Binding financial Agreements(BFA’s) and other topics
Recently I had a discussion with Robert Clemente, Chief Executive of Television Education Network (TEN), regarding preparation for TENS next scheduled Gold Coast Family Law Conference in July 2012.
Robert phones periodically to discuss current matters of interest to the family law profession and possible topics for inclusion in the seminar program.
I suggested to Robert that he might consider a panel discussion on Binding Financial Agreements (BFA’s) as they have attracted considerable comment in the media in recent times with some senior lawyers suggesting that they are too risky for lawyers to advise upon. In the Weekend Australian Financial Review of January 28-29 2012, Melbourne barrister Martin Bartfield QC was quoted as saying that pre-nups were “unsuitable for the purpose for which they were intended”and that advising on binding financial agreements was “too dangerous”for many barristers, while prominent Sydney family lawyer Paul Doolan was quoted as saying that many financial agreements were “ not worth the paper they are written on” because the law still imposed such a high degree of technicality about how they should be agreed and drafted.
Prenuptial agreements are an area of particular concern because there is a widespread view that they have become increasingly contestable and this is causing many lawyers to steer away from them altogether.
Other possible topics suggested for consideration by Mr Clemente included the old chestnut of communicating with clients and dealing with their expectations, tips for working in the court system and new areas such as surrogacy and collaborative law and of course mediation which is of ever increasing appeal in settling disputes.
Mike Emerson
Tuesday, February 28, 2012
Wednesday, February 22, 2012
De Facto Property Jurisdiction
De Facto Property Jurisdiction
In 2008 the Family Law Act 1975 was amended to provide opposite sex and same sex de facto couples access to the federal family law courts in relation to financial matters.
The new jurisdiction was only to commence after the date of proclamation of the legislation by the Governor General.
It has recently been discovered that the proclamation of the amending Act had been overlooked and accordingly on 9 February 2012 the Governor-General made a proclamation fixing 11 February 2012 as the date from which the legislation would take effect.
The problem that this gives rise to is that there is a gap in the jurisdiction between the date of commencement of the legislation on 1 March 2009(1 July 2010 in South Australia) and 11 February 2012 being the date the proclamation takes effect.
The effect of all this is that orders made during the gap by both the Family Court and the Federal Magistrates Court would seem to have been made without jurisdiction and applications made to the courts in that period not validly issued.
Questions of validity will remain until the Government rectifies the matter by retrospective legislation, the possibility of which is apparently presently being considered.
Until the problem is rectified, any orders made during the relevant period are potentially invalid and this creates uncertainty for separated parties who entered into settlements on the basis that they would be valid.
The issue shows how a simple mistake can give rise to extensive and very significant consequences.Hopefully the matter can be resolved as quickly as possible with the co-operation of all involved
In 2008 the Family Law Act 1975 was amended to provide opposite sex and same sex de facto couples access to the federal family law courts in relation to financial matters.
The new jurisdiction was only to commence after the date of proclamation of the legislation by the Governor General.
It has recently been discovered that the proclamation of the amending Act had been overlooked and accordingly on 9 February 2012 the Governor-General made a proclamation fixing 11 February 2012 as the date from which the legislation would take effect.
The problem that this gives rise to is that there is a gap in the jurisdiction between the date of commencement of the legislation on 1 March 2009(1 July 2010 in South Australia) and 11 February 2012 being the date the proclamation takes effect.
The effect of all this is that orders made during the gap by both the Family Court and the Federal Magistrates Court would seem to have been made without jurisdiction and applications made to the courts in that period not validly issued.
Questions of validity will remain until the Government rectifies the matter by retrospective legislation, the possibility of which is apparently presently being considered.
Until the problem is rectified, any orders made during the relevant period are potentially invalid and this creates uncertainty for separated parties who entered into settlements on the basis that they would be valid.
The issue shows how a simple mistake can give rise to extensive and very significant consequences.Hopefully the matter can be resolved as quickly as possible with the co-operation of all involved
Tuesday, February 21, 2012
Children's contact with Grandparents
Contact between Children and Grandparents
The 2006 reforms to the Family Law Act recognised the right of children to spend time and communicate on a regular basis not only with both their parents but other people significant to their care, welfare and development such as grandparents, except where it would be contrary to the child's best interests to do so.
The changes were introduced in acknowledgement of the important role that grandparents can play in the child's life and to address the scenario where grandparents were often cut out of their grandchildren's lives after the parents of the grandchild separated or divorced.Grandparents are given specific authority to apply for a parenting order under section 65C of the Family Law Act.
In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
In determining what is in the child's best interests the court must, along with other factors, consider the following:
i) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from any grandparent with whom they have been living;
ii) The capacity of any other person, including any grandparent, to provide for the needs of the child including emotional and intellectual needs.
It is not always necessary for grandparents to go to court to secure contact and an ongoing relationship with their grandchildren.If they are unable to resolve their differences directly with the child's parents, grandparents should first consider mediation as an avenue for resolving the dispute without the cost and stress and inevitable damage to relationships that court proceedings usually entail.
This is especially important where there is a need for an ongoing relationship.
If a mediation is not successful however, grandparents may need to consider court action as a last resort.
The 2006 reforms to the Family Law Act recognised the right of children to spend time and communicate on a regular basis not only with both their parents but other people significant to their care, welfare and development such as grandparents, except where it would be contrary to the child's best interests to do so.
The changes were introduced in acknowledgement of the important role that grandparents can play in the child's life and to address the scenario where grandparents were often cut out of their grandchildren's lives after the parents of the grandchild separated or divorced.Grandparents are given specific authority to apply for a parenting order under section 65C of the Family Law Act.
In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
In determining what is in the child's best interests the court must, along with other factors, consider the following:
i) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from any grandparent with whom they have been living;
ii) The capacity of any other person, including any grandparent, to provide for the needs of the child including emotional and intellectual needs.
It is not always necessary for grandparents to go to court to secure contact and an ongoing relationship with their grandchildren.If they are unable to resolve their differences directly with the child's parents, grandparents should first consider mediation as an avenue for resolving the dispute without the cost and stress and inevitable damage to relationships that court proceedings usually entail.
This is especially important where there is a need for an ongoing relationship.
If a mediation is not successful however, grandparents may need to consider court action as a last resort.
Monday, February 20, 2012
Guide to Mediation
Brisbane Mediations has issued a new 'Guide to Mediations' specially designed to assist psychologists in their practice.
The publication is purpose driven to address the needs of psychologists and their clients and contains a cross-section of information explaining mediation and how it is practised.
Included in the publication are the following topics:
* Mediation across the Board
* Mediation Facilitates Ongoing Relationships
* Mediation in the Workplace Saves Jobs & Money
* Introduction to The Family Law Act
* Resolution of Domestic Conflict the Brisbane Mediations Way
* Mediating Prenuptial and Cohabitation Agreements Protects Relationships
* Children's Adjustment to Repartnering of Parents
* Hearing the voice of Young People at Mediation
Copies of the publication can be provided to psychologists contacting the practice manager of Brisbane Mediations on (07) 3839 7400.
The publication is purpose driven to address the needs of psychologists and their clients and contains a cross-section of information explaining mediation and how it is practised.
Included in the publication are the following topics:
* Mediation across the Board
* Mediation Facilitates Ongoing Relationships
* Mediation in the Workplace Saves Jobs & Money
* Introduction to The Family Law Act
* Resolution of Domestic Conflict the Brisbane Mediations Way
* Mediating Prenuptial and Cohabitation Agreements Protects Relationships
* Children's Adjustment to Repartnering of Parents
* Hearing the voice of Young People at Mediation
Copies of the publication can be provided to psychologists contacting the practice manager of Brisbane Mediations on (07) 3839 7400.
Wednesday, February 8, 2012
Self Managed Super Funds
A recent case reported in The Australian of 7 February 2012 highlights the need for trustees of Self Managed Superannuation Funds to remain actively involved in overseeing their fund to avoid possible penalties for breaches of the Superannuation Industry (Supervision) Act.
While much of the administration of the fund can be left in the hands of professional advisers and accountants, the trustees are still legally responsible for the fund.
In the case reported, a couple were trustees in a SMSF and the husband left the country taking $3.46m out of the fund with him.
Apparently neither party was of preservation age nor had they triggered a release from the fund, the result being that the SMSF was found to be non-compliant and the ATO came after the wife to recover $2.9m in tax and penalties.
According to the report while the wife argued that she had no knowledge of her husband's intentions, she lost the action because she was a trustee of the fund and consequently held to be legally responsible.
It is clearly not wise for a trustee to leave the fund in the hands of co-trustees.
In the case in point, the disastrous result could have been avoided if each trustee of the fund was a joint signatory to all investments and monies in the fund.
Mike Emerson
Co-Principal Brisbane Mediations
While much of the administration of the fund can be left in the hands of professional advisers and accountants, the trustees are still legally responsible for the fund.
In the case reported, a couple were trustees in a SMSF and the husband left the country taking $3.46m out of the fund with him.
Apparently neither party was of preservation age nor had they triggered a release from the fund, the result being that the SMSF was found to be non-compliant and the ATO came after the wife to recover $2.9m in tax and penalties.
According to the report while the wife argued that she had no knowledge of her husband's intentions, she lost the action because she was a trustee of the fund and consequently held to be legally responsible.
It is clearly not wise for a trustee to leave the fund in the hands of co-trustees.
In the case in point, the disastrous result could have been avoided if each trustee of the fund was a joint signatory to all investments and monies in the fund.
Mike Emerson
Co-Principal Brisbane Mediations
Thursday, February 2, 2012
Mediation in the Workplace saves Jobs and Money
How often do helping professionals deal with people in conflict within the workplace? Perhaps it it is “a personality clash”. Perhaps different interpretations of regulations or procedures. Or maybe there has been a serious breach of protocol by a boss and a grievance should issue, but the worker fears reprisals or impact on future plans for occupational advancement. How much time and money is lost because workers feel they are not being heard? How much stress related sick leave and how many WorkCover claims would not ensue if issues in the work place were dealt with in a timely and effective manner at an early stage?Brisbane Mediations’ mediators have experience in dealing with disputes of all kinds, including those which originate in the workplace. Even where there are multiple parties and stakeholders, we know we can make a difference, as we have done it on many occasions before. Large and small companies, government departments and organisations such as private and state schools and colleges as well as their employees have benefited from our interventions. We can work with support people who are not lawyers - for instance with psychologists who are supporting workers through conflictual situations in their employment. Your clients could benefit enormously from a collegial relationship between you and Brisbane Mediations. We help all involved save money and save face.
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