GAY AND LESBIAN DE FACTO COUPLES AND PARENTING

  

Elton John and his partner David may not be considered the parents of their children in Australia.

Under the provisions of the Family Law Act parents are responsible for the care, welfare, and development of their children. The parents may be married or living in a de facto relationship. In both instances, the children of that relationship are recognized as the children of their parents. This extends to a lesbian couple living in a de facto relationship. The mother of a child in a lesbian de facto relationship is the parent of that child if the child was conceived by artificial insemination. The partner of the mother would also be considered a parent of the child under the provisions of the Family Law Act. The child is of course the child of the mother who gave birth to the child.

Gay and Lesbian De Facto Couples and Parenting

This does not extend to males in a gay de facto relationship even if one of the males donated sperm for the conception of the child. The biological mother and if in a relationship with her partner are deemed to be the child’s parents even if it is the intention of the biological mother and the gay male father that the child born will be living with the father of the child and his gay partner. It will be necessary for the gay male partners to legally adopt the child or apply to the Family Court for parenting orders of the child. The process of adopting a child is subject to the review of the relevant State department. Alternatively, an application may be made to the Family Court for the formal parenting of a child by a gay male couple. The normal considerations for parenting of that child will be made by the Court.

If a gay male couple raised a child without seeking formal parenting orders in relation to the child and if the relationship breaks down then either partner may apply to the Court for parenting orders on the basis he has been a significant person in that child’s life.

It may be prudent for lesbian and gay male couples to formalise the parenting of any child raised by them by seeking appropriate parenting orders in the Family Court.

Article Source: De Facto Couples

What do the Federal Government amendments to the Family Law Act mean for Superannuation?

   

Superannuation and Family Law

In 2002 there were amendments to the Family Law Act which allowed superannuation to be treated as property. The Court was empowered to make Orders splitting superannuation entitlements, transferring entitlements from one party to the other. Of course, the splitting of a person’s superannuation entitlement and a transfer of that entitlement does not mean that the person receiving the benefit of that entitlement could immediately draw down on the interest received. The normal provisions for drawing down on superannuation would. Under the legislation, if a splitting Order was made then one person would obtain an interest in the other person’s superannuation fund. A party could retain that interest in the fund or roll it out into a fund of their own choosing.

Prior to 2002 and the reason why this legislation was introduced into the Family Law Act was that in many cases married couples have had small property interests but large superannuation entitlements. At this time, the Family Law Act only applied to married couples. For instance, a person’s employment may have entitled that person to the benefit of a large superannuation fund such as airline pilots. As well parties to a marriage may have salaries sacrificed their income into their superannuation fund thereby creating a large superannuation interest. The remaining assets may have been meager. The Family Court prior to 2002 did not have the power to deal with superannuation which meant that one party would walk away with a large suppuration interest and the other party would only have a small interest in the remaining assets of the marriage. If a party was retiring in the near future then the Court had powers to prevent a party from dealing with their superannuation entitlements and when that party retired, the Court could then make Orders for monies to be drawn down from the superannuation fund and paid to the other party. This created difficulties in enforcing such Orders. For these reasons, the Family Law Act was amended to enable the splitting of married couple’s superannuation funds.

The legislation was further changed in 2009 which enabled de-facto couples and same-sex couples to have the same rights as a married couple under the Family Law Act. This allowed them to also have the benefit of the change in legislation enabling the splitting of their superannuation funds.

The Recent Federal Budget Made Changes

The recent federal budget made substantial amendments to superannuation which greatly affect separating parties. What is even more alarming, is that this legislation affects divorcing couples who suffer emotionally and financially when there is a breakup in their relationship. The legislation of the Government makes this far worse.

The Federal budget has made substantial difficulties with changes to its superannuation policies. Pursuant to such changes the maximum amount a person can put into a superannuation (non-concessional contributions – after-tax dollars) is $500,000.00 per member of a fund and pursuant to the legislation this is a lifetime limit that becomes effective from the budget night of 03 May 2016.

Prior to the changes being made a person’s limit was $540,000.00 every three (3) years (if that person was under 65 years of age) or $180,000.00 per year. Many people took advantage of the legislation as it then was to contribute $540,000.00 every three (3) years is the maximum allowed at that time. If such contributions were made then the entitlements of that person now exceed the newly introduced lifetime cap. If the total amount paid into super exceeded the $500,000.00 after the date of the budget then that person is now required to draw down the excess paid into superannuation cannot contribute any more non-concessional contributions to his/her fund. There would no penalty in drawing down the amount required. Once the limit of $500,000.00 has been paid into a superannuation fund, then no further non-concessional contributions can be made.

Further, the limit on the allowable before-tax concessional contributions is to be reduced from $30,000.00 to $25,000.00 per year from July 2017.

Because the Family Law legislation allows for the splitting of superannuation funds, many couples now separating may lose the ability to replace the entitlements in their fund if a splitting Order is made by the Court.

Because of the changes to the superannuation legislation, people in a relationship, after separation will find it harder to rebuild their superannuation if a splitting Order has been made on their fund.

Are there ways to protect yourself from the Superannuation Changes?

Alarm Bells are ringing – Nicole Pedersen in a cent article suggests 4 ways of minimizing the impact:

1. Split your pre-tax super contributions equally in marriage – the main goal may be to equalise balances so, as a family, pay in and amass as much as possible under the proposed stringent limits. Contribute as much as concessional – salary sacrifice – contributions as you can for a lower-earning spouse (from July 2017 it’s planned you’ll no longer have to do this through an employer).

2. Equalise your pre-tax contributions in marriage – if you and your spouse have unequal balances, you could also use the once-a-year opportunity to help even out balances by splitting concessional contributions paid into the higher balance account across to the other spouse’s super. Under the super splitting rules, you can move up to 85 percent of contributions into the other spouse’s account.

3. Split your post-tax contributions equally in marriage – this way, in the event of a subsequent relationship breakdown, neither spouse loses the right to make future non-concessional contributions. When making after-tax contributions progressively over time, share them between accounts. Also get freebies and tax benefits via after-tax spouse contributions (attracting up to a $540 tax rebate if, from July 2017, your spouse earns under $37,000) and a $1000 annual non-concessional contribution (to get the government’s co-contribution of up to $500 into the fund of someone earning under $50,454).

4. Split your super equally on divorce – possibly the only way to ensure both parties still have some capacity to rebuild their super if they have the money to do so. We’ll need to see the legislation to know if divorcees will be disadvantaged.

Article Source: the Family Law Act

Kanye Believe It Or Not? Kim Kardashian Can!

 

As reported recently in a ‘very reliable’ gossip magazine, Kim Kardashian and Kanye West’s marriage is on life support right now, but don’t expect a Court showdown if they do go their separate ways.

Radaronline.com has learned the couple has hammered out an agreement on how to potentially divide their assets – including the kids – in the event of a split.

The benefit of a Financial Agreement

One would assume that Kim Kardashian would hold onto her cash worth millions as well, although this is not stated in the article.

We can only assume that Kanye would hold onto enough cash to make his life happy but not to the extent of Kim.

Kim has primary custody of the children, North and Saint. Kanye no doubt has visiting rights and will spend time with them.

A dignified resolution.

No fighting in the Courts. The Agreement spells everything out and their financial settlement will be in accordance with the terms of the Agreement. Minimum hassle. In Australia parties also have the benefit of financial agreements. They can be entered into whilst in a de-facto relationship, before marriage, during the marriage, and after a divorce.

Again the Agreement can set everything out which means a dignified resolution if a separation should occur.

The Agreement has to be specific in its terms. You would not want the parties to squabble for the meaning of its terms. Detailed drafting is essential in clear and precise terms.

If the Agreement has flaws or does not comply with the provisions of the Family Law Act then it can be overturned at great expense. It is best to have the drafting done properly in the first instance to prevent a fight between the parties in the future.

They are not simple documents. Refer to an article on our website on Financial Agreements for further details.

Article Source: Kanye Believe It Or Not

Warning: Delays in Court Expected

  

Families and Children look set to suffer more in Queensland than anywhere else in Australia Court.

If you are contemplating going to either the Family Court of Australia or Federal Circuit Court of Australia to settle issues relating to the breakdown of your relationship including issues surrounding who your children spend time with, you could be in for a rude shock.

It now seems certain that timeframes for your matter to be heard will increase considerably due to the movement away from the Brisbane Registry of the Family Court and to the Appeal division of such Court.

Justice Graham Bell retired last year and it was announced in late 2015 that Justice Michael Kent was promoted to the Appeal division of the Family Court.  Judge Demack of the Federal Circuit Court in Brisbane has accepted a permanent posting in Rockhampton further depleting the stock of family law judges in Brisbane. This means that now there are only two judges sitting in the trial division of the Family Court in Brisbane to determine matters in the Court.  Subsequently, the already overwhelming demand on the Family Court in Brisbane will be stretched further, undoubtedly pushing back hearing and trial times which already can be set down for a time more than 12 months in the future.  Further to this, any judgments made by these judges post-trial may also be delayed as the judge’s workloads increase.  It is already not uncommon for a judgment to be handed down more than 12 months after the trial of a matter.

As a result of this, the Federal Circuit Court of Australia (which deals with the majority and less contentious of family law disputes in Australia) will be placed under more pressure to handle its caseload as the Family Court will not be able to assist in determining as many cases.  The Federal Circuit Court is already experiencing similar delays to that of the Family Court of Australia.

When you consider that this will leave Brisbane with 10 Judges in the Federal Circuit Court, two in the Family Court and two in the Appeals division of the Family Court (who only hear appeals to decisions and not cases at first instance), compared to 15 Federal Circuit Court Judges in Melbourne and 21 in Sydney (not to mention the further judicial members of the Family Courts and Appeals Courts in both other cities), it seems clear that the Brisbane families will experience long delays.

All of this could very easily mean that from the date you file your Initiating Application with the Court you may be waiting in excess of three years to have a result.

Consider what this will mean for family relationships.  A father or mother who may be fighting to see their young child may not see them for all of this time.  By the time the parent and child are reunited the child may have no understanding of who that person is and will have no bond with that person.  On the other hand, if the child is 12-14 once proceedings commence the child may well be nearing adulthood by the time a decision has been handed down, and thus the parent and child will have lost the final years of childhood with that parent.  Scary stuff indeed.

Consider also the dramatic increase in cost over this time of retaining legal representation over that time.  IT will cost significant time with family members, substantial cost and untold stress on Queensland families.  Suffer the little children indeed.

For a Delays in Court which holds the best interests of the children as their paramount consideration, it seems clear that something must be done to increase judicial staff in Brisbane and that is a cause we should all consider our role in supporting.

So how do we avoid these delays?  Read Family Lawyer Charles Noble’s next article on Alternatives to Court and how it can save you time, money, and stress.

Article Source: Family court Australia

2015 Family Law Review: What A Year It’s Been

  

What a year it’s been. Winding up the practice in South Brisbane and moving to the big smoke in March this year.

2015 Family Law Review: What A Year It’s Been and to have their assistance when dealing with the complex issues which can arise in the breakup of entities, partnerships and trust and determining the best ways of restructuring such entities after a family break up. The knowledge of the lawyers in the firm has been invaluable in dealing with the complex issues which arise from time to time.

The Family Law Section of the practice now has 2 Accredited Family Law Specialists and a very experienced family solicitor who practices exclusively in Family Law Review. We also have the benefit of a very experienced Family Law in house counsel. It has been invaluable to maintain the family law matters “in house” when dealing with a matter in the Family Court. The benefits and cost savings to our clients have been appreciated.

Our family lawyer Charles experienced many successful outcomes for his clients in the Family Court. Some of his achievements were the recovery of children from Victoria who were returned to the care of their mother. He helped an African mother keep her young children when the Department of Children’s Services intervened. Her African customs in raising children differed from the parenting we experience in Australia. The mother benefited from expert advice from Charles and the Court was satisfied the children would be well cared for in the mother’s care.

We achieved successful outcomes in negotiations and collaborative matters when both parties were happy with the settlement which they themselves achieved.

We provided many 20 minute free consultations to parties affected by recent breakups in their families. These consultations helped them to deal with the many issues which arise in such circumstances. We were only too happy to give our advice and assistance to them.

I have enjoyed the various networking events with my fellow collaborative practitioners. I have re-joined the committee of Queensland collaborative law which celebrated its ten year anniversary this year. It’s incredible how collaborative practice has grown over this short period of time. A very successful celebration was held at the office of Vincent’s Accountants in the city. To me, it is one of the most satisfying ways of negotiating family law matters. Generally, we have been able to maintain a genuine working relationship between the parties who will be involved in their children’s future for many years to come.
We have maintained our involvement with Brisbane South Bank (BSB) a viable business networking group for the South Bank precinct. We enjoyed their many networking events and in particular, the “showcases” held each year where we were able to network with the 50 business owners who participate. It is a fun event and provides a chance to get to know the business owners ranging from large corporations to small business owners which include, Qpac, the Art Gallery, GOMA and the Convention Centre.

I continued my Notarial work throughout the year and assisted many clients with the completion and authorisation of overseas commercial documents.

I appreciate the efforts and support given to me by the professional and administrative staff that work with me and we enjoy a very harmonious and enjoyable office relationship.

We are grateful for the support of my clients throughout the year. We look forward to providing positive and beneficial outcomes for our clients in the New Year.

We extend our best wishes for the festive season and wish everyone a prosperous and happy New Year.

Article Source: Family Law Review

RESERVE BANK OF AUSTRALIA (RBA) RATE STILL AT AN INCREDIBLE HELD AT 0.10%

  

The world knows all too well about how your interest rates can dramatically change from one month to the next and if you get yourself in a good position, you lock that RBA interest rate in for a few years to protect yourself from being knocked out by a rise in the RBA interest rate (RBA cash rate).

For 3 years the RBA rate remained at 1.50%, which for some was great as no rise in an otherwise ever-changing world meant that homeowners could keep their properties. For others, the cost of living was still too high to save a deposit for a house. Then in mid-2019, we saw a drop of 0.25% bringing the rate down to 1.25% which for anyone struggling to pay their mortgage meant this was a big stress relief or for some of us, helped to apply for a home loan to be more achievable.

The rate continued on this downward trend dropping by 0.25% again and again which brings us to today at an incredible low of 0.10%. On top of that, the Government is currently offering $15,000 to First Home Owners for contracts entered into from the 1st of July 2018.

What does this mean for you? It means anyone who has been looking to buy a property, can now get a home loan with an extremely low-interest rate making it more affordable for the average income earner.

But do your research. Check out the different offers from the banks and get one that suits your needs. We suggest you do your calculations before applying for a loan. Get advice on your contract before signing it.

Does your property lie in a flood zone? There are so many possible questions with buying a property that you may not know what are the correct questions to ask.

Contact Aylward Game Solicitors for a 20minute free consultation or for $440 for up to 90minute consultation before you sign a contract.

Article Source: RBA Interest Rate

FINANCIAL WINDFALL: A JOY OR TRAGEDY

   

Financial Windfall: A Joy or Tragedy

What to do if you win the lotto? How does the Family Court view it?

A windfall is either a sizable inheritance or a lotto win. In the eyes of the Family Court, an inheritance is treated differently to a lotto win.
The Family Court has great difficulty in distinguishing a lotto win by one party as a sole financial contribution by that party to the assets of the marriage and in most cases treats lotto wins as joint contributions. That is, that if during the period of a relationship be it a marriage or de facto relationship, one party receives a sizable lotto win and that win is then applied towards the improvements or acquisition of matrimonial assets, the Court would deem that both parties have equally contributed to both the acquisition and improvement to those assets.

In one case a wife and husband maintained sole financial estates. They owned property in their respective names solely and operated their own bank accounts. The wife in that relationship purchased a lotto ticket and won a substantial prize. She argued that the lotto win came from her finances which were totally separate from that of her husband.

The Court deemed that because the ticket was purchased during the course of the relationship that it was a joint contribution and they equally shared. The lotto win became a part of the assets pool and the normal principles for a division of the net matrimonial assets were applied on the basis that the lotto win was a joint contribution to that asset pool.

It may be different if the parties are living separate lives in that they have separated but there has not been a divorce in the marriage for example. In those cases, the Court may consider that as a lotto win was obtained outside the relationship that this win is deemed or could be deemed a sole contribution by the party who won the lotto prize.

The Family Court when considering the contributions by the parties to a relationship would take into account the respective value of the contributions made by the parties and that such contributions depend entirely on the facts of the case and the nature of a Final Order by the Court. The Court has a very wide discretionary power when considering such matters.

The contributions by the parties are assessed at the date of trial and not at the date of separation. If an agreement is reached between the parties prior to any litigation in the Court and prior to any trial then the value of the contributions would be the values on the date of any agreement entered into by the parties.

The Family Court when considering inheritances and the contributions attributed to such inheritances adopt in most cases a holistic approach to a division of the assets including any inheritance received.

The relevant decision in regard to this set out the principle, “however, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represents the equity in the particular circumstances of this particular relationship. The essential task is to assess the nature, form, and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.”

How does this affect Court decisions when considering inheritance and a division of the net matrimonial assets?

In regard to inheritances, a later receipt of that inheritance during the relationship is usually given more weight than if such inheritance was obtained earlier in the marriage or relationship and therefore deemed an earlier contribution to the net matrimonial assets pool.

In a number of decisions where the inheritance was received shortly prior to or after separation the entirety of that contribution was granted to the person who was in receipt of the inheritance and the inheritance was effectively quarantined from the net matrimonial asset pool. The Court considered in one case that it was preferable to treat the inheritance as a separate asset, “that is because the inheritance was received after the separation of the parties, and the wife made no contributions, direct or indirect financial or non – financial to, its acquisition, conservation or improvement. In those circumstances, however, viewed, it is considered, the significance of the inheritance alternately turns on its impact as a financial resource of the husband pursuant to s75(2) of the Family Law Act”. On appeal, the husband was successful in keeping his inheritance out of the net matrimonial pool.

The above examples are cases where the inheritance was received shortly prior to separation or after separation. The relevance of s75(2) of the Family Law Act is the Court’s consideration of the future financial position of the parties. The inheritance is considered in these circumstances as providing a case where the husband had a resource that could be invested and provide a safe and secure future for him. Because of this the wife did not have that benefit and was given a slightly higher interest in the net matrimonial assets apart from the inheritance.

The Hudson Institute

I’m a member of a financial advising group, The Hudson Institute. I came across a recent article in the newsletter written by one of their financial advisers, Michal Park which deals with “Windfall” it is an interesting article and for this reason, I make it available to download the article in its full context.

It is interesting to note in this article, “there are some legendary stories of lotto winners squandering their winnings and ending up in a worst financial state (a common statistic is more than 75% of a windfall are squandered).”

The article then goes on to provide some handy hints as to what a person should do if they do receive a windfall and provides some advice on the investment of the proceeds of that Financial Windfall.

I have dealt with many cases where parties have squandered their winning or their inheritance. Many are left in a worse financial position than the position they were in prior to the receipt of the windfall. The windfall has led to heartbreak and tragedy, the relationship has broken down and the parties are left fighting over the assets that remain. It is heartbreaking to deal with such cases when in fact the parties if they had wisely invested their winnings or inheritances, could have lived a very comfortable life for the remainder of their relationship.

I have also dealt with cases where the parties have wisely invested the winnings or inheritances but still could not maintain a relationship with each other.

Article Source: FINANCIAL WINDFALL