Mathews Family Law - Case Studies

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SMART SOLUTIONS. PERSONAL  ATTENTION.

An International Relocation Case

Mary had a young daughter from a previous marriage to Steve and was now married to her second husband 'Joe', who had children of his own.

When Joe's career sent him overseas for three years, Mary wanted to join him, but Steve refused to give consent to his daughter living outside Australia.

Mary sought the advice of MFL and Mary was referred to family dispute resolution.

No agreement was reached, so MFL then filed an application with the Family Court on Mary's behalf.

The application was successful - Mary got a court order enabling her to take her daughter to live overseas, and Steve got the right to spend time with his daughter in school holidays twice a year, in Australia or in the country of relocation.

Each parent had to contribute to the cost of the child spending time with Steve, and his child support payments were adjusted to take into account these additional costs.

Mary was also ordered to provide Steve with regular telephone calls to his daughter, and information and photographs about her.

Comment  relocation cases can also involve families moving interstate or even within a state.


A Parenting and Property Settlement Case

When Michael came to MFL he was recently separated from his wife, with whom he had two children of primary school age.

Michael was self-employed with flexible working hours and had been a very 'hands-on' father, taking the children to and from school, attending parent-teacher interviews and taking the children to extra-curricular activities.

He had moved out of the marital home and was renting nearby so that he could continue to be involved in the children's lives.

Michael's wife had limited his visits to one weekend per fortnight and he wanted shared custody, with the children living week and week about with each parent.

MFL explained that in any parenting application where there was no agreement, the parties were required to attend family dispute resolution (mediation).

Vanessa Mathews is an accredited family dispute resolution practitioner, but as she was acting for Michael she could not also be the mediator and referred Michael elsewhere.

Michael and his wife were unable to agree, so MFL filed an application in the Federal Magistrates Court seeking orders for shared care of the children.

In parenting dispute cases the Family Court and Federal Magistrates Court often appoints a psychologist to prepare a family report.

The psychologist interviews each parent as well as the children, and makes recommendations based on the best interests of the children.

In this case, the report recommended shared care, with the children spending alternate weeks with each parent.

Both parents agreed to adopt the courtâ??s recommendations, so the orders were settled by consent and there was no need for a full court hearing.

Once the children living arrangements were settled, MFL helped Michael reach agreement on the financial support of the children, including the costs of schooling and health care.

MFL also helped Michael reach agreement on a property settlement, whereby his wife kept the family home, Michael kept the business and holiday house and the superannuation was 'split' (divided) equally.

A binding financial agreement was signed by Michael and his wife and each of their family lawyers signed a certificate confirming they had provided legal advice about the financial agreement.

When Michael and his wife had been separated twelve months, MFL assisted Michael in obtaining a divorce and he updated his will and re-nominated the beneficiaries of his superannuation and life insurance.

Comment - The Family Law Act provides that parents have equal shared parental responsibility for the care, welfare and development of their children. This does not however mean that the care of the children will always be equally shared.


A Pre-Nuptial Financial Agreement Case

Harry and Eva were in their sixties and planning to marry.

Both had been married before, and Harry consulted MFL to inquire about a Pre-Nuptial Financial Agreement.

Each had a house of their own and significant assets, and both had adult children and grand-children.

Harry asked MFL for advice on how to keep his assets separate if the marriage broke down.

MFL helped Harry prepare a Pre-Nuptial Financial Agreement (prior to their marriage).

It identified those assets which were separately owned by them at the date of the marriage, in particular assets which were inherited by Harry some years earlier.

The Pre-Nuptial Financial Agreement stated that all the pre-marriage assets were to be retained separately in the event of the breakdown of the marriage.

Harry and Eva agreed that they would live in Harry's house and rent out Eva's house and share their day-to-day living expenses.

The Pre-Nuptial Financial Agreement further identified how any assets acquired during their marriage were to be divided if the marriage broke down.

The main purpose of the Pre-Nuptial Financial Agreement was to make the situation clear that if the marriage ended, the pre-marriage assets would not be part of a property settlement.

Comment a Financial Agreement is binding and in the event of separation it over-rides the usual division of assets


A De Facto Relationship Separation and Intervention Order Case

When Anna came to MFL for advice, she had been in a de facto relationship for ten years with Jack and wanted to end it.

They had two young children, one of whom had special needs, and Anna had not worked since the birth of her first child. Their assets were not large and their house was heavily mortgaged.

Anna explained that Jack had an alcohol problem, refused to end the relationship, and had been violent to her in front of the children.

MFL advised Anna to file an application in the Family Court for the exclusive use of the home, an interim parenting order that the children live with her and for Jack's time with the children to be supervised.

MFL also suggested that Anna apply for an order that Jack attend alcohol treatment, an anger management course and a parenting program.

They advised her to ask for a family report on the children's living arrangements and financial support for them and for herself.

In Anna's case the normal family dispute resolution process was not required because of Jack's alcohol problem and violence.

Anna agreed to this advice and MFL went to the Family Court on her behalf. At the first court hearing, interim orders were made preventing Jack from entering the home and arrangements were put in place for him to have supervised daytime contact with the children and various therapeutic treatments.

Jack was ordered to pay maintenance for Anna until there could be a property settlement, and to pay child support.

A psychologist was appointed to prepare a family report and the case was adjourned.

Some months later MFL appeared again for Anna in the final hearing at which the Family Court ordered that the children live with her and spend supervised time with Jack (i.e. with his mother present.)

The family report showed that Jack had refused treatment and it recommended that he continue to have limited access to the children and only under supervision.

After several days of legal argument over the property settlement, the judge ordered that the house be sold, the mortgage paid out and for Anna to get 65% of the remainder and an equal share of Jack's superannuation, after which he would no longer be obliged to pay maintenance to her, but would continue to pay child support.

Comment - Mary got 65% of the remaining value of the house in recognition of her primary care of the children, the special needs of one of the children and the impact of on her capacity to work.


An Urgent Injunction

'Helen' and 'Philip' were in their forties with three children, when Philip left the marriage.

Before Helen could apply for a property settlement, Philip withdrew all the cash in their savings accounts and most of their self-managed superannuation fund and deposited these into a number of overseas bank accounts.

Helen sought the advice of MFL, who filed an urgent application in the Family Court seeking orders preventing Philip from transferring any more assets and ordering him to restore what he had taken.

An urgent hearing was granted and interim orders and injunctions were made in his absence, including an order that he not be permitted to leave Australia until all of the money had been restored.

Some months later the money was recovered and MFL obtained orders for an equitable property settlement for Helen and support for the children. Comment - urgent action may be required to protect and/or preserve the assets of a marriage.