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Overview

In the recent case of Guild v Stasiuk, the Court was required to determine whether a prenuptial agreement was effective in ousting or excluding the Court’s jurisdiction to consider a wife’s claim for spousal maintenance after the couple had separated.

The prenuptial agreement included an express provision that it was a financial agreement under section 90B of the Family Law Act, which allows engaged parties to reach an agreement about how their property will be divided if their relationship fails and also, if they choose, about whether spousal maintenance will be paid.

If parties decide to deal with the issue of spousal maintenance in their agreement, section 90E applies.

Section 90E (and section 90UH for de facto couples) states that a provision for spousal maintenance in a financial agreement is void if it fails to specify who is to receive the maintenance and how much the maintenance is.

Void in this context means of no legal effect.

The facts

Before the wedding in 2008, a prenuptial agreement was signed in anticipation of marriage.

The husband operated a business and received income from trusts that owned properties. The wife worked three days per week and was the main carer for the children. The parties had two children, who were the subject of a parenting dispute. The wife argued the husband had financially supported the family until 2018 and that they had enjoyed an affluent lifestyle.

The wife sought an order that the husband pay spousal maintenance of $1,000 per week, family health insurance cover, and various expenses incurred in the running of the house where she lived with the couple’s two children. The husband argued the prenuptial agreement removed the power of the Court to make these orders.

The prenuptial agreement

The agreement included a provision entitled ’No Claim for Maintenance’, which provided:

(The wife) agrees that in the event of the event occurring (and relevantly, the event is the permanent separation), that she will make no claim for maintenance for herself and will accept the provisions of this Agreement in full and final settlement of any claim for maintenance that she might otherwise have had.

The wife argued the absence of a specific amount in the agreement made that provision void.

Judgment

The Court agreed with the wife’s contention, meaning the judge could then hear and decide the spousal maintenance claim and was not precluded from doing so by the agreement because it was of no legal effect about the issue.

The purpose of that part of the Act that contains section 90E is to promote certainty by holding parties to their informed decisions to enter financial agreements. It allows parties to oust the Court’s jurisdiction.

However, section 90E is drafted in precise terms.

It requires an agreement to specify either:

  1. the actual amount provided for the maintenance of the named party; or
  2. ‘the value of the portion of the relevant property attributable’ to maintenance.

As an example of the second type of section 90E provision, an agreement might state that, of the $1M received by a party in a settlement in the event of separation, $200,000 of that was attributable to maintenance.

The Family Law Act requires the Court to determine questions about the effectiveness of a financial agreement according to the principles of law and equity that apply in determining the validity and enforceability of contracts.

This involves interpreting the agreement in light of the surrounding circumstances and how a reasonable person would have understood the terms. The Court considered a reasonable person would know legal advice had been given, and that the requirements of section 90E were known to the parties.

Although the provision as to spousal maintenance contained the wife’s promise not to make an application for maintenance, it did not indicate she was barred from doing so. The intention of the parties when agreeing that the wife would make no claim was uncertain.

In light of the Court’s narrow interpretation of section 90E, the provision was void and the Court heard the wife’s spousal maintenance claim – no doubt a very unwelcome outcome for the husband and the lawyer who drafted the agreement.

The lesson

This decision shows the importance of scrupulously adhering to the strict requirements of the Family Law Act when entering into a financial agreement designed to protect your wealth and, in the right case, your future income.

The agreement needs to be well drafted by experts who understand your circumstances and the law.

I often say to clients (not the electricians) that doing your own family law work is like doing your own electrical work – you can do it, but it won’t go well for you.

This case also makes me think of Benjamin Franklin, the polymath who first developed the theory of electricity as just one of his many achievements, when he wrote: ’The bitterness of poor quality remains long after the sweetness of low prices are forgotten’.

View Original Article - Coopers Grace Ward Lawyers

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High Court rules sperm donor is daughter's biological father in fight to stop her moving overseas with mother

FLAST CASE BRIEF : MADDOX & NEMET [2019] FCCA 1078

When communication breaks down and you can no longer effectively co-parent what do you expect the Court will do to solve the impasse?

This case involved a dispute and the Court had to consider whether parents who cannot communicate ought to have equal shared parental responsibility for their almost 15-year-old daughter? 

How much time the girl should spend with her father in circumstances where the parents neither like nor trust each other?

HELD : 

When I consider the evidence of the parties, which shows an inability to communicate in order to properly consult about major decisions to be made in relation to the Child’s welfare ...I find that it is not in the child’s best interests for her parents to have equal shared parental responsibility for her.

The mother shall have sole parental responsibility for the child and the child shall live with the mother.

When I consider all those issues, I find that it is in child’s best interests to spend substantial and significant time with her father[4], and I will therefore make orders that she spend time with him during school terms on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday, or Tuesday if Monday is a non-school day.

If you are having trouble communicating with your ex in co-parenting matters why not consider FLAST's moderated communications account.

WHAT IS OUR MEDIATED COMMUNICATION MEMBERSHIP ACCOUNT?

This new FLAST service is for those in relationship breakdowns with difficulty communicating.

Instead of arguments, fights and emotions running wild, why not try a mediated communication membership?
Through moderated and mediated communications, we will foster positive discussions in the best interests of the parties by promoting positive co-parenting communications and preventing emotionally charged conversations.

With mediated communication membership accounts, we provide a communication system where you can send messages to each other and before it arrives to the other party the message is reviewed by our nationally accredited mediators, if it is moderated, it is returned to sender with a reframed alternative which conveys the same message in a more neutral way with reduced risk of ambiguity. Positive, Clear Communication is fostered.

It is also ideal for parties who have already started a new relationship where there are some issues of trust in you and the ex. communicating, if helps foster that trust in new relationships as well if your new partner knows the communications are being moderated and a print out of the conversations is provided each month for your records.

Click here to find out more about how Family Moderated Co-parenting Communications could help you. 

FLAST CASE BRIEF : AQUARO & AQUARO [2019] FCCA 1140


This case involved and interim orders where the Court had to consider competing parenting proposals with both parents wanting  the Children live with them.


There were allegations of alcohol abuse by the Mother along with mental illness.  The Court needed to consider the best interests of the Children and whether there was an unacceptable risk.  

The most serious allegations against the mother was on 6 February 2019 when the Mother drove a car with the Children in it whilst intoxicated when collecting the Children from school. Later that day the Mother was taken to the Town E Hospital by her brother and the maternal grandmother and was found to have a blood alcohol concentration of 0.224.

It was held that it is in Children’s best interests to live with the Father on an interim basis and if there was time with the mother that the mother first be subject to drug and alcohol testing 24 hours immediately prior to the commencement of any time spent with the Children and the Maternal Grandparents should be in substantial attendance of time spent between the Mother and Children.

The Court made further orders that the mother have a psychiatric assessment and both parents undergo psychological counselling and a parenting course.  

The father was also ordered to complete a Men’s Behaviour Change Course.

Finally after considering all the relevant evidence and balancing the risk to the Children with the benefit of an ongoing relationship with their Mother and Father, the Court determined that for the interim the children should live with the father as a conservative and prudent measure for the interim.

With the judge stating : "In my opinion it balances managing the possible risk of the Mother relapsing again into excessive alcohol consumption and protecting the Children. A line was drawn with the 6 February Incident when the Mother drove the Children whilst intoxicated. Not only did the Mother put herself and the Children at risk but other members of the community as well."

To read the entire case click here [2019] FCCA 1140.




FLAST Case Brief : ANESTIS & KLEMM (No.2) [2018] FCCA 2622

This interesting Family Law proceeding saw the Father subpoena the criminal records of the maternal grandfather and seek injunction against the mother due to her being a drug user,  the mother (and her father) objected to this on the grounds of relevance.

The Court held that the mother do undergo supervised random urine analysis drug testing on no more than one occasion each month forthwith upon the request of the Independent Children’s Lawyer and do provide the results of same as soon as they become available and that such testing be collected in accordance with the chain of custody protocol specified in AS/NZ 4308:2008.

That the mother be restrained and an injunction is granted restraining the mother from consuming illicit substances including cannabis or being under the influence of illicit substances while the child is in her care.

In regards to the subpoena, Mr Anestis, who is the father of the respondent mother in these two cases has objected to a subpoena, or at least objected to the inspection and copying of a subpoena to the police about him.

He says that it is fishing or it is oppressive and it is not relevant. The relevance is said to be that on the mother’s affidavit material, and indeed I think there are allegations from the father to a similar effect, the mother and the child spend time at the home of the maternal grandparents and in fact I was told from the bar table that she is in fact living with the maternal grandparents at the moment. 

The Court responded by stating that Illicit drugs, and in particular, methamphetamine use, are central in this case, it would appear, and it occurs to me that it is highly relevant to know whether or not the maternal grandfather with whom the mother is presently living, is himself involved in more serious drugs than the relatively minor cannabis that he has referred to. I think to that extent the subpoena is relevant. I do not consider it is oppressive. In all the circumstances, I do not consider it fishing. I think there is some basis for the inquiry.

The Court held that the objection to subpoena filed on 19 August 2018 in respect to the subpoena material produced by South Australia Police about the mother’s father, Mr Anestis, be dismissed.

The third matter that the father relies on is the family report I have mentioned dated 31 July 2018 where the family consultant expresses the view that as long as the mother’s illicit drug use continues there is a potential risk of harm to [X].

She recommends that the father have primary care of the child and that the mother spend time with the child under supervision. She said that should Ms Anestis return a negative hair follicle drug test then consideration should be made for removing her supervision requirements and increasing her time with [X]. Should she continue to return positive drug tests then her time with [X] may need to be re-evaluated.

The mother has been subject to regular testing and has produced a negative test. The picture appears to be that, after a period of abstinence, the mother had relapsed into methamphetamine use. There is evidence that she had used methamphetamine at times in the past. It may be because of the potentially serious consequences that she was facing as a result of the positive test in March 2018 that she has been shocked into abstinence.

It is on those bases that I have been asked to conclude that there is an unacceptable risk to [X] should she remain living with her mother and to make an order on an interim basis that she live with her father.

To read the full case and how and why the Court reached this judgment click here [2018] FCCA 2622.

FLAST CASE BRIEF : COFFEY & TILLMAN [2019] FCCA 1118

This was an unusual matter  involving two children (16yrs and 13yrs) with two unsuccessful attempts at Court ordered family therapy.

Each child was aligned and living with one parent and refusing contact with the other parent.

There was agreed sole parental responsibility for each child to the parent they live with and it was agreed each child may spend time with and communicate with the other parent if and as they wish.

Where children are voluntarily spending time with each other and the father seeks a court order for a further attempt at family therapy, the father seeks an order requiring children to spend time together in line with time currently being spent.  The mother and ICL both opposed the Fathers suggestion at another attempt of family counselling and for the children to spend more time together. 

The father’s proposed orders were not made, with the Court holding that while it would be desirable for the parents and children to voluntarily take part in family therapy, if one or both of the parents, or the children, are not committed to it then it will not work.

If they are all committed an order is unnecessary.

All an order will therefore do is create a potential avenue for the continuation, by way of contravention application, of these proceedings if further family therapy is not successful. That would not be in the best interests of the children.




FLAST CASE BRIEF : SYKES & GROFF & ORS [2019] FCCA 1079

We often hear about cases involving drug and alcohol abuse along with domestic violence, this case examines such a scenario, where the  court had to consider whether a father ought to have unsupervised time with a young child when there are serious allegations of family violence and drug abuse and he has failed to provide drug screens.  

It was held that the mother shall have sole parental responsibility for the child and the child live with the mother. 

Conditions for father to see child :

Within 72 hours of the date of these Orders, the Father shall make an appointment to attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee by telephoning 1300 37 84 83, and shall provide a hair sample (“the sample”) for drug testing purposes (“the drug test”), with collection to be conducted by a qualified and certified collector, and the drug test to screen for illicit substances for the 6 months prior to the provision of the sample.

To give effect to the above, the Father shall maintain his head hair at a length of not less than four (4) centimetres and he is hereby restrained by injunction from cutting, bleaching or dyeing his hair, or allowing any other person to do so, between the date of this order and the time of collection of the sample.

The drug test may screen for alcohol EtG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.

Until the father has provided a hair follicle drug test that complies and which shows an absence of any illicit substance for the previous 6 months, the child shall spend time and communicate with the father as follows:

(a) Provided that he has provided six consecutive urine drug screens within 24 hours of a request by the Independent Children’s Lawyer, showing no use of illicit substances, then from 9:00 a.m. until 1:00p.m. on Saturdays supervised by the paternal grandparents;

(b) If the father has not complied, then for 2 hours in each alternate week supervised by a professional Child Contact Service or Centre at such times as might be accommodated by the Contact Service or Centre; and

(c) at other times by agreement between the parties in writing.

To find out why the Court made this decision and read more on this case click here [2019] FCCA 1079.

FLAST CASE BRIEF : BUSCH & DYER [2019] FCCA 956

In this unusual case involving a Property dispute and a marriage lasting less than 2 years with the wife who came to Australia in 2009 and achieved permanent residence in 2016 after her marriage to the applicant. The husband deposed that the parties always had separate bank accounts. He deposed that the wife made no contributions to the utilities, rates and the like of the matrimonial home, and that the parties were so to speak, financially separate throughout the relationship.

The wife is now refusing to leave the matrimonial home until she got what she wanted, which is to stay until the end of this year or the husband pay her $25K to move out.  

The Court determined it was clearly not just and equitable to make an order adjusting the parties’ property interests.  Each party gets what they came in with, in the wife's case that was very little.  The wife is ordered to vacate matrimonial home within 21 days.



FLAST CASE BRIEF:  NOLL & NOLL [2019] FCCA 1083

This was an interim proceeding in a parenting matter before the Federal Circuit Court of Australia.  The father, by way of ABF Legal had made an application that the child lives with him and attend a local school,  there were issues of time spent with each parent, the mother was a registered sex offender represented by Thexton Lawyers. 

Sometime shortly after separation the Wife went to stay in a house with some other occupants, one of whom was underage. On or about 6 April 2016 the Mother was convicted in the County Court of Victoria of two counts of sexual penetration with a child under 16. The Mother was sentenced by to a two year community corrections order and 150 hours of community service. At the time of the offences the Mother was aged 25 and the victim reportedly was aged 15. The Department of Human Services was involved in advising the Father that the Mother had been registered as a sex offender for life.

HELD
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the child.

the child live with the Father.

the child spend time and communicate with the Mother as follows:

(a) During school term time each alternate Wednesday from the conclusion of school or 3.15 pm to the commencement of school or 8.45 am on the following Monday.
(b) For half of each of the school holidays on a week about basis, as follows:
(i) In even-numbered years, with the Mother in the first week of each of the school holidays;
(ii) In odd-numbered years, with the Father in the first week of each of the school holidays.
(c) As may otherwise be agreed between the Father and the Mother in writing (including text or email).


the child shall commence spending time with the Mother pursuant to Order (4)(a) from Wednesday 15 May 2019.
Education
the child be forthwith enrolled at School A, Town B (School) to commence immediately.

The Father authorise the School to:

(a) Provide to the Mother, at the expense of the Mother, copies of all reports, notices and applications for photographs in relation to [X].
(b) Communicate with the Mother either by telephone, in writing or by personal attendance, in relation to [X]’s progress.
(c) Allow the Mother to attend all functions to which parents are invited.

The Mother is at liberty to attend school events, parent-teacher interviews and the like to which parents are invited.

To read the entire case click here FLAST CASE BRIEF:  NOLL & NOLL [2019] FCCA 1083

Legislation Considered:
Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Sex Offenders Registration Act 2004 (Vic)

Cases cited:
AMS v AIF (1999) 199 CLR 160
Eddington & Eddington (No 2) [2007] FamCA 1299; (2007) FLC 93-349
Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright ([2007] FamCA 520; 2007) 37 FamLR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
MRR v GR [2010] HCA 4
U v U [2002] HCA 36; (2002) 211 CLR 238
Ulster & Viney [2016] FamCAFC 133
Waterford & Waterford [2013] FamCA 33

FLAST CASE BRIEF : SERRANO & RAY [2019] FCCA 878

This case involves a Parenting dispute and the father withholding children due to allegations of child sexual abuse and child protection in breach of orders of the Court.

The father’s affidavit material from last year, 2018, alleged that the child disclosed to him that she had sex with men at the mother’s home,  that was reported to the police and after some preliminary inquiry, the police did not make any further investigation.

Child's disclosure :
"...But at night, mum lets people through the window, and I don’t know anyone but mum. When I’m in bed, people touch me where I don’t like to be touched, like up and down."

The Court considered the best interests of the child and placed an injunction against the father about further disclosures of sexual abuse and the father is restrained and an injunction is granted restraining him from presenting the child to any psychologist, counsellor or medical practitioner with the intention of eliciting or facilitating any disclosure of sexual abuse by the child.....

In the circumstances, I am not convinced that there is an unacceptable risk, should I make an order, or indeed a recovery order for the return of the child, and I will do so.

Read the entire judgment here SERRANO & RAY [2019] FCCA 878

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