Rules for the Family Courts - too complicated.

A recent decision of the Full Court of the Family Court (Thompson & Berg [2014] FamCAFC 73 (2 May 2014), (the link to the case is here ) demonstrates the complexities of the two courts exercising federal jurisdiction under the Family Law Act.  The husband sought an injunction against the wife proceeding with her application on the grounds that the rules of the Family Court should be adhered to in the absence of their being the same rule in the Federal Circuit Court Rules.

The Family Court Rules provide for certain pre-action procedures where the expectation is that parties will try to resolve issues through dispute resolution (negotiation, mediation etc) prior to commencing proceedings. The Federal Circuit Court Rules do not require those strict pre-action procedures.  The outcome is that property settlement proceedings are commenced in the Federal Circuit Court without the requirement of the parties or their lawyers to attempt to resolve matters without the courts intervention.  Compulsory mediation is a requirement under the Family Law Act in relation to parenting issues so it applies to both Courts.

The answer to the question would be to have one set of rules governing both courts administration of the Family Law Act.  That would simply procedures for both the public and the legal profession.  Secondly, the Federal Government (now and previously) have a general policy to promote the resolution of disputes without resort to the courts as it provides self determination and a cost saving to the public purse.  There is need for review and change.

Contact us on 07 38043244 for help with Family Law matters and Mediation.

Another Successful Court result at FLMS

We appeared in the Federal Circuit Court recently on our client's application to set aside orders that were made in 2005.  The Respondent to the proceedings was insisting that the particular order which the Court was asked to set aside should continue to remain in force for her whole lifetime and that of the Applicant. This would have meant that the Applicant would continue to pay certain expenses of the wife which over time amounted to thousands of dollars. This was despite the parties having divorced some years ago and in circumstances where all of their children are now adults.

At the time the order was made our client was not represented and the orders drafted by the other parties solicitor were made by the court in circumstances where clearly they should not have been made for various reasons, not the least of which is that Section 81 of the Family Law Act provides that the Court should, as far as practicable, make orders finalising the financial relationship of parties and to avoid further proceedings between them.  If advice had been sought from us at the time we would have advised the client that the particular order was poorly drafted and should have been amended before he signed it.

You should ensure that you obtain legal advice before signing documents, particularly consent orders or other documents purporting to deal with property settlement, spouse maintenance or child maintenance issues.

We have a range of appointment options to allow you to get the advice you need within your budget.  At your initial appointment you will be advised of the options available to deal with your matter and the likely cost of pursuing those options.  There is no obligation to engage us to act further for you unless you wish to do so.

Financial Agreements can be set aside

Gregory & Gregory is a case decided in January this year in Brisbane.  The lesson to be learned from the case is that where parties enter into a financial agreement under the Family Law Act which determines how their property should be dealt with in the future in the event of the end of the relationship, its existence and terms need to be carefully considered during the relationship and after it ends.

In essence the agreement was set aside on the basis that the agreement could not be carried out because it was “impracticable” to do so (Section 90K(1)(c) Family Law Act).  This arose because the wife had dealt with the “separate property” of the husband (i.e. property which was defined in the agreement to remain his in the event of separation) and that her "separate property" was to remain hers.  The wife’s use of money which was from the separate property of the husband (a significant superannuation payment she intercepted and put to her own use) meant that the husband (or his estate as he died after proceedings were commenced) could not be repaid unless the agreement was set aside as the wife was entitled to retain her real estate as it was “separate property” under the financial agreement.  The Judge also commented that the agreement could also have been set aside given the unconscionable actions of the wife in taking the husband's superannuation monies.

Financial agreements (including prenuptial agreements) are valuable tools in protecting property from claims following the breakdown of relationships, particularly in second relationships.  Significant care needs to be taken when drafting the documents but this case also shows how important it is not to forget that the agreement exists and that the parties to the agreement need to understand their own actions may lead the to the agreement being set aside upon grounds found in Section 90K of the Family Law Act.

CALL US ON 07 38043244 FOR ADVICE ON FINANCIAL AGREEMENTS

"Special Contributions - What's so Special.?"

New Family Court Case mentioned by Sydney Morning Herald

Read the story here -  The Family Law Act requires a consideration of the contributions of the parties to a relationship to be assessed in terms of financial, non-financial and homemaker and parents terms together with other facts affecting the parties and relevant to their particular cirucmstances.  The decision in this case is significant in that it has dismissed the application of the "special contribution" by the husband which is often raised in "big money" cases involving assets in the millions of dollars.  The matter reported on has been remitted back to the Family Courts for rehearing.

Assessing court based outcomes can be difficult to predict with certainty in some circumstances which makes it important to get early advice in relation to property settlement better still make your own decision and Mediate! - Call us to make an appointment.