Brisbane Mediations welcomes participants in the G20

Brisbane Mediations welcomes participants in the the G20 and it's associated B20, C20, L20, T20 and Y20.So many opportunities for global interests-national, cultural, political, economic and generational- to be represented and for greater understanding and cooperation to be nurtured. We believe passionately that enduring resolution of differences can come only from discussion and-most importantly-from listening. Go G20.

Brisbane Mediations welcomes participants in the G20

Brisbane Mediations welcomes participants in the G20 and it's associated B20, C 20, L20, T20 and Y20. So many exciting opportunities for global interests - national, cultural, political, economic and generational - to be represented and for greater understanding and cooperation to be nurtured. We believe passionately that enduring resolution of differences can come only from discussion and - most importantly - from listening. Go G20!

All is not lost when the Presumption of Equal Shared Parental Responsibility is rebutted.

A significant issue in Lansdowne & Shannon [2014] FamCA 331 (http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2014/331.html?stem=0&synonyms=0&query=title(%222014%20FamCA%20331%22) heard by Aldridge J in the Sydney Registry of the Family Court from 10-13 February 2014 was parental responsibility.

His Honour found that the father had engaged in family violence to the extent that he considered that the presumption that there be equal shared parental responsibility had been rebutted. 

Notwithstanding that the presumption was held not to apply, His Honour still made an order for equal shared parental responsibility on the basis that it was in the best interests of the children to do so.

In holding that there should be an order for equal shared parental responsibility, His Honour placed reliance on the evidence of the single expert, Ms B, who was strongly in favour of there being equal shared parental responsibility, noting that it would be important for the children to understand that both parents have a significant say in the future of their lives. 

Ethics and Negotiation

Whilst researching a paper on ethics and mediation, I came across an interesting decision of the State Administrative Tribunal in Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352.

The decision involved a complaint about a practitioner sent to the Tribunal by the West Australian Legal Practitioners Complaints Committee, that the practitioner was guilty of unprofessional conduct, in that in the course of professional communications with another practitioner, he made representations to the other practitioner which were, to his knowledge, misleading.

By way of background, the Australian Solicitors Conduct Rules ( ASCR ) which commenced to apply in Queensland on 1 June 2012 now provide a framework for ethical conduct by solicitors in their daily practice. A breach of these Rules is capable of constituting unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action by the relevant regulatory authority which in Queensland is of course the Legal Services Commission ( LSC).

The conduct complained of in the West Australian instance, could well now be subject of a complaint to the LSC if it arose in Queensland.

The interesting aspect of the West Australian decision was that the conduct complained of occurred in the course of settlement negotiations and communication between the two practitioners.

The Tribunal found the practitioner's conduct unprofessional and further found it was no answer to the complaint that the practitioner was merely acting on his client's instructions. In holding as it did, the Tribunal emphasised the importance of practitioner's acting ethically in settlement negotiations stating inter alia as follows :

At paragraph 74, "....just as in litigation a practitioner may not use dishonest or unfair means or tactics to hinder his opponent in the conduct of his case ( D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [111], per McHugh J ), so he ought not do so in other areas of practice. Arguably perhaps for a number of reasons, the proscription against such conduct is more important in settlement negotiations. "

And at paragraph 76, " Honesty, fairness and integrity are also of importance in such negotiations because they are conducted outside the court and are beyond the control which a judge hearing the matter might otherwise exercise over the practitioners involved. Outside the trial process,there is no impartial adjudicator to " find the truth" between the opposing assertions. Dishonest or sharp practice by the practitioner to secure an advantage for his client might go undetected for some considerable time or for all time. A level of trust between the advisers involved is therefore essential".

For the same reasons these principles and cautions would also apply to mediation.Clearly the duties of fairness and honesty owed to the court in relation to the conduct of litigation are also owed to practitioners in other areas of practice.

Bonds for Overseas Travel- Size Does Matter.

In Lau & Feizhou and Anor [2014] FamCA 182, Justice Aldridge sitting in the Sydney registry of the Family Court had to decide whether two young children should be permitted to travel to mainland China, a non-convention country,with their maternal grandmother with whom they resided in Australia.

The real issue for the court was whether or not the children would be returned.

The grandmother had proposed that a bond of $50,000 be lodged in her lawyer's trust account with that sum to be available for use by the father to secure the children's return to Australia should that become necessary.

The grandmother, was a Chinese citizen and deposed to having homes in both Australia and China however did not adduce evidence of her financial position.

The husband's evidence was that, from his observations, the maternal grandmother was very wealthy and had considerable property and business interests in China.

In providing a number of reasons for dismissing the grandmother's application, His Honour held that the value of providing a bond, hinged upon the relationship between the amount of the bond and the amount of the person's property, the court noting as follows:

"

15.Very wealthy people may be prepared to lose significant sums of money if it enables them to achieve a particular end that they seek. Thus, the value of a bond is directly dependent upon the amount of wealth available to the person providing the bond. In this case, there is no way to judge the value of the proposed bond because there is no evidence provided by the maternal grandmother as to her wealth. "

Having regard to the evidence the court could not be satisfied that the proposed bond of $50,000 was adequate.

Draft ruling on tax implications of property settlement transfers

As is oft the case I am a little late in catching up with my Proctor reading.

On reading the May edition I came across an article by Chris Nyst and Rohan McAdam alerting us to a new draft ruling of the ATO foreshadowing "a significant change in the way it will assess for taxation purposes, the distribution of joint matrimonial property pursuant to property proceedings under section 79 of the Family Law Act 1975."

The Family Court can and often does order a private company ( or individual party to the proceedings to cause the private company ) to pay money or transfer property to another party to the proceedings. Currently section 109J of the ITAA exempts such distributions for income tax assessment purposes, but according to Nyst and McAdam, under the new draft ruling, when money or property is paid by a private company or a party to the matrimonial proceedings, or transferred to a shareholder, the payment will be deemed to be an ordinary dividend , assessable as income of the shareholder under section 44 of the ITAA.

Just another reason to bring the accountants in on the terms of settlement to avoid a law claim at a later stage.

The Circle of Care

"Family lawyers want to provide a holistic service to their clients that help them not only get through a divorce and settlement but prepare them for their new circumstances.Some lawyers have referred to this as providing a "circle of care ".  Within the circle of care, there are professionals that can help with the transition to the next stage of life.It comprises their lawyer, who can deal with the legal ramifications of a divorce, but because of the trusted relationship is also able to refer them to psychologists and counsellors, to provide assistance for emotional issues. Their lawyer may then refer them to a new accountant, particularly if their former partner, because of the conflict of interest that might arise, is still using the previous one. Family lawyers recognise that there is need for broad planning advice that can then be drilled down to specific strategies early in the process, they may want to recommend that their clients meet with a financial adviser."

Collins Mann October 2010