+61 2 9929 8840
    Posts By :

    Maria Lucas

    house-mortgage-property-settlement
    Gifts Or Loans From Parents – Do They Have An Interest In The Property? 1024 660 Dorter

    Gifts Or Loans From Parents – Do They Have An Interest In The Property?

    Advancement of Monies

    Have you assisted with the purchase of a home for your child(ren) who have now separated or divorced? Or have you separated, and your home has been purchased with the assistance of a family member?

    You might wonder how the Family Law Courts treat an advancement of monies and whether this advancement of funds will be returned. 

    How the Family Court treats these advancements depends on how the Court determines these funds were received. There are three common scenarios: – 

    1. The funds were advanced as a “Loan”:-

    If the money was advanced by way of a loan, the Court could consider this advancement as a liability when determining the net property pool available for distribution. The Court needs to be satisfied that the loan actually exists, and that the monies are required to be repaid. 

    The Court can make an allowance for a particular liability if it is appropriate to do so and there is sufficient certainty that the loan is likely to be enforced. In other cases, the court may take the view that the liability ought to be disregarded in the interests of justice and equity of the parties. 

    However, although the Court may disregard the loan as a liability in the balance sheet, the Court cannot disregard the liability entirely and the advance may be a factor affecting the party’s available financial resources. 

    1. The funds were a “Gift”:-

    If a party receives the moneys by way of a gift, then the gift is taken into account when assessing that party’s contribution to the asset pool. The significance of this contribution will depend on when the gift was received and how it was applied to the asset pool.

    1. The funds created an “Equitable Interest”:- 

    If the monies were advanced by a third party for the purpose of that third party retaining an interest in the property, then the Court can consider that these monies are held on trust by the party (who legally owns the property) for the benefit of the third party who advanced the monies (commonly the parents). This third party (the parents) may hold an equitable interest in the property which the Court may need to exclude and usually pay back, when altering the parties’ interests in the property pool. 

    The Court may find a trust exists. Specialist family law advice should be obtained as to the appropriate category of trust to ensure your claim is successful. The Court may find the trust is an Express Trust, an Implied Trust, or a Constructive Trust. 

    1. Express Trust

    The essential criteria for finding an express trust is that the parties intended to create the trust to deal with a specific subject matter for a specific purpose for the benefit of someone. This is usually documented in writing by way of a trust deed. 

    1. Resulting or Implied Trust

    Where there is no document, the Court can look to the circumstances surrounding the advancement and assess whether the third party intended the advancement of money  to be for a specific purpose, and not for the benefit of the party to the relationship.  

    For example, if a spouse’s parents (third party) advanced money towards the purchase of a property for the spouse, then they  are required to rebut the presumption that this  advancement of monies was a gift and was not  for the purpose of the third party obtaining a beneficial interest in the property. 

    1. Constructive Trust    

    In the context of purchasing a property, a constructive trust arises if: 

    1. the parties have a common intention between the parties that the third party who has advanced the moneys in the purchase of the parties’ property would have a beneficial interest in the property; or
    1. notwithstanding the actual or presumed intention of the parties, it would be considered unconscionable for the spouse/party, as a legal owner of the property, to deny the person who has advanced the money. 

    In the matter of Giles & Giles & Anor [2018] FCCA 194, Dorter Family Lawyers and Mediators were successful in establishing a resulting trust in favour of the husband’s father. The husband’s father advanced moneys to the husband equivalent to 50% of the purchase price of the former matrimonial home. The Court considered contemporaneous evidence in finding that the presumption of advancement was rebutted, and that the monies were never intended to be advanced as a gift. An order was made for the Husband’s father to be repaid 50% of the sale proceeds from the sale of the former matrimonial home.  

    Have you or your spouse been advanced money from parents? 

    To obtain specialist family law advice, contact our expert family lawyers at Dorter Family Lawyers and Mediators who specialise in all areas of family law, including trusts, and they will assist you. Please contact us on (02) 9929-8840. 

    Rebekah Dorter
    Principal
    Julie Cheung
    Associate

    family-court-proceedings
    Parenting Orders and Section 60I Certificates 1024 683 Dorter

    Parenting Orders and Section 60I Certificates

    The Family Law Act requires that a party seeking to commence Family Court proceedings to obtain parenting orders must attend mediation with a Family Dispute Resolution Practitioner to obtain a “Certificate of Attendance” (known as a section 60I Certificate).  

    In some circumstances, the Family Law Act allows parties an ‘exemption’ from the above. If that is pleaded by a party, a Registrar or Judge will decide whether to allow the ‘exemption’. 

    In most cases it is readily satisfied by a party’s non-attendance at the mediation, or in circumstances of urgency (such as relocation or recovery orders) or where there has been family or domestic violence.

    A recent case of Valack & Valack (No. 2) [2020] FCCA 1799 has provided an interesting examination of the Family Court’s power where a Registrar did not agree the matter should be ‘exempt’.  

    Valack & Valack (No. 2) [2020] FCCA 1799 – A brief background

    In the recent case of Valack & Valack Judge Jarrett of the Federal Circuit Court of Australia examined the conduct of a Registrar who refused to accept for filing an Application for parenting orders where a Section 60I Certificate had not been obtained. 

    His Honour said that the Registrar’s refusal involved two separate and distinct decisions: – 

    1. the decision on the request for exemption from the requirement to provide a Section 60I Certificate, being an exercise of judicial power vested by the Commonwealth to the Courts; and 
    1. the decision on whether to accept the Initiating Application for filing, being an administrative decision.

    In distinguishing, His Honour explained that under the terms of s 60I(7) of the Family Law Act, the absence of a Section 60I Certificate operates as a barrier to the Court hearing the Application, rather than as a requirement for filing. Accordingly, the Court’s power to decide whether any exemption applies is not engaged until after proceedings have been commenced. As the Registrar decided whether the exemptions to provide a certificate applied prior to and as a barrier to the filing of the documents, the Registrar purported to exercise powers that were not properly enlivened. Accordingly, His Honour held that the Registrar made a determination without the proper power contained in the Family Law Act, the Federal Circuit Court of Australia Act 1999 (Cth) or the Federal Circuit Court Rules 2001 (Cth).

    As to the second decision, His Honour concluded that the question of whether the documents should be accepted for filing was an administrative decision that was made on the basis of an irrelevant consideration. As this decision was not an exercise of judicial power, His Honour held that the rules pertaining to the review of Registrar’s decisions under the Federal Circuit Court Rules did not apply and instead the decision engaged provisions for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour proceeded to treat the application for review of the Registrar’s decision as if it were made under that Act (not the Family Law Act/Rules) and set aside the Registrar’s decision. 

    This ultimately allowed the filing of the Parenting Application in question.

    Are Section 60I Certificates Required?

    The decision of Valack explains that the existence of a certificate filed under Section 60I Certificate of the Family Law Act only goes to the Court’s power to hear an Application. 

    It does not prevent, or should not prevent, the Application at least being filed. 

    It remains that a Section 60I Certificate is required for a matter to proceed to be heard by the Family Law Courts, and therefore good practice suggests that solicitors must continue to file certificates with Applications for parenting orders to avoid unnecessary administrative delay. 

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Lauren Sanderson
    Associate

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

    fast-tracking-family-law-matters
    What is a Gett? 1024 683 Dorter

    What is a Gett?

    When a couple who practise their Jewish faith separate and wish to “divorce”, there are only two ways to end their status as a married couple – by death or the grant of a Gett.  The issuing of the Gett effects the divorce between the Jewish couple according to Jewish Law.

    Pursuant to Jewish law (“Halakha”), a “divorce” can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of the bill of divorcement (“Gett”) under the supervision of the Rabbinical Court, namely the Beth Din. The parties are divorced and free to marry again once the Gett has been delivered and accepted.

    However, outside of Israel, the Beth Din lacks judicial power, therefore, should one spouse seek a Gett and the other refuse, the Beth Din in Australia is unable to assist them. They may however apply to the Family Court for assistance.  

    What happens if I do not get a Gett?

    Without a Gett, a woman will be unable to remarry under Halakha and for a man it is extremely difficult to do so.

    Without a Gett, a woman is termed “agunah”, literally meaning one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of being illegitimate. It may have consequences that flow through the descendants who forever may be unable to rectify their situation.

    Requirements of a Gett

    Halakha requires the following specific formalities to be complied with in order for a Gett to be considered valid:

    1. A divorce document must be written; this is usually done by a professional religious scribe (“sofer”).
    2. It must have been written on the explicit instruction and with the free-willed approval of the husband, with the specific intention that it is to be used by the man and the wife to that marriage.
    3. It cannot be initially written with “blanks” to be filled in later.
    4. It must be delivered to the wife, whose physical acceptance of the Gett is required to complete and validate the “divorce” process.

    Can the Family Court of Australia order my ex-partner to grant me a Gett?

    The Family Court must consider two factors in determining whether an order should be made.

    Firstly, it must be consonant with the requirements of the Jewish Law or otherwise a Gett may be void (for unlawful duress) and the Court’s actions therefore futile.

    Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.

    Getting a Gett

    Where does this leave us?

    The Family Court of Australia has been hesitant to assist separating Jewish Parties obtain a Gett.

    The Court has entertained applications in relation to Getts in some circumstances but is yet to make a finding that on a final basis that the court has the power to Order parties to attend a Beth Din and do “all acts and things necessary” to obtain a Gett.   

    Gett Assistance

    For many Jewish Couples who separate it is important to obtain a Gett following the breakdown of a marriage. If securing a Gett is important to you, we can assist you by:

    • Negotiating this element or ‘limb’ of your final settlement through mediation or a round table conference outside of court proceedings and document the agreement reached as a consent order; or
    • Seeking Orders from the court, to the effect that you and your ex-partner are to attend “when called upon” and declare that such order “not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Respondent or Applicant in making any application”.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Maeve Cooper
    Solicitor

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

    family-law-property-settlement
    Financial Abuse 1024 683 Dorter

    Financial Abuse

    When it comes to domestic and family violence verbal and physical abuse usually come to mind. However a further widespread form of domestic and family abuse is ‘financial or economic abuse’.

    WHAT IS FINANCIAL ABUSE?

    Financial abuse occurs when one party uses money to control, coerce or to restrict the other person in a domestic relationship and frequently comes hand in hand with other forms of abuse such as physical or emotional abuse.

    Am I Being Financially Abused?

    It can be difficult to recognise financial abuse. Perpetrators may often ‘excuse’ their behaviour as a consequence of the victim’s financial illiteracy or being due to “traditional roles” in the family.  A pattern of behaviour is usually exhibited and unfortunately the abuse may escalate over time.

    Financially abusive behaviour can include but it is not limited to:

    • taking control of someone else’s finances (e.g. being in charge of all the household income and paying the other person an allowance);
    • controlling how all of the household income is spent;
    • forcing a family member to claim social security benefits like Centrelink;
    • insisting that a family member apply for a second credit card;
    • preventing a family member from working;
    • preventing a family member from studying;
    • refusing to give access to bank accounts;
    • denying a family member access to money so they cannot afford basic expenses such as food or medicine.

    EFFECT OF FINANCIAL ABUSE

    The effect of financial abuse can be far reaching and usually includes suffering from emotional trauma and homelessness. Financial abuse affects the victim’s financial independence preventing them from accessing education, healthcare and in some cases basic personal items which can leave them with no alternative but to remain in the abusive relationship.

    In many cases financial abuse continues post-separation. This includes perpetrators engaging in prolonged litigation, hiding assets or defaulting on financial responsibility such as a mortgage leaving the victim with poor credit score, thus exacerbating their financial stress and vulnerability.

    FINANCIAL ABUSE SUPPORT

    Any form of abuse is unacceptable. We all have a right to live life without fear of abuse or violence. Support services are available on both state and federal levels and can assist you if you are experiencing domestic or family violence, including financial abuse.

    Some support services which are available include:

    • Financial Abuse Legal Service (Redfern Legal Centre)
    • NSW Domestic Violence Helpline;
    • Women’s Legal Services NSW;
    • Domestic Violence NSW;
    • Legal Aid;
    • 1800Respect;
    • National Aboriginal and Torres Strait Islander Legal Services.

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about financial abuse.  Please get in touch with us on (02) 9929 8840 or hello@dorterfamilylawyers.com

    Rebekah Dorter
    Principal

    Tim Russell
    Solicitor

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.