New Year - history repeating

The New Year seems as good a time as any to reflect on that which makes the law at the same time marvellous and wearisome: the appeal process, aka history repeating.

 

 

Back in March 2013 my first post on this blog was about the complicated history of 'pre-nups' in Australia - and featured a reference to the 'pole dancer case'. I said:

"In this case the husband met the wife at a Sydney club around the time he separated from his first wife in the late 90s and they married some time later in 2005. They entered into an Agreement before marrying which provided for the wife to receive $3.25 million if their marriage broke down in four years. It ended within two. The husband, who apparently has a net worth of around $16 million, claims that the wife acted fraudulently when she said she wanted to spend the rest of her life with him and have children with him. However, he’s also relying on an allegation that his solicitor did not give him the necessary independent legal advice. In 2011 the Family Court determined that the Agreement stood. The husband is currently appealing that decision."

That we live in a country with a clear, well-practiced appeal process is something to celebrate. That it is not just the Parliament that can make the laws of this land, but that we have a judiciary that creates case law which reviews, modifies or even overturns Parliaments legislation, is a cornerstone of our democracy. That it can take 1-2 years for an appeal to be heard has been acknowledged as trying. That, Parliament and the Courts can drastically redirect the laws of this land in widely different directions in turn can test all concerned in the legal community.

 

In late 2013 the Husband's appeal was determined by the Full Court of the Family Court, and he was not successfull.
 

You might have noticed, in amongst the celebration of the Ashes white-wash, a news article headed 'Husband in bid to stop $3.2 million pre-nup'. The SHM journalist, Louise Hall, reported that the Husband is now applying to the High Court, the final Court of Appeal, for special leave to appeal the decision of the Family Court.

 

The Husband's application for leave is based on the argument that the 2009 amendments to the Family Law Act ( - in 2009 the Federal government responded to a 2008 Court decision about so called 'pre-nup agreements' by relaxing the requirements in the Family Law Act slightly in an apparent attempt to ensure that people could still enter into such Agreements even if there were inadvertent or minor technical errors - ) are inconsistance and uncertain.

 

In the SMH article, Louise Hall quotes the Husband's junior counsel, Bill Washington who says: ''Sadly, in trying to solve the problem in the prenup section of the Family Law Act, the federal government has made an appalling mess of it".

 

The Husband's application for special leave is likely to be heard in the first half of 2014. We in the legal community, including the Federal Attorny General, will have to wait a little longer to see if there will be another about-turn in this area of family law.

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.