The general public usually assumes that the division of assets should be a 50/50 split between the parties who are separated and intend to finalise their financial relationship.
This is not always the case. The Federal Circuit Court and Family Court take into consideration various factors when determining a division of the matrimonial asset pool, which are as follows:-
1. The initial step would be to determine the net value of the matrimonial asset pool.
Whilst real estate is generally the most significant asset of the matrimonial asset pool, it is not the only asset. Other assets also include bank accounts, motor vehicles, real estate etc. Even personal items such as luxury handbags and jewellery, depending on the value, can be included, or a person’s share in a company, for example, a construction company.
Assets owned solely by a party, jointly with each other or even jointly with a third party are to be included.
The net value of the asset pool is to be determined. Therefore, liabilities, such as credit cards and finances secured over motor vehicles, are also taken into consideration. The total assets minus the total liabilities would equate to the net value.
Also, superannuation is also taken into consideration by the Courts. However, it is best that you seek legal advice from an experienced family lawyer in relation to the Superannuation Split.
2. Contributions made by each party throughout a marriage or de facto relationship are also taken into consideration.
These include financial contributions, such as one partner earning an income, and the non-financial contributions (or equitable contributions) made by a party in their capacity of a homemaker, such as caring for the children and carrying out the household chores.
3. Future Considerations.
The Court will also take into account future considerations, i.e. relevant future factors, including but not limited to:-
- Age and health of the parties;
- Income earning capacity of the parties; and
- Whether one party is to be the primary carer of the children.
4. Last of all, the Court has to determine whether the division is 'just and equitable'.
This decision is at the discretion of the Court and simply put, should the Court think that making a division, even if it is agreed upon between the parties, is unfair and inequitable, it may make an adjustment to the ‘disadvantaged party’ which it determines to be fair.
Once the Court takes into consideration of all of the above (and more) and essentially ‘balances out’ all of the relevant factors, it can make orders that it deems to be within the parameters each party is entitled to. The purpose of the division of the matrimonial asset pool is to finalise and sever once and for all the financial relationship of the parties so that they can move on their own separate ways without any further connection between them in relation to property.
This article is general advice and does not take into account your personal circumstances. It would be prudent to obtain legal advice in relation to your particular circumstances.
Our Firm is holding a legal workshop on 15 and 16 March 2019 and we will be discussing various issues including this topic and the best thing – it’s for free! Hence register your interest now by clicking here.
The High Court has recently decided that the debt of one spouse may be transferred to the other during a divorce property settlement. In the case of Commissioner of Taxation v Tomaras, it was decided that the Family Court can give orders to the Australian Tax Office (ATO) as part of the determination of a divorce-related property dispute.
In this case, Mr and Mrs Tomaras were married from 1992–2009, during which time Mrs Tomaras accrued debts of $250,000 owing to the ATO. After the breakdown of their marriage, Mr Tomaras became bankrupt. In December 2014, Ms Tomaras commenced proceedings in family law, and when the Taxation Commissioner intervened, seeking the $250,000. Ms Tomaras sought orders to substitute her ex-husband for herself as the debtor.
This recent High Court case then decided that the Family Court could indeed make the order Ms Tomaras sought. This was due to s90AE(1) of the Family Law Act 1975 which allows the Court to make an order binding a third party – in this case, the ATO. The order bound the ATO to substitute the husband for the wife in relation to the debt. Here, it did not make a difference that the husband was bankrupt, and that the Taxation Commissioner is now potentially $250,000 out of pocket.
Cases like this are unlikely to be common, as they will only occur when one spouse has been unwilling to share the burden of taxation during the relationship, and in cases where it would be ‘just and equitable’ to make this order. This will only occur when the person who originally owed the debt is unable to pay it. Nevertheless, spouses should be aware that they may be responsible for their partner’s taxation penalties and/or liabilities, even after separation.
If you have any queries relating to divorce property settlements, or any of the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
From the 12 December 2018, all employees are entitled to take unpaid leave as a result of domestic violence.
WHAT IS FAMILY AND DOMESTIC VIOLENCE?
Family and domestic violence refers to violence, abuse and intimidation between family members as well as people who are or have been in an intimate relationship.
Historically, family and domestic violence has been considered a taboo subject. An issue not to be discussed and its existence was to be hidden behind closed doors. Fast forward to the present, public perceptions surrounding family and domestic violence has slowly, but surely, developed. With increased social awareness of its effects, family and domestic violence is now considered a major health and welfare issue.
WHAT IS THE NEW ENTITLEMENT?
Under the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018, all employees are entitled to take 5 days of unpaid family and domestic violence leave per year.
WHO IS ENTITLED TO UNPAID LEAVE?
As of 12 December 2018, the entitlement has been extended to all employees. This includes part-time and casual employees.
WHEN CAN YOU TAKE THE LEAVE?
Employees are entitled to take 5 days leave from work, allowing them time to deal with the effects of family and domestic violence. This will enable victims of family and domestic violence to access medical, counselling and police services, as well as time to relocate and attend court hearings during work hours.
NEXT STEPS FOR AUSTRALIA?
The new entitlement is reflective of Australia placing an increased focus on domestic violence and the effects it has on its victims. However, the grim reality is that family and domestic violence is still a major issue throughout Australia today. According to the Australian Institute of Criminology, one woman a week is murdered by her current or former partner. Advocacy group, White Ribbon Australia, encourages the creation of a national homicide review panel so that we, as a country, may work toward preventing future instances of domestic homicide.
If you are a victim of family or domestic violence, or have any queries relating to the issues featured in this article, please do not hesitate to contact us at any time on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
Mittu Gopalan was delighted to partake in the 3rd Annual Navzad Memorial Foundation Fundraising Gala Event on 10th November by donating a beautiful and original painting to be auctioned off. These funds will go towards brain cancer research, awareness and education, in the loving memory of Navzad Engineer.
It is through the strength of our communities that we can strive to make a difference and a change.
To learn more about the Navzad Memorial Foundation, please visit their website.
We are pleased to announce that Freedman & Gopalan has been short-listed as a Finalist in the Lawyers Weekly Women in Law Awards, in the category of:
Boutique Diversity Law Firm of the Year
We take this opportunity to congratulate our clients for this honour and our team for being part of our success!
We especially thank our loyal clients for their incredible ongoing support and their appreciation of our commitment to delivering a personal and high quality service.
The Women in Law Awards recognise female legal professionals who have demonstrated strength and excellence in their field. Lawyers Weekly editor Emma Ryan has said:
Being a woman in the business of law isn’t always easy; however, these finalists represent all of those who have broken down the barriers, challenged the status quo and enhanced the practice of law in Australia for the better. They have gone to incredible lengths to demonstrate exceptional performance in their respective areas of expertise, as well as made an outstanding contribution to their organisations, clients and the community at large.
We are extremely pleased and humbled to have made it this far! Stay tuned; the final results will be announced on Thursday, 22 November 2018.
Thank you all once again!
Recently, the District Court of NSW ordered a solicitor to pay costs to their client. The solicitor Grace represented the Plaintiff, Bennie from 1999 to 2009 in a dispute with the State of NSW. Bennie, a police officer, had informed on another officer engaged in criminal activities, and in 2009 was awarded $2,236,408.00, plus costs.
However, it was when the costs were assessed that this sum began to shrink. More than 6 years after the judgment in 2009, the total bill was reduced to $1,534,234.59. Bennie had already paid more than this amount to his solicitor and Mr Grace was forced to repay $186,141.00.
Subsequently Mr Grace brought proceedings to avoid payment. The District Court did not decide in his favour and ordered that he pay $187,452,34, plus interest from 2009 and the costs of the matters. This could add up to over $500,000.00.
What was already a costly, 10-year litigation against the State of NSW has amounted to a two-decade dispute in which Mr Grace has not received remuneration. This case shows most of all the utmost importance of resolving legal disputes in a timely and cost-effective manner.
Firstly, we take this opportunity to recommend that any cost dispute should be addressed as soon as possible so that issues in relation to facts and outstanding costs matter can in fact be resolved at the earliest with either party being in a position to address the concerns and issues without the time lapse scenario. As outlined in every Tax Invoice issue by a legal firm it would be most prudent if the legal costs are challenged or disputed and a cost application bought at the earliest.
If you have any questions or concerns, please do not hesitate to contact us on 02 8917 8700. We shall endeavour to revert to you at our earliest.
The list commonly known as the ‘airport watch list’ (although it also applies to international travel by sea) is used by the authorities to prevent the unauthorised removal of a child from Australia.
Children in Australia cannot leave the country without the consent of their parents, and children subject to ongoing parenting proceedings also cannot leave without the consent of the other party or a court order, according to sections 65Y and 65Z of the Family Law Act 1975. Child abduction in breach of these sections is punishable by imprisonment of up to 3 years. If the child’s name is placed on the Family Law Watch List, the departing parent will be stopped and not allowed to leave.
To place a child’s name on the list, one must apply for a court order and if successful, present this order to the Australian Federal Police who can enforce at all international departure points. In granting the order, the Court would consider the best interests of the child, and whether there is a real and immediate risk the child will be removed and not returned to Australia. Also, the order can be unconditional (barring all travel) or dependent on certain conditions being met.
Once a child’s name is on the Family Law Watch List it will remain there until they turn 18, unless limited to a shorter time period. Many names remain on the list long after the threat is gone and failing to apply for a Discharge Order to remove a child’s name can have unintended negative consequences. The children who were once protected under the order may be caused inconvenience and distress if they begin to travel internationally as teenagers, for example on school sports trips or with friends after their HSC exams.
Apart from the Family Law Watch List, another possible solution is to apply for an application under section 67ZD to have the passport of the child and any other concerned person delivered to the court.
If you are concerned about your child’s overseas travel, or you have any queries relating to the issues raised by this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
What is Domestic Violence? Domestic violence is referred to being violent, abusive or intimidating behaviour in a relationship and includes social, physical, financial, sexual, emotional and mental violence. It does not have to occur within your home as long – as it happens within a relationship, it is deemed and classified to be a ‘Domestic Violence.’
Such an act occurs when someone close to you has the power and control over you and this control/abuse can be expressed in different ways.
Physical abuse:
This is where the perpetrator is hurting victim physically.
Emotional abuse:
This is when someone is emotionally abused and attacks your worth and independence.
Financial abuse:
This is when someone controls your finances and ensures that you are financially dependent on them in a manner you are always obliged to ask them for money. This is also classified as a form of domestic violence.
Social abuse:
This abuse takes place when someone insults or humiliates a partner in front of other people and ensures that the victim is isolated from family and friends and is controlled in what he/she does.
Spiritual abuse:
This form of abuse involves the perpetrator preventing the victim from having his/her own opinions about religion, cultural beliefs and values. This also includes manipulating your thoughts on spirituality in order to make the victim feel powerless.
Do you know someone who is undergoing domestic violence and what can you do about it?
Always reassure the victim that he/she can leave where he/she feel unsafe and that it is urgent that the victim talks to someone who he/she can trust such as a friend, counsellor or social worker. They should talk to the police if they feel unsafe and if their life is in danger. The police are there to protect them.
Kindly also advise the victim to reach out and obtain advice from either their solicitor or call 000 or 1800 RESPECT. Translation services are also provided via 13450 number. Please also check out your rights at www.domesticviolence.nsw.gov.au, phone:1800 656463 (NSW). Kindly remember that if you are a victim, you do not have to put up with the situation believing that you do not have a choice. You do have a choice and at no stage does one need to succumb to these excruciating circumstances.
We are all aware of the recent death of Ms. Kaur at her Glenwood home on 15 January 2018. Her husband Mr. Jagdish Singh was subsequently charged with murder. It was only upon the police investigating the matter, did the unfortunate domestic violence incidents relating to the family become public knowledge. If the community members, family members or friends had in fact known to help Ms Kaur and reach out, maybe her life could have been saved.
If you are aware of anyone or if you are undergoing domestic violence, please contact the emergency hotlines outlined above.
Please also do not hesitate to contact Freedman & Gopalan Solicitors at 02 8917 8700 in order to discuss the situation. All discussions held will of course be kept confidential and you do not have to feel obliged at any stage to put up with it for the sake of family or community.
In the coming weeks the NSW Parliament will debate new laws that would create a new strangulation offence, in an effort to reduce domestic and family violence. Non-fatal strangulation is a key indicator of a fatal attack, with one in four domestic murders preceded by strangulation.
The NSW Crimes Act (1900) already contains two strangulation offences, however less than half of the prosecutions under these laws result in convictions. Under section 37 of the Crimes Act 1900 (NSW) the offence of choking, suffocating or strangulating carries a maximum sentence of 10 years, but first it must be proven that the victim was rendered unconscious or unable to resist, or that the strangulation occurred in the course of an indictable offence, such as sexual assault. Due to this high threshold, many strangulation incidents are prosecuted under section 61 as common assault, which carries a maximum sentence of 2 years.
The new law would only require non-consensual and intentional choking, strangling or suffocating and it would carry a maximum sentence of 5 years.
This new strangulation offence is easier to prove and would mean less strangulations prosecuted as the lesser offence of common assault. It would also be a red flag to authorities regarding future violence when considering ADVOs and granting bail.
If you have experienced domestic or family violence, or have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.