Apr 2, 2024 | Family Law
Following the breakdown of a marriage, separated or divorced parties must agree on how to divide their joint assets. As the division of property and finances is not included in a divorce order, a separate agreement must be made between you and your husband.
Reaching an amicable agreement with your husband about the division of joint assets will save you time, money and stress. Alternative dispute resolution processes such as mediation can assist in resolving any disagreements that may arise during this process.
If you cannot reach an agreement with your husband through these means, you can apply to the Federal Circuit and Family Court of Australia (‘the Court’) to have financial orders made that will settle the dispute for you.
What is a financial order?
A financial order is a set of orders made by the Court relating to the division of property or finances. When applying for a financial order, the Court will hear evidence presented by you and your husband and make a just and equitable decision. This decision may include altering property interests, redistributing finances, and ordering for the payment of spousal maintenance.
What factors affect the Court’s decision?
Contrary to the belief of a 50/50 split, there is no established formula or percentage the Court will use when making financial orders. Instead, decisions are made on a case-by-case basis depending on the individual circumstances of the separated parties.
The Family Law Act 1975 (Cth) s 79(4) sets out a number of factors for the Court to consider when making financial orders. These factors include but are not limited to:
- The ‘net asset pool’ comprising of the current value of all assets and liabilities. This includes superannuation entitlements, personal assets, assets in partnership, trust, or companies.
- Direct financial contributions toward the acquisition, conservation or improvement of any property of each party. This includes assets owned at the beginning of the relationship.
- Indirect financial contributions such as gifts or inheritances.
- Non-financial contributions toward the acquisition, conservation or improvement of any property of each party. For example, home improvement or renovations to increase the value of the family home.
- Financial contributions made to the welfare of the family, including any contribution made in the capacity of a homemaker or parent.
- The future needs of each party with regard to age, health, financial resources, superannuation, childcare, and earning capacity.
The Court’s decision may involve the alteration of property interests and asset ownership to allow for the just and equitable redistribution of finances between parties.
Am I required to pay my husband spousal maintenance?
Spousal maintenance is financial support that is paid to your husband if he cannot adequately support himself following separation or divorce. This obligation depends on the financial capacity and needs of each party. Husbands and wives share an equal duty to support and maintain one another should the circumstances call for it.
For example, if your husband is unable to support himself after separation, and you have the financial means to support him, you may be required to provide your husband with spousal maintenance.
Ultimately, an order for spousal maintenance is decided by an overall assessment of each party’s ability to adequately support themselves, and if they are unable to do so, whether the other party has the capacity to meet those expenses and support them.
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It is important to remember that there is no presumption of equality when dividing assets following a separation or divorce. If you are considering separation, or have already separated from your husband, we recommend seeking independent legal advice.
If you would like to discuss your unique situation with a family lawyer, please contact Etheringtons Solicitors in North Sydney on (02) 9963 9800 or via our online contact form.
Jun 16, 2022 | Employment Law
If you are entering into an employment contract, do you know what should be included? If you are an employer and using an old contract, should it be reviewed first? It is clear contracts should be individually structured to meet the needs of those involved and in reality, both employer and employee should seek legal assistance first before offering or accepting an employment contract.
This article is intended to provide a starting point only and attempts to clarify some of the important information all parties should know.
What terms should always be in an Employment Contract?
Naturally there are some preliminary matters. For example, the identity of the parties needs to be set out as well as the duration of the contract (if fixed).
The contract then needs to specify the terms.
Before the terms are considered, the application of any statutory provisions or award or collective agreement must be considered. Generally speaking, employers and employees cannot contract out of awards or collective agreements.
The following are critical to mention and ought to be specified:
- The remuneration;
- The frequency of remuneration reviews;
- The period of the contract (if fixed term);
- The basis of remuneration adjustment and performance management/appraisal;
- Termination conditions;
- Any professional indemnity;
- Any applicable Awards;
- Specific employment conditions including hours of work;
- annual leave;
- annual leave loading;
- public holidays;
- long service leave;
- superannuation;
- reimbursement of expenses;
- sick leave or carer’s leave;
- parental leave; and
- other leave.
Depending on the nature of the employment and industry it may be important also to include:
- Intellectual property;
- Restrictive covenants;
- Professional development and training;
- Location of the employment; and
- Post-termination restraints.
A statement of duties should be attached to the contract. For this attachment to become part of the terms of the contract, it should be expressly incorporated into the contract by a statement which makes it part of the contract in the body of the contract itself or as an annexure.
Workplace policies
Some workplace policies will be incorporated into the contract because of the nature of their content, some will not, and it is often hard to know what matters a court will find are incorporated. If an employer definitely wants to incorporate a policy into the contract, they should expressly do so by reference in the contract.
Employees and contractors
There is often ambiguity in a worker’s status, such as whether they are a true employee or an independent contractor. Employment law differs from other law, such as tax law, on these questions.
There are also significant legal consequences of incorrectly assuming an employee is a contractor, or vice versa. The true nature of the working relationship should be considered at the time of drafting an employment contract or a contract for services.
Superannuation
The employer is responsible to ensure that appropriate superannuation contributions are paid into the employee’s nominated superannuation fund. Generally a contractor will be responsible for their own superannuation contributions. When offering employment, you should clearly state if that offer includes superannuation.
Implied entitlements
Some entitlements and obligations that exist in the employment relationship are implied. This means that even if they are not written down or stated in the contract they still apply.
The implied terms include:
- An employee must exercise reasonable skill and care in their performance of duties;
- A general duty exists for an employee to obey all lawful and reasonable directions by their employer;
- There must be fidelity and confidentiality within the employer/employee relationship; and
- If there is no provision for termination within the contract then “reasonable notice” for termination must occur unless in circumstances of “serious misconduct”.
Conclusion
When negotiating an employment contract it is essential for both employers and employees that the contractual arrangements should be specific to the individual and the terms say what you want them to mean. Parties entering into these arrangements are wise to seek legal assistance beforehand to ensure they are right.
If you want to know more or if you run a business and would like your draft employment contracts reviewed please call us on (02) 9963 9800 or via our contact form.
May 19, 2022 | Family Law
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 determining child support. According to the Child Support (Assessment) Act 1989 (Cth), parents have a 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 that parent raise 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 who have authority to determine child support matters. They are required to follow 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 believe that the child support payments assessed are 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 payment deductions
- Enforcing tax return lodgement or intercepting tax refunds
- Working with third parties
- Employer or bank account deductions
- Issuing overseas travel bans
- Litigation
- Prosecution
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 one another 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.
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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.
Mar 15, 2022 | General Advice
Many people enjoy the adrenaline rush from extreme sports and thrill seeking activities. However it is essential that before you take the plunge, metaphorically or literally, you understand your position and the duties owed to you by providers should you injure yourself during a dangerous recreational activity.
The tort of negligence and personal injury
An action for negligence requires the defendant’s failure to exercise due care and skill which then results in a personal injury or damage to the plaintiff.
To claim an action for negligence under the Civil Liability Act 2002 (NSW), the plaintiff must establish on the balance of probabilities that:
- The defendant owed the plaintiff a duty to take reasonable care;
- The defendant breached that duty by failing to take reasonable care;
- The defendant’s breach caused the injury or damage suffered by the plaintiff; and
- The injury or damage suffered was not too remote a consequence of the breach of duty.
To learn more about how breach of duty is established in negligence cases, please read one of our previous articles.
It is important to note that an action for negligence will not succeed if the defendant can establish a defence, such as the dangerous recreational activity defence.
Dangerous recreational activity defence
Under the Civil Liability Act 2002 (NSW), the defendant cannot be held liable for personal injury or damage suffered where the harm results from the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. This will be true even if the plaintiff was not aware of the risk when they engaged in the dangerous recreational activity.
1. Dangerous recreational activity
A recreational activity includes any activity pursued for enjoyment, relaxation, or leisure; any activity pursued at a place such as a beach, park, or other public space; and any sport. A dangerous recreational activity is one that involves a significant risk of physical harm.
Whether an activity is considered a dangerous recreational activity must be determined with consideration of all of the relevant circumstances. For example, riding a bike with training wheels on an even surface may not amount to undertaking a dangerous recreational activity, but an inexperienced rider on difficult mountain trails without proper supervision or safety equipment may meet these requirements. Factors including the time, place, competence, age, sobriety, equipment and weather have all been considered by courts to determine this question of fact.
2. Obvious risk materialisation
An obvious risk to the plaintiff is one that, in the circumstances, would have been obvious to a reasonable person in the plaintiff’s position. Obvious risks include those which are matters of common knowledge, even if they have a low probability of actually occurring. A person need only be aware of the type or kind of risk for it to be considered obvious, not necessarily its precise manifestation in their particular circumstances.
An injured person is presumed to have been aware of obvious risks for engaging in the dangerous recreational activity, and as such there is no proactive duty to warn individuals of these obvious risks except if a relevant exception applies. This presumption exists unless the plaintiff can establish on the balance of probabilities that they were not aware of the type or kind of obvious risk that caused their damage or personal injury.
Case Study: Lynch v Cavallo [2021] NSWSC 704
The Supreme Court of NSW recently approved a settlement in a personal injury matter in which a jockey (Lynch) was injured when he fell from his racehorse and was injured by another jockey (Cavallo) during the Mudgee Cup.
Justice Adamson upheld the proposed settlement, deciding that the settlement in favour of Cavallo with no order as to costs was in Lynch’s best interests. Lynch had previously been involved in the case of Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, in which he had been the defendant, and the Court had upheld the defence of an obvious risk materialisation in a dangerous recreational activity in similar circumstances. The obvious risk in this previous case was held to be that the conduct of another rider could cause a fall resulting in personal injury or damage in the inherently dangerous recreational activity of horse racing. Relying on this authority, Justice Adamson upheld the proposed settlement as she believed Lynch’s negligence claim would be unsuccessful at trial.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide you with clarification of the relevant law and its relation to your individual circumstances. If you need further advice in relation to a negligence and personal injury matter, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Jun 30, 2020 | Family Law
Following a relationship separation, the Family Law seeks to answer four key questions in order to determine how assets will be divided between the parties who were previously in a marriage or de facto relationship.
1. What is the net asset pool of the parties?
In order to determine the asset pool of the parties for property division, a balance sheet is required, which sets out in detail the assets, liabilities and superannuation of each of the parties. Assets are everything of value, and may include real estate, shares, motor vehicles, furniture etc.
Before commencing property settlement proceedings, both parties are obliged to make full and frank disclosure about their respective financial circumstances. Failure to do so may result in a party being held in contempt of court. This is a serious breach and implications may arise if you do not comply with this duty.
2. What have each of the parties contributed to the net asset pool?
In order to determine what each of the parties contributed to the net asset pool, the law looks to what assets and liabilities each party entered into the relationship with and what each party provided during the relationship, both financial and non-financial.
Contributions may be in the form of income from employment, running a business, money received from a family member in the form of gifts or inheritance, or even compensation payments. Homemaking and parenting contributions are also important to consider.
After assessing both financial and non-financial contributions, if the parties cannot agree, a court will determine each party’s overall level of contribution on a percentage basis.
3. What are the parties’ future needs and how might they need to be adjusted?
When a court has to determine the future needs of each of the parties, this may cause an adjustment to be made to their contribution percentages. The relevant factors in assessing those needs derive from section 75(2) of the Family Law Act 1975 (Cth).
In summary, the future needs of a party may include costs associated with caring for a child, especially where the parties’ contributions in this regard have been in unequal proportions, where one of the parties or children have ongoing health issues which need to be taken into consideration, as well as where there is likely to be income disparity between the parties or even where there is an age difference. Once the contribution percentage is adjusted, this will then be applied to the net asset pool in order to determine the division of property as a dollar figure.
4. Is the outcome fair and equitable?
The final step in a Court’s process is to determine the practical effect of the proposed property settlement and whether it is just and equitable. If it is, the process is concluded. If it is not, an adjustment is normally made to achieve a just and equitable position. For example, an adjustment may be required where one of the parties is the sole carer of the children and is responsible for supporting those children.
Once the dollar amount that each person is to receive is known, the amount is converted into assets that are to be retained by each of the parties. This may involve a deduction of liabilities that would be retained in order to determine if a payment is required.
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Property settlement proceedings can be complex. It is imperative that you are aware of all your obligations and entitlements, as well as the process in general.
If you would like further information regarding property division or if you have any general family law enquiries, please do not hesitate to contact Etheringtons Solicitors on 02 9963 9800 or via our contact page.
