Is Money From Family a Gift or a Loan When Separating?

Is Money From Family a Gift or a Loan When Separating?

It is becoming increasingly common that couples receive financial assistance from their parents. This can be through transfer of property, the giving of money or both. This assistance is becoming progressively prevalent due to rising prices within the property market which has meant that many couples are unable to enter the market without assistance from their parents. However, this can cause issues if the couple separates, as there can be a dispute as to whether the money provided was provided by way of a gift or a loan.

In a property settlement, the family law court can treat payments made by a parent to their child in two ways:

  • The court may find that the payment was a gift to the child which is not expected to be repaid.
  • The court may find that the payment is a loan from the parents that is to be repayable in full.

How does the family law court treat gifts?

In general, a court treats gifts from a parent as being for the benefit of their child alone. Because of this, when assessing entitlements, the court will apply such gifts  towards that spouse’s side of the ledger, when determining their entitlement. This would result in that spouse receiving an extra contribution as a result of the gift applied towards the relationship. However, if the intention was that the gift was to be provided to both parties to the relationship then it would be open for a spouse to contend that the gift is to be taken as an equal contribution of both parties.

How does the family law court treat loans?

If the money is determined to be a loan from the parents, the court must then determine whether the loan is legally repayable and in doing so, they must consider whether the loan is likely to be repaid in the foreseeable future. If the loan is unsecured, the court has discretion to either deduct the loan from the pool of assets or not. If the terms of the loan are vague or uncertain, the court is less likely to enforce the loan. Evidence about the loan determines how the loan is treated. If there is any oral or written evidence of the loan, and the parties have complied with the terms of the loan through actions such as making repayments, the court may be likely to uphold the existence of a loan. However, if there is little or no evidence that supports the claim that it was a loan, and there were no repayments made, the court would be less likely to uphold the existence of the loan.

Parents considering lending money to children who are married or are in a de facto relationship

If you are considering lending money to your child who is married or in a de facto relationship, it is important that there is documentation which adequately establishes that the money provided is to be treated as a loan.

The documentation can include:

  • A loan agreement that sets out the terms of the loan which is signed by all the parties involved
  • A mortgage over the property that secures the loan

Further to the documentation, it is important that the parties to the loan comply with its terms and obtain any appropriate legal advice. If, under the loan, repayments are to be made, they must be made or if payment of the loan is reliant on an event or after a particular time period which has passed, then a new loan agreement should be entered into.

Contact Us

If you have separated from your partner and your parents have lent you money and you are not sure whether it will be treated as a gift or a loan in court or you are wishing to lend money to your child who is in a relationship and you would like more information on how we can assist you in your matter contact us on 9963 9800 or by email to law@etheringtons.com.au.

Making a Child Support Agreement

Making a Child Support Agreement

Child support agreements are contractual arrangements between parents or non-parent carers to enable financial support for their children. The Child Support Scheme was introduced by the Australian government in 1998 to ensure the adequacy of court ordered child maintenance. Child Support is payable for all children living in Australia (up to the age of 18 years) following separation, regardless of whether the couple were married to each other or not.

Child Support Assessment

The Department of Human Services can make an assessment for child support based on income tax records and other financial information held by the ATO and the Commonwealth Government. The assessment is a complex formula and will broadly take into account the following:

  • Parents’ income
  • Combined income
  • Time each parent cares for the child
  • Child’s age
  • Living expenses

Child Support Agreements

If parties are able to reach an agreement between the other, then a solicitor can prepare a binding Child Support Agreement which is registered with the Department of Human Services. The agreement may include a combination of cash payments and non-cash payments (such as health insurance and school fees). There are two types of Child Support Agreements that can be formed depending on your circumstances.

1. Limited Child Support Agreement

This agreement requires a Child Support Assessment to be undertaken before the Child Support Agency accept the terms of the Agreement. A Limited Child Support Agreement is limited by the amount payable under the agreement, which must be equal to or more than the Child Support Assessment.

2. Binding Child Support Agreement

A Binding Child Support Agreement can be entered into between the parties despite whether a child support assessment was undertaken or not.  Further, it can be made for any amount that is mutually agreed upon. However, both parties must obtain independent legal advice before making or terminating a Binding Child Support Agreement.

Court Ordered Child Support

A court may make a child maintenance order for children not covered by child support legislation, such as maintenance for children from carers who are not eligible for a child support assessment. The Family Law Act regulates the process of enforcing child maintenance orders.

Contact us

The team at Etheringtons Solicitors are skilled at handling all matters relating to Child Support Agreements, and are able to assist with complex cases and the modifying of agreements after they are in place. If you are currently thinking about entering a Child Support Agreement or need assistance with any area of Family Law, do not hesitate to contact us on 9963 9800 or via our contact form here.

Family Law and Schools

Family Law and Schools

Family law issues such as managing separated families and their complex family law arrangements can be difficult for schools to navigate at the best of times, however, these issues become increasingly intricate with the addition of COVID-19 regulations around distancing and limiting travel. This blog will explore some of the common family law questions and then explain the obligations that schools have in common situations where issues arise.

Common Questions About Family Law and Schools

What are the Rights and Responsibilities given to Parents and the School?

Parents often contact the school to assert their ‘rights’ to access their child or request the school to take the steps that they want. The Family Law Act (1975) Cth does not confer parents with any ‘rights’ and instead the obligation is to act in accordance with the best interests of the child when determining what and how much time each parent is able to spend with their child. This notion is consistent with the school’s duty of care to the students, rather than to the parents. When considering the best interests of the child, the court encourages meaningful relationships between the parent and the child and it protects that child from harm or from being exposed to family violence.

What is Equal Shared Parental Responsibility?

The Family Law Act (1975) Cth provides that there is a presumption of equal shared parental responsibility. Under this shared responsibility, it is important that both parents are given all information concerning the child. This can include school reports, newsletters and information about school functions. Due to equal shared parental responsibility, if there is a significant long-term issue regarding the child and their education, parents are required to consult with each other and make a genuine effort to come to a resolution. Furthermore, it is not the school’s job to ‘police’ the parenting arrangements. The parents have an onus to provide the school with updated orders and if they provide conflicting instructions the school can require that the parents deal with the conflicting instructions themselves and then report back.

What are Intervention Orders?

Intervention orders are becoming increasingly frequent in family law matters. An intervention order, previously and commonly known as a restraining order, is an order that prevents a person from behaving in a particular way towards another person or persons. The interaction between family law orders and intervention orders is often complex. Although a family law order will usually prevail over intervention orders in the event of an inconsistency, it is important for a school to understand their obligations in these circumstances, especially in instances of family violence. In circumstances where the school is concerned for the safety of the child, or there is an emergency situation, the safety of the child comes first.

What are Subpoenas?

A subpoena is a document issued by the court that requires either documents to be produced or for attendance of a staff member at a hearing to give evidence. It is common for parents who are before the court to request access to confidential documents to give evidence of the status of the child’s wellbeing. If the school responds to the subpoena it is important to seek independent legal advice in order to safeguard against any breaches of privacy for staff or students. There are circumstances where schools may object to a subpoena, for example, if a subpoena will have an adverse impact on the child or is too broad. However, if no objection to the subpoena is raised the school must comply in full or there is a risk of being in contempt of court.

Common Situations Where Issues Arise:

School Pick Up

In general, Court Orders will make note of the time that the child spends with each parent. This typically includes who will pick up the child on particular days. It is important to note that step-parents are allowed to have time with their step-child during their spouse’s time with the child, hence requests made by parents to prevent step-parents from collecting the child from school are often not granted.

Lack of Court Orders for Pick Up

If the parents do not have a formal agreement or court orders the school is able to request a parenting plan or a written agreement from the parents that details who collects the child on specific days.

Enrolment

In general, parents are to both sign the enrolment agreement at a school and are to be jointly and severally liable for the payment of school fees. In circumstances where one parent wishes to cease payment due to separation, there is no obligation for the school to change the payment arrangements. Changes may be made if the school so chooses, or they may be needed if there have been interim orders made or further evidence has been provided as to the parents’ agreement to change fee payment.

Withdrawal of Enrolment

Due to the equal shared parental responsibility of parents there needs to be consultation between the parents before decisions are made regarding long term issues, including changing the enrolment of the child.

Contact Us

Family law matters can be complex and stressful. Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter. If you need any assistance please don’t hesitate to get in contact with one of our lawyers via our contact form or call us on 02 9963 9800 for a no-obligation discussion.

What Does ‘Best Interests of the Child’ in Family Law Mean?

What Does ‘Best Interests of the Child’ in Family Law Mean?

The term ‘best interests of the child’ is a common phrase used in family law legislation and its meaning and interpretation is frequently discussed in case law involving parenting disputes. In this blog, we will review this ‘cornerstone’ principle and discuss factors a court will take into account when deciding what course of action is indeed in the best interests of the child.

Origin

The term ‘best interests of the child’ is a principle which originates from Article 3 of the United Nations Convention on the Rights of the Child. Article 3 states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. This principle was later inserted into the Australian Family Law Act.

The Family Law Act

In 1995, the Family Law Act 1975 (Cth) was amended to specifically include the term ‘best interests’ in relation to children. Prior to 1996, this principle was known as the ‘welfare principle’.

The Family Law Act outlines a variety of different considerations and factors which a court must consider in determining what is in a child’s best interests. These are broken up into ‘primary’ and ‘additional’ considerations.

Examples of ‘primary considerations’ include:

  • The benefit to the child of having a meaningful relationship with both of its parents; and
  • The need to protect the child from harm, including physical and psychological abuse or family violence.

Examples of ‘additional considerations’ include:

  • Views expressed by the child and any factors that the court thinks relevant to the weight it should give to the child’s views, such as maturity or level of understanding;
  • The nature of the child’s relationship with its parents, relatives and others;
  • The extent to which either parent has failed to participate in making long term decisions regarding the child, spend time with the child or communicate with the child;
  • The extent to which either parent has failed to fulfil their obligations in relation to the child;
  • The likely effect of any changes in the child’s circumstances, including separation from either parent, sibling, other child or relative (e.g. grandparents) with whom they have been living;
  • The capacity of each of the parents and any other person (e.g. grandparents) to provide for the emotional, physical and intellectual needs of the child;
  • Characteristics of the child (including maturity, gender, lifestyle, background);
  • Whether the child is an Indigenous Australian; and
  • Any other factors the court feels are relevant.

A Recent Case Example

It is important to note that a child’s best interests encompasses both long-term and short-term concerns and can sometimes purely include the consideration of factors outside of the child. For example, in a recent 2020 case, Justice Bender commented on what ‘best interests of the child’ means in reality when weighed equally against other considerations. She further highlighted that this principle should be viewed in light of the ‘totality’ of the parents and children’s lives. Her Honour stated that:

“Being a committed and caring parent does not require a parent to put their entire life on hold and to abrogate their own happiness as an adult. Parents make decisions for themselves and for their children on the basis of what is in the whole family’s best interest on a regular basis. Intact families will uproot their children and move them away from school, friends and extended family for a multitude of reasons including change of employment, health and the necessity to assist family. When those decisions are made, it does not mean that the children’s parents do not have the best interests of the children as part of their considerations but rather are looking at the totality of their and their children’s lives when deciding such a move is best for their family at that time.”

Get Legal Advice

Navigating family law and parenting proceedings can be a confusing and emotionally exhausting task. Our dedicated family law solicitors are ready and willing to assist you with your parenting or family law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form.

How to Protect your Home from Your Ex-Partner

How to Protect your Home from Your Ex-Partner

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 and Family Law: Can I Post About My Family Law Proceedings?

Social Media and Family Law: Can I Post About My Family Law Proceedings?

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 law@etheringtons.com.au or call us on 02 9963 9800 for a no-obligation discussion.