Understanding how your finances will be divided after a divorce or separation can be complex. In Australia, where pursuing higher education is common, many couples grapple with how HECS/HELP debt is treated during a property settlement.

What is HECS/HELP?

HECS/HELP (Higher Education Contribution Scheme/Higher Education Loan Program) is a government initiative that assists eligible Australian students in paying for their tertiary education. This assistance comes in the form of a loan, that is repaid gradually through the tax system once an individual’s income exceeds a certain threshold. While the scheme enables many to access higher education, it often results in a significant debt that can linger for years.

Increasingly, separating couples are bringing substantial HECS/HELP debts into their relationship or accumulating them during their time together. This raises the question of how these debts are treated within the framework of family law property settlements.

HECS/HELP and Family Law Property Settlements

The Family Law Act 1975 governs the division of property after a couple separates and aims for a just and equitable outcome for both parties. Generally, in reaching such an outcome:

• all assets and liabilities, whether held jointly or individually are considered
• the financial and non-financial contributions made to the relationship by each party are relevant – non-financial contributions include domestic contributions such as childcare, performing household duties and providing emotional support
• the future needs of each party are taken into consideration

The existence of a HECS/HELP debt is relevant during a property settlement. However, whether it is included or excluded from the overall property pool and how it impacts the final property settlement depends on various factors.

How is a HECS/HELP Debt Viewed in a Property Settlement?

HECS/HELP loans are unique in a family law property settlement. Unlike many other liabilities, the obligation to repay a HECS/HELP loan does not arise until the party owing the debt earns above a certain threshold. Further, a HECS/HELP loan can be viewed as substantially increasing one party’s future earning capacity.

Generally, HECS/HELP debt can be seen as a:

• joint liability to be included in the property pool
• personal liability to be excluded from the property pool

Factors in Assessing the Role of HECS/HELP Debt in a Property Settlement

There is no one-size-fits-all approach to treating HECS/HELP debt after separation, and each case must be assessed on its merits and the specific circumstances. Some of the factors that may be used to determine how HECS/HELP debt is treated in a family law property settlement include:

• Who incurred the debt/when was the debt incurred? Was it one party before the relationship, or was it incurred during the relationship?
• Have the studies been completed? Has the party who incurred the debt completed their studies or are they ongoing?
• Was there a mutual understanding or agreement about the study and debt? Did both parties agree on the course of study and how the debt would be managed?
• How has the qualification benefited the relationship? Has the qualification achieved through the debt led to a higher household income or improved lifestyle for the family? Alternatively, is one party likely to benefit exclusively from the qualifications post-separation?
• How have repayments been managed? Has one or both parties contributed to repaying the debt? Have additional repayments been made beyond the mandatory repayments from income? If both parties have a HECS/HELP debt has (only) one party’s debt been paid off or substantially paid off? Will the debt actually need to be repaid?
• How is the qualification being utilised? Is the party who accrued the debt using or likely to use their qualifications through employment?

A joint liability might apply when both parties benefit from the qualification. For example, suppose a couple agree that one partner should study, and the resulting qualification leads to a higher household income benefiting the family unit. In that case, the court may consider the debt a joint liability and divide it between the parties.

Personal liability is more likely to apply when the degree is considered to solely increase the earning capacity of the individual who incurred the debt, and there’s no evidence of a shared benefit. For example, if one party completes (or is likely to complete) their university studies post-separation and the qualification will contribute solely to that party’s earning capacity afterwards, there would be no joint benefit from incurring the debt and the court may deem it a personal liability.

Conclusion

HECS/HELP debt can be a significant consideration in many family law property settlements. While the law aims for a just and equitable outcome, how these debts are treated depends on the specific facts of each case and consideration of a range of factors.

This is general information only, and you should obtain professional advice based on your circumstances. Seeking legal advice can help you navigate your family law property settlement with greater clarity and confidence.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

After separation, a parent or guardian may decide to move the children of the relationship overseas. However, this can only be done with the fully informed consent of the other parent, guardian or a court order. International child abduction occurs when a parent or guardian takes their children from their home country without this permission.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) provides a process for seeking the return of children who have been abducted either from or to Australia. The information below provides a guide on this process, however we strongly recommend you seek legal advice immediately as this area of law can be complex.

International Relocation

If you are separated from your partner and want to relocate overseas with your children, you must have the consent from your ex-partner or a court order, otherwise your ex-partner can request the Australian Central Authority to make an application to have your children returned to Australia. This is the Department responsible for administering the Hague Convention.

If your ex-partner does not consent to an overseas relocation, you can apply to the court for an order allowing you to relocate. When the court decides an Application for International Relocation, they are deciding on a parenting matter and like all other parenting matters, the most important concern for the court is determining the child’s “best interests”. For example, if the parent who is the main caregiver wishes to relocate overseas with the children, one of the main concerns for the court is to ensure the children maintain a meaningful relationship with the other parent whilst they are living overseas. The court’s decision can also be affected by circumstances such as family violence, substance abuse, the child’s views and specific needs.

In preparing your Application for international relocation, you need to demonstrate to the court what life will be like when living overseas, for example, where you will be living, working, your potential income and the type of school your children will attend. You should also demonstrate what the children’s social lives would look like and what type of support will be available for the children and more importantly, how the children will maintain and develop a relationship with the other parent.

As mentioned above, international relocation cases are a complex area of law so we strongly recommend you seek legal advice.

The Hague Convention and abducted children

The Hague Convention is the main international agreement that covers international parental child abduction and provides a process through which a parent or guardian can seek to have their child returned to Australia, (if that country is also party to the Hague Convention).

What can I do if my child has been abducted from Australia?

You should carry out the following steps immediately:

1. Contact the Australian Federal Police for advice on placing your child’s name on the “Family Law Watchlist.” You will need to apply for a court order for this to happen. Your child might still be in Australia so their abduction may still be prevented.
2. Seek legal advice from an experienced lawyer who can assist with obtaining recovery orders and provide you with legal guidance.
3. If your child has been taken to a country that is a member of the Hague Convention, contact the Australian Central Authority. For a list of countries who are party to the Hague Convention, visit the Hague Convention webpage.
4. If you believe your child has been taken to a country not a member of the Hague Convention, contact the Consular Branch of the Department of Foreign Affairs and Trade who will be able to assist you.

Time is of the essence in international abduction cases. As this area of law is complex, we strongly recommend you seek legal advice from an experienced lawyer immediately.

Conclusion

The law regarding international relocation of children is complex, and the outcome of any dispute is dependent on each family’s own set of unique circumstances. Relocating children overseas can only be done with the fully informed consent of the other parent, guardian or a court order.

When children are taken overseas without the consent of the other parent or the court, the Hague Convention provides a process through which a parent can seek to have their child returned to Australia. If the country that the child has been abducted to is a not a member of the Hague Convention, the Consular Branch of the Department of Foreign Affairs and Trade will assist in attempting to bring the abducted children back home.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

In the complex landscape of family law, few issues are as emotionally charged as the care of children. It is common for parents to question what they are legally obliged to do and their decision-making rights about their children. For instance, parents often struggle with knowing whether they can stop someone from contacting or seeing their child. Sometimes this is about contact with the other parent, but at other times the contact is with another significant person, such as a grandparent. Unfortunately, in neither case does the law provide clear-cut guidance, although there are principles that can help to determine these issues.

Contact with the Other Parent

In Australia, the law concerning the care of children is generally governed by the Family Law Act 1975 and exercised by the Federal Circuit and Family Court of Australia (or, in Western Australia, the Family Court of Western Australia). Family law prioritises the best interests of the child above all else.

Historically, when the care of a child has become a decision for the Court, it has favoured arrangements that allow for ongoing contact with both parents, even in cases of parental conflict or estrangement. This is not because parents have ‘rights’ regarding their children, but rather because there  was a presumption that both parents had ‘equal shared parental responsibilities’ towards their children. Therefore, if both parents have equal decision-making power about their child, it was presumed by the Court that neither parent should prevent contact between the child and the other parent.

However, this presumption was always rebuttable. There were circumstances in which the Court would limit or restrict contact between a parent and their child to ensure the child’s safety and well-being. These circumstances typically involved abuse, neglect, substance abuse, domestic violence, or other factors that posed a risk to the child’s physical or emotional health. Accordingly, outside of the courtroom parents were empowered to limit or restrict contact with the other parent if it endangered their child’s safety or well-being.

If the other parent believed that this power was being used inappropriately or punitively, they could seek legal intervention to establish contact. In such cases, the Court would carefully consider the evidence presented and make a decision based on the best interests of the child.

More recently, the Court is being guided by legislative changes to acknowledge, from the outset, that a child may not benefit from spending significant time with a parent and the presumption of shared parental responsibility has been removed. The Court will now consider an amended set of factors when making decisions about parental contact.

These factors include what arrangements promote the safety of the child and each person who has care of the child, the views expressed by the child, the developmental, psychological, emotional and cultural needs of the child, and the capacity of each parent to meet those needs. In addition, the Court will consider the benefits to the child of having a relationship with their parents and other people who are significant to them and anything else that is relevant to the particular circumstances of the child.

Despite this changed emphasis and provided the best interests of the child are at the forefront, it is likely to remain uncommon for the Court to order that a child has no contact with one of their parents. There is a significant body of research that shows that in most circumstances it is in the best interests of children to have a relationship with both parents. As such, parents outside the courtroom should consider withholding a child’s contact with the other parent to be a course of last resort and only taken when it is necessary in the interests of the child. Parents should also be mindful that withholding a child from contact with another parent without valid justification can have serious consequences. The Court takes a dim view of parents who engage in ‘parental alienation’, which involves manipulating or coercing a child to reject the other parent.

Other Significant People

Ultimately, the goal of Australian family law is to promote the well-being of children. Within this broader mission, the Court not only considers contact between the child and their parents but also contact with other people who are significant to the child. For instance, if a child has developed a relationship with a grandparent, perhaps through regular visits, it may not be in their interests to have this relationship severed. Again, this is not because of any concept of ‘grandparent’s rights’, which is not a recognised legal principle in Australia. Rather, it is because the Court recognises that when someone is important to a child, it can be harmful for them to lose this person and that this should only happen if it is unavoidable. For instance, if a grandparent is abusive or alienating, then it would be reasonable to prevent them from having contact with the child, even if this goes against the child’s expressed wishes. However, it would not be sufficient for a parent to withhold access to their child simply because they wish to do so, or to punish the grandparent, in circumstances where the child has a positive and longstanding relationship with their grandparent.

Conclusion

At all times a parent must consider the best interests of their child when determining who can and cannot have contact with their child. As long as it is the child’s interests that are being prioritised, the parent may decide to prevent contact. If the other person has the necessary standing, they may challenge this decision before the Court, at which time consideration will be given to what is in the overall best interests of the child. This consideration will include the impact on the child if their parent is forced into contact which is not healthy, such as with a parent with whom they have a negative relationship.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Separation is often a challenging and emotionally charged time in a person’s life, usually accompanied by significant decisions regarding living arrangements. One common question that arises during this period is whether it is legally permissible to change the locks on a property after separation. Unfortunately, it is difficult to give a simple answer to this question as it depends on a number of factors, including whether the property is rented or owned, and whose name is on the relevant paperwork. Understanding the law regarding the occupancy of a property is crucial in navigating this situation within the bounds of the law.

Leased Property

When the property is leased or rented, all tenants listed on the lease have the right to live in the property during the term. However, in this situation, the paperwork is largely irrelevant, as tenants are generally prohibited from changing the locks without the landlord’s permission, even in the context of a separation. As such, altering locks without proper authorisation could lead to eviction or breach of lease terms.

This does not mean that a person in a leased property must continue to reside with someone until the end of the lease, especially in situations involving domestic or family violence. In such situations, it is wise to speak to a tenant advisory service in the relevant state or territory, as there are options to help tenants break leases to escape unsafe situations.

Owned Property

Joint owners have equal rights to access and occupy a jointly owned property unless and until a legal agreement or court order dictates otherwise. Therefore, if both partners have joint ownership of the property, neither party can unilaterally change the locks without the other’s consent.

By contrast, in cases where one party solely owns the property, that owner generally has the right to change the locks, denying access to the other party. However, even if one party is the sole owner, changing the locks without prior discussion can be viewed as an aggressive move and may escalate tensions during separation negotiations.

In addition, changing the locks, even with full legal authority as the sole legal owner, may be subject to challenge in family court proceedings. If there are children involved, locking a co-parent out of the home can have significant emotional and psychological consequences for the children. As the court prioritises the best interests of the children, in most cases it is important to not take unilateral steps that will disrupt the relationship between the children and the other parent.

What Orders Can the Court Make?

When disputes over the occupancy of a property arise after separation, parties can seek court intervention to resolve the issue. The court has the authority to make various orders, depending on the circumstances. For instance, the court can grant an exclusive occupancy order, allowing one party to remain in the property while the other is required to vacate, regardless of the legal ownership of the property. This order is typically issued to ensure the stability and well-being of children or the safety of one of the parties.

In contrast, the court can also issue a non-removal order, preventing either party from removing the other from the property. This order aims to maintain the status quo and protect both parties’ rights until a final resolution is reached. Moreover, if one party has been locked out of a jointly owned property, the court can order financial compensation or reimbursement for expenses incurred as a result of being denied access. Finally, the court may order the sale of the property and the division of proceeds between the parties, effectively ending their co-ownership.

It is important to note that obtaining court orders requires legal proceedings, and both parties will have the opportunity to present their case and provide evidence of their respective positions. The court will consider factors such as the best interests of children, financial circumstances, and safety concerns when making these orders. However, this is likely to be a difficult and time-consuming process and may incur substantial legal fees.

Seek Assistance

Navigating property issues after separation in Australia can be complex and emotionally charged. While changing the locks after separation may be legally permissible in certain situations, it is essential to consider the implications and consequences of such actions, especially in cases involving joint ownership, children, or leased properties.

If in doubt, you should seek legal advice and explore mediation or negotiation options to resolve disputes amicably whenever possible. When disputes cannot be resolved privately, turning to the court system for orders regarding property occupancy is an option.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Subpoenas play a very important role in discovering evidence and information in family law matters, especially when the other party is not complying with requests for information.

There is a lot of work involved in applying, filing, and serving a subpoena, which can quickly become a complex exercise. Generally, subpoenas should only be used as a last resort, and we recommend seeking legal advice before applying for a subpoena.

What is a subpoena?

In essence, a subpoena compels a person to produce documents or give evidence. It is a legal document issued by the court at the request of a party to the proceedings. The court does not issue subpoenas unless requested to do so.

An example of when you may wish to request a subpoena in your family law matter, is when the other party refuses to disclose their financial documents, such as bank account statements. Once issued, the subpoena can be served to the other party’s bank, requiring them to produce the other party’s bank statements directly to the court.

Generally, you should take all reasonable steps possible to extract information you need from the other party before applying for a subpoena.

Types of different subpoenas in family law

1. A subpoena for production. This is where a party is ordered to produce documents by the court, such as bank accounts, superannuation details or any other thing described in the subpoena, by a specific date and time. The court will specify when the documents or things are to be provided.

Subpoenas must specifically state the type of document sought otherwise the other party may dispute the validity of the subpoena. It is vital the subpoena is served on the person it is intended for by ordinary service, at least ten days before the date they are required to produce the material.

2. A subpoena to give evidence. This is an order for someone to attend court to give evidence. A party that has been subpoenaed to give evidence must attend court on a date and time specified, unless excused by the court. It is important that the subpoena is served on the named person by hand at least seven daysbefore they are required to give evidence.

3. A subpoena for production and to give evidence is a combination of the above two subpoenas. You should not issue a subpoena for both production and to give evidence if producing the documents on their own would be sufficient to obtain the desired information.

If you believe you may need to apply for a subpoena, we recommend you speak to an experienced family lawyer.

Filing a subpoena

The original subpoena must be filed at the Federal Circuit and Family Court of Australia (FCFCA) registry. It is important to file sufficient copies for the subpoena to be served on each party in the proceedings, especially for the person or organisation being asked to produce material.

Filing a subpoena is different to filing other family law documents. You cannot file or upload the document onto the online court portal as with other family law documents. The subpoena must be emailed directly to the relevant Court Registry. We also recommend that a letter in support of the subpoena accompanies the email. If the subpoena is not correctly filed, it may have no legal standing.

What is ’conduct money’?

Conduct money is money that is paid to the named person on the subpoena to help cover their costs in complying with it.

Conduct money must be paid to cover the costs of traveling from a person’s home to court if they have been served with a subpoena to give evidence. They must also be provided with a reasonable allowance to cover accommodation and meals during the period of attendance at court.

Conduct money must be paid to cover costs of identifying, photocopying, and collating material when a subpoena requires a person to produce information. To help speed up the completion of the subpoena, you can provide a cheque for the conduct money together with the subpoena when you serve it on the named person.

What happens once a subpoena is served?

If a subpoena is filed and served in accordance with the rules, and conduct money is paid, the named person must comply with the subpoena. However, the named person may object to producing a document if they consider the document requested is too broad, is irrelevant, or covered by privilege. If you have been served with a subpoena and you believe that these circumstances apply to your situation, we recommend you obtain legal advice.

Once all the material has been produced in response to the subpoena, you may file a Notice of Request to Inspect the material. When leave is granted to inspect, each party may make an appointment to view the material.

You are allowed to issue a maximum of five subpoenas. If you would like to issue more than five, you must seek leave from the court.

Conclusion

Preparing, applying, filing, and serving a subpoena can be a complex process. A subpoena must be the correct type and suitable for your circumstances. Subpoenas should only be used when you have exhausted all other avenues to obtain information from the other party to your family law matter.

This information is for general purposes only. We recommend seeking legal advice before applying for a subpoena to ensure the subpoena is prepared and served correctly the first time.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Collaborative law is a relatively new concept used to resolve legal disputes. Collaborative lawyers are qualified lawyers with training and experience in dispute resolution and facilitation processes.

Collaborative law involves the parties to a dispute and their lawyers, signing a Participation Agreement which requires them to conduct confidential and transparent negotiations to resolve a matter without recourse to litigation. Generally, the parties will meet several times to work towards a settlement.

The parties must agree not to threaten litigation and the lawyers must not advise the parties to start Court proceedings. If an application is made to commence proceedings in a Court or Tribunal the agreement is terminated and both lawyers must discontinue representing the client.

Collaborative law and family matters

Collaborative law can be used for a range of legal matters including commercial, neighbour and family law disputes.

The process is particularly suited to family law matters as the conciliatory approach has potential to preserve the parties’ relationship. Obviously, this is beneficial when children are concerned given that the parents will need to have ongoing contact and discussions regarding the welfare and care of their children.

An overriding benefit of the Participation Agreement, is the commitment the parties are making to resolve the dispute without litigation.

The parties ‘steer’ their own matter rather than have directions and hearing dates set by a Court or Tribunal. This has the potential to significantly minimise cost and delay, and of course, the stress and anxiety of being involved in Court proceedings.

Clients and their lawyers set the agenda for each meeting and the lawyers liaise with each other regarding the agreed procedural aspects for running the meetings.

By giving the parties collective control over how their matter progresses, settlements may be reached which are less restrictive than what might be ordered by a Court. Parties are not confined to technical legal issues, and can therefore agree on more flexible resolutions that include non-legal matters.

Because collaborative law is non-adversarial, there is no winner or loser. This allows the parties to maintain dignity and respect for each other.

Although each party must give full disclosure of facts relating to the issues in dispute, the discussions and meetings are family-focused with a facilitative approach. The parties must involve themselves in a concerted team effort to settle the dispute.

If necessary, the parties can agree to involve an impartial coach or facilitator to assist in reducing conflict or a professional (accountant, valuer, child specialist) to provide an expert opinion.

Collaborative law at a glance

• The professionals involved in a collaborative law arrangement are bound by professional conduct rules and client confidentiality.
• Parties must act in good faith, provide full disclosure and attempt to reach a resolution.
• Apart from financial disclosure, discussion and documentation will be subject to legal privilege which means they cannot be used in Court proceedings. Only where a professional has a statutory obligation to make a report (for example where a child is at risk) will confidentiality and privilege be overridden.
• Negotiations are conducted directly between the parties and their lawyers – opinions and ideas are expressed face to face rather than ‘behind’ the forefront of the lawyer.
• Correspondence between the parties’ lawyers is limited – being replaced by minutes documenting the discussions and decisions made during the meetings.
• The collaborative process avoids the need for technical legal documents that must adhere to the rules of evidence and can be costly to prepare.
• Once a settlement is negotiated, the agreement will be legally documented for the parties to approve and sign.
• Litigation must not be threatened nor commenced otherwise the agreement will be terminated and the parties will need to find alternate representative. This is a considerable incentive to keep parties focused on the issues in dispute and working towards a resolution.

When might collaborative law not work?

Whilst collaborative law is open to all family matters, it may not be suitable if one or both parties are antagonistic, violent, have a drug or alcohol dependency or have severe psychological disorders. Safety issues and significant trust concerns will also be a barrier to effective negotiations.

The parties must be fully committed and not see the collaborative approach as a way around disclosure obligations.

Summary

Collaborative law may not be appropriate for every legal dispute but certainly worth considering as an alternative way to resolve your family law issues.

Lawyers engaging in the collaborative law process should be suitably trained and committed. If the Participation Agreement is terminated both lawyers may no longer act for the parties who will need to find alternate representation.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

There are significant differences in the tax consequences of certain family law related actions particularly when negotiating property settlement outcomes – the cutting of the cake!

Unique opportunities in the family law environment can enable a couple to lawfully restructure wealth while avoiding, or minimising, the hefty tax and revenue consequences. Conversely, concluding a family law property settlement only to discover adverse and unintended tax consequences is the last thing anyone wants.

Naturally this area is very complex and each person needs to seek their own advice to ascertain their own tax implications from an experienced family law expert.

 Different ways a couple can reach a property settlement

 Separated couples do have choices when it comes to resolving the division of their property. There are a number of ways in which a separating couple can adjust their property interests, most commonly these include:

• Implementing transfers amongst themselves;
• By a Court Order (either by consent or after a Defended Hearing);
• By way of Financial Agreement under the Family Law Act.

This article examines the tax consequences for the different types of assets that are often held. We highlight some beneficial restructuring opportunities that are unique to family law property settlements and, if used with care, can allow spouses to maximise their property settlement outcomes.

There are two main revenue taxes Stamp Duty and Capital Gains Tax:

 Stamp Duty

The Family Law Act contains an exemption from duty payments on transactions which adhere to a Family Court Order or certain financial agreements.

In some cases, if the terms of the order or agreement clearly provide for it, property can also be transferred from a spouse to a company (trustee of a trust), or vice versa.

Rulings as to transactions under Family Law Act Orders and specified financial agreements are usually available from state-based Stamp Duties Authorities as they can be subject to discretionary decisions.

Capital Gains Tax (CGT)

In lengthy marriages it is not uncommon for the property pool to comprise investments acquired many years prior with significant unrealised capital gains. Fear can surround the selling down of these assets to create cash sufficient to implement a property settlement, given the tax liability which will be triggered on the disposal and which will immediately erode the asset pool.

However, if orders are made or a financial agreement reached in accordance with the Family Law Act, the triggering of such CGT liability is automatically deferred as roll-over relief under the matrimonial exemptions of the Income Tax Assessment Act 1997.

This means that the title to the asset passes from one party to the other on the basis that the unrealised gain is deferred until the spouse receiving the asset disposes of it at some future point. The receiving spouse is deemed to have acquired the asset when the transferor did, the extent of any gain being calculated based on the transferor’s cost base at the time of the transfer to the receiving spouse, plus incidental costs.

Roll-over relief also ensures that a pre-CGT asset can be transferred to a spouse while preserving its pre-CGT status.

This relief can potentially be used to address ‘sleeping giant’ tax issues by moving an asset from one spouse to the other (so as to access concessional rates of tax or capital losses available to one spouse but not the other) before a disposal occurs, so that the optimum tax outcome can be achieved in respect of any capital gains.

 A short summary of tax consequences for different types of assets is set out below:

 Real estate

The most common form of real estate is the matrimonial home which is often held in the joint names of the separating couple. Generally, a settlement which involves the transfer of the matrimonial home from one person to the other will not be affected by Capital Gains Tax. This is because the Capital Gains Tax legislation contains a main residence exemption.

Investment properties

Families often have investment properties which are held in the name of one or both of the parties, or in the name of a corporate entity as Trustee for a Family Discretionary Trust.

If the property was acquired after 20 September 1985, a transfer of the property will generally trigger a Capital Gains Tax liability. This means that the difference between the cost of the property and the sale price (or half the difference if the property has been held for more than 12 months), will be added to the income of the person selling and taxed at the marginal income tax rate.

An investment property owned by one spouse can be transferred to another spouse by way of property settlement, with a stamp duty exemption.

Family Trusts

Where a Trustee of a Family Trust holds real estate this can, in some instances, be transferred to a spouse beneficiary through a Court Order or Financial Agreement. This may attract a ‘rollover relief’ which will postpone the payment of Capital Gains Tax.

 Shareholdings

Transfers of shares between spouses and de facto couples are generally subject to Capital Gains Tax unless the transfers are by way of a Court Order or a Financial Agreement which then enables it to attract “rollover relief”.

Motor vehicles

Transfers of motor vehicles are generally not subject to Capital Gains Tax.

Businesses

A transfer of a business or a company structure operating a business or the closure or sale of a business, may have significant taxation consequences.

Specialist advice must be provided in order to ensure that any settlement is undertaken in the most tax effective manner.

 Conclusion

As you can imagine the tax implications that can arise through divorce are almost boundless.  For those who take advice from their specialist lawyers and accountants early in their property settlement, there is potential for some restructuring benefits.

Having a legal expert thinking creatively in terms of options and taking into account the nature and characteristics of the property pool, there is potential to move assets into a position where there are reduced revenue consequences and with deferred and potentially minimised tax consequences.

The law here is very complex and if you know someone who might need assistance feel free to get them to call us on 07 3281 6644 or email mail@powerlegal.com.au.

A parenting plan is an informal written parenting agreement that includes parenting and care arrangements for children but has not been formally approved by the Federal Circuit and Family Court of Australia (FCFCA). Parenting orders (or consent orders) are written parenting agreements that have been approved by the FCFCA through an application made to the court. Parenting orders may also be made by the court after a hearing.

The pros and cons for both parenting plans and parenting orders are discussed below.

Parenting Plans

Sometimes former partners are able to reach an amicable agreement about arrangements for their children without the need to commence court proceedings. This agreement is usually referred to as a parenting plan. Provided the parenting plan clearly sets out the rights and obligations of each parent (or any other relevant person), is signed and dated by each person involved, it should generally be deemed as a sufficient parenting agreement.

A parenting plan can address issues such as:

• who a child spends time and lives with;
• the parental responsibility for a child;
• arrangements for special days such as birthdays, religious, and other holidays;
• procedures for making long-term decisions regarding the care, welfare, and development of the child.

As parenting plans are not legally binding, it is advisable to include procedures for varying the plan and the methods that can be used to resolve any disputes about the terms in the actual plan.

As noted, a parenting plan is not binding and accordingly cannot be enforced by the court. If you would like your parenting plan to be legally binding, you can file an Application for Parenting Orders with the FCFCA. It is usually recommended you do this – although you may have an amicable relationship with your ex-partner, circumstances can change quickly (such as your ex-partner entering into a new relationship) which can affect your parenting plan. Applying for your parenting plan to be made into a parenting order is usually a straightforward process which involves submitting your plan to the court for approval by the Registrar. Once the Registrar is satisfied that the plan is in the child’s best interests, court orders reflecting your parenting plan will be granted.

Parenting Orders

A parenting order is a written agreement that has been approved by the FCFCA through an application made to the court. The order covers parenting arrangements for children.

The FCFCA must be satisfied that the orders sought are in the best interests of a child before they are approved. Once the parenting orders have been approved by the court, they have the same legal standing as if they had been made by a court after a hearing.

If any party included in the parenting order breaches its terms, other parties stated in the orders are entitled to make a Contravention Application with respect to that breach, and the party in breach can be sanctioned by the FCFCA.

What happens if a party breaches a Parenting Order?

If you believe that one of the parties included in your parenting orders has breached a term of the order, you should complete and file an Application for Contravention alleging the party has breached the orders.

The FCFCA will consider the allegations and facts of the Contravention Application and may do the following:

• find there was no contravention;
• find the contravention was established but there was a reasonable excuse for the party breaching the parenting order;
• determine there was a less serious contravention without a reasonable excuse;
• determine there was a more serious contravention without a reasonable excuse.

If is important that you seek legal advice before filing an Application for Contravention as the court may require you to pay all or some of the costs of the other party if it finds there have been no contravention of the orders. This may also apply if the contravention was established but with a reasonable excuse.

The court also has the power to vary parenting orders but will only do this sparingly.

Consequences of breaching a parenting order without reasonable excuse

If the court finds a party included in a parenting order is in breach of the order without having a reasonable excuse, the court may take the following actions:

• order that the person in breach attend a post-separation parenting program;
• make a further order to compensate for any time lost with the child;
• make an order for the person in breach to enter into a bond, possibly with conditions such as requiring the person to attend family counselling;
• order that the person who committed the breach pay all or some of the costs of the person who filed the contravention proceedings, fine the person in breach; or sentence the person in breach of the order to a term of imprisonment, depending on the seriousness of the breach.

Conclusion

Parenting orders and parenting plans both have their pros and cons. Although parenting plans are convenient and generally cheaper to draft than parenting orders, they are not legally enforceable by a court. This is why it is often recommended that an application be made to the court for parenting plans to adopt the status of parenting orders. This way, all parties to the parenting order will have legal protection if needed.

This article provides general information only and you should obtain professional advice relevant to your circumstances. We always recommend you seek legal advice from an experienced lawyer before entering into any parenting agreement.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

If you are in the unfortunate situation of going through a break-up you have probably heard all sorts of ‘advice’ from well-meaning friends and family.

Family and friends are a great source of emotional and practical support when you have separated, however good legal advice is essential, so you are aware of your rights. Being properly informed can help you to finalise your property affairs and come to workable arrangements for the ongoing care of your children.

In this article, we clear up some common family law fallacies and hope to provide useful information to assist with your family law matter. The information is for general purposes only. It is important to be guided by expert advice when resolving your family law matters. Even if you and your ex-partner are amicable, it is wise to legally finalise your property affairs so that you can both move on with your financial lives.

The children will spend equal time living with my ex-partner and me

Not always. The concept of equal shared parental responsibility was introduced into the Family Law Act 1975 (Cth) to encourage and acknowledge the benefits of shared parenting after separation.

Equal shared parental responsibility means that each parent is jointly and equally responsible for significant long-term matters concerning their children. This includes decisions about their health, welfare, education and religious and cultural upbringing.

The concept however is often misinterpreted as a ‘default’ position whereby the children will spend equal time living with each parent. Whilst the Court must consider the children spending equal or significant time with each parent, it is not a ‘given’.

The Court has an overriding obligation to consider the best interests of the children and a range of factors will influence its decision. A practical approach must be taken regarding what is realistic in terms of family dynamics, work commitments and other responsibilities. Only if equal living arrangements are practical and in the best interests of the children will they be ordered.

We both keep our separate superannuation accounts

This is not necessarily so. Superannuation is treated as property and forms part of the asset pool for consideration after a relationship breakdown.

The splitting of superannuation between married or de facto partners may be by Court order, superannuation agreement, or included in consent orders or a financial agreement.

Various steps are involved – the parties will need to obtain information from the relevant superannuation fund, a valuation, and sound advice before a splitting arrangement can be finalised. Once the fund is split, a separate account is created and the new fund remains subject to existing superannuation laws.

Different types of funds are valued in different ways. The laws relating to superannuation splitting are complex and must be considered in the context of other non-superannuation assets in the asset pool. Comprehensive legal and financial advice is recommended when determining whether a superannuation split is appropriate.

You can’t divide your property until you get a divorce

Couples must be separated for 12 months before getting a divorce and may commence negotiations to finalise a property settlement before a divorce being granted.

The finalisation of a divorce triggers a 12-month limitation period within which to commence proceedings for a property settlement.

Separated couples who were in a de facto relationship have a 2-year timeframe, after separating, within which to commence property proceedings.

The bread-winner should have a greater entitlement to the asset pool

Not so. In addition to financial contributions, the non-financial and indirect financial contributions of a party are included when determining a property settlement. These contributions are not given a dollar value however will be important when making a percentage adjustment to the asset pool.

Non-financial contributions are contributions considered to have assisted in increasing the asset pool. They include the care and welfare of children, management of the household and finances, and labour used to improve or conserve the home (such as renovating or landscaping). For example, a partner who stays home to raise children is considered to make an indirect financial contribution by enabling the other partner to contribute financially through his or her employment or business efforts.

In the well-known case of Whiteley and Whiteley (1992) FLC 92-304, the wife’s efforts of modelling, critiquing, discussing and evaluating Brett Whiteley’s artwork were considered a significant non-financial contribution and inspiration to his financial contributions to the marriage.

Family law matters end in a court-room battle

Despite Hollywood images of ex-couples embroiled in court-room combat, most family law matters settle without the parties needing to attend Court.

Commencing proceedings for the division of property only depletes the available assets and contributes towards anxiety. Court should be a last resort and the Act requires that parties make genuine efforts to resolve disagreements and participate in dispute resolution before commencing proceedings. The objectives of these ‘pre-action procedures’ are to:

• encourage early disclosure through the exchange of information between the parties;
• minimise the need for legal action by reaching an early settlement;
• build a process to resolve a matter quickly and to limit costs; and
• if proceedings are necessary, assist in their efficient management by identifying the actual issues in dispute.

Conclusion

The Court plays a discretionary role when deciding family law matters, and the likely determination that a Court would make should always be considered when negotiating and agreeing on an out-of-court settlement.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Separating couples involved in a family law property settlement are often under emotional and financial pressure. When one or both parties are involved in a business, this can add additional stress and complexity to the division of property.

A business interest, whether held individually or jointly, through a partnership, company or trust, forms part of the asset pool and must be accounted for when dividing property.

A formal valuation for the business can help provide clarity and assist the parties to negotiate a financial settlement.

Why value a business?

When couples separate, the division of property is not purely a mathematical exercise. This is particularly so when considering a family business which may be the sole or significant vehicle for the family income.

If the business is profitable, or likely to become profitable, one of the parties may wish to retain it and ‘pay out’ the other. This is where disputes most likely arise as there will be discrepancies about what the business is worth, influenced respectively by whether each party is the proposed continuing or exiting business owner.

Many factors must be considered to provide a pragmatic and workable solution for both parties. This is where a formal business valuation by a qualified expert can be of benefit.

Choosing a valuer

It is important that the valuer appointed be an impartial and neutral expert who is familiar with family law matters, the requirements for preparing expert reports and, if necessary, giving evidence in Court.

Both parties should agree on the expert appointed and provide joint instructions.

The benefits of engaging a single valuer are that the parties usually share the expense, the process is streamlined, and the evidence is generally accepted by the Court without further application. In limited cases, individual valuations may be requested, and permitted by a Court.

If the parties are represented, their lawyers should work together to identify a suitably qualified valuer, obtain costings and determine the terms of reference for the valuation. Correspondence should include the relevant Family Law Rules with which the appointed expert must comply in providing the report.

Arranging the report and the importance of disclosure

Once the valuer and costs are agreed, written instructions are provided by each party’s lawyer. The instructions will set out the terms of reference and additional information is provided to assist in making the assessment.

The Family Law Act 1975 (Cth) requires that separating couples make genuine efforts to resolve disputes, and, as far as practicable, comply with the duty of full and frank disclosure. Where business interests are concerned disclosure documents may include balance sheets, profit and loss statements, budget and cashflow forecasts, supply and service contracts, business activity statements, tax returns, deeds, joint venture agreements and trusts.

The extent of information required will be determined by the complexity and (likely) value of the business and the valuer may request additional information to consider a proper assessment.

Valuing the business

By nature, businesses can be inherently complex and attributing a monetary value to a business will require consideration of several factors.

The business may be in its start-up phase with minimal assets but potential for good future earnings and growth. Significant benefit may be placed on the goodwill of a business by one party, which value may be contested by the other.

The valuer will review the information provided and adopt the most appropriate means of valuing the business, usually from a set of generally accepted principles and valuation methods. The likely taxation consequences should the business be sold, may be considered as well as a comparison with other businesses within the same industry.

The method used to determine the value may be based on income, on assets, a market approach or an approach that considers the unique value to the potential business owner.

Conclusion

Relationship breakdowns can have a disruptive effect on a family business, and it is important that parties try to work amicably to maintain its usual activities and preserve business relationships and reputation.

If you have been operating a family business and are separating, it is important to understand the value of the business which will ultimately form part of a financial property settlement.

A formal business valuation can be used in the early negotiations of a financial property settlement, during mediation or, if necessary, in Court proceedings.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.