Disclosure

As I sat waiting for my matter to be called before the Judge this morning matter after matter involved solicitors standing up and asking the Court to make an Order that the other party provide full disclosure.

“Full disclosure” is a term family law solicitors and Judges use multiple times per day. It is a concept that is enshrined in legislation and is a basis tenant of property division matters in Australia.

But exactly what does it encompass and why is it important?

Chapter 13 of the Family Law Rules and Part 14 of the Federal Circuit Rules set out obligations that both parties are under to be open and honest about their respective assets, debts and financial circumstances.

This includes providing information and disclosure about the following:

•  the value you say is attributable to items owned or interests in any assets
•  the amount owing on any mortgages, loans or credit cards
• the value of your superannuation interests
• monies received, or earned, during the relationship and/or since separation
• if you have already received an inheritance, or if you are about to receive an inheritance,
•  if you have or will obtain a work payout or an insurance or compensation claim
• if you receive employee share benefits
• items (including cash) you have given away (at market price, at a lower price or for free),
• if you expect to commence/leave/change jobs and earn a significantly different amount.

That is not an exhaustive list.

So why is disclosure important?

The other side, and the Court, needs to know all the facts – the full picture – in order to make an informed decision (or in the case of the Court, a judgment) about how to divide the assets, what the true effect of the division is, and what each party will walk away with.

While the process of providing full disclosure may feel invasive, if a party does not make full disclosure, or even deliberately hides them from the other side, the impact on the end result can be significant. In coming to a decision a Judge can make adverse findings against the person not making full disclosure – that is, a finding that they are not to believed about anything. And the Judge, if persuaded that the non-disclosure was deliberate, can in fact increase the share of property to the other party to reflect the impact and, usually costs, of the intentionally poor behavior of the non-disclosing party.

But it’s not just during a matter that lack of disclosure can be significant. If a decision has already been made, or an agreement reached, a Court can re-open the proceedings on the application of the party who has since learned that there has been a lack of disclosure, set aside the existing Orders and make new Orders. Additionally, a costs order can be made against the non-disclosing party.

In addition to the above, I always say to clients two things:

• In today’s digital world, there is almost nothing which cannot be found out – if necessary by subpoena - so you are better to be upfront. You are better to be honest than caught revealing something for the first time in the witness box, or even worse, when a review application is brought; and
• Disclosing new assets does not automatically mean your ex will share in those assets. The division will still depend on all the other contributions and future needs/resources being considered.

Privacy and family law

Standing outside Court recently I noticed someone taking a photograph of a small group of people. Nothing too unusual there. But, what was being photographed was a person having discussions with someone who appeared to be their solicitor and another person who appeared to be their barrister. The only person posing was the ‘client’. The photograph included the face of the client, and the profiles of the solicitor and barrister and, in the background, the Court building.

Now, I have no idea what use this photo was going to be put to.

 
But it did turn my mind to the issue of privacy in the family law system.

We are all entitled to our views and opinions. But, when you publish them for a wider audience, say on the internet, you are allowing other people to read your words or see your images.

For most of the time in family law that means that Facebook comments, text messages, emails, Tweets, and blog posts are printed and then attached to affidavits which are filed in Court and can be then form part of the proceedings. These words and images can then impact directly on the outcome of the proceedings. Such an impact can be far beyond what was intended.

But published words and images can go even further than that – the person publishing them can be found guilty of committing an offence under section 121 of the Family Law Act which can be punishable by imprisonment.

I’m not suggesting that the photograph I saw being taken would fall in that category but over the years the Courts have made use of section 121 of the Family Law Act to protect the privacy of people involved in family law proceedings.

For example, in a 2013 judgment, reported as Lackey & Mae [2013] FMCAfam 284, the Father and members of his family, posted comments on Facebook about his family law proceedings.

The solicitor for the Mother sent a letter to the Father requesting that such behavior stop and this letter contained a warning regarding the risk of penalty for breaching section 121 of the Family Law Act. Despite this warning, the Father continued to post comments on Facebook.

The Judge noted that the Father’s behavior not only put him at risk of conviction under section 121 (with potential for imprisonment) but also more generally contempt of Court (also with potential for imprisonment).

The Judge made Orders that the Father and members of his family were restrained from publishing or otherwise distributing any material relating to the proceedings, the children, the Mother or members of her family, including publication on Facebook or other social media site and to remove all reference to the proceedings from Facebook. The Judge also Ordered that the Court Marshal and the Australian Federal Police be given the judgment and that the Marshal monitor social media for postings made by the Father or his family for the next two years. Should breaches be found the Marshal was ordered to investigate and prosecute if appropriate.

While the photograph I saw being taken was perhaps a far cry from the behavior in the Lackey & Mae case it served as a reminder to me of the vital privacy rules that exist in relation to family law proceedings and the results that can flow from breaches of those rules.

Something a little bit different

I recently read an article, in the Huffington Post, about an idea from the other side of the world. Norway to be exact. And no, that's not the "little bit different" referenced above.

 

It's the idea itself. Apparently, Norway's Minister for Children, Equality and Social Inclusion is trying to do something about Norway's 40% divorce rate: by encouraging couples to go on a 'date night'.

 

Solveig Horne told the Norwegian newspaper, the Aftenbladet, that she's encouraging couples to go on dates in order to rekindle their romance. Ms Horne explained "I saw the movie Date Night where an American couple try to go out to keep their relationship alive. In the film, everything goes wrong - but I thought it was a good idea."

 

If the science that says new experiences flood the human brain with dopamine (similiar to the sensations felt when first falling in love) the Norwegians could be on to something.

Christmas time?

In case you haven’t been to the supermarket lately, Christmas is coming.

For many it is a time of good will and cheer and the worst thing to be said for it is a grumble about the rush to buy last minute presents or the hustle of too many parties.

But for separating or separated parents it can be extra tough; not spending time with your children over Christmas can ruin the whole thing.

Ideally, you will have already reached an agreement with your ex to split the holidays (most often considered to be Christmas Eve, Christmas Day and Boxing Day) or you may actually be spending some of the time altogether.

But sometimes reality doesn’t match the ideal – and there is no agreement. What happens then?

Well, that all depends on you.

Now, your first instinct might be to respond with “no that all depends on him/her.” And, you might be right, in that your ex is being unreasonable. But, as a parent I’m sure you’ve seen that how you respond to an unreasonable toddler influences how they respond to you. We adults, at times of peak stress and anxiety, are not too different from toddlers.

My first recommendation is to take a deep breath and think about what it is about Christmas that is important to you. My second tip: get creative. And my final recommendation is compromise, compromise, compromise.

Some examples:

·       Watching your kids open presents first thing in the morning: chances are it’s important to your ex as well. Maybe you can alternate so that one year they waken at your home and then next with your ex.

·        The big family meal, sharing food and stories: maybe your family celebrate at lunch, while your ex’s have theirs at dinner or even on Boxing Day. A compromise can usually be found. And if you are both fighting for Christmas Day lunch well maybe alternate it.

·        The trip away to see family and friends: my first question to clients who raise this one is to ask what did you do during your relationship – did you go away every year? If you didn’t then maybe alternating is the way to continue. And if you did? Well many new traditions are created after separation and maybe alternating, perhaps with family coming to you every second year, is just one such new tradition.

As parents you are all good at putting your kids first and celebrating Christmas after separation is no different – my top tip is to remember that your children come first. Not getting more time with them than your ex. Or getting Christmas morning/lunch/the-whole-three-days. Or just keeping the fight going.

The kids won’t care if Christmas is different than before. They probably won’t really notice that it’s different. If Christmas is special for them and their extended family (both extended families) that’s all that matters for them.

 

So take that deep breath (or maybe two, because you probably need to take one just to brave the shops at this time of year) and remember that Christmas is a time to celebrate together with family - no matter what that looks like.  

How to: Reduce the cost of separation

In addition to the emotional strain of separation or divorce the financial cost can also be high. I’ve talked before about the impact of dividing assets between two people on longer term fiscal goals but today I want to look at how you can lessen the cost of the separation itself.

1. Choose your lawyer carefully

While your first inclination may be to go out and hire a “big gun” to make sure you take your ex for every dollar, that's probably not the best way to go. The reasons for this are many but basically they can be summarised as: the family law system is not based on this adversarial approach and as such you may be throwing good money after a result that just cannot eventuate.

Instead, let your emotions cool and do your research to find the best solicitor for you: view firm websites, speak to family and friends for referrals, or contact your State or local Law Society. It is usually far more important to try and get the right personality than the hired gun.

2. Be honest with your lawyer

This may not seem to be a money saving measure, but in Australia there are rules making the disclosure of all relevant information between you and your ex mandatory which means that your lawyer is going to need the information at some stage anyway so being honest upfront is far more cost effective as it will save having to have multiple meetings with your lawyer.

Also, non disclosure of relevant information is one reason why a legal property division can be overturned in the future – so if you are honest you could be saving yourself a lot of legal fees in the long run.

3. Get some advice on the practicalities

Ask your lawyer about what practical measures you should be taking to protect yourself from other expenses – such as, whether it is recommended to close joint bank accounts or transfer utilities between you and your ex in accordance with who is using them. Getting the right advice on this step can save you lots of time and money in the future.

4. Try to negotiate an agreement

Once you have had initial legal advice regarding your rights and responsibilities try and schedule some sit-down time with your ex to see if the two of you can come to a basic agreement that can then be turned into a legal document by your lawyer.

Obviously this isn’t always possible – due to family violence issues or your ex refusing to participate – but if you are able to reach an agreement with your ex your legal fees are going to be much lower.

5. Keep communication to a minimum

Be efficient in how you interact with your lawyer: make sure you comprehend our advice and if not ask us again, jot down your questions and ask them in the one phone call or meeting, make a summary of documents that need to be gathered together or things that need to be done.

Changes

You might have noticed my absence over the past month.

I have recently changed firms.

I am now at Mullane & Lindsay Solicitors.

Now that I've settled in here new posts will be coming shortly.

How to: help a friend during separation

As the separation and divorce rates continue to increase most of us will have a friend, or more likely many friends, who will experience this all too painful process at some point.

With the complexities of modern life – with everything from step-families to intricate family trusts being involved in many families – the days of armchair advice may be over; family law is such a multifaceted jurisdiction that obtaining expert legal advice is a necessity.

But what hasn’t changed is a persons need to have a friend to talk to. However, as a friend, knowing the right or wrong thing to say can be overwhelming especially considering the emotional sensitivity of the issues.

While each separation will be different – and each person too – here are a few tips for helping a friend through this stage and still keeping the friendship intact:

• Do your best to remain objective. Of course you are there for them but when you think their focus is on the wrong thing tell them so that they can begin to move on.
• Be calm and rational - point out to them when they are making decisions based only on emotion and encourage them to see that more time and research might be wise.
• Do not overly bad mouth the ex. You can listen and support without increasing the drama.
• Encourage them to get counselling, regardless of whether they feel it is needed. Everyone can use the help of a truly objective set of ears that has no motive other than to help them move on.
• Encourage them to look good on the outside, exercise, buy something new, get a new haircut, etc. This is not shallow - separation can destroy self-confidence and sometimes it takes help to rebuild it.
• Set boundaries around when to discuss their separation and when it is time to just have fun – separation can be all consuming and a break can be one of the best things.
• Remind them that this does not define their life -- it is an event in their life. And how they move through it is a reflection of who they will be.
• Help them reflect on their language to ensure they are using positive language about the future.
• Lastly -- just be there for them with open arms, love and honesty.

Times change, naturally so too does divorce

Over the years family law (to use the broader term for ‘divorce’) has altered quite dramatically – with the single most significant reform being the introduction of the Family Law Act in 1975.

The introduction of ‘no-fault divorce’ and later the recognition of superannuation as a financial asset in property division and more recently the extension of property division legislation to de facto couples (to name but three) are not only substantial legal developments but represent, either as a portent of change or maybe even a generator of change, the immense societal change that has occurred over the past 40 years, including:

 

• The rate of marriage has decreased

Sometimes there will be a headline claiming that the rate of divorce is down. And in some individual years it is, compared to the previous year. But, in an historical context, of more significance is the fact that the rate of marriage is down.

 

Nowadays, many couples choose to live together in de-facto relationships before marriage, and increasingly, instead of marrying at all. And they do so without the social repercussions that would have occurred in the past – employers don’t discriminate on the basis of living arrangements, banks lend de facto couples money for a home, and schools enrol children whose parents are not married. Think about how our grandparents or great-grandparents would have talked - such a choice would have been scandalous one or two generations ago.

Whatever the greater societal reasoning, since 2009 (in many states, 2010 in the others) the Family Law Act has applied to both married couples and de facto couples who separate and wish to divide their property and it has applied to the parenting arrangements for children of de facto couples for significantly longer – meaning that the law, now the same for married or de facto couples, better reflects society.

• More often it is the female partner that initiates property division or seeks parenting arrangements

There are any number of reasons why a couple may separate – for which either person in the relationship may be responsible – but increasingly women are initiating the legal separation.

And it is often said that this is attributable to two things: societal acceptance of separation and financial independence. From an historical perspective many women felt they had to be married to achieve financial stability, however, today women are more likely to be educated and in paid employment – they are in a position to see marriage (or a long-term relationship) as a choice, and not a necessity. Not only are they more financially independent but as the social stigma of divorce has dissipated they can also rely on both family and friends for emotional and practical support.

I also believe another reason may be that cases decided by the family law Courts over the years have encouraged a faith that contributions made throughout the relationship will be properly recognised in any property division, including:

• the recognition of superannuation as an asset available for division  - a significant development, as in the past some couples had no other assets available for division and the husband (historically the gender with the greater superannuation interest) would retain the entire superannuation despite the contribution made by the wife who had raised the children and kept the home thus allowing the husband to work and accumulate the superannuation; and
• the recognition of the Court’s powers to obtain assets held by companies and trusts  - another significant development, as there have been numerous instances of assets being placed in the ownership of separate legal entities although often practically speaking that entity is one of the parties, meaning that without the extension of the Court’s powers the asset may not be available for division.

• That “grey divorce” is increasing

Something is a trend when it gets its own name – and separation later in life is definitely on the increase. A steady rise in life expectancy, the budding number of women who are financially independent and the increasing social acceptance of separation are all said to be behind this trend.

Three questions kids ask about separation and divorce

From what my clients have told me over the years, children tend to ask the same kinds of tough, wrenching questions about separation and divorce – sure, the words they use and their attitude will depend very much on the individual child and their circumstances (such as gender and age) but at essence it boils down to just three questions.

The good news is that, according to the counselors I speak to, parents don't have to have all the answers. Instead it’s about looking beyond the question and getting at what kids are really asking for – affirmation, comfort, and reassurance. Because, at the end of it all they want to be assured that you love them no matter what, it’s about being ready to listen and respond in a way that will help your kids get through this time.

Here are some tips on the three most common questions:

1. Why? From "why did you stop loving each other" to "why are you doing this," kids often ask about the big-picture reason behind your decision to separate. The counselors say that the reason behind this question is a fear that if Mum and Dad can stop loving each other, they might stop loving their kids, too. So you need to assure your child that love between parents is very different from a parent's love for their child. Your love for them is permanent and will never change. The answer to this question is not the details of why you're separating but instead, reassure your child that you are still a family, just a different kind of family.

2. Is this my fault? Young children, especially, are self-centered. This is not their fault – its biology. So they can't help wondering if they are somehow at fault for your split. Again, the most important thing here is to assure your child that your love for them is unconditional. They need to know their parents' complicated relationship has nothing to do with them -- they are not the cause of the divorce. They will always be loved and that will never change.

3. Where will I live? Make sure you have agreed on a plan - even a temporary one - before you break the news to the kids. Tell them where they will be, when, and for how long. In some circumstances it might be a good idea to tell them that they can express their feelings about these arrangements to you any time they need to. And always speak respectfully about your ex, their home and their extended family in your answers – while it can be tough to do, this is about giving the kids some reassurance not about how you might feel.

*The above does not necessarily apply to teenagers but it can – the questions and attitude is likely to be different but the need for reassurance is probably still at the root of it all.

Relocation: other side of town or the other side of the world

One parent moving with the children to another town, state or country after the breakdown of a marriage or relationship is known as ‘relocation’.

Whether it is something that you are thinking about at the time you separate – perhaps for financial reasons or emotional ones (such as a support network) – or months or years after separation relocation can be a difficult issue to resolve.

If your children primarily live with you and you need to relocate you should first try to talk to the other party. You may be able to reach agreement that the move is in the children’s best interest – perhaps the children have longer periods of time in school holidays with their other parent and/or longer visits during the year. Or the other parent may be able to move to where you are hoping to relocate.

If you reach agreement with the other party it is best to enter into a written parenting plan* or apply for consent orders* before you move.

If you cannot reach agreement with the other parent, you can apply to the Court for a relocation order to allow you to move. It is important to remember that a relocation order is not automatic and that the Court may not grant permission for the children to relocate. As with all matters about the care and welfare of children, the Court must consider the best interests of the child.

If you move without a Court Order or without the consent of the other parent, the other parent may apply for a Court oOder requiring you and/or the children to return until the Court has considered the parenting arrangements. If there is a Court Order already in place allowing the other parent to spend time with the children and you relocate anyway, you will be breaking the existing Order and the other parent can apply to enforce the current Order requiring the return of the children.

Further, if there is a possibility or threat that the children may be removed from Australia, the other parent can apply to the Court for an Order restraining the removal of the children from Australia.

 

* Note: a Parenting Plan is a non-enforceable written agreement that sets out parenting arrangements for the children as agreed to by both parents without the need to apply to the Court. A Consent Order is a legally binding written agreement between you both that is approved by the Court. If you already have Consent Orders in place you can vary them with a Parenting Plan, the terms of which are then binding.

Till death us do part?

According to research by the Australian Institute of Family Studies there has been a sharp increase in the number of couples separating after 20+ years together:

• The number of divorces after 20 years of marriage rose from 13% in 1990 to 28% in 2011
• The median age for divorce had increased from 38 years for men and 34 for women in 1971 to 45 years for men and 42 years for women in 2011.

The director of the Australian Institute of Family Studies, Alan Hayes, believes that there are a number of reasons for this change:

 

1. Women, who are more likely to initiate divorce, have an increasing economic independence – and hence a greater capacity to make a choice to leave an unsatisfying relationship;
2. Increased longevity: people are aware of the length of time a relationship can go on for and are evaluating whether they want to spend another 30-40 years tolerating their spouse; and
3. Those with children under 18 years of age seem to be less likely to divorce but once children are leaving home people re-prioritise – something of an “empty nest” syndrome.

The author of the Institute’s report on their research, Ruth Weston, believed that another reason is that divorce no longer carries the stigma that it once did:

“We found a lot of change in attitudes towards divorce. Younger people are more prone to agree with the idea of divorce than older people but right across the board we’re not seeing strong disapproval for divorce.”

But while “death do us part” may no longer be the norm, there is some good news for romantics:

• The number of divorces for shorter marriages fell from 1990 to 2011;
• Around 50% of people in all age groups believe that marriage is not an out-dated institution; and
• The overall number of divorces is decreasing – 48,935 in 2011 down from 55,330 in 2001.

The impact of separation on superannuation

I recently read a report titled “Untying the Knot’ by Suncorp Superannuation which claimed that 86% of divorcees did not consider superannuation in their divorce settlement.

 

I was a little surprised that the figure was that high but not surprised by the sentiment. A lot of the people who come to see me don’t realise that superannuation is included in calculating the assets and liabilities to be divided between the parties and that even though the superannuation interest may have been accumulated by one party going to work the other party has contributed to that fund by being the home-maker or raising the children – activities that allowed the first person to have a family and home but also log long hours at work.

And superannuation can be a very important asset – statistically it is usually the second biggest asset other than the family home, and depending on the size of the mortgage and age of the parties it can sometimes be the biggest asset.

The statistics in the “Untying the Knot” report show how failing to appreciate the impact of separation and divorce on superannuation can have a drastic effect on your retirement age and superannuation savings.

Firstly, let’s look at what the report showed about the impact of divorce on retirement age.

According to the people surveyed the highest percentage of people not separated or divorced nominated 65-69 (29.4%) as their ideal realistic retirement age, while the majority of those who are divorced selected 75 or older (29.9%) – that’s a ten year difference in likely retirement age for those who are divorced or separated.

So, turning to the impact of divorce on superannuation savings, why is there such a difference in estimated retirement ages?

The report referenced figures relating to the average age of divorce to demonstrate the very different financial positions of male and female divorcees, and came up with this disquieting statistic:

The average age of a man at divorce is 45 and he has about $128,000 in superannuation

The average age of a woman at divorce is 42 and she has about $42,000 in superannuation

If that woman is one of the 86% of divorcees who do not consider superannuation in their property division (firstly, that it is an asset and secondly that she may have made an indirect contribution to the fund) than she is likely to be at a significant financial disadvantage come retirement age; if she had considered superannuation during her property settlement negotiations she is far more likely to be in a financial position to retire earlier rather than having to work into her 70s and beyond.

While the report did not focus on this perspective, to my mind there is another reason why those surveyed may have a different view on what their superannuation savings needs are post separation, and that is, that a payment to a spouse or former partner of part of your superannuation fund obviously reduces the amount of superannuation you have to retire with – hence the need to work later in life to rebuild that nest egg.

While these statistics may be true, and you may have no choice when it comes to going through separation or divorce, there are some options available to help you get back on track financially. Firstly, for my part it is about negotiating the property division that will best enable you to get on with your life, and secondly, I can refer you to expert financial planners who can help you with the next stage of your financial future.

Tax and family law

Despite all the lawyer jokes out there - and trust me I've heard them all ... “It was about as even a divorce settlement as you could hope for. Each lawyer got $50,000” – my experience is that nobody benefits from a long Court battle.

However, I can also tell you that an informal property division (for example, where one person keeps living in the house and the other person gets the investment property - without a legal agreement or Court Order) is one of the quickest and simplest ways to ensure that you may each end up paying a lot of money to the government.

You see, the law grants exemptions for stamp duty and rollover relief for capital gains tax on property transfers in circumstances of family law property division. This means that no stamp duty will be payable on the transfer of property between spouses (including de facto spouses) and any CGT applicable to investment property can be paid only when the party receiving the property disposes of it in the future - IF formal arrangements are made about that property division.

 

However, it is not necessary to go to Court for Orders regarding your property division because these savings are available to parties finalising their property division by Consent or Agreement. This means that you can have an amicable and cost effective resolution of your property division and save money on tax.

 

So what kind of savings are we talking about?  One of the most common examples is:

 

A couple transfer their home into the wife’s name and she pays stamp duty of $13,500.   Some years down the track they sell the investment property and they co-sign the contract for sale as they never transferred title of that property to the husband – in an attempt to avoid paying stamp duty. June 30 rolls around and they now each owe $10,000 in capital gains tax.

 

If the parties had entered into a formal agreement the wife could have saved $13,500 in stamp duty and $10,000 in CGT and the husband could have had CGT roll-over relief of $23,500 rather than having to pay $10,000 in CGT.

 

The rules, bring rules, are not always straight forward (and I always recommend that you get expert tax advice as well) but to avoid gifting all that money away contact us to discuss your property division - I might just be able to save you thousands.

Parenting after separation. Aka could you go on holidays with your ex?

There’s a lot of literature out there on the effect of divorce or relationship breakdown on kids. And a lot of that mentions that kids benefit from continuing to enjoy the knowledge that they still have two parents who love them very much.

But there is a big leap between knowing that “shared parenting” is best for your kids and actually living it. And that is easily illustrated in the concept of going on holiday with the kids and your ex.

Who else has seen those photos of Bruce Willis and Demi Moore – or some other famously divorced Hollywood couple – reuniting in some fabulous exotic location, with their new spouses, and all playing poolside with the kids? As a family law practitioner it always catches my attention. Initially I usually think how the kids must, despite their parents separation, be feeling that they are still part of one big family – influenced by all the conferences I attend where experts tell me that this is the case (although without the pop culture references). But then I tend to think about ‘how’; how do the Bruce’s and Demi’s of the world do it? How do you actually go on holiday with your ex?

At first you might be wondering if this is a common practice (amongst non-celebrities) – it is. The overwhelming majority of parents who separate reach agreement about their ongoing parenting arrangements and they then work hard at creating opportunities for the kids to see that the family unit can still operate as one. And a trip away together may provide priceless memories for the kids – and you – to look back on one day. But that doesn’t mean it is easy.

First there is the emotional toll to consider. While the moments caught on paparazzi camera’s make it appear that Hollywood couples are genuinely having a wonderful time on their blended family holidays back in the real world you need to decide – honestly – if you can handle it. If there’s too much bitterness or resentment before you leave, chances are it won’t get better no matter how lovely the holiday spot. If you decide that the benefit to the kids is worth it think about ways you can lessen the emotional toll – perhaps bring a friend along or research holiday activities you can do solo for some time out.

But it is often not family squabbles or too much togetherness that can cause problems – it’s money. Even if you agree that you will split all of the expenses for the kids beforehand it’s important to consider exactly what you mean by that. What if one you thinks that the kids should be able to do every (expensive) activity on offer at a resort or theme park while the other was planning a holiday of digging sand castles and playing Marco Polo in the pool? What if your ex offers to pay for everyone to head out to an expensive restaurant for dinner because it’s their idea – are you going to feel resentful? The last thing anyone wants is for the holiday to degenerate into the old days when the two of you disagreed on how much to spend and when. So before heading away together, sit down and put in place a plan to resolve disputes should they arise.

Because at the end of the holiday it should have been an opportunity for the kids to experience a special trip with both of their parents as a family.

Businesses, misconceptions and family law

The financial implications for the parties to a property division can be just as significant as the emotional ones. This is because we might be dealing with the sale of the family home or a significant decrease in weekly income. But the financial implications can be particularly so when there are ‘complications’ to a property division like an interest in a business.

There are a number of misconceptions out there about these issues which can make negotiating a resolution for property division even more difficult. 

Misconception #1 – does a business count?

Often people think of the family home, the car and the bank account. But ‘property’ in relation to family law also includes businesses. Businesses can be included as an asset for family law property division in a number ways but most commonly: 1) Where there are shares in a company; or 2) where there is a small business, most often a ‘family business’, including a sole trader, partnership or Pty Ltd, which has its own value (i.e. “goodwill”) or that owns realisable assets such as real property or motor vehicles or tools etc.  

Misconception #2 – what if a trust “owns” the business?

It does not necessarily matter who owns the business – or interest in the business. If a trust owns the business or your share in the business then the trust – or your interest in the trust – may form part of the asset pool.

Misconception #3 – “but I own it with other people”

Again, it does not necessarily matter who owns the business – or interest in the business – or trust. The whole of the business will not form part of the asset pool – just your share. But it may mean that the other owners will be involved to a small degree in your family law matter while the new legal ownership is sorted out.

Misconception #4 – “but I owned it before we met”

Depending on the circumstances this may mean that the business – or interest in the business – is not part of the asset pool – but that depends on a number of circumstances, including what has actually happened in terms of contributions to this and other assets during the relationship and indeed what other assets there are.

Misconception #5 – “but my ex had nothing to do with the business”

It is important to remember that it does not necessarily matter whether you have both been active in the running of the company – it may be an asset which forms part of the asset pool available for division – because in family law we look at the overall (financial and non-financial) contributions that have been made.

 

Now, none of these may be relevant in a matter - mainly because the other party agrees to exclude a business interest - but the presence of a business does mean that the division of assets may be more complicated.

How to: change an existing Order

I get quite a few enquires about changing existing parenting orders – perhaps the Orders that were made years ago didn’t envisage your children’s High School needs, or maybe you need to move away, or maybe the kids are just spending more time with friends or on extra-curricular activities or part-time jobs and the Orders no longer suit.

If both parents agree that changes are needed to the Orders and you both agree on those changes you have two options:

* You can enter into a Parenting Plan varying the existing Orders. You should obtain specific legal advice about the effect of a Parenting Plan in these circumstances; or

* You can both sign draft Consent Orders, which the Family Court can make into new Orders, without the need for either of you to appear in Court. Again, you should seek specific legal advice.

If you have been approached about changing existing Orders – or if you want to approach the other parent about changing existing Orders – you should consider if the change proposed is in the best interests of the kids – that consideration comes before any advantage to you or the other parent or any impact on you or the other parent.

If you wish to change existing Court Order but the other side doesn’t agree – or the other side wants a change and you don’t agree – it may be necessary to make an application to the Court.

However, in order to make an application to change existing Orders it will be necessary to show that there has been a significant change of circumstances that makes a change necessary.

What exactly constitutes a significant change of circumstances can be a vexed question. A change in circumstances can include the age of the child, the health of the child, or the financial circumstances of the household. But it needs to be a significant change in circumstances and not simply the passage of time or a change in the Family Law Act.