Enforcing a property order

Sometimes, whether deliberately or inadvertently, someone may not comply with Family Law property orders.

This may mean that steps need to be taken to enforce the orders.

The reason for the other party’s failure to comply with a property order is often due to difficulties with finance. However, in some cases, it may be due to a party’s deliberate unwillingness to cooperate. In either scenario, our family lawyers can advise you about the best options to obtain the desired outcome of enforcing the orders. This may include going back to Court for enforcement or contravention proceedings; pursuing interest for unpaid monies; or seeking that a property be sold or transferred. The Family Courts have the ability compel parties to sign documents to enforce orders and may even dispense with requirements so that a party can take certain steps without the non-complying party’s co-operation.

As family lawyers, we can certainly tell the difference between well drafted orders, those that provide adequate protections and default provisions, and orders that are inadequate or poorly drafted.

If you need advice about enforcing property orders, you should contact our experienced Family Law team.

Can I join in? Applications for parenting orders by a third-party

It is not uncommon to receive an enquiry from someone whom is not a biological parent to a child (e.g. grandparents, step-parents and other relatives) about their options to spend time with the children of others, such as their grandchildren.

The Family Law Act provides that “any person concerned about the children’s care, welfare and development” can seek Orders in relation to children.

Whilst this seems like it could include a broad range of people, before allowing such parties to seek such Orders, the Family Court places the onus on an Applicant to provide evidence which justifies their need to spend time with the children and evidence that their Application would be in the children’s best interests .

The Full Court of the Family Court in the matter of Mankiewicz and Anor & Swallow and Anor said

Whether or not permission should be given [to a third party to joint proceedings] is a question of fact… to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case.

Case law in the area suggests that the Court will consider evidence such as the role the Applicant had in the lives of the children in the past, the nature of their relationship and their influence on the wellbeing of the child. As always, the Court’s paramount consideration is the best interests of the children.

The Full Court in Mankiewicz and Anor & Swallow and Anor considered an appeal made by maternal great grandparents who had made numerous Applications over the years to obtain parenting orders to allow them to spend time with their great grandchildren. In 2009, at first instance, their Application was unsuccessful with the Court finding that their relationship with their great grandchildren was not of such a nature to warrant their involvement in the proceedings. They did not meet the threshold required to be involved in the parenting arrangements for the children. They were unsuccessful in subsequent appeals, with the Full Court not being persuaded that such an Application was in the children’s best interests.

If you would like further advice about your options to seek parenting orders, including matters where you are not a biological parent to such children, you should contact our experienced family law team.

Proposed Amendments to the Family Law Act for matters involving family violence

In July 2017, the Federal Government revealed proposed amendments to the Family Law Act 1975 (Cth) aimed to prevent victims of family violence parties in family law proceedings whom are victims of family violence from being questioned in Court in family law proceedings by perpetrators.

Currently, in proceedings in the Family Court and Federal Circuit Court, alleged victims of family violence can be cross-examined by the alleged perpetrator of the violence. Due to cut-backs to Legal Aid, the number of self-represented litigants in Court continues to rise. Without a lawyer, the parties conduct their own representation which includes cross-examination of the parties. The Attorney-General’s Department has suggested in their report that being cross-examined by an alleged perpetrator “potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence.”

The proposed method of addressing the issue is to have an examining party, not a party to the proceedings stand in the place of the alleged perpetrator to cross-examine the alleged victim. The intermediary will be appointed by the Court.

Is this the right way to go? Will it be enough? There is no doubt that change needs to occur but faces a huge challenge of the necessary legislative changes being made and the government providing adequate resources to the Court to make such a change effective.

Location orders for children

In the unfortunate situation where a parent removes a child and the other parent is unable to locate the child, a party can make an Application for a Location Order.

A Location Order requires a third party, such as the Australian Federal Police or Centrelink, to provide to the Court any information about the location of the child and/or the parent who has taken the child.

As well as the Application, the Applicant must also file a supporting Affidavit setting out:

1. Their personal history and the personal history of the other party;
2. The history of the relationship between the parties;
3. Details of the history of previous court proceedings between the parties (or lack thereof);
4. The relationship between the child and the Applicant;
5. The possible location of the child and the basis of that belief;
6. Any steps that they have taken to locate the child prior to filing the Application;
7. The anticipated effect if the Court did not make the Order; and
8. Why they believe the other party (e.g. Centrelink or the Australian Federal Police) will have the required information (e.g. the other party is believed to be receiving Centrelink payments.)

As with all parenting matters, the Applicant needs to convince the Court that the making of the Order is in the child’s best interests.

If the Application is successful, the third party (e.g. Centrelink or the Australian Federal Police) will provide the necessary information to the Registrar of the Court.

Location Orders can be a useful or necessary step in such situations, which thankfully are extremely rare.

What’s it worth? Valuing household items and personal assets in property settlements.

When determining an appropriate property settlement, an initial step is to ascertain what the property pool is to be divided – that is, what is the pie to be carved up. The assets and liabilities need to be identified and their value clarified.

With high value items such real estate, cars and businesses, if parties cannot agree on their value then independent valuations can be obtained.

When it comes to household contents and personal items, even though they can be independently valued to determine their worth – parties have to ask themselves – is it worth it? A more practical and common sense approach is required.

For family law purposes, the market value of household contents and personal items is their current resale value – often referred to as “garage sale value” — that is, not the original cost, replacement value, sentimental value or insured value.

The average garage sale (or these days ebay) value of household contents including furniture, appliances and personal items (excluding antiques, artwork and jewellery) is generally much less than what you paid for it. That leather couch you saved up for, it will probably now only be worth a couple of hundred dollars. For this reason, parties are encouraged to agree between themselves as to the value and division of such items – a common approach is for one party to write up two lists of proposed divided items and for the other party to choose the list of items they wish to retain — you cut the cake and I’ll choose which piece.

Of course the Court can eventually decide who gets what but they generally will not spend a lot of time on the issue and can even just order that all the items be sold and the proceeds be divided – which can be devastating due to sentimental value and replacement costs of some items.

Taking into account the possible legal costs required to negotiate about these matters and the costs of valuations – as well as asking what’s it worth, parties should also ask — is it worth it?

I've separated. How do I make parenting arrangements?

In many instances, when parents separate, they are able to reach an amicable agreement about their parenting arrangements. When parents agree verbally on the arrangement for their children, such informal agreements are not always recorded in writing and the parties have generally not had the benefit of obtaining legal advice about the appropriateness of the arrangement. Such agreements are not legally binding or enforceable (although they can be used as evidence of the "status quo", that is they can be used as evidence as to what has been the arrangement which can be considered when determining what the future arrangements will be). Sometimes informal arrangements need tweaking over time and conflict can arise at that point too. Even if you are able to reach an informal agreement, it is greatly beneficial to receive advice so that an enforceable and long-lasting agreement can be drafted.

An agreement can be turned into a Parenting Plan. This is a written agreement which stipulates that parenting arrangements. They usually include parental responsibility, with whom a child lives, with whom and when they spend time with and arrangements for special occasions. A Parenting Plan can be drafted out of Court. Unlike Court Orders, a party cannot be found to be in "breach" of a Parenting Plan. Although they aren’t strictly enforceable, if the matter did proceed to Court, the evidence before the Court would include, the arrangements provided for in the Parenting Plan.

When parties reach an agreement the agreement can be made into Court Orders, known as Consent Orders. A lawyer would turn an agreement reached between parties (with or without lawyers’ assistance) into the correct format and the written agreement is then submitted to the Court for approval. No Court hearing is required, instead the Orders are considered "in Chambers". If deemed to be in the children’s best interests by the Court, the Orders are made and become legally enforceable.

If parties are unable to reach an agreement for parenting arrangements between themselves, with the assistance of lawyers or through mediation, then an Application can be filed in the Federal Circuit Court or Family Law Court of Australia seeking parenting orders. The Application would detail the orders sought and once filed, it is served on the other party, whom then file responding documents. Before an Application can be filed, parties generally have to have attended to attempted to attend mediation or Family Dispute Resolution Conference. There are circumstances where this requirement is negated, such as in matters involving family violence and urgent matters. Once the Application is filed with the Court, the Court will set a date for the first hearing. There is a lot of scope during Court proceedings for matters to be negotiated without the need for the Judge to make the final decision.

At OFRM we have Bendigo and Central Victoria’s largest Family Law team, headed up by our 2 Accredited Family Law Specialists, Marika McMahon and Sam McGee. All our family lawyers are able to assist you with your parenting arrangements when you call 03 5445 1000.

The latest in duress

One ground on which a Binding Financial Agreement (BFA) can be set aside by a court is if the court is satisfied that there has been "duress". More light has recently been shed on what constitutes duress by the Family Court recently considering that issue in a case known as Kennedy & Thorne.

The property pool when the parties commenced their relationship was in excess of $18 million. The parties met on the internet, with the wife living overseas. The wife moved to Australia and the parties married. The husband had 3 adult children and made it very clear to the wife that he intended to leave his assets to those children. Despite strong advice from her lawyer against signing the BFA, the wife signed one BFA just prior to the wedding and another BFA within a month on the marriage, with that BFA terminating the first BFA.

After the parties separated, the wife initiated Court proceedings seeking that the BFA be found to be non-binding or set aside due to duress and she sought a property settlement of $1,100,000, as well as Spousal Maintenance.

When the matter was decided by the first judge, that judge stated in order to establish duress "there must be pressure the practical effect of which is compulsion or absence of choice" and "duress was born out of the inequality of bargaining power where there was no outcome available to [the wife] that was fair or reasonable".

The trial judge held that the wife had signed the BFA in the context that there was to be no negotiations in regards to the BFA — that she knew that if she did not sign it, then the parties would not marry. The BFA was found to be non-binding due to duress.

However, the Full Court disagreed and declared that the correct test "is whether there is 'threatened or actual unlawful conduct'". The Full Court confirmed that "[t]here needed to be a finding that the 'pressure' was 'illegitimate' or 'unlawful'." The Full court said that an "'inequality of bargaining power' cannot establish duress". The Full Court held that the BFAs were enforceable.

It would seem that this is narrowing the circumstances that will amount to duress

So what are the lessons from this judgement — it makes it even more important that if you are having a BFA you want the circumstances to be very clear so that there is no chance of duress being considered. The best way of avoiding that is to talk to our Family Law team early on 03 5445 1000 if you are thinking about a BFA.

Explaining de facto relationships

These days it is very common for people to live together without being married. A de facto relationship can be between a female and male or people of the same sex and can be in circumstances where one person of the relationship is married or in a de facto relationship with another person.

Despite the common misconception, to be considered to be in a de facto relationship, it is not necessary for a couple to have been living together for 2 years.

Under the Family Law Act, a person is in a de facto relationship when:

• The persons are not legally married to each other; and
• The persons are not related by family; and
• Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The Court then looks at the circumstances of the relationship including any or all of the following:

1. the duration of the relationship;
2. the nature and extent of their common residence (de facto relationships have been found to exist even when the parties do not live together)
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
5. the ownership, use and acquisition of their property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
8. the care and support of children;
9. the reputation and public aspects of the relationship.

People in de facto relationships have the same rights as married people when it comes to family law parenting and property matters.

Contact our family law team if you are unsure whether or not your relationship would be considered to be a de facto relationship.

If you are in a de facto relationship you may wish to obtain advice about available steps to protect your assets.

If your de facto relationship has broken down then you should seek advice about property and/or parenting matters. There are also time limits that apply to property settlements in de facto relationships so it is essential that legal advice is sought as quickly as possible. Call us on 03 5445 1000.

Surviving Easter and school holidays when you are not spending time with your children

Easter – advertisers and Instagram would have us believe it is a time full of family. A time full of camping, egg hunts, hot cross bun parties and in Bendigo, the Easter Festival.

With that 4 day block of public holidays – to say nothing of school holidays as well - it can be a really challenging time if your post-separation parenting arrangements do not provide for you to spend time with your children.

When the children are not with you and you’re struggling, keep yourself occupied – perhaps do things that you would not otherwise be able to do when the children are with you – go to a great restaurant, catch a movie, get your to-do list done, keep your house tidy(!) or catch up with friends. Don’t get too hung up on having to have the children with you on the dates our culture marks as the family ones. Figure out other ways to make it special as of course, you should try to make the most of the time you do have with your children whenever that is.

Remember, you can also celebrate the special occasion on a different date when you are spending time with your children. There would not be any children who would be upset to have to celebrate Easter for another day. Create new traditions!

Being prepared can avoid such difficulties. If you think your arrangements could be better, make a time to see one of our experienced [Family Law team] (https://ofrm.com.au/family-law) for further advice by calling 03 5445 1000. Your current arrangement may need tweaking or there may be avenues available to obtain a more appropriate arrangement.

Facebook brings your life to Family Court

All too often you will see someone venting on Facebook — especially when when they are experiencing difficult and emotional times¹. After separation is not the time to turn to Facebook to share your thoughts as such posts can have dreadful ramifications.

It is not uncommon for Affidavits filed in Family Law proceedings to have voluminous pages of Facebook posts annexed to them:

• photos posted on Facebook of their former partners out drinking alcohol when the children are in their care as proof that a parent is not child focussed or does not have the capacity to meet their children’s needs
• photos of a party on a holiday or with a new purchase might point to money not disclosed or an understatement of their ability to support themselves
• A Facebook post of a parent denigrating their former partner as evidence that a parent is not encouraging the relationship between that parent and the children

In a recent reported case, a father’s Application to have his children returned to him from Australia to New Zealand was not successful as the Judge accepted Facebook evidence from the mother in which the father had told her that he wanted the children to live with her.

Another interesting matter was where Facebook posts of the father and children at the beach was accepted by the court as proof that the father had contravened an order that his time with the children was to be only at the child’s grandparent’s home. A friend of the father, obviously also a accessed the photo, printed it and provided it to the mother. The Court took into account that evidence when finding that the father had breached the Order. The father had also denied taking the child to the beach, so the evidence also negatively affected his credibility.

In another reported case a status update from a mother was admitted as evidence in proceedings. The mother had posted on her Facebook profile:

"I was worried for a while there he wouldn’t turn up, but he was running late. I don’t care. I’ve still got my babies. Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000".

The mother was found to have deliberately prolonged the proceedings. This status was used as one part of evidence. The presiding Judge concluded that the mother had abused the Court process and had exploited the father by making him incur further legal costs and had wasted the Court’s time and resources. A $15,000 Costs Order was made against the mother.

It is also important that parties in Family Law proceedings are aware that Section 121 of the Family Law Act makes it an offence, punishable by jail for up to a year, to publish information in a public forum about Family Law proceedings — this includes publishing on Facebook.

In a 2013 case known as Lackey & Mae (Family law reported cases are pseudonyms) the father and his family members had posted comments and statuses on Facebook in which they criticised and denigrated the Court, the Judge, the mother, the Independent Children’s Lawyer and experts in the proceedings. The Court ordered that the father and his family members remove all references to the proceedings from their Facebook pages. An Order was also made for a Marshall of the Court to monitor the father and his family’s Facebook pages for the following 2 years to ensure they complied with the Order. If they didn’t, then the matter was to be referred to the Australian Federal Police.

It is important that upon separation and during Family Law proceedings you should:

• Change your password — Ensure that only you have the password to access your account.
• Check your privacy settings — Check who can see your profile and how much of your profile they can see. Check that you have to first approve any “tagging” of yourself in photos. Also check whether others can find out your location through Facebook.
• Review your "friends" list and remove people if necessary — People whom you considered friends during your relationship may not be post-separation. Such friends may be waiting to take a screen shot of your slip ups.
• Think before you post — Remember that everything you post has the potential to find its way into evidence in your proceedings. Do not post about your proceedings or your former partner. Be child focussed. If you would not want a Judge to read it, do not post it!
• Consider going offline — It may be best for you to avoid using Facebook (and other social media) until your Family Law proceedings have concluded.

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1. For the dangers of this our related post titled How to defame someone in 2 minutes or less.↩