Posts by Kavanagh Family Lawyers
Contempt of court jailing overturned by Family Court
A family law case has been sharply criticised by Family Court appeal judges after a Brisbane judge sentenced a father of two to jail for contempt of court.
ABC News reports that last December, a Brisbane-based Judge sentenced a man involved in a property dispute with his ex-wife to a maximum 12 months in jail for failing to disclose financial documents on time. However a ruling handed down earlier in February by the Full Court of the Family Court overruled the Judge’s decision, declaring they were comfortably satisfied that “what occurred here in the making of the declaration and order for the husband’s imprisonment constituted a gross miscarriage of justice”.
Client Testimonial – 5 February 2019
“I am still feeling quite euphoric about the outcome”
“Marty you were fantastic, working so incredibly hard for the family* and Grant was an absolute pleasure to deal with, always so efficient.”
“There were many others in your office to thank as well, a truly great team”
“You really were a perfect fit for her* and she could not have asked for a more supportive, caring, family law expert to take on her case. So blessed, all of us, to have you on our side.”
*Names anonymised
High Court to decide whether ‘biological father’ is a “legal parent”.
The High Court of Australia will hear the matter of Parsons and Anor & Masson mid-2019. Interest in the case has focused on whether a biological father (sometimes referred to as a ‘sperm donor’) is a “legal parent”. Hopes that the High Court may decide in favour of the biological father (and by extension many other biological fathers) may be misplaced. The issue before the High Court is framed within the context of the Family Law act 1975 which many legal experts suggest would not permit a such a conclusion. However, anything is possible from the High Court, but most commentators are cautious. However, it is open to the High Court to suggest that legislative change is required. Then it is a matter for parliament to decide.
High Court rules that tax debts may be shifted between spouses
In the 13 December 2018 decision in Commissioner of Taxation v Tomaras [2018] HCA 62 the High Court of Australia held that the Family Court has the power to order the Commissioner for Taxation to substitute one party to a marriage for the other in relation to a debt owed to Commonwealth for income tax.
However, this is not an order the Family court is likely to make frequently.
A few things worth knowing about the decision
- Whilst the Family Court has the power to make a substitution order pursuant to s 90AE(1) of the Family Law Act 1975 (Cth) the power should not be exercised unless specific conditions are met.
- To exercise the power the Family Court must be satisfied that:
- The making of the order is reasonably appropriate and adapted, to effect a division of property between the parties to the marriage;
- It is not foreseeable at the time the order is made that to make the order would result in the result in the debt not being paid in full; and
- In all the circumstances it is just and equitable (fair) to make the order.
- Whilst this represents a significant shift, the conditions outlined in the decision are onerous.
- The decision is not likely to be a mechanism for non-payment of taxation debt.
5 Things To Know About Superannuation Splitting For De Facto Couples
1. WHAT DOES IT MEAN?
Soon de facto couples, like married couples will be able to split their superannuation after separation.
2. DOES THIS MEAN DE FACTO COUPLES MUST SPLIT THEIR SUPER 50/50?
No. it simply means that if one party may use part or all of their super to pay the other party out as part of a financial settlement. If there are other assets like a house or cash, a super split may not be necessary. The new legislation simply allows parties more flexibility in structuring a settlement.
3. DOES THE NEW LAW APPLY TO EXISTING SETTLEMENTS?
The Commonwealth Attorney- General’s media release of 24 October 2018 states that the legislation will be introduced in 2019 and super splitting to occur in 2020. Whilst we cannot rule out super-splitting occurring on existing cases, based on previous legislative changes we doubt existing cases would be included in the new regime.
4. DOES THIS MEAN I CAN GET ACCESS TO SUPER NOW AS PART OF MY SETTLEMENT?
Not unless you are already eligible. All this means is that a portion of one person’s super is transferred to the other person. The same rules re age apply.
5. IS THE NEW LEGISLATION A BIG DEAL?
For some people yes. Where the only major asset was super then undoubtedly some de facto partners suffered. However, in deciding whether settlements are “just and equitable” the Family court of WA always considers the percentage split including super. However, moving forward de facto couples will have the same flexibility that married couples have and that’s a good thing.
Yvonne Ender, Reception and Administration
Yvonne Ender is the firm’s receptionist and is a highly respected member of the firm.
Lynda O’Leary, Accounts and Administration
Lynda O’Leary has extensive experience in accounts and administration and is a highly respected member of the firm
Away from work, Lynda’s main interests are travel and reading and the Fremantle Dockers.
Somya Rajawat, Paralegal
Somya is currently studying for a Juris Doctor at the University of Western Australia after having already completed a Bachelor of Arts majoring in International Relations. Previously she has worked in the not-for-profit sector producing publishing strategic reports on the Food and Water Crisis in the Asia-Pacific. In her spare time, she enjoys going to the beach, keeping fit and eating out with her friends.
Grant Pearce, Paralegal
Grant is currently studying a Bachelor of Laws and Psychological Science at Edith Cowan University. He is excited to make his mark in the profession upon completing his degree.
Outside the law, Grant’s passions lie in Muay Thai, mixing up a storm behind the bar and absconding abroad any chance he gets.
Amy Thomasson, Paralegal
Amy is currently undertaking a Juris Doctor at the University of Western Australia, having completed her Bachelor of Arts in 2017. Amy has previously worked as a research assistant at New Zealand’s leading think-tank. When she’s not at work, Amy enjoys swimming, ice-skating, and watching English sit-coms.