Jun 1, 2022 | Family Law
If you have been involved in family law matters, then you may be familiar with the section 75(2) factors. This section of the Family Law Act relates to adjusting a property settlement based on the contributions of the parties. It also considers factors which can “soften” the effect of looking at a property settlement. In this article, we break down what section 75(2) factors are and explain what they mean for you.
What is Section 75(2)?
This section of the Family Law sets out numerous factors that the Court may take into account in deciding how to distribute property in property settlements.
What are the Factors?
Section 75(2) of the Family Law Act 1975 (Cth) sets out numerous factors that may be taken into account by the Court in property settlements when determining whether there are any special circumstances that require adjustment to the property settlement amount.
The factors are:
- The age and state of health of each of the parties Income, property, finances and ability to earn an income.
- Whether either party has the care or control of a child of the marriage who is under 18.
- Commitments relating to support of themselves, a dependent or other person.
- Eligibility for a pension, allowance or benefit.
- Whether the parties have separated or divorced.
- The extent to which payment of maintenance could enable further education and therefore increase one of the parties earning capacity.
- The effect of any proposed order on the ability of a creditor of a party to recover a creditor’s debt.
- The extent to which one party has contributed to the income, earning capacity, property and financial resources of the other party.
- How the length of the marriage affected the earning capacity of the party seeking maintenance.
- The need to protect a party who wishes to continue their role as a parent.
- Financial circumstances of any current cohabitation by either party.
- Orders made under Section 79 of the Family Law Act, if any. This section regulates how assets are to be divided.
- Any child support that one of the parties is liable for.
- Any fact or circumstance which the court feels needs to be taken into account for reasons of justice.
- The terms of any financial agreement binding on the parties to the marriage.
What Do They Mean for You?
If you are going through a separation, it is important to understand what these factors mean for you. These factors are important for the court’s consideration and assessment of what each party’s ‘future needs’ are likely to be.
This requires the court to anticipate what each party’s life is likely to look like in the future and award a percentage uplift to the party with the greater ‘need’. As seen above, there are many factors that the court will take into consideration when deciding who gets what portion of the assets. It is therefore important to understand that property settlements can become quite complex.
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If you would like to discuss your family law matter with one of our family lawyers, please contact us on 9963 9800 or at via our contact form.
May 30, 2022 | Family Law
Single parent families now represent 14% of all Australian families, with a majority of their children being under the age of 18. Being a single parent can be difficult financially, therefore, it is important to ensure that your financial affairs and estate plan are in place to protect your children should something ever happen to you. An Estate Plan is legally binding and documents how you wish for your assets to be distributed in the event of your death.
This article will discuss the most important factors to consider when forming your estate plan as a single parent, namely making sure you have an updated Will, have made plans regarding your insurance and superannuation and have appointed a guardian.
Your Will
Your Will appoints an Executor to manage your assets and liaise with your children’s guardian. The Executor will hold your children’s share of the estate on trust until they become adults. Alternatively, a solicitor can assist you in setting up a private trust in which your children’s share of assets is held by someone other than the Executor.
As a single parent, it is essential that your Will is up to date and reflects your current family composition and financial status. If you are currently in the process of separating from a partner or are entering into a new relationship, these changes can have a profound effect on your estate plan. Any, and all, alterations to existing Wills must comply with section 6 of the Succession Act 2006 (NSW). If you do not have a Will, your assets will be divided according to the laws of intestacy, and may not be divided according to your wishes had you been alive. This is why it is crucial to have an accurate and updated Will which clearly sets out your wishes.
Life insurance and Superannuation
It is important to note that your life insurance and superannuation death benefits are not controlled by your Will. Beneficiaries should be nominated for these assets so that your children may be financially supported after your death. While minor children cannot receive these assets themselves, there are methods for protecting these assets until your children are older.
Appointing a Guardian
In the event of your passing, it is important that a guardian is appointed. In multiple parent families, the surviving parent is made solely responsible due to the presumption of shared parental responsibility prior to the death. However, in single parent families, the appointed guardian will be responsible for your minor children (those under the age of 18) in your absence, and will have decision-making powers over their care, welfare and development. Appointing this guardian will help support your children through the difficult transition in the event something happens to you. It will also avoid any uncertainty over who is responsible for them, and may assist in reducing family conflicts in the future.
This is a significant decision, as the appointed guardian will be responsible for their medical treatment, education, residence and other day to day considerations. It is important that you choose someone who you believe will make these decisions in your children’s best interests. The person you are considering appointing should be made aware of the significant responsibilities of this role. This includes communicating the specific arrangements you wish to be made in your stead. You may choose to include a Memorandum of Wishes with your Will to provide any such specific guidance for your guardian.
Similarly, you may wish to prepare an Enduring Power of Attorney which specifies who will make personal and financial decisions on your behalf if you become incapacitated by illness or an accident.
How Etheringtons Solicitors can help
Preparing an estate plan can alleviate the concerns involved with navigating through the uncertainties of life. Creating a Will, organising your assets and appointing a guardian will ensure your children’s interests are protected. If you are looking to create a new Will, or would like to amend your existing Will, please call us on (02) 9963 9800 or contact us via our contact form.
May 29, 2022 | Family Law
De facto relationships are legally defined as a relationship between two people, who are not legally married or related by family and live together on a genuine domestic basis.
Does a de facto relationship require cohabitation?
There have never been any cases where the court has ruled that a de facto relationship exists where the couple has never lived together. However, the Family Court has indicated that the concept of living together is not necessarily based on the proportion of time a couple spends living in the same property.
Factors considered when defining de facto relationships
In practice, the court decides if a de facto relationship exists based on a number of factors, including:
- The duration of a relationship
- Whether a sexual relationship existed
- The nature of the couple’s common residence
- The degree of financial dependence or interdependence between the couple
- The degree of mutual commitment to a shared life
- The ownership, use and acquisition of property
- The care and support of children
- The reputation and public aspects of the relationship
Limitation period
If you were in a de facto relationship and have separated from your partner, you have a two year time limit from the date your relationship ceased to make a property claim against them.
There are situations when this may be extended and you should seek professional legal advice to determine whether this may apply in your circumstances.
Further Information
If you would like more information on how we can advise you following a relationship breakdown, whether it is a marriage or de facto relationship, do not hesitate to contact us on 9963 9800 or via this contact form.
May 26, 2022 | Family Law
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 Federal Circuit and Family Law Court of Australia an ICL can be appointed to represent the child and their best interests during proceedings. An ICL can be appointed by application by one of the parties or 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, such as 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
- Speak to the children’s counsellors, school teachers and principals.
- Examine documents from organisations such as schools, Department of Family and Community Services and the police and obtain 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.
Contact Us
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.
May 24, 2022 | Family Law
Grandparents are important people in children’s lives and can play a significant role in family law matters. The Family Law Act 1975 (Cth) contains provisions allowing grandparents certain rights in relation to their grandchildren.
Rights of Grandparents Under the Family Law Act
The Family Law recognises that children have the right to maintain regular communication with people who are considered important to their welfare, care and development. However, this does not mean that grandparents have an automatic right to spend time with their grandchildren.
Unless there are allegations of abuse or violence, it would be unusual for the court not to make an order for a child to spend time with their grandparent. Among the factors that the court will consider is the nature of the relationship between the grandparent and child, including whether it is ongoing and of significant value to the child. In some cases, it may be necessary for grandparents to apply for access or custody of grandchildren where the parent is:
- Unwilling to care for the child;
- Unable to provide for or care for the child; or
- Lacking the capacity to care for the child.
Alternative Dispute Resolution options
Through mediation or settlement negotiations with your children and their spouse, you may be able to reach mutually agreed arrangements about the time you spend and communication you have with your grandchildren. The agreement you reach can be included in a written agreement called a parenting plan which is a formal agreement between your children and their spouse. A parenting plan is not legally binding or enforceable but will be considered by a court if there are later disputes.
Applying to the Court
If you have been prevented from seeing your grandchildren, you are able to rely on the Family Law Act 1975 to apply to the court. You may seek orders that allow you to communicate with your grandchildren, spend time with them, or in some circumstances even live with them. As a grandparent, you are able to do this whether or not the parents of the children are together or separated.
What often occurs when a family relationship breaks down is that the grandparents will only be able to spend time with their grandchildren when their child is spending time with them. The Family Law Act 1975 recognises the importance of children having a relationship with their extended family members including grandparents, however, what is in the best interests of the child will remain the court’s priority.
Contact us
We know that the divorce process can be strenuous for both parties. If you would like more information on how we can assist you with your property settlement matter or any other family law matters, do not hesitate to contact us on 9963 9800 or via our contact page.
May 23, 2022 | Family Law
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 separating parties, or allowing parents and kids to stay connected, social media is undoubtedly a more efficient 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 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 force you to remove existing posts.
Moreover, challenges on a party’s credibility are fairly common in family law cases. For example in a case determining which parent should have primary custody of a child, if one party has posted photographs or comments on social media that may indicate they are not a suitable guardian, the court may take this into account. 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, Instagram, or emails;
- Photographs of parents acting in an unsafe and/or irresponsible 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 the party claims to be financially struggling.
A Recent Example
In a recent decision, a father sought a court decision that his child be returned to New Zealand from Australia. The mother objected to the relocation and asserted that the move to Australia had been agreed upon by the parents. The father presented evidence of the mother’s Facebook posts that were contrary to this assertion, as well as comments which showed the Australian travel was purported 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 [email protected] or call us on 02 9963 9800 for a no-obligation discussion.
