Edition 2. Autumn 2015

 


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Welcome to Autumn


Happy New Year from the team at Calley Family Lawyers! We trust that you enjoyed a nice break over the festive period and are recharged for an active and fulfilling 2015.


Calley Family Lawyers practice exclusively in family and de facto relationships law and maintain offices in Collins Street, Melbourne and on the Mornington Peninsula.

Firstly, we would like to salute 2015 Australian of the Year, Rosie Batty. Australians from all walks of life have no doubt marvelled at the strength and bravery shown by Ms Batty following the tragic murder of her son, Luke. 

As the premier Peninsula-based family law practice, we were privy to the grief which resonated in the local community following Luke’s passing in Tyabb last year. The second edition of Family Law Solutions features a keynote piece highlighting the effects of family violence in Australia and how Rosie Batty has effected positive change in this area. 

Relationship and marriage breakdown is prevalent in our society today and with greater economic uncertainty, it is expected that family pressures will increase. 

Calley Family Lawyers is committed to ensuring that our clients receive top shelf service and the support required to negotiate the often challenging nature of family law situations. Every case is different and tailored advice and strategies recognise each client’s diverse needs and expectations.

The majority of our client base is derived from a strong referral network. We are regularly presenting complimentary seminars to our referral partners which features leading financial advisors, accountants, counsellors, psychologists, commercial lawyers, medical practitioners and teachers. If you are interested in hosting one of the firm’s presentations, please contact the practice’s Business Manager, Libby vandenBerg.

Family Law Solutions is published on a quarterly basis to provide you with insights into topics of interest and developments within the sphere of family law. Our current edition includes articles (as requested by key referral partners) discussing the legality of pre-nuptial agreements in Australia, the effects of inheritances in property disputes and what happens when one is served with a subpoena.

Your support and ongoing confidence in Calley Family Lawyers is greatly appreciated. We are always keen to develop and strengthen our referral partnerships and Vic and his team hope to meet with many of you over the course of the next few months.

Enquiry

VIC RAJAH
(FIRM PRINCIPAL)
Profile - Click here


_______________


FAYE DOWBER
(FAMILY LAWYER)
PROFILE - CLICK HERE

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Lessons Learned from

Rosie Batty 
- Family Violence 

in Family Law Disputes


We were all moved by the courage shown by 2015 Australian of the Year, Rosie Batty following the tragic murder of her son, Luke last year. The loss of a defenceless youth at the hands of his father has placed community focus on the issue of family violence.


So what is family violence?

According to the Family Law Act 1975 it is violent, threatening or other behavior by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. 

In large part due to the work of Rosie Batty, Victoria’s State government has announced plans to hold a Royal Commission into family violence and has appointed a Minister for the Prevention of Family Violence.  The Federal Government has allocated $100 million towards an action plan to combat violence against women.

Statistics reveal the extent of the problem. One in three women experience violence at the hand of someone they know. On average, one woman is killed every week by an intimate partner. One in four children has been exposed to domestic violence.  Family violence consumes forty percent of police work and costs Victoria $3.4 billion annually. Family violence permeates socio-economic boundaries and is a nationwide problem.

To make a positive change in this area, a coordinated effort is required on the part of a variety of different professionals, including psychologists, counselors, doctors, child protection workers, the police and family lawyers.

Rosie Batty’s story demonstrates the complexity of family violence and the importance of a coordinated response. Her case involved more than ten intervention orders, numerous breaches of those orders, as well as Family Court orders. By the time Luke was murdered, the police had been involved with the family for close to a decade. Yet, despite all of this professional involvement, Luke still died. So what have we learned from Rosie Batty’s story and how can we improve the existing system?

Family violence is prevalent in many family law disputes. Often it is present throughout the course of a relationship however it can intensify or emerge as a result of a hostile separation. Studies reveal that the most dangerous time for victims of family violence is at the point of separation. Many victims remain silent through fear however some have the courage to make disclosures to doctors, family therapists, psychologists or even a child’s teacher. Each profession has its own practices and procedures for dealing with such legal disclosures. 

Victims and their advisors need to be proactive and avail themselves to the protections currently available. Having a legal advocate who can provide prompt and effective advice as well as support throughout the process, can be important to the safety and wellbeing of the victims. It is therefore best practice for medical and social service professionals to refer victims of family violence to an experienced family lawyer.

Some victims of family violence may be reluctant to engage with the law. After Rosie Batty’s experience, they may view it as impotent or even inept. Others may be concerned that by invoking the law they might further antagonize their abuser. Others still may be concerned that if they disclose family violence, their children will no longer be able to have a relationship with the violent parent. 

While there is some truth to each of these concerns, since the Batty case, concerted efforts have been made to improve processes involving obtaining intervention orders and the police response to breaches of these orders. In addition, two significant amendments to the Family Law Act have been recently made: 
    •    the definition of family violence has been expanded to include behaviour of a financial, emotional,
         physical or sexual nature that causes fear to family member; and 
    •    a new section has been included that prioritises children’s safety when making a parenting order
         ensuring that they are not exposed to an unacceptable risk of family violence. 

A new Family Violence taskforce has been established linking law enforcement, legal and domestic violence advocacy services. The taskforce has been charged with reviewing family violence services and court processes dealing with this issue.

Already the Magistrates Court in December 2014 has implemented a new Practice Direction which will introduce staged fast tracking of the hearing and determination of criminal offences arising out of family violence incidents.

The team at Calley Family Lawyers recognises that family violence is a major problem and needs to be taken seriously. We are able to provide expert assistance to individuals experiencing family violence or those wrongly accused of behaving in that manner. We often guide clients needing to apply for an intervention order in the Magistrates Court and provide tailored advice to those involved in parenting disputes where family violence is an issue. Moreover, through our collaborative partnerships, we are able to refer clients and their children to an expert team of medical practitioners, counsellors and psychologists if and when required.

The efforts of Rosie Batty cannot be underestimated and she is a deserving recipient of our nation’s highest honour. Ms Batty has placed the issue of family violence on the national agenda and we all remain hopeful that it will be no longer be paid lip service by our legislators.

 
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I HAVE BEEN SERVED WITH 

SUBPOENA TO PRODUCE 

CONFIDENTIAL INFORMATION

- WHAT NEXT?


A subpoena is a legal document issued by the Court at the request of one of the parties involved in a case. A subpoena compels a person to give evidence in person, produce documents or both. You must comply with a subpoena as strict penalties can arise for failing to do so. This may include issuing a warrant for your arrest, ordering you to pay any costs caused by your non-compliance and you may also be held to be in contempt of court. 

 

It is a requirement in family law cases that both parties must provide full and frank disclosure of their financial circumstances. Accordingly, subpoenas requesting financial, banking, taxation, insurance, superannuation, schooling or medical records are now commonplace in family law matters. Many accountants, medical practitioners, psychologists, counsellors, financial planners and school principals are being served with subpoenas at a growing frequency.

A subpoena is required to be served by hand (usually by a process server) and the Family Law Rules 2004 requires this to occur at least seven days prior to a Court date. The complying party should have their reasonable expenses met and currently they must receive conduct money in the sum of fifty dollars.

A complying party may also charge a fee for their compliance if they incur a greater expense than the amount of the conduct money.

Upon being served with a subpoena, it is important that you closely scrutinize the material being requested. Although it is confidential in nature (i.e. relating to one or both of the parties in the case or a relative/associate) there is an expectation it should be disclosed. 

Certain documents may be protected. In these instances you should consult with your professional association and or obtain legal advice. Grounds may exist to object to the subpoena. If you fail to object to a subpoena in circumstances where an objection should have been made, you may be exposed to a professional indemnity claim from your client. It is therefore important that you understand the grounds for an objection.

If you have received a subpoena to produce your client’s information, you should consider whether the information being requested is of a nature that your client would not want it disclosed to the other party. If you have any concerns, you should seek legal advice. You can object to producing a document required by subpoena, but only on the basis of several fairly well defined grounds: 

    •    The requested documents are irrelevant;
    •    The documents are privileged (for example, the documents came into existence as
         a result of a lawyer/client relationship);

    •    The terms of the subpoena are too broad.


It is usually your client (i.e. the person whose records you are holding) who will object to their production.

Normally the court will hold the documentation produced pending any objections. Once these issues are determined, the court will either make material available to the party, who has requested it, or strike the subpoena out and have the material returned to you.
If you have concerns about the nature of the material that has been requested, you should seek independent legal advice immediately. 

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ARE “PRE-NUPS” BINDING


IN AUSTRALIA?


Pre-nuptial Agreements (or Financial Agreements as they are correctly known) have been in existence in Australia for more than a decade and are becoming increasingly more widespread in their use.

So what is a “pre-nup”?


A legally-binding agreement that sets out how property will be divided up on the breakdown of a relationship. A “pre-nup” can be made before, during or after the relationship, and can be made by parties involved in a marriage or a de facto relationship. “Pre-nups” can deal with the treatment of cash and real estate, as well as assets such as a family business, a trust, investments, entitlement to an inheritance, superannuation or even a pension entitlement. Even debts can be included to define who will maintain responsibility if the parties separate in the future.

 
Aren’t “pre-nups” for celebrities, sports stars, famous musicians and actors and the mega wealthy?
Absolutely not. People enter into prenuptial agreements for any number of reasons. Some of the most common are when:
     •    one person has much more property than the other 
     •    one person is, or may later become, entitled to a substantial inheritance or gift
     •    one party is moving into a second or subsequent relationship and might wish
           to protect their assets, particularly if they have children (or have experienced
           the effects of an unkind property settlement)
     •    parties want the certainty of knowing the terms of future a property settlement
           to avoid not ending up in court.

The limits of what can be included in a pre-nuptial agreement are far less clear. So called ‘lifestyle clauses’ that stipulate behavioral expectations during a marriage (e.g. that the parties will not have children, that they will not cheat on each other, or that they will share housework equally) may be enforceable! It is possible that clauses of this nature would be void due to uncertainty, but the law remains untested at this stage.

The Family Court has taken a strict approach to pre-nuptial agreements and there has been inconsistency as to whether they will be upheld by Courts. “Pre-nups” however remain the strongest legal protection available in warding against the uncertainty of a judicial outcome and one should assume that by entering into a financial agreement, the terms will be binding. 

Some legal commentators have questioned the effectiveness of pre-nuptial agreements due to the refusal of the Family Court to grant such Agreements a ‘watertight’ status. Agreements have been set aside for technical grounds (e.g. they have not been properly executed) or for a number of grounds based on sound principles of contract law or equity (e.g. where a party has exercised duress or fraud over the vulnerable spouse, there has been a failure by one spouse to adequately disclose their financial position to the other, the terms of the financial Agreement are unconscionable or designed to thwart the claim of an arm’s length creditor or there is a material change in circumstance attributable to the care of children which causes hardship to a spouse).

The Family Law Act encourages parties however to enter into “pre-nups” to determine how they may wish to divide their property and liabilities (or part thereof) in the future. To ensure that both parties fully appreciate the nature of the proposed arrangements, they must be separately and independently legally represented and their respective lawyers must advise them individually about the effect of the Agreement on their rights and the advantages and disadvantages of entering into the Agreement at the time of doing so.

The team at Calley Family Lawyers are experienced and highly-skilled at drafting financial agreements and are able to discuss the requirements of any individual contemplating entering into a “pre-nup”.

 
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DO I GET TO KEEP

MY
INHERITED

PROPERTY

IF I SPLIT FROM

MY SPOUSE?

 

Property accrued by couples may include assets inherited by one of them during the course of a marriage or relationship. If the parties subsequently separate, how will the inheritance be treated for the purposes of a property settlement? Does inherited property form part of the property pool available for division between the parties or is it retained by the spouse who has received it in the first place? 


The treatment of inheritances in the context of property settlements varies from case to case.
 
The factors a court will consider include:
    •    When during the course of the
          marriage/relationship was the inheritance received?
    •    The duration of the marriage/relationship
    •    The size of the inheritance as compared
          to the remaining assets in the asset pool
    •    The relationship of a ‘quarantined’ inheritance to the
          overall property division

In fact, in 2013, the Full Court of the Family Court stated in the case of Bishop & Bishop [2013] Fam CAFC 138 held that “we cannot emphasise too strongly that each [inheritance] case…will depend on its own facts or circumstances.” 

As a general rule, property does not fall into a protected category merely because it obtained via an inheritance. Beyond this simple statement, the best way to understand the law is to consider some factual situations. For example, in cases involving shorter marriages where the inheritance is received towards the end of the marriage, or even after separation, it is commonplace to ‘quarantine’ the inheritance, making it unavailable for division. Some judges however, have in these circumstances chosen to include the inherited property in the pool of assets available for division. In doing so they have acknowledged the extraordinary contribution made by, or on behalf of, the spouse receiving it, thus giving that spouse a greater share of the asset pool than would have otherwise been received. 

Even where inherited property is quarantined, the Full Court of the Family Court held in the 2013 Bishop case that the Court may take it into account to adjust the overall division of the net property pool in the other party’s favour. While these approaches differ, they may not produce dramatically different outcomes. 

Longer relationships and marriages have given rise to a different analysis. In these instances, particularly when the inheritance was received some time before the end of the relationship, inheritances are usually included in the asset pool and treated as a contribution by the inheriting spouse. The size of the inheritance in relation to the total asset pool is also an important factor to consider in these cases. For example, in the recent decision of Elgin & Elgin [2014] FamCA 10 (17 January 2014) the judge held that a $1.3 million inheritance received 10 years prior to separation should not be quarantined and it should not be considered an extraordinary contribution. In that case, the parties were married for 40 years and had accumulated assets worth around $44 million.

While the Family Court has not developed a consistent approach to inheritances, the rules discussed above provide a general overview of the Court’s approach which remains highly discretionary. 

Given the complexity of assessing the treatment of inherited property on a case-by-case basis, it is essential that a specialist family lawyer be consulted to advise about prospective entitlements.
 
 
 



 

 























FAMILY LAW 
SOLUTIONS

WHICH PROFESSIONS
FEATURE THE HIGHEST
RATE OF DIVORCE?

  •   Dancers and
       choreographers

       43.05%

  •   Bartenders
       38.43%

  •   Massage therapists
       38.22%

  •    Nursing, psychiatric,
        and home health
        workers

        28.95%

  •    Entertainers and
        performers
        including
        sportspersons

        28.49%

  •    Baggage porters
       and concierges

       28.43%

  •    Telemarketers
       28.10%

  •    Waiters / waitresses
       27.12%

  •    Maids and
       housekeeping
       cleaners

       26.38%

  •    Chefs / head cooks
       20.10%

       Source:
      “A Comparison of
       Law Enforcement
       Divorce Rates 
       with Those of
       Other Occupations”
       Journal of Police
       and Criminal
       Psychology,
       Vol 25, Issue 1.

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What does the divorce

rate really tell us about 

relationship breakdown?


In recent years, it has been reported by the media that Australian divorce rates are declining. Statistically, these reports are correct. Divorce rates peaked in 1996 and were in decline by 2010. Since that time the divorce rate has remained consistent.


What does this tell us? Is Australia the nation of the happily married? Not necessarily!

National statistics fail to account for the rising trend of de facto and same sex relationships.

In 2010, 11% (1.9 million) of Australians aged 18 years and over were living in a de facto relationship. De facto relationships are most common amongst younger people, with one fifth (22%) of people aged between 20-29 years living in these relationships, compared with nearly one tenth (9.4%) of people aged between 40-49 years. However, a clear pattern emerges when de facto relationships statistics are compared from in 2010 to 1990. The proportion of people aged between 20-29 years, as well as those aged between 40-49 years, who are in de facto relationships has doubled since 1990. 

Based on the growing trend of de facto relationships, treating divorce rates as the only measure of relationship breakdown produces an inaccurate picture. It is virtually impossible to measure the rate of relationship breakdown amongst de facto couples as very few relationships are registered and legislative intervention is not required to formally bring the relationship to an end. 

Research suggests that de facto relationships are, on average, shorter than marriages and less enduring. A comparison of the Census data for 2006 and 2011 shows that 20% of cohabiting adults in 2006 were single five years later in 2011, while only 7% of married adults in 2006 were single five years later. It is reasonable to conclude that relationship breakdown amongst de facto couples is higher than for those who are married.

Accepting that divorce rates have plateaued requires an acknowledgement that marriage rates are also in decline. Fewer and fewer Australians are choosing to marry. Filling the void are de facto relationships and, like marriages, they often come to an end. 

Fortunately in recent years, there have been changes to the law affording greater legal recognition for de facto relationships. Property settlements and spousal maintenance arrangements are able to be determined in the Family Court for de facto couples whereas previously they only had limited rights under State and Territory legislation and the common law.

In assessing relationship breakdown statistics in Australia it is apparent that the divorce rates may be a misleading guide.
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