each alleged that Spot in fact, belonged to them and each was prepared to pay their lawyers to take the matter to trial.  Somewhat surprisingly, in law a dog is considered a "chattel" rather than a person with four legs and a tail, so the Court has the power to make orders about who owns the chattel and whether there should be any adjustment of interests in that chattel.

Spot was purchased early in the relationship by Mr Beale.  He alleged that he bought Spot for himself, but Ms Downey claimed that Spot was an early birthday present for her.  There was no dispute that Mr Beale paid the $300 fee for Spot, but Ms Downey claimed she was the one who found Spot's adorable picture online and chose him.

Spot lived happily with his parents but it was apparently Ms Downey who took him to the vet as she was able to produce to the Court five vet bills which were addressed to her and referred to her as "owner".  She also produced bank statements to evidence payment of expenses from her bank account for a pet.

Spot was never registered until eight months after the parties separated, at which time Mr Beale registered him and listed himself as the owner.  The Court took a cynical view about this step, given that by that time it was already apparent that the dog's ownership was in dispute.

Ultimately, after considering all the evidence, the Court found that Spot had been purchased as a gift for Ms Downey, she had possession of Spot and she had contributed to his maintenance in such a fashion that it could not be considered appropriate to vary ownership.

My view about this case?  Seems a bit "ruff" that Dad didn't even get alternate weekends and half the holidays............ :)

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

The Importance of Pre-Nuptial Agreements

Pre-nup photo for article

"Pre-nups" have been made famous by famous people.  You can be sure that the likes of the Kardashians and the Rhineharts and the Murdochs wouldn't walk down the aisle without one.  But does your average wage earner need one, and if they do, are they worth the paper they are written on?

In short, yes and yes.

Whilst we don't have too many celebrities knocking on our door in Toowoomba to draft their pre-nups, they are becoming increasingly common for your average couple.  A pre-nup - otherwise known as a Financial Agreement under the Family Law Act - can be entered into before or during a marriage or a defacto relationship.  We especially recommend them in these scenarios:

  • Where a couple are marrying or moving in together a bit later in life where they have already accrued some assets such as equity in a house and superannuation.
  • Where it's a second marriage and there are adult children of one or both the parties who are worried about their inheritance.
  • Where a couple are buying a property together, with one of the parties contributing more to the purchase price than the other.

The terms of the Agreement can be tailored to suit the couple's particular circumstances.  For example, they may want to 'quarantine' the assets which they each hold at the start of the relationship and then share all assets which are acquired during the relationship equally.

While it might not seem very romantic, it's worth looking at it in the same way as you look at insurance - you don't want or expect your house to burn down, but you insure it just in case the unthinkable happens.

Many people are under the mistaken impression that a Financial Agreement will not hold up to a challenge in the Family Courts.  However, recent cases have demonstrated that the Courts are very reluctant to interfere with an Agreement where all the legal requirements have been met and both parties have been made aware of the consequences.

In one recent case before the Family Court, the Judge dismissed the wife's application to set aside a Financial Agreement on the basis that she did not know the extent of the husband's assets when she signed the Agreement, and further that the Agreement would cause hardship to the children of the marriage (who were in her primary care).

The Court found that while the wife would have had a very different outcome if the Agreement had not been entered into, that was not sufficient grounds to set it aside.  Nor was the fact that she didn't know exactly what the husband's net worth was.  Nor was the birth of their children a "material change in circumstances" which would warrant the setting aside of the Agreement.

A properly drafted and executed Financial Agreement provides a secure insurance policy for couples as they enter a marriage or defacto relationship, freeing them to focus on building their relationship without fear of the financial consequences.

Our family law solicitors are experts at drafting such Agreements.  For more information, call Briese Lawyers on 07 4638 4833.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Judge Sends Queensland Father to Jail

The recent events which led to a Family Court Judge jailing a father should serve as an important reminder to parties to comply with Court Orders.

Whilst this was an extreme case, Judge Cassidy did note that it was important that Court Orders be obeyed to ensure the proper working of a court system. Too often, parties underestimate the implications of not following Court Orders.  There are significant consequences that can be imposed and parties should ensure that they fully understand what these are.

If you have breached an Order without reasonable excuse, the Court may impose any of the following consequences:

  1. Vary the Order;
  2. Compensate for the time lost with a child as a result of the contravention;
  3. Order you to attend a post separation parenting program;
  4. Order you to pay all or some of the legal costs the other party has incurred;
  5. Require you to enter into a bond;
  6. Require that you attend and participate in community service;
  7. Order you to pay compensation for expenses lost as a result of the contravention;
  8. Order you to pay a fine; or
  9. Order you to a sentence of imprisonment.

What is considered as a reasonable excuse?

If a party fails to comply with an Order, the Court will consider whether the person contravening the Order had a reasonable excuse.  A reasonable excuse may be considered in circumstances where:

  1. The party contravening the Order believed that their actions were necessary to protect  the child from harm;
  2. The breach of the Order only lasted as long as it was necessary to protect the child from harm; or
  3. The party contravening the Order failed to understand their obligations.

How do I change an Order?

If an existing Court Order no longer reflects the arrangements in place for a child, then it should be changed.  Also, if parties are no longer able to comply with the Order, then it should be changed.  If you have significant concerns in relation to facilitating the terms under an Order and if you believe that your Orders need to be altered, then it is important that you first discuss your concerns with a legal practitioner. Not all grounds for changing an existing Order are significant enough for a Court to consider.

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This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Do you know what happens if you die without a Will?

If you die without a will, you will have died “intestate”.  The distribution of your estate will be in accordance with the rules set out in the Queensland Succession Act 1981 (assuming you lived and owned assets in Queensland). 

Straight away, the administration of the estate is made more difficult because strictly speaking, no-one has authority to administer the estate until appointed by the Court.  Alternatively, where there is a will, the executor’s authority to act comes from the will itself.  Accordingly, the expense of obtaining a Grant of Letters of Administration from the Court may need to be incurred, whereas this may not have been necessary if a will had been made.

Secondly, the distribution may not be as clear cut as you think.  Some clients tell me all their assets are held jointly with their spouse so there’s no need for a will.  That may be the case if one of you dies, but what happens if you both die together?  The law assumes that the younger survived the older for one day and so the joint assets would pass under the younger’s estate to their family members instead of being split between both of your families which may have been intended. 

A further issue is that where there are children, not all assets pass to the spouse.  The children will take a share of the estate and their share will be held on trust until they turn 18.  This could cause some unintended difficulty for the surviving spouse.  Usually, everything is left to the spouse in the first instance and only to the children on the death of the second spouse.  Further, the age of 18 is usually increased under the will to ensure a greater maturity when a child receives an inheritance.

A final complication arises where land is held in different states of Australia – the intestacy rules can differ slightly from state to state and therefore the beneficiaries of one parcel of land may be different to another.

The cost of putting in place a simple will is relatively inexpensive given the complications that can arise post death if the intestacy rules come into play.  Call us today to arrange your estate plans and ensure that your final wishes are put into place.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Is it worthwhile appointing a guardian for my infant children under my Will?

The simple answer is "yes".

A guardian appointed under the Will has all the powers, rights and responsibilities for making decisions about the long-term care, welfare and development of a child that are ordinarily vested in a guardian.  An example of such a decision would be in relation to a child's education and religious upbringing.

Generally, the appointment will take effect on the death of the last surviving parent.  In that case, the guardian would also have the right to have the child's daily care (ie. custody of the child) unless another person obtains this right under a Court Order.  This is your opportunity to express your wisehes as to who should look after your child and this appointment will stand unless somebody strongly disagrees and he or she would need to go to Court to argue the point (with no guarantee of success).

The appointment of a guardian can also provide comfort to divorced parents.  You can specify that the appointment should take effect on your death, even if the other parent is still alive.  The surviving parent would have to make decisions about the long-term care, welfare and development of the child jointly with the guardian you have appointed unless he or she applies to the Court to have the appointment revoked.

Often, the thing worrying young couples the most is who would look after their children if they were no longer around.  Appointing a guardian under your Will is your opportunity to choose the person you want to look after your children and can give tremendous peace of mind.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

The Ins and Outs of Child Support

When parent's are unable to reach an agreement with respect to the cost of raising a child, they are able to apply for an administrative assessment through the Child Support Agency.

In assessing the contribution to be paid, the Child Support Agency uses a particular formula that considers a range of factors. Some of these factors are:

  • The costs of raising a child, which has been determined by independent research;
  • Both parent's annual income; and
  • The level of care that each parent has with the child.

Once an assessment has been determined, the Registrar from the Child Support Agency will send correspondence to the parent's advising of the assessed monetary amount and the manner in which the assessment was calcualted.

If you are not satisfied that the child support assessment accurately reflects your circumstances, then you may be able to apply for a change of assessment through the Child Support Agency.

The Child Support Agency outlines ten (10) reasons that a parent can apply for a change of assessment. They are:

  1. The costs involved with spending time with your children is more than 5% of your adjusted taxable income;
  2. Your child or children have special needs that require additional financial support outside the normal day to day expenses;
  3. There are extra costs associated with the care of the child in the manner that both parties intended;
  4. The child or children earn an income or have financial resources available to them;
  5. You have provided money, goods or property for the benefit of the child or children;
  6. The costs of childcare for the child or children under twelve (12) years of age is above 5% of your adjusted taxable income;
  7. You have out of the ordinary necessary expenses to support yourself;
  8. The assessment does not reflect either parent's income, property or financial resources;
  9. You have a legal duty to support another person; and
  10. You have a responsibility to support another residential child.

Before considering this option, it is important to note that under the Child Support "forumla", general household and day to day costs are considered in the assessment. Extra's like private school fees, daycare fees, costs associated with extra curricular activities and special medical expenses have not been included and will be considered under reasons two and three, outlined above.

If you would like to ensure that these additional costs are taken into account, then you may need to consider the option of entering into either a Limited Child Support Agreement or a Binding Child Support Agreement in addition to or in replace of your Child Support Assessment. You may also consider making an Application for a Change of Assessment.

If you would like to discuss any of these options, please contact our office and schedule a time to speak with one of our lawyers.

 

DIY Consent Orders - Do They Hold Up?

When parties reach an agreement in relation to property or parenting matters (or both), the terms of that agreement can be drafted into Consent Orders to be filed with the Court.  Once Orders have been filed, the Registrar will determine whether the documents have been drafted correctly and whether the terms of the Agreement are worded in a manner that is fair and reasonable to those involved.  

When documents have not been drafted correctly or the terms of the Agreement have failed to take into account a significant asset, liability or issue relating to a child or the terms are simply not worded clearly enough, the Court will not approve the Orders and the parties involved will each receive notification that the Orders have been requisitioned.  

It is normally at this point in time that the parties will seek independent legal advice and request assistance in getting the Orders over the line.  It has been our experience that separating couples who enter into Do It Yourself Consent Order Kits lack a general understanding of how the law works as a backbone to the Agreement and therefore are unable to provide the Court with Orders that will hold up.  

Whilst parties must be commended on being able to set their emotions aside and come to an agreement on how they want their property divided or how the children will spend time with each of them, the Courts still require that the agreed terms be drafted in a manner that is acceptable and further that the Agreement is fair and reasonable and if related to children, that it is in the best interests of the child.  

What the Court's consider as 'fair and reasonable' is often an area where parties can run into problems.  The laws governing family law are not black and white, there are many factors that need to be considered and without a clear understanding of how the strings all tie together, it can be difficult for a lay person to craft a document that meets the necessary threshold.  

Another issue of great concern that often occurs as a result of parties entering into DIY Consent Order's is the lack of understanding that a particular party may have in relation to the effects of an Order.  It is really important for individuals who are entering into these Agreements to understand that it is a legal document and therefore affects their legal rights.  

At Briese Lawyers, we understand that often parties are trying to resolve their issues without incurring large legal costs.  However, we strongly recommend that if you have come to an agreement in relation to property and parenting matters (or both) that you attend upon a legal practitioner and seek advice in relation to the terms of your agreement before filing documents with the Court.  What may cost a small fee now, may end up saving you significant time and unnecessary stress down the track. 

Have you got an Enduring Power of Attorney?

Did you know that if you were to temporarily or permanently lose capacity to make decisions and do not have an Enduring Power of Attorney ('EPOA'), the Public Trustee would step in to make financial decisions for you (for a fee) and health matters would be decided by your statutory health Attorney.  Your family would be left to make an Application to the Guardianship and Administrative Tribunal for the management of your affairs.

An EPOA is a legal document that you can prepare to give someone else the power to make personal or financial decisions on your behalf. Giving someone an Enduring Power of Attorney means that your Attorney will have the power to make decisions in your interest only and sign all necessary legal documents.

An EPOA for personal matters only begins if you become incapable of making decisions. You can choose whether you give an attorney immediate power or can set a certain time for when the power is to start. If you lose capacity to make decisions before the time you set, the EPOA begins as soon as your Attorney has been notified of your condition.

Too many Australian's don't have an EPOA and therefore face the risk of having their personal and financial interests handled by someone that may not fully know and understand their needs and wishes.

Don't be one of them!

Judge Orders Payout to Married Millionaires Mistress

A Taiwanese business man has been ordered to hand over $800,000 in 'gifts' to his ex mistress.  Justice Lyons of the Supreme Court discerned that the items that the business man had purchased were intended to be loving gifts to his mistress.

Whilst the above Order was made in response to a Civil Claim being initiated, it is important to note that under the Family Law Act a party to a de facto relationship may apply to the Court for a property order, providing the Application is made within the necessary time frames.

The Court considers a multitude of factors when determining whether a relationship is a 'de facto relationship'. Some of these factors are the duration of the relationship, the nature of the relationship, the financial arrangements between the parties, the nature of the residence, including the ownership or use of the property and the reputation and public aspects of the relationship.

In the above case, the Taiwanese business man was spending large amounts of his time with his mistress in the South Bank unit he had purchased in her name whilst his wife was away. The court considered this in making their decision and further considered the public perception that the couple were in a committed and loving relationship.

Whilst the above case was heard in the Supreme Court it serves as a timely reminder that what the Family Law Act may not catch, a Civil Claim may.

 

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