When parties separate, it can be important to make sure that assets are protected before a family law property settlement is formalised. One way that matrimonial assets can be protected is through the lodgment of a caveat.
What is a caveat?
A caveat is a note that is recorded on the title of a property that protects any interest that the maker of the caveat may have on the property. This notice can be used as a way to delay a property transaction. If your ex-partner is the registered owner, a caveat can prevent them from adversely dealing with the property such as by selling, transferring, mortgaging or encumbering it until the court has determined whether there is an interest in the property. A person who lodges a caveat is known as the ‘caveator’.
When should a caveat be lodged?
A caveat may be lodged if a party has a caveatable interest in the property. This may occur if both parties to a relationship have an interest in the property but there is only one party’s name on the title of the property. This may have occurred, for example, if both parties contributed to paying the mortgage or have contributed to the property through other financial or non-financial means throughout the relationship. If the person making these contributions does not have their name registered on the title of the property, then it is likely that they will not gain any benefit from that property, if it were to be sold by the proprietor.
How is a caveat lodged?
A caveat is lodged by way of a caveat form, which can be completed for electronic lodgment by a solicitor or conveyancer or in hard copy, with NSW Land Registry Services. Basic requirements of the caveat include the name and address of the person lodging the caveat, the name and address of the person who owns the property and the interest claimed by the person lodging the caveat. It is important to complete the caveat correctly the first time it is lodged as you cannot lodge another caveat on the same grounds unless you get leave from the court.
What happens after a caveat has been lodged?
Once a caveat is lodged, NSW Land Registry Services will then examine the documentation and if property protocol is followed, they will record the caveat against the title of the property. They will then serve notice to both the caveator and the registered proprietor of the property. Subsequently, the registered proprietor will be entitled to serve a lapsing notice on the caveator, requiring them to commence court proceedings immediately in order to establish their interest to that property. Failing to attend to this within fourteen (14) days will result in the caveat lapsing.
How do you remove a caveat?
In order to remove a caveat legal steps must be followed. A caveat can be removed by bringing an application to the Registrar of Titles, this application must have a supporting certificate signed by a legal practitioner and must be done in writing. This application must also include a statement confirming that the caveator does not own the property and has no claim to it. If proceedings are not commenced by the caveator then the caveat will lapse after three months as a result of the application lodged with the Registrar. If the caveat has lapsed the owner of the property can then lodge a form to remove the caveat.
Get Legal Advice
When drafting a caveat, it is important all proper protocols are followed to ensure that the caveat is permitted by the relevant authority.
Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter and take the stress out of your divorce or other family law matters. If you need any assistance please don’t hesitate to get in contact via this form or call us on 02 9963 9800.
Social media has become a valuable tool for families going through the process of separation or divorce as it allows for easy and instant communication. Whether it’s organising parental arrangements between the separating parties or allowing parents and kids to stay connected and exchange pictures and messages, social media is undoubtedly a means of better communication and a faster way of connecting than ever before. However, it is important to remember that social media must be used responsibly, particularly when parties are involved in family law proceedings, as social media posts may end up being used in evidence during family law proceedings to the detriment of the author. In this blog, we will review the current position on social media, how it may be applied as evidence in family law, and the repercussions that may flow from negative or derogatory posts.
What Does The Law Say?
The Family Law Act states that it is a punishable offence to publish or broadcast any account of family law proceedings which identifies any parties, children or witnesses involved in the proceedings. This is an important provision as it aims to protect the privacy of families going through the often stressful process of family law proceedings. This extends to all forms of publishing, including posting on social media or the internet generally. The court also has the power to order you to refrain from posting or removing existing posts.
Moreover, challenges on a party’s credibility are fairly common in family law cases, for example, in the case of the suitability of a parent to retain custody of a child, and the use of social media posts or photos are an easy tool to demonstrate this. One judge described the usage of social media for the purpose of damaging another party’s case as “an unfortunate and increasing feature of modern litigation”.
What Material Can Be Used?
Photos from Facebook or Instagram posts and profiles, private messages or pictures can be used as evidence and are gradually being relied upon in family law proceedings. Some examples of different forms of social media include:
- Text messages or direct messages on apps such as WhatsApp, Facebook Messenger, emails or Instagram messenger;
- Photographs of parents not acting in a safe and responsible manner;
- Facebook, Twitter or Instagram posts relating to the location of a child which was not agreed upon by the parties;
- Derogatory or hurtful social media posts; and
- Social media posts at expensive venues when one party claims to be financially struggling.
A Recent Example
In a recent decision, the father sought the child to be returned to New Zealand from Australia. The mother objected to the relocation and asserted that the relocation to Australia was through an alleged agreement between the parents. The father presented evidence of the mother’s Facebook posts that were contrary to her previous assertion, as well as comments which ascertained the purported Australian travel to be classified as a ‘holiday’. In this case, the Court ultimately ordered that the child should be returned to New Zealand.
Get Legal Advice
Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter and take the stress out of the divorce or other family law process. If you need any assistance please don’t hesitate to get in contact with one of our lawyers via email at firstname.lastname@example.org or call us on 02 9963 9800 for a no-obligation discussion.
Family law proceedings involving children can be challenging and daunting. The main concern of the court during these proceedings is to ensure that the child’s best interests are met. However, this may be challenging in certain situations, especially when there are issues of violence or conflict between parents. In these situations, it is common for an Independent Children’s Lawyer (ICL) to be appointed in a family law court case.
What is an Independent Children’s Lawyer (ICL)?
In the Family Court of Australia or Federal Circuit Court of Australia, an ICL can be appointed to represent the child and in doing so, they are engaged to act in the best interests of the child during family law proceedings. An ICL can be appointed by application by one of the parties. Alternatively, they can be appointed by the court in one of the following circumstances:
- There are allegations of abuse or neglect of the children.
- A high level of conflict exists between the parties.
- Allegations have been made as to the children’s views and the children are of a mature enough age to express their views.
- Allegations of family violence have been made.
- One or both of the parties or the children have serious mental health issues.
- The matter has difficult and complex issues which warrant the appointment of an ICL.
What is the Role of an ICL?
An ICL has numerous roles and duties which include:
- To represent and promote the child’s best interests during family law proceedings
- To be impartial and provide an independent opinion about which decisions or arrangements will be in the child’s best interests
- To ensure that the child’s views on any matters relating to the proceedings are fully put before the court, while also minimising any trauma the child may experience during the proceedings.
- To arrange for any evidence, including evidence from relevant experts, to be put before the court
- To facilitate the participation and involvement of the children in the proceedings. This depends on the age and maturity of the children and the nature of the proceedings.
- To facilitate in settlement negotiations where appropriate.
Determining the Best Interests of the Child
To determine what is in the best interests of the children, an ICL may:
- Meet with the children unless they are under school age or there are exceptional circumstances why they should not.
- Speak to the children’s counsellors, school teachers and principals.
- Examine documents from organisations such as schools, Department of Family and Community Services, the police and the medical, psychiatric and psychological records of the children and their parents. These documents are obtained by way of subpoenas issued by the ICL during the proceedings.
- Question witnesses including parents and experts at any hearings.
- Arrange for a family report to be prepared by a court-appointed family consultant. A family report provides an independent assessment of the issues in the case. Therefore it can assist the Judge to make decisions about arrangements for the children. It may also help the parties reach an agreement.
If you would like to discuss your family law matter with one of our family lawyers, please contact us on 9963 9800 or message us here.
The breakdown of a relationship or marriage can be emotionally daunting, especially when children are involved. It is not uncommon for parents to be confused when the issue comes down to child support. According to the Child Support (Assessment) Act 1989 (Cth), parents have the duty to maintain their children in the form of child support payments.
What is Child Support?
Child support is a term used to describe the payment of money from one parent to the other for the purpose of helping the parent raise their children who are under 18 years of age. Child support is designed to help cover the expenses involved with raising children, such as food, clothing, medical costs, housing, school costs and costs related to other activities. All children in Australia involved in family separations, whether or not the parents were married to each other, are eligible for child support payments.
How is Child Support Calculated?
The Department of Human Services is an Australian Government Agency whom are delegated authority to decide on child support matters. They are required to consider the factors above before following the steps to calculate the amount of child support payable. In calculating how much child support is to be paid, there are various factors which are generally taken into account:
- The age of the child
- The income of both parents
- The amount of time that the child spends with each parent
- The level of care that each parent provides
- Costs of raising the child based on independent research
You can use the Department of Human Services’ calculator to estimate child support payments here.
What If the Calculation is Unfair?
There may be circumstances where you may find that the calculation is unfair to you. This can occur in situations where one parent has arranged to minimise their taxable income, lost their job since an assessment was made, or a child has special needs.
In these circumstances, you may apply to the Child Support Agency to change the assessment. The Department of Human Services will consider the unique circumstances before amending any calculations.
What If the Other Parent Doesn’t Pay?
The Child Support Agency has the power to recover unpaid child support. They can do this through:
- Income support payment deductions
- Enforcing tax return lodgement or intercepting tax refunds
- Working with third parties
- Employer or bank account deductions
- Issuing overseas travel bans
Can I Organise Child Support Myself?
It is possible for parents to organise and manage child support themselves. This can happen when parents reach an agreement and mutually decide upon the amount of child support they will pay to the other parent. This can involve making cash payments to that parent or meeting payments of expected expenses directly. This arrangement can be entered into by way of a binding child support agreement, which is subsequently lodged with the Department of Human Services.
If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
Family Law matters can be an emotionally daunting and a challenging experience for all parties involved. For this reason, it is extremely important that you choose a family law solicitor who will be able to provide you with valuable legal advice and assistance during this difficult time.
Here are 3 key tips which will better assist your decision making in choosing the right family law solicitor for your case.
1. Qualifications and Experience
When choosing a family law solicitor, you should always consider whether they have the relevant legal qualifications, experience and skills to handle your matter.
However, you should be mindful that a more experienced solicitor does not necessarily mean that they will be better suited to handle your matter, in the same way that a less experienced solicitor does not necessary mean they will be less suited for your matter. A solicitor who has been practising for a few years may be better suited to handle your matter if it involves less complicated legal issues, and as they will charge a lower rate than more experienced solicitors, you will save yourself money in the long run. On the other hand, a more experienced solicitor may be necessary for matters that are more complex.
2. Communication and Personal compatibility
When choosing a family law solicitor, you should consider whether you feel that you can effectively communicate with your solicitor. Whist it sounds quite basic and obvious, ensuring that a solicitor understands your story and instructions is of the utmost importance in any legal matter, especially in family law, where situations may be emotionally daunting and challenging. You should always feel comfortable enough to speak openly with your solicitor, without feeling judged or like you are a hassle to them. Some solicitors may also prefer face-to-face, telephone or email communication, so you would need to determine which method of communication works best for you.
When choosing a family law solicitor, you should consider their cost. While this relates to the level of experience of your solicitor, as discussed above, this is an important consideration within itself. Solicitors will charge based on their hourly rate. Whilst there may be unforeseen circumstances in your case resulting in unexpected work to be done, your solicitor should still be able to provide you with a rough estimate as to what you can expect to spend throughout the various stages of your matter.
However, you should be mindful that basing your choice on cost is not an effective way to find the most suitable family law solicitor for you. A solicitor which charges a higher hourly rate may be more efficient, taking less time and therefore less money in the long run. On the other hand, a less expensive solicitor may have a lower hourly rate because they are not as high in demand, but this may not necessarily reflect their level of experience, professionalism or dedication.
At Etheringtons, we try to ensure that our clients have an idea of costs throughout their matter, and we find that if there are no surprises when it comes to our bill, both our clients and us walk away happier at the end of a matter.
The list above provides you with a starting point in your search for the best family law solicitor for you. You should speak with a potential solicitor over the phone and meet with them face to face, if you can, before determining whether they should handle your matter. If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact page.
It has become extremely common for couples to enter into prenuptial agreements which is formally known as a ‘binding financial agreement’. The idea of talking about the end of your marriage before it has even begun can be rather daunting and intimidating. While no one ever plans for divorce, it can happen.
What is a Prenuptial Agreement?
A prenuptial agreement is a legal agreement made between the parties in a relationship which outlines how their property and assets will be dealt with in the event of their relationship ending in separation or divorce.
Prenuptial agreements can be signed by couples before they get married. If one spouse has significantly more assets than the other, or their parents have businesses or inheritance that they wish to retain if the marriage ends, a prenuptial agreement can ensure that all of these assets are protected. It is also possible to enter into a prenuptial agreement after a couple is married. For example, if during their marriage, one of the spouses’ parents win the lottery, the parents may wish for the inheritance money to be passed down to their child only.
In June 2000, prenuptial agreements were officially sanctioned by legislation in Australia to enable couples to think about and plan their future rights and responsibilities through a binding financial agreement. The ability to sign a prenuptial agreement extends beyond marriage and is also open to de facto and same-sex couples.
What Do Prenuptial Agreements Cover?
Unfortunately prenuptial agreements are not romantic. They are a practical way of ensuring both partners are protected in the event the relationship does not work out. The terms of a prenuptial agreement can cover a wide variety of matters including:
- What assets are considered marital assets and what are non-marital assets. For example, the matrimonial home where the couple resides may be considered marital, but any assets bought by either partner prior to the marriage may be considered non marital.
- What assets will be divided and in what proportion in the event of a divorce.
- What will happen in the event of the death of one partner. In most states, your spouse will inherit a portion of your estate. If you do not wish for this to happen, this can be covered in the terms of your prenuptial agreement.
- Anticipated changes in the future such as children. A prenuptial agreement can cover whether the terms will change if children are involved, whether they are to inherit all of the assets, etc.
- A predetermined amount of spousal maintenance.
Prenuptial agreements do not cover custody of children or child support payments. Other provisions such as clauses about a person’s weight, frequency of sex, household cleanliness and infidelity punishments are sometimes included, but they are often deemed unenforceable. Prenuptial agreements are predominantly used for the financial arrangements of a couple.
How Do I Obtain a Prenuptial Agreement?
Australia has strict requirements for valid prenuptial agreements. If they are not drafted correctly, they may be deemed invalid by a court or completely set aside. For this reason, it is extremely important to engage a lawyer when drafting a prenuptial agreement. Spending a little money now is a much better option than engaging in litigation proceedings down the track for an invalid prenuptial agreement.
Can Prenuptial Agreements Be Set Aside?
Prenuptial agreements are generally legally binding. This means that if the agreement is signed by both parties, unless both parties mutually agree in writing that the agreement will no longer be binding, it remains binding on both parties. The other party can generally enforce its rights under the prenuptial agreement.
However, there are circumstances where the Family Court of Australia can set aside prenuptial agreements. These include:
- Non-disclosure of assets/ financial resources
- The Prenuptial Agreement was entered into under duress or involves unconscionable conduct
The Court may set aside your prenuptial agreement on the ground of children if your prenuptial agreement does not make any provisions for your children or if there is an adverse change in the welfare of the children and the prenuptial agreement would cause hardship.
- The contents of the prenuptial agreement are not just and equitable
There are various reasons why couples decide to enter into a prenuptial agreement. A prenuptial agreement is generally a great way to protect your assets, provide you with peace of mind and financial empowerment. However, as every couple is different, it important that both you and your partner freely discuss, agree and feel comfortable about the idea of a prenuptial agreement.
We cannot stress enough the importance of engaging a lawyer in drafting a prenuptial agreement. It is important to ensure that the agreement complies with all legal requirements so that you do not face invalidity of the agreement down the track. Our experts in family law are able to assist with these matters. If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.