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LEGAL HELP

The following are anonymised edited samples taken from our Legal Help Line. This is a unique service in which our subscribers receive expert written help on all family law and practice issues quickly (within 24 hours, usually on the same day as the help is sought).

Any case or other links forming part of our reply will usually be live.

See "terms and conditions" at our home page under "subscription and online licence”.
  • (Subscriber sought our view as to the impact of a party’s initial contribution of real estate owned by him at commencement of cohabitation.)

    Since Pierce the courts no longer treat the significance of an initial contribution as having being eroded over time: see the statement cited from Pierce at p 7-28 TFLB as to the need to weigh all initial contributions, in particular the use made by the parties of such contributions.

    Also see Williams at page 7-26 as to the need to value introduced assets that still exist at current net value (this has been extended to assets gifted or otherwise received by a party during cohabitation: see Kern [2014] FCCA 1108 at para 52). Williams is also arguably authority for such an initial contribution being valued @ its net sale proceeds if sold during the relationship.

    See too Manolis (No. 2) on that page as to the need to weigh the value of any later assets that were acquired from the sale of initially contributed assets as a 'springboard' for that later acquisition.

    The party alleging initial contributions should be put to proof as to their net value at cohabitation and as to ultimate net sale price or current market value.

    Later significant financial contributions such as earnings and contributions to super made during cohabitation tend to be treated as offset by the other party's (usually various) contributions: see p 7-28, 1st and 2nd bullet points.

    Equally, property bought by the parties or either of them during the relationship are treated simply as 'marital assets’ ie not property to which either party can make special claim.

    To evaluate a contributions based adjustment for an 'initial contribution' (or a windfall during cohabitation) see our table of past contributions assessments from page 7-30 and look for similar scenarios to yours i.e. ‘w (yrs cohab) - x (chn) - $y (initial contn)/$z (net asset pool)'. The RH column contains the assessment of contributions.

  • We have a post office address for the father, but he is not responding to my letters. Can I apply for an order for substituted service?

    Yes. The relevant rule in the FCC is FCCR 6.14. The matters to be taken into account - being steps that should first be taken by you and/or your client and then set out in your affidavits in support - are set out in FCCR 6.15. You could adapt our precedent affidavit at p 3-11 TFLB.

    In Sompe [2010] FamCA 47 Cronin J ordered that court papers be served on the respondent by post (both at an address and care of solicitors) by way of substituted service, the reasons for judgment setting out the various attempts the applicant’s lawyer had made to effect personal service on the respondent.

    In Byrne & Howard [2010] FMCAfam 509 at paras 16-29 Brown FM ordered that in lieu of personal service an application was taken to have been served on the respondent by the relevant documents being sent to him via the social networking site Facebook, which he used regularly.

    In Kozar [2013] FCCA 339 it was ordered that substituted service be effected by email.

    Our summaries of those cases are at our archived 'case notes – children' under 'service, substituted, dispensing with'.

  • A client has asked me to prepare a certified domestic partnership agreement to protect assets held by him where the relationship is about to commence. I am not sure whether or not the old precedents are going to apply now as the relationship is starting after 1 July 2010 (date of SA’s referral of power to the Commonwealth). Could you please clarify that they should still enter into such an agreement which just needs to make reference to the Family Law Act as well as the State legislation or if there has been a major change. Could you please clarify as I am not sure. Also, as the parties may agree to opt in, what is the procedure there?

    Since your referral of power, SA law will no longer apply to the financial relationship of de facto partners (for either property/maintenance proceedings or a financial agreement) after 1 July 2010. As your client will be in a de facto relationship after that date he will be needing a Part VIIIAB financial agreement under the FLA.

    You could use our precedent unilateral quarantine for de factos, available at our online "forms and precedents" via a keyword search for "bfa". Our precedent opting in statement is also there via a search for "opting in".

  • What is the best way to commence an application for children to live with grandparents and can you point to some relevant cases?

    Simply treat the application as any parent v parent application, except in this case you must add both parents as respondents to your proceedings.

    A parenting order may be made in favour of a grandparent: s 65C of the FLA. See pages 4-11 and 4-12 of TFLB. The issues are pretty much the same: see from page 4-14 onwards.

    Firstly, you must arrange for your clients and the parents to attend family dispute resolution (FDR) with an FDR provider. For your nearest FDR provider do a keyword search for "fdr provider" at our online "forms and precedents". The FDR provider will then give you a certificate which you file with your court papers (in the FMC). See pages 4-7 and 4-86.
    The procedure for parenting cases is set out from page 4-77 onwards.

    Our precedent orders are from pages 4-88 (interim orders), 4-95 (final orders) and our precedent affidavits (for interim hearings from page 4-105 - five versions and for final hearings from page 4-132 - five versions).

    See page 4-39 TFLB where we have a couple of cases on grandparent applications and, for more cases, our archived 'case notes - children’ under ‘non-parents (including grandparents)’.

    For a review of the “parent v grandparent” cases, see Kay & Jasper and Ors [2007] FamCA 1646 at paras 67-74.

    In Paton & Williams [2010] FamCA 855 a parenting dispute between parents, maternal grandmother and paternal grandparents was resolved by Austin J by means of an order that the child live with the paternal grandparents (who were to have parental responsibility for the child) and spend time with the mother and/or maternal grandmother one weekend per month and during school holidays and with the father on a supervised basis by agreement with the paternal grandparents.

    Other examples of grandparents being granted orders that children live with them: Miels & Moulden [2010] FamCA 875 and Berryman & Jones [2010] FamCA 235. In Miels & Moulden parental responsibility was to be shared between parents and maternal grandparents but in Berryman & Jones the paternal grandmother was given sole parental responsibility.

    In Scott and Anor & Ross and Anor [2012] FamCA 193 maternal grandparents, with whom the children had been living for some years, were granted sole parental responsibility.

    There are many such cases. In Lawson & Warren and Ors [2011] FamCA 38, where the parents had long histories of drug abuse, parental responsibility was confined to a paternal grandmother (and, when the child was to spend time with her, the maternal great-grandmother).

    Also at our archive see Danes & Anor [2013] FMCAfam 281 ('Children – Maternal grandmother’s application for parenting orders dismissed due to her lack of insight into children’s needs – Grandparent cases reviewed’).

  • (A question about property entitlement involving a short childless marriage.)

    Arguably the soundest approach in short marriage/relationship cases (where there are no children to provide offsetting parenting/homemaking contributions) is the contributions approach made in Edgar & Faines a link to which is at page 7-35 of our eBook. It was a case where after a three year marriage the parties were reinstated (by Warnick J upholding Spelleken FM) with their pre-marital properties, with an adjustment to allow for money paid towards the other's house, holidays and other expenses.

  • I am drafting a section 90D BFA which will include super splitting clauses. Do procedural fairness rules apply to a split under BFA?

    My co-editor Craig Nicol recently replied to such a question as follows:

    The requirement for procedural fairness stems from s 90MZD of the Act, which is then supported by the machinery of Rule 10.16 of the FLR and Reg 24.07 of the FCCR – none of these apply to a superannuation splitting Agreement.

    The only requirement, as it were, is that the Agreement be served upon the trustee along with the necessary separation declaration or Divorce Certificate: s 90MI.

    The reason “procedural fairness” differs between Orders and Agreements, in my view, is that the legislature did not want the Court making Orders against trustees without the trustee having been given an opportunity to be heard, whereas, Agreements were far more likely to be an inclusive process with the trustee in any event. Further, if the trustee refuses to implement the parties Agreement, then the parties would have to seek an Order to enforce the Agreement, such that procedural fairness would be given “at the back end”.

    I would still be giving the trustee notice via a Form 6 and putting the proposed terms of any agreement to the trustee, before getting the Agreement executed, simply to try and avoid problems.

    One of our subscribers thought he would dispense with a Form 6, send the trustee a draft agreement and give them 28 days in which to object.

  • How can I document a waiver of future child support via a child support agreement?

    There being no provision in the CSAA for a waiver of child support, I suggest you use a binding child support agreement.

    See from page 5-36 TFLB for child support agreements.

    My co-editor Craig Nicol has previously given the following reply to a subscriber's question on this issue:

    Neither an agreement nor order can provide a "release" of child support. But there does arise the question whether a provision in a child support agreement providing that the parties agree to a periodic assessment of "NIL" is in fact an agreement as to the rate of periodic child support for the purpose of s 84(1)(a) (and if not, whether say $1 is such an agreement).

    It should not be encouraged given that it does go against the purpose of the legislation, and is (in my view) likely to expose the parties to further litigation in the future when no doubt a change of circumstances arises (and one of them wishes to set aside the agreement) but I have called Child Support (the legal help line) and asked them as to whether NIL counts as a periodic assessment in their view, and they advised that they would register such an agreement (as long as it was a Binding Child Support Agreement - ie. they had both received independent legal advice).

    So it is not a release as such, but has the same effect.

    PS Having researched this a bit further, there is no issue with a NIL assessment being treated as an assessment for the purpose of s 84(1)(a). This is because “rate of assessment” is defined as including an assessment of NIL in the definitions section of the Act (ie. s 5). It should still be advised against for the reasons detailed below, but the Act at least, does not prohibit a rate of NIL being agreed upon by the parties.

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