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Family Law Library

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Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


Popular Articles

Vanessa Mathews, Melbourne Divorce Lawyer, Guest Speaker at Mental Health Professionals Network Seminars

Mental health professionals often work with clients also navigating the complex family law process. My seminars ‘Client Care Through the Family Law Process’ provide mental health professionals (members of the Mental Health Professionals Network, MHPN) with practical information about the issues which they and their client are likely to encounter, including separation, divorce, child custody, property settlement, financial agreements, etc. Professionals issues surrounding the preparation of Family Court reports, confidentiality and subpoena and are discussed. The seminars are eagerly received, with stimulating questions and discussion throughout. As a family law specialist and qualified social worker, I feel particularly pleased to be able to support mental health professionals throughout Melbourne with their work with this particularly vulnerable group of family law clients.

Family Law Mental Health Seminars

Vanessa Mathews of Mathews Family Law & Mediation Specialists continues to deliver seminars to mental health professionals in the Melbourne CBD and metropolitan area.

The seminar, ‘Client Care Through the Family Law Process’ provides psychologists, psychiatrists, GPs, school counsellors, occupational therapists, and the like with the opportunity to better understand the family law process, so that they may be better able to assist their clients as they move through this.

Topics of particular interest include:
Counselling and confidentiality
Counselling children and parental consent
What do I do if I am served with a subpoena to produce my file to the Family Court
Providing an expert report to the Family Court.

Please contact Vanessa on vanessam@mflaw.com.au if you would like her to speak to your group.

Linda Dessau next Governor of Victoria

Mathews Family Law & Mediation Specialists congratulates Linda Dessau, former Family Court judge, on her appointment as the next Governor of Victoria, effective June 2015.

http://www.abc.net.au/news/2015-02-11/judge-linda-dessau-named-as-victorias-next-governor/6085362

Vanessa Mathews and Mathews Family Law & Mediation Specialists Recognised

Vanessa Mathews and Mathews Family Law & Mediation Specialists have been recognised as a ‘LEADING VICTORIAN FAMILY LAWYER’ and a ‘LEADING VICTORIAN FAMILY LAW FIRM’ by Doyle’s Guide to the Australian Legal Profession.

Click here to read Vanessa Mathews’s bio: https://mathewsfamilylaw.com.au/our-team/

Click here to watch a welcome video by Vanessa Mathews and learn how she assist you with your divorce and family law issues: https://mathewsfamilylaw.com.au/

Click here to read Doyle’s Guide: http://doylesguide.com/leading-family-divorce-lawyers-melbourne-2015/

Vanessa Mathews and the team of family law professionals invite you to browse the Mathews Family Law & Mediation Specialists website, to search for the answers to your questions: http://www.mflaw.com.au

Otherwise, feel free to telephone us with your questions – 03 9804 7991.

We’ll happily take your call.

That Contagious Disease Called ‘Divorce’

The rate of Divorce in Australia is high, with approximately 2.2 divorces per 1,000 estimated resident population.

The decision to separate and/or divorce is very difficult.

I find it difficult to believe that the decision to separate and divorce can be triggered by the separation or divorce of a friend (unless there is a ‘tryst’ between the parties to the marriage).

I have yet to meet someone who’s decision to separate was brought about by someone else’s decision.

I think that the decision to separate is much more profound than any ‘contagion’ and that the parties deserve greater respect than this oversimplification of this most difficult of decisions.

http://www.theage.com.au/lifestyle/life/making-a-break-for-it-when-you-divorce-because-your-friends-have-20140711-zt29v.html

Mathews Family Law provides expert divorce law / family law advice in Melbourne and the metropolitan area and, through the use of technology, to clients all over the world.

Vanessa Mathews
Accredited Family Lawyer

Bitcoins and Divorce Property Settlements

I recently had my first encounter with ‘Bitcoins’, a new and modern form of currency which, like savings, are included in the matrimonial asset pool.

‘Bitcoin’ is a form of digital currency.

‘Bitcoin’ can be used for payment of goods and services.

In this particular case, the value of the ‘bitcoins’ had significantly increased and was considered by the parties to have been an excellent investment. Much of the ‘bitcoin’ market is speculative, and the value of ‘bitcoins’ is therefore very much subject to fluctuation.

The ‘bitcoin’ investment was valued according to the current market value and included in the assets of the marriage to be divided between the parties.

Whether its ‘bitcoin’, an e-commerce business or an ‘app’ in the development phase, the team at Mathews Family Law & Mediation Specialists, Australia Divorce, is able to provide you with expert legal advice about your property settlement entitlements.

‘Breaking Up Is Hard To Do’ – MFL and Accountants Working Together

The team at MFL has been busy presenting seminars to CPA and IPA accountant discussion groups. We’ve appreciated the opportunity to speak with other professionals providing expert advice to clients moving through the divorce process. The discussions have been lively with lots of questions and hypotheticals canvassed. Thanks for having us!

The Task of the Single Expert Witness: A Recent Decision of the Family Court

To follow is a summary of the ‘pathway’ to be taken by the single expert witness in parenting proceedings.

It provides a useful reminder of the Family Court’s expectations of the single expert witness.

  1. ‘ … The task of a single expert witness is never easy. The opportunities for observation and consultation are rarely if ever entirely satisfactory, because of constraints of time and money. Usually, each party is seeking some corroboration from the single expert witness of his or her position.
  2. Although the expert may give evidence about the “ultimate issue”[67], more frequently the determination of that matter will fall to the Trial Judge. Each party and the Judge may confront the single expert witness with hypothetical sets of facts to see if the expert will or could modify or qualify his or her opinion. Frequently, with a necessarily limited database a single expert witness faces challenges to his or her opinion.
    It is important therefore that single expert witnesses follow the pathway prescribed by authority[68] to prepare and present his or her report.
  3. The pathway accords with common sense. First, the expert must have primary and particular qualifications and experience. For example, expert evidence on the health of children should come not only from a medical doctor but desirably from one specialised in child medicine and moreover someone experienced in such an area of practice and knowledge.
  4. Second, the expert should clearly indicate the information and facts upon which he or she has relied and identify the assumptions upon which he or she proceeded.
  5. To the extent that the expert relies on research to form his or her opinion, it may be wise to identify that research, particularly if it is likely to be controversial and invite cross-examination. An expert becomes an expert through knowledge of and reliance upon, research other than his or her own and the expert’s opinion must necessarily be a synthesis of knowledge in the field of expertise. However, comments such as “research shows” may indicate a lack of specialist acuity.
  6. Third, the pathway of reasoning to the opinion must be discernible. This would seem to be a statement of the obvious but surprisingly from time to time it is overlooked by the single expert witness …’.

As reported in Hoffman & Barone [2014] FamCA 52 (4 February 2014), Deputy Chief Justice Faulks, paragraphs 93-100 (inclusive).

‘Special Contributions’ and Divorce

Your client who is going through a matrimonial/de facto property settlement may say to you that their particular contribution to the accumulation of the asset pool was ‘special’, by which they mean that:

  • They made a greater contribution than their partner;
  • They should receive a greater share of the asset pool.

In this article we review the current law on ‘special contributions’ and how you might respond to your client’s claim.

The second step of the ‘4 Step Process’ for determining how the assets of the marriage ought to be divided between the parties includes consideration of the contributions of the parties.

Contributions may be:

  • Financial, to the acquisition, conservation or improvement to property
  • Non-financial, to the acquisition, conservation or improvement to property
  • Welfare and homemaking, to the relationship and the children of the relationship.

A party may claim that they made a ‘special’ direct financial contribution which warrants them receiving a greater share of the asset pool.

Examples of ‘special contributions’ include contributions made by:

  • An inheritance
  • A ‘good’ business person
  • An entrepreneur
  • A successful artist
  • A specialist surgeon.

The existence of a ‘Doctrine of Special Contribution’ was recently reviewed, and rejected, in the decision in Kane v Kane by the Full Court of the Family Court [2013].

The parties had been married for 30 years. The issue in dispute was the weight to be given to their respective contributions to their self-managed superannuation fund. The husband sought a greater share of the fund based on his ‘special contributions’, being ‘the application of his acumen to investment decisions which caused the fund to prosper’ (from $540,000 in 2008 to $1,850,000 in 2012). The husband, with the wife’s consent, purchased shares using matrimonial savings. The shares were registered separately in the name of the husband or the wife, with different rates of growth in their respective portfolios. The husband asserted that this separation evidenced the parties’ shared intention to benefit individually, and not collectively, from their respective portfolios only. The wife asserted that the husband had merely invested their savings and they should benefit equally in the overall growth. The husband took principal responsibility for the investments and the wife was content with this (not unusual) arrangement although in evidence she conceded that she was unenthusiastic about the husband’s wish to invest in a particular share purchase. The husband asserted that he carefully researched each investment before deciding to purchase and that the success of the investment was due to his judgment and not mere chance or a random lottery win.

The trial judge held that ‘the evidence in the present proceedings permits a rational conclusion that the acquisition of those shares was no fluke. The husband’s diligent research of that corporation and his decision to invest the parties’ funds in it was an inspired investment decision, manifesting considerable expertise. His decision is all the more remarkable given that he knew he was making that investment decision without the support of the wife. I am satisfied that, without the husband’s skill in selecting and pursuing the investment in Company 1 shares, the parties’ superannuation interests within R Investments would currently be worth substantially less. It follows that the husband’s contributions to those superannuation interests were substantially greater than those of the wife. I reject the wife’s submission that her contributions were equal to those of the husband. The real difficulty is evaluating the parties’ contributions in mathematical terms’.

The trial judge split the fund two-thirds to the husband, one-third to the wife.

On appeal by the wife to the Full Court of the Family Court, it was held that the trial judges’ disproportionate division of the Fund could not be justified.

On the claim of ‘special contribution’ by the husband, His Honour Deputy Chief Justice Faulkes stated:

  • The Family Law Act does not refer to ‘special’ or ‘extraordinary’ contributions
  • `Special skills … will not always produce significant financial results. An academic may be brilliant and possess exceptional or special skills which require much work and effort to apply, but which may nevertheless not reflect in the … property of the parties’
  • `A range of highly specialised practical skills may not produce an economic return equivalent to the return produced by the entrepreneurial skills or a newspaper magnate’
  • It is difficult to correlate effort or skill (even if special) with result. Frequently, the financial result of a contribution (whether by physical or intellectual labour or imagination foresight and perspicacity) will be influenced by external factors beyond the control of the party contributing’.

Family lawyers now have the benefit of a very clear message from the Full Court of the Family Court:

  • There is no such thing as a ‘Doctrine of Special Contribution’
  • The totality of the contributions to the asset pool must be considered
  • An asset pool ought not be divided merely on the basis of a ‘special contribution’ having been made by one of the parties
  • No one contribution to an asset pool should be given greater weight than other contribution.

The rejection of the existence of a ‘Doctrine of Special Contribution’ will be most keenly felt by parties with a high value asset pool which they believe is the result of their ‘special contribution’ over and above the other parties’ contributions.

Three in the bed: You, your de facto, and the Family Court

When the Australian states referred their powers to legislate about the property of de facto couples (same sex and opposite sex) to the Commonwealth at the turn of the decade, the question of what constituted a de facto relationship under the new legislation became the subject of much debate and, consequently, litigation.

The lay understanding of the term “de facto” tends to assume that there is a single identifying factor or test: for example, you have to live together and both be on the lease, you have to be in a relationship for more than two years, or you have to declare your relationship to Centrelink or the ATO.

As is often the case, however, the legal reality of the situation is not so clear cut.

The definition of a “de facto relationship” can be found in section 4AA of the Family Law Act 1975 and in brief requires that:

  1. parties to a relationship are not legally married to each other;
  2. parties to a relationship are not related by family; and
  3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

It is the word “circumstances” in this third point upon which the discussion turns. The legislation goes on to list a number of circumstances that may (but not necessarily) be of relevance:

  1. the duration of the relationship;
  2. the nature and extent of the parties’ common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
  5. the ownership, use and acquisition of the parties’ 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.

Having listed the above factors, however, the legislation goes on to specify that not one of them is a prerequisite for the Court finding that a de facto relationship exists: instead, the importance of each factor should be determined by the Court in the particular “circumstances” of the case.

The effect of these sections is to give the Court a wide ranging discretion to determine each situation as the judicial officer deems appropriate. Understandably, this causes consternation in our mutual clients who often struggle to determine whether or not their relationship should be considered a “de facto”, along with the legal, taxation and other ramifications that such a status brings.

It may seem to go against “common sense”, but recent de facto litigation has shown us that a de facto relationship can, based on the above, be found to exist where one (or both) parties to the relationship is already married to another person, where the parties do not and have not lived together, or even where there has not been any sexual intimacy between them.

While it continues to be an area of law that finds its basis in judicial discretion, the issue of classifying de facto relationships will present a potential minefield for parties and their legal and financial advisors. Armed with knowledge of these pitfalls, however, prudent practitioners will be in a position to ensure that these issues are addressed at a time when asset protection and planning remain an option, and certainly before the horse has bolted and the intimate details of the parties’ personal lives are aired before the Family Law Courts.