Logo

Will my illness or disability lead to an adjustment in Financial Orders?

By

Often during the course of property settlements, it is asserted by one of the parties that they ‘deserve’ a larger portion of the asset pool due to reliance on certain factors. The factors relied upon are found in the Family Law Act 1975 (Cth), in particular Section 75(2) for married couples, and Section 90SF(3) for de-facto couples. Application of these provisions is seen as the third step (out of four) that Australian Courts typically undertake in making Financial Orders.

The four steps undertaken by Courts are generally set out as follows:

  • Identify and value the assets, liabilities and resources of the parties;
  • Consider the contributions of the parties made throughout the relationship;
  • Consider the future needs of each party; and
  • Determine whether the proposed settlement is just and equitable.

Essentially, at the third step the Court evaluates the future needs of the parties taking into account their individual circumstances. The aforementioned provisions set out 19 factors that may be taken into account by the Court in evaluating the extent of each parties’ future needs. The relevant subsections relating to adjustments for disability and illness are the following:

  • The age and state of health of each of the parties (s 75(2)(a)); and
  • The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment (s75(2)(b)).

Unfortunately, many Australians face challenges in their everyday lives associated with ongoing disabilities or illnesses. At Carter Dickens Lawyers we seek to assist those who may be vulnerable in financial settlements, and ensure they are aware of their rights and the impact their disability may have upon the expected distribution percentage they would receive from a Court ordered financial settlement.

 

Am I likely to receive an adjustment in my favour due to my disability?

The assessment of ‘future needs’ remains a discretionary activity undertaken by the Court. Therefore, it is difficult to say with confidence that an ongoing disability or illness will guarantee a percentage adjustment in your favour by the Courts.

However, there are precedent cases which appear to suggest a 5-15% adjustment may be made where one party suffers from disabilities and this impacts their ability to achieve gainful employment in the future. In particular, the case of Dritsas v Wilson [2008] FMCAfam 44 saw a section 75(2) adjustment in the wife’s favour of 10 per cent where the potential of future employment was essentially non-existent due to the extent of the wife’s disabilities and her age.

Although there appears to be precedent for making these adjustments, and the legislation specifically makes reference to age, health and the ability to gain meaningful work – each case is determined on an individual basis. We therefore recommend you seek legal advice on this matter if you are either going through a financial separation or are planning on seeking financial orders.

 

What if both myself and my ex suffer from disabilities/illnesses?

Unlike the circumstances aforementioned, in some cases both of the parties to a financial separation suffer from illnesses or disabilities respectively. This situation creates greater difficulties for Courts in evaluating the ‘future needs’ of the parties as both may have their own valid claims.

Again, this situation would see the courts exercise their discretion, and all factors would be evaluated prior to any Order is made. However, Nathan & Nathan [2007] FamCA 589 was an example where the Family Court of Australia deemed it equitable to make no adjustment. In this case, Justice Kay at [23] stated no adjustment would be made out for the following reasons:

“A global view of this case shows two people with very limited earning capacity, two people with significant medical disabilities.  They are both aged 46.  Neither of them has a very secure economic future to look forward to.  The husband appears able to live on his wits.  The wife has secure employment at least with some modest superannuation available to her.  It does not seem to me to be a case in which any s 75(2) adjustment is appropriate.”

Essentially, where in the Courts discretion the parties equally suffer from limited earning capacities and significant medical disabilities/illnesses, it may be just and equitable to make no adjustment for future needs, instead opting for an equal split of the asset pool.

From the situations discussed, it is clear that the Court is empathetic to the plight faced by those with illnesses and disabilities; however, the extent to which this will impact Financial Orders depends on scope of the facts at hand. If you believe that the section 75(2) factors discussed in this article may apply to your circumstances, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Carter Dickens Lawyers specialise in Family Law and Financial Disputes. We pride ourselves on our ability to provide legal assistance and advice, including on niche areas of law, such as the impact of disabilities on expected percentage distributions from Financial Orders. We will ensure that you are fully informed of any rights and risks associated with your divorce or financial matter.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Pet Custody

By

The issue of ‘Pet Custody’ has become a prominent concern in the Australian legal landscape. Despite often treating our pets as members of the family, Australian Family Law continues to view our pets as a form of ‘personal property’. As such, pets are treated like other items in the asset pool, and may be divided between the parties.

 

The ‘Value’ of Pets

Unfortunately, the value we attribute to our pets does not often reflect the market value Courts will allocate to them. Unless the pet is a purebred or pedigree show dog, there is likely only a nominal value attributed to the pet in comparison to other relationship assets.

Should a significant value be attributed to the pet for particular reasons, it may be necessary to provide evidence to the Family Court verifying this amount.

 

How is Pet Custody decided?

Courts are generally reluctant to get involved in lengthy arguments between parties regarding the custody of their pets. The preferred resolution is often for parties to settle between themselves a custody plan for the retention of their pets. Should Family Court orders be required, the resolution of this matter is often conducted in a similar vein to that of other personal property allocations.

The following are a range of discretionary factors the Family Court may take into account in determining which party retains ownership and care of the family pet:

  • Which parties’ name the pet is registered in.
  • Which party undertakes the majority of the responsibilities involved in caring for the pet (day to day care)
  • Which party has appropriate housing for the pet and who can satisfy the pets future needs.
  • The ability to pay for stabling or training needs, particularly if the pet is a horse or other farm animal (economic needs).

 

Can you have Shared Custody?

Despite these factors often resulting in sole custody by a single party, it is well within the courts discretion to make orders to the effect of a ‘shared custody’ plan. Such orders are unlikely to be made, unless the orders are consented to by both parties.

Instances where the court is likely to make this type of order is where it directly reflects the ‘best interests’ of children. Should there be children of the relationship in addition to a family pet, it may be deemed by the Family Court to be in the children’s best interests for the pet to follow them between their parents’ homes. This may give the children a sense of familiarity and stability following the breakdown of their parent’s relationship. Additionally, the pet may provide a therapeutic or medical benefit which requires shared custody.

Carter Dickens Lawyers excel at providing legal assistance in all areas of Family Law. We will ensure that you are made aware of all options moving forward and may aid you in the drafting of orders pertaining to the ownership, possession and shared care of your pets.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Social Media as “Evidence” in the Family Court

By

The use of evidence obtained through various social media outlets has become a feature in many Family Court proceedings around Australia. Evidence of private conversations, photos, videos, shares and other social media activity we almost all engage in has found its way into the realm of admissible evidence.

Unfortunately, most people do not understand the potential repercussions of placing their life, private affairs and images in the public arena. We will explore the impact of social media as “evidence” and provide insight into the admissibility of this type of evidence in Western Australia.

 

Admissible Evidence in Family Law

Family law proceedings allow parties the opportunity to present “documents” as evidence to the judicial officer through tendering it to the Court. Judicial officers may then decide how to weigh evidence that has been admitted; whether to give any weight to normally inadmissible material; and whether to direct the parties to provide particular evidence.

Under Section 2B of the Acts Interpretation Act 1901 (Cth), a “document” is defined as any “record of information”, including (amongst other examples):

  1. anything on which there is writing; and
  2. anything from which sounds, images or writings can be reproduced with or without the aid of anything else.

Given this interpretation, content from social media such as Facebook, Instagram, Snapchat, LinkedIn, Twitter and WhatsApp could be regarded to be within this definition.

Note that the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth) each set out their own ways that social media can be used as evidence. Beyond merely satisfying the definition of an admissible “document”, there are further limitations to the potential admissibility of evidence. They are:

  1. Relevance
  2. Judicial Discretion
  3. Varying weight given to the evidence

 

Relevance

The starting point for any evidence is that it must be RELEVANT. That is, the social media content must be considered by the Court to be something that relates to the existence of a fact in your case. Broadly, relevant evidence will relate to the issue in dispute, support your claim and be able to advance your claim. If any of these fails, it is unlikely to be considered sufficiently relevant.

 

Judicial Discretion

The Family Court has a broad DISCRETION, pursuant to Section 69ZT(1) of the Family Law Act 1975 (Cth), to exclude the provision of ordinary rules of evidence to child-related proceedings. This discretion essentially allows courts to render social media evidence, which would otherwise likely be deemed hearsay or opinion evidence, to be admissible.

 

Weight of Evidence

Despite being admitted, social media evidence may be attributed the WEIGHT a judicial officer sees fit pursuant to 69ZT(2) of the Family Law Act 1975 (Cth). Recent case authority has shown that it is likely that the Family Court will be cautious when attributing weight to social media content given the nature and reliability of this type of evidence.

 

Although social media may be considered admissible evidence, the ability of a party to admit this evidence may be limited by the varying rules of evidence and judicial discretion. Carter Dickens Lawyers would advise parties to protect themselves by limiting social media which may be relevant to their proceedings.

In addition, parties should note that it is an offence to publish any images or posts which identify a party or child to family law proceedings (Family Law Act 1997 (WA) s 243; Family Law Act 1975 (Cth) s 121).

 If you have a Family Law matter and social media activity is of concern to you, please contact us on 08 9408 5212 for a free 15-minute phone consultation.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.

Reversing a transfer of property or assets during Family Court proceedings

By

During a separation it is common for the Family Court to make property settlement orders to ensure that the distribution of assets between the parties is ‘just and equitable’. However, there are instances where property has been transferred or disposed of by one party to the separation proceedings.

In some instances, section 106B of the Family Law Act 1975 operates as an anti-avoidance provision. It functions to stop parties from entering transactions which hinder or circumvent Family Court orders during property settlements. Essentially it allows that the court can reverse transactions including the transfer of land in certain situations. Section 106B allows a court to do this when:

  1. a transfer of land occurs during family court proceedings; or
  2. during a time when the proceedings were reasonably anticipated; and
  3. the disposition is likely going to defeat existing or anticipated court orders.

The operation of section 106B does not require that the party selling the asset specifically intended to defeat the existing or anticipated orders of the court. It is merely enough to show that the sale or transfer of the asset would have the effect of doing so. For example, the reduction of the available pool of assets in a property settlement may be enough to satisfy a likelihood that a court may not be able to make adequate orders. It should be noted that section 106B does not only apply to sales of property or assets but also to gifts and the issuing of rights which attach to interests in a company or a trust.

For example, if around the time of separation an ex decides to sell their assets or gifts them to a family member the court has the power to reverse that transaction. These situations are complicated by instances where a third-party bona fide purchaser is involved. That is someone who purchases an asset from a party for value without having knowledge of any other parties’ interests. Whilst the court will generally have regard to the interests of a bona fide purchaser and can make orders to protect them, this does not provide them with an absolute safeguard.

The Family Court still has the discretion to make orders reversing a transaction which negatively impacts a just and equitable outcome. The Court is particularly minded to reverse transactions which are clear ‘shams’ attempting to defeat the operation of the Family Law Act. When dealing with a bona fide purchaser, the Family Court may consider whether at the time of the disposition the purchaser:

  • was aware of the other party’s interest;
  • should and would have been made aware if they made all the proper enquiries; and
  • whether the disposition would be likely to defeat the claim of the party in whose favour the order was existing or anticipated.

In exercising its discretion to set aside instruments and dispositions, the Family Court may also take into account the length of time between the disposition and the proceedings, and between the discovery of the disposition and the proceedings to set aside the disposition.

Parties to a dispute should use caution when dealing with property interests in the wake of Family Court separation proceedings. Third-parties who suspect impending family law matters should also take care when purchasing property and ensure all proper enquiries are made.

As well as section 106B of the Family Law Act 1975, there are several other ways that this may be dealt with.

Do you need Legal advice concerning a family law property settlement? Our Lawyers can provide you with comprehensive legal advice. Please contact our Office for an appointment.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Disclosure in Family Law matters

By

‘Disclosure’ refers to the process where parties provide each other with copies of all the relevant documents in their possession or control. Each party in a family law dispute has a continuing duty to ensure full and frank disclosure until proceedings are finalised. The existence of this duty means that you must disclose information that is relevant, even if the other parties do not know it exists. The ongoing nature of the duty means that you are also required to provide updated information where circumstances change.

The duty to disclose in family law applies to both parenting matters and financial disputes. The types of information that may be disclosed varies depending on the matter type. However, generally disclosure can include paper documents as well as documents stored by some other means (i.e. on a computer or storage device).

In parenting cases, the information to be disclosed may often depend on the specific issue in dispute. Relevant information in these cases will often include information which provides evidence of the parenting capacity of each party. For example, the relevant documents may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs or even diaries. Additionally, where expert reports are obtained in relation to a parenting case, you may also be required to give a copy to the other party and the independent children’s lawyer (if one has been appointed).

In property and financial matters, the duty may require disclosure of any information as to earnings, interest, property or other financial resources which you as a party have access to either directly or indirectly. The specific documents required may include:

  • copies of Pay slips, Group Certificates and/or Centrelink statements;
  • copies of tax returns, estimates or assessments;
  • details of assets that you own or are in your possession, including valuations or appraisals of these assets;
  • copies of statements from any of your bank or building society;
  • copies of statements from any credit card/s and any loans;
  • superannuation statements; and
  • information about any trust where you act as an appointor, trustee, director or shareholder.

Disclose of information regarding the disposal of assets may also be required, especially where the disposal occurred during the year prior to separation or since separation. Disposal transactions not only include transaction were assets are sold, but also those where assets transferred, assigned or gifted.

Failure to provide full and frank disclosure or providing false disclosure may incur severe penalties. The court may in such a situation:

  • refuse to give you permission to use information or documents in your case;
  • stay or dismiss all or part of your case;
  • order costs against you; and
  • fine or imprison you on being found guilty of contempt of court for not disclosing documents.

Ultimately, the duty to disclose is not designed to place an unnecessary burden on either party. Rather, it aims to help parties focus on the genuine issues of their matter, reduce cost and encourage settlement.  Whilst the circumstances are limited, there are situations where not all information requested needs to be provided. In some cases, documents may be exempt from disclosure on the basis of privilege or relevance to the dispute.

Do you need legal advice concerning your disclosure obligations to the family court? Our lawyers can help you understand your rights and responsibilities and how the law applies to your case. Contact our Office for an appointment today.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Can the Family Court order a search if my ex is hiding money?

By

“Anton Piller orders”, which were previously known as “search orders”, are a form of injunctive relief made by a Court compelling one party (the Respondent) to allow another party (the Applicant) to enter a property to inspect, remove or make copies of documents or other items. If a Respondent fails to comply with such an order or attempts to obstruct its execution, they may be found guilty of a contempt of court.

 Anton Piller orders are extraordinary orders, designed to obtain and preserve vital evidence pending the final determination of a proceeding in a case where it can be shown that there is a risk that, if forewarned, the Respondent will destroy or hide the evidence, or cause it to be removed from the jurisdiction of the court. These orders are often also sought in the Family Court where the Respondent is acting dishonestly. For example, if they are attempting to hide assets or holding secret bank accounts in an attempt to influence the determination of assets to be divided between parties in an action. As such, these orders are often made ex parte or without notice to the other side involved in trial.

However, due to the intrusive nature the court will generally only grant such orders in extreme cases where it is absolutely necessary so that justice can be done between the parties. In order to be granted an Anton Piller order, a party must satisfy the court of four main requirements:

  • The Applicant can demonstrate a strong prima facie case: you have emails, messages or other evidence showing the Respondent has hidden assets of substance;
  • The potential or actual damage suffered by the Applicant is serious: if the assets or documents were not disclosed, you as the Applicant would lose a large sum of money under a settlement;
  • There is clear evidence of possession by the Respondent of incriminating documents or things; and
  • There is a real possibility that the Respondent might, if he or she became aware of the application by the Applicant, destroy the materials.

In addition to this, Rule 14.04(3) of the Family Law Rules 2004 requires that an application to the court for such an order be supported by an affidavit which includes:

  1. a description of the document or property to be seized or inspected;
  2. the address of the premises where the order is to be carried out;
  3. the reason the Applicant believes the Respondent may remove, destroy or alter the document or property unless the order is made;
  4. a statement about the damage the Applicant is likely to suffer if the order is not made;
  5. a statement about the value of the property to be seized; and
  6. if permission is granted, the name of the person (if any) who the Applicant wishes to accompany the Applicant to the Respondent’s premises.

In order to ensure such an order is successfully awarded, an Applicant must avoid all potential abuse of procedure ensuring that all the above requirements imposed are strictly observed.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Contact Us

Suite 102, 126 Grand Boulevard, Joondalup WA 6027

Phone: (08) 9408 5212

info@cdlawyers.com.au