How to rebuild your life keep your personal thoughts private

The best ways to reconstruct your lifespan keep your individual thoughts private

2014.08 Week in Cabo San Lucas, Mexico
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A separation is something that is usually thought of as personal between a guy and also a female. Nevertheless there are actually things that may occur making it more of an experience as well as several others may find out about this. You would like to make an effort as well as keep the process as exclusive as you can easily so that you are not going to be doubtful whatsoever by just what is happening in your life.

Your personal lifestyle is commonly just that, personal. You do certainly not want to create a major thing about your breakup and you are going to perhaps prefer that to make stay as silent as you can easily get it. The most vital detail to bear in mind concerning your divorce is that you are should be actually humiliated. Many individuals go through this and that is actually a time that might be challenging for everybody consisted of. You need to make certain that you are actually always keeping certain details exclusive to ensure others carry out not know your business.

You would like to be sure that you are actually performing everything that you may to make rebuild your lifespan when you are experiencing an annulment. You intend to maintain your private sensations to yourself as much as you can. However sometimes that excels to consult with somebody else and acquire every little thing out in the open. You could possess certain individuals that you could rely on as well as feel comfy talking factors over with. You will appreciate these individuals and also possess a higher level of depend on for them as well. Some would certainly feature your family and really close friends. You are going to have these specific folks that stick by you regardless of what life throws your method.

You perform certainly not desire to create a great deal of bother your private ideas when you are actually looking at an annulment. You would like to make certain that you are actually maintaining as a lot to make on your own as you can. You carry out not want others to make know some of the information in your annulment and you undoubtedly do certainly not desire all of them to know just how you are definitely experiencing concerning the various other person. You would like to get as a lot sympathy as you can easily without sounding too desperate and also ready to quit overwhelming details. You intend to have the higher palm in the annulment to ensure you can feel far better about yourself as well as the condition that you are experiencing.

You would like to make an effort and focus on the future that you are actually visiting be reconstructing and also carry out certainly not placed so much focus on the past. You are actually going to intend to make certain that you are actually putting every one of your attempts right into making your divorce as easy as you can easily and getting past the tensions. Occasionally that might be actually an alleviation to let out a few of your frustrations and talk to others regarding your personal life. Nevertheless bear in mind that anything you mention could return to make possess you and also you perform not want to have that chance. You must keep an eye out for the eyes and ears that are around to make details difficult for you in the course of your divorce.

Structure on your future is vital and something that lots of people consider approved. Having said that when you adore acquiring a brand-new start and creating your lifespan something that you could look forward to, you intend to maintain your individual and personal emotions inside you. This is one thing for you to make hold onto and also making one of the most of as you go along. You will think much better as well as be even more in front of the condition when you make sure concerning what you do and also point out around others regarding your divorce.

Divorce – How to rebuild your life – how to file for divorce

Divorce – Effective ways to fix your everyday life – effective ways to declare annulment

CHAD LOVE LIEBERMAN - DIVORCE
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Divorce needs to be actually looked at as a last option to correct a partnership complication. This form of method is quite significant as well as that needs to be actually a selection that is actually effectively considered just before trying to begin the process. You have to make certain that you await this type of serious action in order to aid your partnership get better.

When you are applying for annulment, you are going to desire to inform the court that you are going to proceed with the dissolution of your relationship. This is something that indicates you are actually unable to function the marriage out anymore and also you intend to place that to a conclusion. You are going to submit a summons and also application the courtroom in your area. Ultimately it is actually then in the courts hands and you will need to hang around to listen to when the true hearing will certainly be actually to establish the next measure.

Prior to you determine to apply for breakup, you will certainly want to pick the proper condition as well as region to file your papers. In order to start your divorce proceedings, you will wish to ensure that you are going to the appropriate spot to begin with. You should make sure that the breakup is occurring in the county where you or your significant other lifespans.

You must make sure that you are ready for the long run in a divorce. You will definitely locate that the process will go on till a final thought is reached out to regarding all the issues that are actually raised. This can have a brief time or a longer amount of time depending on the problems and also what each gathering is ready to do concerning this. There are visiting be actually various choices in a separation proceeding. You will definitely hope to see to it that you level minded and also going in to the process with really good goals at the same time.

You might have to go to courtroom in order to determine what is actually ideal for you and also you household. You could must talk with a magistrate as well as allow all of them think for you if you are actually unable ahead to a settlement with each other. The judge will definitely think about every little thing that is actually advocated that he can make the very best choice for every person that is engageded in the process. You may would like to make certain that you await this kind of outcome to happen.

You will possibly locate it to become needed to hire and also attorney to deal with the proceedings in your annulment. You will certainly would like to see to it that you are embodied properly to make sure that you are not placing yourself at risk for coming up short ultimately. You wish have your notification written to the courts loud and also crystal clear to ensure that you manage to see to it that your edge of the story is heard. There are numerous factors that have to be made a decision in an annulment hearing and also you desire to perform your ideal to have that ruled in your favor.

The final thing that you should would like to carry out is actually make the annulment a cluttered one. You must not intend to make this hard for the various other person simply for spite. This is actually certainly not a great idea given that all it will definitely perform is actually include more worry on you and may even hurt your case. You wish to see to it that you are doing what you may to create this technique go as rapidly and also reasonably as you can. That will be best for everybody consisted of featuring you as well as the family around you.

Divorce: how to do it yourself

Separation: the best ways to do this your own self

There are actually some details in life you are going to undoubtedly delight in performing your own self: constructing a coop, creating a sand castle, maybe even something as enthusiastic as buying a property. But self-filing for divorce can actually be actually a problem if you don’t understand just what you are actually getting on your own into. This may also be actually a mentally distressing experience, therefore see to it you possess your ducks in a row prior to you investigate your choices.

Listed below are actually a handful of recommendations on how you can go about the important activity of declare breakup so this is actually easy.

The explanation you could file for annulment without the aid of an attorney or legal support service is actually since this is actually simply a whole lot less expensive. The submitting charge, to begin with, are going to probably be over $100 and if a response is actually submitted, that number is going to just climb. It’s logical if you desire to steer clear of any type of extra expenditures, especially considering the financial as well as mental toll a separation takes on every person consisted of.

However unless you possess a tough understanding about what you are actually carrying out, at that point that legal professional or legal service could be a source you are sorry for certainly not buying. Nevertheless, listed below’s how you can file for divorce yourself.

There are a handful of criteria that you need to fulfill before you must also consider filing for divorce. In some conditions, you’ll must meet more in comparison to the subsequent criteria, yet below’s a keynote:
“Whatever say you are actually filing for separation in, you must have resided there for a minimum of six months. When it comes to area, your residency requirement is three months. (These condition and county residency demands may differ, depending upon the region of the USA.).
“Do you possess legal premises to breakup? “Diametrically opposed difficulties” is the most frequently pointed out factor for a breakup and also that has a remarkably extensive meaning, implying it is unusual that it’s prohibited for somebody to file for divorce. If you have actually experienced marital issues that have harmed the relationship and are actually clashing, after that you have lawful reasons. There is actually additionally the alternative of “incurable sanity” that is actually just utilized in excessive situations.
“You are going to declare breakup in your county; the action for divorce need to be presented in the court of your territory. This might complicated or even a snap to keep track of the proper court.

If your annulment is easy, it’s rather straightforward to apply for divorce. This is actually when your hubby or even other half answers along with a counteraction of some type that it starts to get rough and also an attorney isn’t really disposable. There are actually even internet sources right now that enable you to carry out all your submitting online; these usually cost funds to use nevertheless.

In recap, to personal apply for divorce, you will certainly have to fulfill the above criteria and submit a petition for divorce with the correct court in your area and also state. (Even more booming regions may possess multiple areas that you’ll must evaluate prior to submission.) Bear in mind to explore your neighborhood demands, for legal grounds and also jurisdictions, therefore you typically aren’t fined any uncomfortable shocks and hangups.

Recover From Divorce With Hypnosis

Bounce back Coming from Separation Along with Hypnotherapy

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This is actually determined that a person in 3 few which were actually married previously decade will certainly undergo an annulment. Divorce is a term that influences countless individuals. Our team have actually all known somebody that has actually gone through a divorce or even been actually with a separation our own selves. When an individual is actually experiencing breakup this might be a really depressing and lonely time and also some individuals possess issue recuperating.

If one carries out certainly not recuperate from a separation at that point that individual is actually cutting their life short. There are so many amazing things that can easily occur to an individual that has looked at a separation. After an annulment an individual is actually given a brand new chapter in their lifestyle to record any kind of method, form or type. This is actually an odds for a person to perform things they have actually just fantasized around. If you are possessing trouble recuperating coming from separation and also want to gain back control of your lifestyle, you might desire to take into consideration hypnosis.

Self-hypnosis is a type of therapy that deals with an unconscious or a subconscious level. A person who goes through hypnosis will definitely be actually injected a deep condition of meditation. This is actually throughout this deep condition of meditation that our subconsciousness mind is one of the most responsive to originalities and perspectives. As our subconscious thoughts stays “open” favorable tips are going to be actually delivered. These spouse recommendations are made to provide encouragement, give motivation, give confidence and describe a definite plan for recuperating from divorce.

An individual, while a hypnotic approach, will find out ways to imagine on their own recuperated coming from their separation, leading a happy as well as healthy lifespan. Self-hypnosis enables a person to “see” themselves recuperated as well as to “experience” just how fantastic lifespan seeks annulment. Separation carries out certainly not have to stay an obstruction that is stopping you coming from residing lifespan. Put the past behind you as well as tackle a brilliant, new future. Can you envision residing daily life along with eagerness, stamina as well as pleasure? Your lifestyle might be every little thing you regularly longed for also after an annulment.

If you are actually experiencing a hard time recuperating from breakup after that, as a practicing hypnotherapist, I recommend that you look for the solutions of a trained hypnotherapist positioned in your area. Acquire more pleasure type lifespan as well as recuperate coming from separation with help from hypnotherapy.

Retirement-When To Plan For It

Retirement-When To Think about This

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Retirement planning is similar to funeral organizing, during that
folks tend to put that off for another day. Yet this actually
performs make the best sense to obtain in and also begin sensibly
early.

This not just permits you to view how you are going to be carrying out
financially, however you can easily create a retirement action strategy as
effectively.

Possess a very near examine your pension strategy as well as the
cash you are investing. The amount of are going to you have as soon as
retired? Exactly what are your possibilities for payout?

Looking at inflation and your lifestyle will definitely you have
good enough to survive on and carry out the many things you intend to perform. A.
monetary consultant can be a terrific property for these kind of.
forecasts.

For this that is actually definitely certainly never to quickly to check in, possibly in.
the last decade prior to retired life you may prepare to cover up.
your retirement life fund.

If you haven’t bothered a lot along with putting cash right into your.
program, at that point start to do so. The additional you can easily enter this the.
a lot better.

Tasks and time preparation is yet another vital region. You.
could intend to save for the travel of a lifetime, will definitely your.
retirement be a total or semi?

That might be a fantastic idea to become unwinding everyday.
along with your feets up, but if you are familiarized to an active.
job life, you’ll acquire bored reasonably rapidly.

Thus believe as fundamental as everyday tasks you can possibly do.
Horticulture, sports, fine art, tour, create, woodwork etc can easily all.
deliver a new size in to your lifestyle.

Divorce, rebuild your life, get a new pet

Breakup, reconstruct your life, acquire a brand-new dog

Thus what occurs to the family pets when that relates to breakup? Some care a great deal about their animals that perhaps ravaging when lawyers speak of them like home. market value of the pets that our company position in our hearts can in some cases be hard when it comes to being apart. If you are in battle of your life-time as well as your mate intends to fight dirty, they can easily opt for guardianship of the family pets.

They use the dogs like leverage, just like youngsters. The trick to creating out like a raider in a separation is to found exactly what one person desires then imitate you require that or desire that even more. Generally the courts are going to provide pet dogs to the one that is more enthusiastic or even psychologically affixed, which may be effortlessly fabricated. Ex’s go for family pets since they desire to hurt you as high as achievable. If you possess any sort of kids or even pet dogs in a relationship you are actually over probably to have a hideous divorce.

Like little ones, the courts are going to ask on their own just what is finest for pet. If your spouse gets the home and the garden, more likely they’ll get the pet. If animal simply recognizes that people property, they are actually more likely to get the animal due to the fact that they have a mental attachment to their secured building. Nonetheless, some magistrates are going to happen the truth of which had pet initially. If you inflicted your girlfriend and after that for many years ended up being attached it, the add-on does not matter. In some cases they look at pets like equipment. That possesses right that ability? Effectively, response is, the one which possesses this. They will not share dog. This is actually since it’s actually undesirable for the canine. The dog is going to end up being confused conveniently and also they will not have their surveillance as well as might establish some emotional or even vigorous behaviors.

A lot of the time, the better half acquired little ones, the house, and the pets. This is actually considering that they think that little ones require the house as security and also the loved ones pet needs to have youngsters for safety and security at the same time, so they all go together. This is actually one concern that has been addressed over the years, and also the father has actually gotten all three.

If magistrate can’t consider the dog’s enthusiasm, perhaps you or even your husband or wife must begin functioning appropriately in separation and also rather than aiming to acquire it all, give up the many things you truly don’t really want. If you don’t like the pet dog, do not take the pet dog. If you do not pet cat, do not inquire for this. Don’t fight over something that is merely approaching injure you both in the long run.

Nonetheless, there are individuals which drop their dog and also have to reconstruct their life along with a brand new one. There is actually always going to be injured feelings concerning shedding the original dog, however obtaining another one are going to help you cope with the loss, this won’t switch out the pet, however it will definitely permit you to begin procedure of moving on and also releasing. You may need to have time to think things over.

It’s tough to change an animal that you were actually therefore close to. That feels like dropping a child or bestfriend. Nevertheless, if you receive another animal, certainly not simply yet another canine or pet cat, but any kind of kind of dog that will definitely strengthen you and sympathize you at that point divorce will be actually a whole lot simpler to deal with. If you are thinking about a brand new pet dog, you should go to shelters. They have animals that have been turned down and also injured as well as they will certainly bond along with you. You are actually most likely to connect along with them considering that you may comprehend their circumstance. You might locate that a dog from sanctuary are going to be actually specifically what you need to have.

BAR & JMR (No. 2) [2005] FamCA 386

ISSUE
1 An interim property settlement was negotiated by the parties and their legal practitioners in proceedings before Smithers J. on 14 September 1999. Consent orders were pronounced. The outstanding issue of the husband’s  superannuation  entitlement and the alteration of such interest was then adjourned pursuant to s.79(5) of the Family Law Act 1975 (Cth) (“the Act”). That issue and the methodology, quantum, date and consequential form and orders of any splittable payment and the base amount to be allocated to the wife are now before the Court as part of the final determination of s.79 alteration of property.
SUPERANNUATION  – BACKGROUND
5 The husband commenced his employment with the Victorian Public Service in April 1974 and on that date commenced contributions to the State  Superannuation  Fund. On 1 July 1987 all contributors to that Fund were given the option to transfer their  superannuation  to the recently established Emergency Services  Superannuation  Scheme (“ESSS”) (‘the Fund”). The husband was, as at the date of separation, a contributing member of that Fund. He ceased making any regular contributions thereto in 1998.

6 ESSS is a defined benefit fund which, subject to certain legislative and retirement options, is required to pay save in specific circumstances, a lump sum to members on their retirement on or prior to attaining age 65 years.

7 This Court is required to determine the amount of the member’s  superannuation  interest pursuant to the Family Law Act and its ( Superannuation ) Regulations and Schedules. The method therein prescribed for valuing the defined benefit  superannuation  interest in the growth phase was developed by the Australian Government based upon a typical private sector defined benefit scheme. It has been recognised that this method of valuation may be not wholly appropriate to certain public sector funds and consequently there is a procedure for such funds to apply for a scheme specific method of valuation. ESSS has not made such an application but applied to the Attorney-General on 12 January 2005 pursuant to Regulation 43A of the Family Law ( Superannuation ) Regulations 2001 to vary an aspect of their disability provisions or for an alternate valuation method for interests in the payment phase of that scheme. ESSS has now advised that it has withdrawn such application following discussions between its actuary and the Australian Government Actuary’s Office. That issue remains unresolved.

CHANGE IN HUSBAND’S  SUPERANNUATION  FUNDS
8 The husband maintained, and I accept his evidence, that in 1987 he did discuss the available  superannuation  options with the wife. Clearly ESSS represented a vastly superior  superannuation  plan to that which formerly operated. Exhibit “1” in the proceedings, (also exhibit “JMR-11”to the wife’s trial affidavit) is a letter dated 8 October 1998 from VicSuper. That letter advised:
“The husband became a member of the State  Superannuation  Fund (revised scheme) on 11 April 1974 and his total contributions to the Fund were $8,626.03. His contributions between that date and 1 December 1985 were $7,155.24. When he resigned on 1 January 1987 to transfer to ESSS the husband received a refund of contributions, net after tax of $8,452.90.”
9 I accept the evidence of the husband that the value of his  superannuation  entitlements dramatically increased on transfer to the ESSS fund from approximately $8,500.00 to a then calculated sum of $48,000.00. That increase was claimed by the wife to be in the nature of “a financial windfall” in that it was not directly related to the husband’s past service or contributions but to the new and more generous scheme and valuation methodology introduced for all contributors to ESSS from 1 July 1987.
10 I do not accept that claim by the wife as under the State  Superannuation  Fund the husband had available the option of a pension for retirement other than for disability purposes. Effective 1 July 1987 that pension facility was withdrawn from all members of the Emergency Services and replaced with a predominantly lump sum option. That was the background to the recalculation of the husband’s contributions and there was clearly a compromise between the increase in value of such contributions and the severe restrictions placed upon the pension option.
11 The husband commenced a second  superannuation  fund, the ESS Plan in 2002 and has since continued to make contributions to that alternate Fund. Its current accumulation value is $34,584.00.
12 The husband’s evidence was that he ceased financial contributions to his ESSS fund for two main reasons, they being:
§ the spousal maintenance order made by Carter J on 9 July 1998 whereby he was required to pay $170.00 per fortnight to the wife, costs fixed in the sum of $3,500.00 together with the lump sum payment of $10,000.00 to discharge the wife’s spousal maintenance claim. He states that he simply did not then have the money to additionally make his regular  superannuation  contribution; and
§ he sought the advice of a financial planner who advised him that otherwise he would reach his maximum entitlement in the ESSS Fund and that it was prudent and financially proper to contribute to a separate  superannuation  fund.
13 The wife has, from her employment, her own  superannuation  entitlements which are valued at $5,408.00 by her in her Financial Statement and which were not the subject of challenge.
14 I say at the outset that I am satisfied that procedural fairness has been afforded ESSS. They are aware of the proceedings and knew of the current Court injunctions restraining the husband from dealing with his  superannuation  entitlements. There are no current flagging orders made since the commencement of the  superannuation  legislation on 28 December 2002. Indeed counsel for the husband has advised the Court that ESSS was not prepared to involve itself in this case and have an officer in its employ give evidence other than upon subpoena. The transcript in this case will, if obtained, reveal that the Court, on a number of occasions as counsel for the wife listed in his written submissions, inquired of counsel if there would be evidence given in the proceedings from ESSS as to particular issues of and related to the husband’s entitlement, retirement and valuation of his  superannuation  interests. Such evidence was never called by the husband or put before the Court by the Fund, for reasons upon which I do not speculate.

HEARING OF 15 SEPTEMBER 2004
15 The proceedings first came before me in the defended list on the above date. The case commenced and evidence was taken from the husband and the single expert professional witness, Mr W, an accountant and consultant in  superannuation  and a director of the firm who had some thirty years of commercial experience and whose qualifications were accepted by the parties as appropriately qualifying him to give expert evidence.
16 On the afternoon of that first hearing I determined to adjourn the proceedings part-heard before myself, delivered a substantial extempore judgment and pronounced orders which required an updated expert’s report as to the valuation of the husband’s defined benefit interest in the growth phase of his  superannuation  entitlements.
17 The reasons for the adjournment and the issues of uncertainty that had then arisen in respect of the valuation methodology and an application by ESSS to the Attorney-General’s Department to vary an aspect of their fund are explained in the reasons for judgment which I refer to and incorporate within my considerations of all aspects of this case. That variation, in fact, turned out to apply only to members receiving a disability pension under section 20F of the Emergency Services  Superannuation  Act 1986. That fact was subsequently explained to the Court pursuant to the report dated 21 October 2004 of Mr W.
18 The matter returned for hearing before me on 16 December 2004 upon an interim application filed by the husband which was then dismissed. Mr W was ordered to prepare his updated  superannuation  valuation as at 1 February 2005 and the matter was otherwise adjourned for further hearing before myself on 24 February 2005. On that date the wife’s solicitors, whom she had recently engaged, appeared seeking further disclosure and financial information from the husband and an adjournment of all proceedings. I made orders requiring limited financial disclosure and otherwise adjourned all applications on a part-heard basis to resume on 30 March 2005 which is the date on which these continuing proceedings commenced and then concluded, subject to final submissions, the following day. I provided a further extempore judgment on 24 February 2005 which again I refer upon and incorporate into my reasons for judgment.
DETERMINATION BY COURT OF SECTION 90MT(2) ISSUES
282 Section 90MT(2) requires the Court to “make a determination” under sub-paragraph 1(a) or (b) of either:

(a) the amount in relation to the  superannuation  interests; or

(b) the value of such interest.
283 In this case the  Superannuation Regulations  and accompanying Schedule do provide the appropriate methodology to be adopted. The Court must therefore make a determination and not a valuation (my emphasis).
284 I conclude, on the accepted meanings of each of those underlined words that it is not the requirement of the Court to independently take on the arithmetical task of valuation with all of its inherent vagaries and so overlap or usurp the role of the independent valuation expert witness. On the particular facts of this case I must accept the valuation evidence, subject to the other evidence also provided by the expert witness and have evaluated and assessed that evidence in the context of the appropriate four step procedure. When there is such expert evidence before the Court, by a witness accepted by both parties and with no contrary evidence before the Court then I am not able to look behind the valuation. The discretion is as to the alteration of property interests and the quantum and date of the payment splitting order.
285 In G and G (unreported; (2003) FamCA 249 judgment delivered 28 March 2003) the facts before the Court could generally be summarised as a marriage of 24 years, four children one dependent, the husband was the principle wage earner and the wife the primary child carer. The husband was a senior State Public Servant with a preserved  superannuation  pension and lump sum entitlement. Those parties previously concluded partial property settlements and thus there was an issue before the Court as to the nature of a “partial” and “interim” settlement. I will not further consider that aspect of his Honour’s judgment. The more relevant issue is the approach taken to the Comsuper and the splittable payment made in that regard. His Honour determined a percentage split, by way of lump sum or pension and in so doing considered the then recently introduced  superannuation  legislation, the obligations to determine a just and equitable order pursuant to s.79(2) of the Act and the specific contribution and s.75(2) factors.
286 His Honour, in G and G, saw the necessity to himself independently value the  superannuation  entitlement rather than making a determination based on the evidence then before him. With that approach I respectfully disagree. Burr J then proceeded to calculate a different value, albeit not substantially, from the independent single expert on both the accrued benefit multiple and the prescribed discount rate.
287 In the course of his judgment his Honour said:

“86. It is because of these very sorts of complicated calculations and reasons that I believe it inappropriate to exercise my discretion in favour of the husband’s approach. The husband’s approach and calculations contain a number of uncertainties, contingencies, imprecise calculations and guess work (although educated and informed). The husband’s approach requires me to embark again on some of the relatively vague and imprecise exercises that was required of Judges of this Court prior to the passage of the amending  superannuation  legislation.
87. The orders sought by the wife to split the pension at the time of payment provide the simplicity and precision for which the entire amending  superannuation  legislative regime was implemented. They do not, for example, require the calculation of an income tax factor to be applied to the calculated lump sum. The parties’ respective taxation commitments will be deducted at source from each of their pension payments. The calculation of the income tax factor is itself fraught with difficulties. It is not possible to undertake a calculation of the appropriate taxation figure with any certainty. It depends upon a number of variables surrounding the period of time into the future that the husband will be employed and the salary at which he will be employed. Application of the regulations and making orders as sought by the wife, overcomes all of those uncertainties. In my view it is entirely appropriate to adopt the wife’s suggested approach and make an order splitting the pension payments and the Comsuper lump sum interest between the parties when they fall due in percentages I determine hereunder, after consideration of all relevant factors.
88. I further accept the evidence of the wife which, in my view, also promotes the approach sought by her. I accept that the anxiety and depression from which the wife suffers and which has entitled her to receipt of a disability pension, ill-equips her to make the sometimes difficult decisions as to what might be the appropriate manner in which to invest a lump sum. I accept that she presently does not have the capacity to make those decisions.
89. There is another very relevant issue which leads me to adopt the approach urged by the wife. The calculation of the husband’s Comsuper interests pursuant to the regulations provides a value of his interests as at the present time (or more strictly speaking as at mid-February 2003 when I concluded the calculation). However, it was the husband’s quite clear evidence that he would not be retiring for some time yet and would therefore not be taking his  superannuation  interests until some years into the future. Thus the calculation of his Comsuper interests as at the present time, do not represent the value of those interests as at the date he intends to take them. The husband argued for the adoption of a proposal whereby the calculation would take account of the value of his Comsuper interests as at the present when in fact the wife will not be receiving her share of those interests as at the present time but at a date in the future to be determined solely by the husband. Application of the amending  superannuation  legislation would overcome the possibility of any injustice to the parties”.
288 In this case I find that, likewise, there are many uncertainties and contingencies both with the valuation process and generally with facts in evidence on  superannuation . These include (in summary and as I have found):
§ the husband’s actual retirement date;
§ the details of the husband’s salary as provided for valuation purposes;
§ the applicable  superannuation  tax rates for each of the husband and wife;
§ the introduction, said to be from 1 July 2005, of amending legislation for the ESSS Fund;
§ the husband’s applicable multiple (from time to time);
§ issues as to a just and equitable valuation as put in evidence by Mr W;
§ the failure to have evidence given before the Court from the Trustee of the ESSS Fund.
289 I agree with and adopt the words of Burr J. in that a splittable payment made in the payment phase gives both simplicity and precision to the outcome. I would add that it would be far more likely to produce a just and equitable alteration of property interests as the husband’s income, multiplier, applicable tax rate and retirement date would all be known with certainty. The guess work and likely injustices flowing therefrom would be largely eliminated.
290 In my judgment it is both a proper, equitable and a common sense approach to bind the Trustee of the ESSS Fund to make the required splittable payment upon the husband’s retirement, be it that he then elects to receive a lump sum or otherwise is eligible to receive an ongoing pension payment.

CURRENT ASSETS AND LIABILITIES OF HUSBAND AND WIFE
291 I have previously evaluated the evidence as to the parties respective assets and liabilities and in summary they are as follows:

Wife
§ a net equity in her home of
subject to the sum of $44,800.00 “left in” $130,000.00;
§  superannuation , subject to compliance, $5,408.00
§ liability to Australian Taxation Office ($2,212.00)
§ the wife therefore has net property to a value of $133,196.00

Husband
§ equity in the F Crescent property $89,000.00
§ equity in the M Street property $Nil
§ long service leave (current but subject to $64,000.00
specific findings in this judgment)
§  superannuation , as valued $403,810.00

(but subject to specific findings in this judgment)
§ second  superannuation , ESS Plan (post separation) $34,500.00
§ profit on sale of the W Street property subject to its
expenditure as identified in the judgment $35,000.00
§ $44,800.00 as interim property settlement $44,800.00

$671,110.00

I will exclude the W Street equity for reasons given in this Judgment and thus his balance of net property and financial resources is $636,110.00.

For the purposes of my identification of the asset pool, and having regard to the most recent Financial Statements of each of the parties I have excluded personal chattels, motor vehicles, personal credit card debts and legal fees (with each of them said to owe $20,000.00, albeit with the husband’s counsel appearing pro bono in the proceedings).

ASSESSMENT OF CONTRIBUTION
292 I have considered and assessed and made findings as to the various contributions, financial and non-financial, direct and indirect of the parties to the acquisition, conservation and improvement of their property and particularly, in the context of this judgment as to  superannuation . I have balanced the 60% interim property order and the $44,800.00 sum which the husband “left in” the wife’s then property. I have fully evaluated the contributions of the husband to  superannuation  prior to and after cohabitation and specifically the significant contributions made throughout that 12.9 years of cohabitation. I have properly balanced the evidence of and related to homemaker and parent and, within the context of the contributions issue, the applicable s.75(2) factors as are there relevant.
293 The husband has, I find, made the principal contribution to his  superannuation  entitlements having regard to his long and continuous employment, his financial contributions, his level within the public service and the particular and generous entitlements of the ESSS fund which are available only because of his employment. The wife’s contributions are significantly lesser and are made in the role of homemaker and parent and as the then wife of a person in the husband’s job with the inherent stresses that that placed upon her and the family.

ASSESSMENT OF SECTION 75(2) FACTORS
294 Those relevant factors have been identified and considered throughout this judgment. I have made specific findings on the employment and income of each of the parties and how the parties have and will continue financially to provide for themselves and their households.
295 There must be an appropriate adjustment of these factors in favour of the wife having regard to all of my findings and, in summary:
§ her current and future income when contrasted to the husband’s;
§ the likelihood of her obtaining more extensive and full paid employment;
§ her obligations for JSR;
§ the husband’s  superannuation  entitlements and generally other work related entitlements and benefits including accrued long service leave and other leave and payments for service;
§ her reduced standard of living post separation;
§ the 12.9 years of cohabitation and the limitation that that imposed upon the wife’s work qualifications, employment and earning capacity;
§ the need of the wife to continue in her role as a parent to JSR and with the financial, emotional and time restraints thereby incurred;
§ the financial circumstances of the husband’s marriage with Ms W, her substantial income and  superannuation  and the ability of each of the husband and his new wife to invest, negatively gear property and otherwise earn a substantial combined income and provide for their lifestyle and future retirement;
§ the existing interim order and the equity that the wife has therefrom in her home with a significant mortgage encumbering its title;
§ the current child support and additional payments made by the husband for JSR which substantially contribute to but do not remove from the wife the burden of at least an equal contribution to JSR’s schooling and general financial wellbeing;
§ the financial responsibilities of the wife to support and maintain LJR;
§ the particular sub-paragraph (f) and (o) factors as I have discussed.

BASIS OF INTERIM SETTLEMENT ORDERS
296 It is common agreement that the interim orders altered the parties interests in property, other than  superannuation  as to 60% to the wife and 40% to the husband. It is a matter of significance in the written submissions filed on behalf of the husband (page 17) that he and his counsel determined an apportionment of that 60% sum as follows:
§ s.79(4) contributions in the range of 35% – 40%; and
§ s.75(2) “needs factor” in the region of 20% – 25%.
297 That acknowledgement of the importance and financial worth of the s.75(2) factors in that interim order is significant and it does properly form a basis for the further consideration of the alteration of  superannuation  entitlements of the husband in the full and proper context of the relevant facts as determined in this judgment.

ASSESSMENT IN PERCENTAGE TERMS
298 As to contribution I assess that the wife is entitled to 10% of the husband’s ESSS  Superannuation  Fund. By my valuation of the s.75(2) factors the wife is entitled to an additional 25% of such  superannuation  entitlements. I therefore assess that a proper order altering the parties interests in  superannuation  is an alteration by way of a splittable order in the payment phase for the husband to retain 65% and for there to be a percentage split of 35% to the wife.

ASSESSMENT OF ORDERS SOUGHT BY HUSBAND
299 I now pause to reflect upon the financial outcome of the orders sought by the husband. With an allocated base amount as sought of $37,782.00, in addition to her other net assets the wife would have received a total sum of $170,978.00. In contrast the husband would retain the balance of this  superannuation  fund at its valuation date, ($366,028.00) his second  superannuation  fund, his equity in his home and his long service leave entitlements. Specifically I find that such an order would not do justice and equity as between the husband and wife. Deducting long service leave of $64,000.00 as I found proper pursuant to the interim orders, still leaves what I conclude to be a wholly unjust result.
300 I do not propose to interfere with the actual division of property made in the consent interim orders of the Court. The husband and wife will each retain their current real property, assets, financial resources and liabilities.

MONETARY EFFECT OF ORDER
301 On the basis of a 35% alteration in favour of the wife of the husband’s interest in the ESSS Fund the net monetary position of the parties, based on the  superannuation  valuation of $403,810.00 would be:

Wife
§ current assets $133,196.00
§  superannuation  order $141,333.00
§ wife’s  superannuation  $5,408.00

$279,937.00

Husband
§ home equity $89,000.00
§ long service leave $64,000.00
§ ESS Plan $34,500.00
§  Superannuation  $262,476.00

$449,976.00

Inclusive of the earlier interim orders the difference therefore in dollar terms in favour of the husband is $170,039.00 which must be assessed in the context of his ongoing employment, income, additional  superannuation  and other issues as evaluated in this judgment.

FOURTH STEP
302 In accordance with the requirements of case law I have now stood back from the orders and reflected upon the overall determination and judgment, both in percentage terms and in monetary terms and confirm, having considered and re-evaluated all of the evidence, that the proposed orders are just and equitable pursuant to the provisions of s.79(2) of the Act.
303 The effect of the splitting order in the payment phase is that each of the husband and wife will have to wait for their interests to become payable. One party does not have the immediate access to a ready sum of money with the other party being delayed in payment. The  superannuation  interests will incrementally increase in value pending payment and this cannot be viewed in isolation from the marital history. Both parties, to the extent of their respective entitlements, will therefore continue to benefit by the earnings and investment income of the Fund.
304 I made available to counsel prior to submissions the decision of Thackeray AJ in Woollams and Woollams (2004) FCWA 32 (unreported). I am alive to the discussion therein as to the importance of the fourth step, what is called the “section 79(2) factor”. It may well be that greater attention is now given by the  superannuation  legislation to this step and this is acknowledged in the article by Stephen Bourke, “The Fourth Step in  Superannuation  Orders”, Current Family Law (February 2004 edition). What I have determined in this fourth step is that my evaluation of the evidence and the determination of the contribution and s.75(2) factors is proper and that it would be just and equitable to divide the  superannuation  interests as I have concluded and on the basis of a splittable payment in the payment phase.

ORDERS
305 I order as follows:

IT IS DECLARED:
1. THAT the Court is satisfied that procedural fairness has been afforded the Trustees of the Emergency Services  Superannuation  Scheme in relation to these orders.

IT IS ORDERED:
2. THAT pursuant to s.90MT(1)(b) of the Family Law Act 1975 that, whenever a splittable payment becomes payable in respect of the interest held by the husband in the Emergency Services  Superannuation  Scheme the wife, or her heirs, executors or assigns, be then paid 35% of such splittable payment, whether it be then as a lump sum or pension and that there be a corresponding reduction in the entitlement the husband would have received in the ESSS Fund but for this order.
3. THAT these orders are to bind the Trustee of the ESSS Fund to observe their obligations as Trustee under the Family Law Act 1975 and the  Family Law (Superannuation) Regulations 2001 .
4. THAT within seven (7) days the husband serve a sealed copy of these Orders upon the Trustee of the ESSS Fund.
5. THAT within seven (7) days the wife provide to the Trustee of the ESSS Fund full particulars as to her full name, current postal address and date of birth and such other particulars as may be required of her by that Fund.
6. THAT in respect of any  superannuation  interest of the husband in the ESSS Fund the Trustee of that Fund:

(i) must not make any splittable payment without the leave of the Court; and
(ii) must notify the wife and her solicitors on the record in writing twenty one (21) days prior to the next occasion a splittable payment becomes payable.
7. THAT each party otherwise retain all items of real and personal property in their respective name or possession as at the date of these orders.
8. THAT all extant applications before the Court be otherwise dismissed and the proceedings be removed from the list of cases awaiting trial.

IT IS CERTIFIED
9. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

How Devising a Parenting Plan can help Children with the Issue of Divorce

How Developing a Parenting Program can help Kids with the Issue of Separation

A parenting plan can easily help little ones with the issue of breakup in a lot of means. Also really kids who cannot review that or analyze this find out about consistency. It assists them to learn to reputable their moms and dads in addition to various other grownups. There are actually many emotions that children of different ages undergo when a breakup is in improvement. Identifying all of them as well as obtaining a strategy into motion right away is actually vital.

The biggest oversight for a lot of moms and dads when it relates to establishing a practical parenting strategy is that there is too much emotion engageded in it. This needs to be composed along with logic ruling as opposed to emotions. Through this the parenting strategy may be referred to when factors obtain challenging on either side of the parenting. A parenting strategy may be good for any duration of time provided that this remains to suit the purposes of exactly what you each desire to perform along with your youngsters.

A parenting strategy must deal with all the factors of concerns that both moms and dads think are vital. You should desire to do exactly what is in the most effective interest of the kids rather than holding out for exactly what you want. Way too many parenting organizes never ever get off the ground due to the fact that people can not settle on anything. They are actually also busy attempting to regulate the condition or even to even get revenge on the other parent to definitely concentrate on the youngsters.

If that is the case you may should obtain a moderator entailed that can help along with it. This can be lawyers for both events, a counselor, or even a person that provides services for divorce claims involving youngsters. They can aid the parents stay on track along with the growth and also the implementation of the parenting program.

Regular assessments of the parenting arrange have to take place. This is since as the little ones age brand new issues will come into stage show. Others are going to be actually an extinction though including daycare agreements. Pay attention to the debates your youngsters create when this involves the parenting strategy at the same time.

However when that arrives the right time to sit down as well as review the info that should be simply both moms and dads entailed. Occasionally the brand-new partners or significant others of them are additionally welcomed to participate. This relies on the connections that all included develop with the children though.

There will definitely additionally be actually adjustments to the parent’s schedule as a result of work and also other dedications. Don’t possess the attitude that it isn’t your trouble as that mindset on it are going to simply hurt your youngsters. Attempt to recognize that the other father and mother is carrying out all they may to have the right time along with the children. While you may certainly not delight in that they have to go with them, this is actually vital for your children to build a premium relationship with both of you.

Once a brand new parenting strategy has been actually established, the children may be said to of what will certainly take place by both moms and dads. Through this they do not believe that one parent beat what they wished to see taken into area. When each parents can easily show a combined face, this also offers the parenting strategy much more reliability.

For little ones, a solid parenting strategy assists to ease their anxiousness. They learn just what they can get out of each of their father and mothers. They know that while their father and mothers will not be all together, they will certainly be effectively looked after. They may not be heading to be actually fretted about what the future invites establishment for them. They are going to additionally enjoy the fact that they get to devote premium the right time along with each of their moms and dads.

Along with permitting everybody recognize just what could be counted on, a parenting arrange may lower the amount of dispute that happens in between the 2 parents. Each of the kids will definitely take advantage of this plan also. That may absolutely aid to lower the negative facets of a breakup for the whole entire family.

PPPPP

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Family Law Superannuation Cases to Watch

  • Maxwell & Miltiadis [2014] FamCAFC 180 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is a satisfactory explanation provided by the applicant for failing to file the appeal within time – where there is an arguable case on appeal – where there is prejudice to both parties depending on the result – where the justice of the case requires the granting of the application – time to file extended.
  • Helbig & Rowe [2014] FamCAFC 179 – 17/09/2014 – View PDF
    FAMILY LAW – APPEAL – Where further parenting proceedings commenced after final parenting orders were made by consent – Where leave to appeal interlocutory order relating to practice and procedure is necessary – Where a dispute arose as to the documents to be provided to the independent expert – Where the primary judge excluded from the list of documents to be sent to the expert certain counselling notes – Where the single expert can make an application requesting further documents if needed – Leave to appeal refused.FAMILY LAW – APPEAL – Where interlocutory order for children to spend supervised time – Where allegations of abuse raised against parent to be supervised – Where the primary judge proceeded on the basis the disclosures were serious and required caution – Where the primary judge was entitled to analyse the risks to the children as she did – Where the primary judge is entitled to take objections in relation to admissibility of evidence – Appeal dismissed.
  • Spring & Spring [2014] FamCAFC 178 – 09/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where the draft Notice of Appeal does not contain proper grounds of appeal – where the application cannot succeed in those circumstances – where an adjournment is sought by the applicant to prepare a fresh draft Notice of Appeal containing proper grounds of appeal – where that application is opposed – application to adjourn granted.FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs of the hearing thrown away – where there are circumstances which justify an order for costs being made – costs ordered as sought by the respondent.
  • Jacobs & Sitch [2014] FamCAFC 177 – 09/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time – where there is an arguable case on appeal – where there is prejudice to both parties depending on the result – where the justice of the case requires the granting of the application – time to file extended.
  • Perov & McPherson [2014] FamCAFC 176 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – Appeal of a costs order against a party’s solicitor – Where the solicitor appeals that order – Whether the appeal is so devoid of merit that it would be futile to make the order sought – Whether the appeal is “arguable”.FAMILY LAW – APPEAL – Application to extend time to appeal – Where the applicant is out of time – Whether the respondent would be prejudiced if leave were granted – Where the appellant will be prejudiced if he loses the ability to challenge the costs order – Where prejudice to the appellant is not such as to outweigh prejudice to the respondent –Where leave is not given.FAMILY LAW – APPEAL– COSTS – Where the respondent seeks an order for costs if the application fails – Where the application fails – Where the appellant is to pay the respondent’s costs.
  • Jarrah & Fadel (No. 2) [2014] FamCAFC 175 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – Application in an appeal – Review of Appeal Registrar’s decision – Hearing de novo – Where the father seeks the appeal books to be prepared by the Appeal Registrar – Whether the father would suffer exceptional hardship – Where the father would not suffer exceptional hardship – Where the power to prepare appeal books is discretionary – Where in the alternative to the Appeal Registrar preparing the appeal books, the father seeks a six month adjournment of the appeal – Where the application is dismissed.
  • Tizani & Tizani (Security for costs) [2014] FamCAFC 174 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – Application to extend time to appeal – Delay – Where the respondent conceded the delay is not significant – Where there is sufficient explanation of the delay.FAMILY LAW – APPEAL – Prejudice – Whether the applicant would suffer prejudice if leave to appeal was not granted – Whether the respondent would suffer prejudice – Where the appeal has merit.FAMILY LAW – COSTS –– Where it is not appropriate to make a costs order.
  • Zanda & Zanda [2014] FamCAFC 173 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPREHENDED BIAS – Where the father submitted that the primary judge’s orders and reasons gave rise to an apprehension of bias and an apprehension that he prejudged the issues before him – Where the matter was initially considered ex parte – Where the father filed documents after ex parte orders were made – Where his Honour raised issues regarding the father’s citizenship and welfare entitlement that were not raised by the parties – Where the primary judge identified the appropriate law which did not suggest wrongdoing – Where the primary judge referred the matter to the Department of Immigration and Citizenship without informing the father’s counsel of this intention – Statements made by primary judge – Where objection to constitution of the court not taken – Waiver – Whether subsequent delivery of reasons revive bias – Whether a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Where a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Appeal allowed.FAMILY LAW – APPEAL – FORUM – Appropriate forum –Where the children were residents of Lebanon – Whether the doctrine of forum non conveniens is applicable to a parenting case – Where an application is made under the provisions of the Act, which prescribes the best interests test, whether or not a child is within the jurisdiction then it is that test and not the test of forum non conveniens which will apply – Appeal allowed.FAMILY LAW – APPEAL – INJUNCTIONS – Jurisdiction – Where the father was restrained from leaving Australia – Whether the court has the power to directly restrain the freedom of movement of a parent – Whether the power can be found in s 114(3) or 68B – Where an order requiring a parent to live in a particular place is not a parenting order – Where 68B cannot restrict the movement of a parent – Where the court has discretion under s 114(3) to restrain the movement of a parent – Where exercise of the discretion requires the correct source of power to be identified – Appeal allowed.
  • Pace & Pace (Costs) [2014] FamCAFC 172 – 15/09/2014 – View PDF
    FAMILY LAW – APPEAL – Costs
  • Daines & Daines (Costs) [2014] FamCAFC 170 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – where the trial judge made orders and delivered reasons purporting to effect a final property settlement between the parties – where those orders were not final property orders – where the matter subsequently came back before her Honour for a further hearing in order to finalise the orders giving effect to the distribution previously ordered by the trial judge – where the hearing was necessitated primarily as a result of the husband’s claim that the trial judge was functus officio – where that claim was found to be without merit by both the trial judge and this Court – where the trial judge ordered that the husband pay the wife’s costs of the subsequent hearing – where the husband appeals that order – where the primary contention is that the trial judge failed to finalise the parties’ financial relationship and that necessitated the subsequent hearing – where that submission is not borne out by reference to the record – no merit in the appeal.FAMILY LAW – APPEAL – COSTS – where the trial judge ordered that the husband pay the wife’s costs of the property proceedings – where the trial judge had, in accordance with a joint balance sheet, included unpaid legal fees of the parties as a liability – where no issue was raised with that approach at the hearing of the wife’s costs application – where the issue raised for the first time on appeal – whether an error of law has been established – where, in including the unpaid legal fees as a liability, and not notionally adding back the corresponding amount, her Honour’s property orders have the effect that each party is liable for a proportion of the other’s costs – where her Honour did not consider that issue when ordering that the husband pay the wife’s costs – where error established – matter remitted.FAMILY LAW – APPEAL – COSTS OF APPEAL – where the wife seeks an order that the husband pay her costs of the appeals on a solicitor and own client basis – where the husband has been wholly unsuccessful in three of his four appeals – where the husband raised issues of impecuniosity – where impecuniosity is not itself determinative of whether an order for costs ought be made – whether there are circumstances justifying a departure from s 117(1) of the Family Law Act 1975(Cth) – where the husband received over $500,000 as a result of the property orders made by the trial judge – where the two costs appeals proceeded via written submissions – where the circumstances justify a departure from s 117(1) in respect of the two appeals previously determined – where there is no basis for ordering that the costs be awarded on a solicitor and own client basis – where there are no circumstances justifying a departure from s 117(1) in respect of the unsuccessful costs appeals, which proceeded via written submissions – husband ordered to pay the wife’s costs of the two previous appeals as assessed.
  • Keynes & Keynes [2014] FamCAFC 169 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN A CASE – Application to extend time to file a Notice of Appeal – Consideration of Chapter 22 of the Family Law Rules 2004 – Where orders made without reasons – Where reasons for judgment published 28 days later – Where the mother would be prejudiced if she was denied the opportunity to appeal matters of real significance – Where expedition sought and not opposed – Application to extend time granted and expedition ordered.
  • Pillai & Doshi (Costs) [2014] FamCAFC 168 – 10/09/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – Where the wife seeks an order that the husband pay her costs of two appeals – Where the husband opposes any such order – Where the husband seeks an order that the wife pay costs and disbursements which he asserts he has sustained in relation to the appeals – Where the husband was almost wholly unsuccessful in the appeals brought by him – Where the husband has been unreasonable in the manner in which he has prepared and presented his appeals – Where a costs order is made against the husband.
  • Miller & Miller [2014] FamCAFC 167 – 26/08/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS – Where the matter came before the court requiring consideration of the husband’s application to reinstate his appeal – Where the parties were able to consent to discharging the respective spousal maintenance orders in light of a change in circumstances since those orders were made – Whether the husband should be required to pay the wife’s costs – Where the settlement represents a compromise by both parties – Where the husband engaged the appeals process in relation to interlocutory orders when there was a remedy available at first instance – Husband to pay the wife’s costs on a party/party basis.
  • Sadberry & Jablon [2014] FamCAFC 166 – 22/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the reason for delay in filing a Notice of Appeal is accepted – Leave granted.
  • Belsito & Levendoski [2014] FamCAFC 165 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – Application to extend time to appeal – Where the applicant sought an extension of time to appeal an interim order that required her to pay spousal maintenance to the respondent – Where the applicant left the hearing of the application prematurely – The applicant failed to demonstrate that her proposed appeal has merit – The applicant’s delay is explained by the difficulties she faced as a self-represented litigant – Additional litigation between the parties should be avoided – Application dismissed.
  • Wallis & Best [2014] FamCAFC 164 – 05/09/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the father seeks to appeal orders for costs – where the mother and the ICL oppose the appeal – where the grounds of appeal have no merit – appeal dismissed.FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the mother and the ICL sought orders for costs in the event that the appeal was unsuccessful – where the father opposed any such order – where the appeal has been wholly unsuccessful – where impecuniosity is no bar to an order for costs being made where the circumstances otherwise justify it – costs ordered against the father.
  • Allan & Ors & Allan & Ors [2014] FamCAFC 162 – 02/09/2014 – View PDF
    FAMILY LAW – APPEAL – Where re-instatement of an abandoned appeal sought by the second applicant husband – In the absence of prejudice or injustice to the husband the application for re-instatement is dismissed – Husband to pay the party/party costs of the wife, the third respondent and the fourth respondents in respect of the failed application for re-instatement and the abandoned appeal.FAMILY LAW – APPEAL – Where third applicant seeks leave to appeal out of time – Where third applicant as new trustee of a trust is bound by the conduct of the previous trustee in reaching a compromise and consenting to court orders – Where an appeal against the orders by the trustee does not lie in a challenge to the merit of the orders – Where a point is not taken at first instance which could have been addressed by the other parties it cannot be taken afterwards on appeal – Where any breach of fiduciary duty alleged against the former trustee should be remedied by separate cause of action against the former trustee – An appeal by the third applicant on the grounds he contemplates would be futile – Application dismissed – Third applicant to pay the party/party costs of the wife, the third respondent and the fourth respondents in respect of the failed application for leave to appeal out of time.
  • Burns & Grint (Costs) [2014] FamCAFC 161 – 02/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the mother seeks costs in the sum of $5,274.50 – where the father opposes the mother’s application and seeks an order that each party bear their own costs – where the father has been wholly unsuccessful – where the mother was represented by Legal Aid Queensland and has incurred costs she should not have been required to – costs ordered as sought by the mother.
  • Diggelen & Diggelen [2014] FamCAFC 160 – 01/09/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the appellant was entitled to a hearing of her appeal notwithstanding the respondent’s application for an adjournment and non-appearance on the day – Where the husband was made redundant and given an Employment Termination Payment – Where the trial judge assumed the payment was subject to tax and therefore declined to add the whole amount back into the property pool – Where there was no evidentiary basis for his Honour to conclude that tax had not been paid on that amount – Where the wife was not given the opportunity to address the issue as to the tax consequences of the redundancy payment – Where the husband had shares and share options that were to vest at a future date – Where there was evidence from a forensic accountant in relation to the value of the shares and share options – Where the trial judge failed to take into account certain unvested options –– Appeal allowed.
  • Child Support Registrar & Raneri [2014] FamCAFC 159 – 01/09/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an order that the appeal be dismissed for non-compliance with orders for the filing of a summary of argument – Family Law Rules 2004 (Cth) r 22.45 – Where the respondent failed to comply with the orders – Where there was no application by the respondent seeking an extension of time – Where in any event there is no utility in the appeal proceeding – Appeal dismissed.FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the respondent should pay the costs of the applicant of and incidental to the application.
  • Danes & Danes and Anor (No. 2) [2014] FamCAFC 158 – 20/08/2014 – View PDF
    FAMILY LAW – COSTS – Where the appellant had previously failed to comply with directions – where the applicant filed a Notice of Discontinuance – where the respondents were self-represented – where the appellant directly briefed counsel – where the Independent Children’s Lawyer sought her costs – where the court was not persuaded that the appeal had any merit – whether there are circumstances justifying a departure from s 117(1) of the Family Law Act 1975 (Cth) – Appellant ordered to pay the Independent Children’s Lawyer’s costs in a fixed amount.
  • Terrell & Connell [2014] FamCAFC 157 – 27/08/2014 – View PDF
    FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal – Where the delay is short – Where the proposed appeal could not be said to have no prospects of success – Where the respondent deposed to significant difficulties in the enforcement of the orders of the trial judge – Where the applicant had yet to pay previous costs orders in the proceedings – Application allowed, conditional upon the applicant paying to the respondent the costs of the application.
  • Jong & Yeng [2014] FamCAFC 156 – 18/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY –Where the primary judge did not make orders finalising the financial relationship between the parties – Where further litigation contemplated between the parties and other entities in another court – Appeal dismissed.FAMILY LAW – APPEAL – Cross-appeal – Add back of legal costs – Where moneys applied to legal fees had no connection with the marriage – Cross-appeal dismissed.
  • Redmond & Redmond [2014] FamCAFC 155 – 28/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders and the trial judge’s subsequent refusal to grant a stay of those interim orders pending appeal – Where the final trial is due to commence some 12 weeks after the hearing of these appeals – Where the father has lodged eight appeals in this Court in the past two years and final trial dates have been lost as a result – Where the mother and the Independent Children’s Lawyer opposed the appeals – Where no merit in the appeals – Where orders were made following oral argument and reasons for judgment were delivered subsequently so as to preserve the final trial dates – Appeals dismissed and no order as to costs.
  • Bircher & Bircher [2014] FamCAFC 154 – 25/08/2014 – View PDF
    FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – CONTRAVENTION – Where the trial judge found that the mother had contravened parenting orders on one occasion by failing to deliver the children to the father’s residence on time – Where the mother argued reasonable excuse on the basis that the parties had agreed that the children’s time with the father would commence half an hour later – Where the mother relied upon an annexure to her affidavit which the judge did not refer to in her Honour’s reasons – Discussion of principles relating to errors of fact by reference to De Winter v De Winter (1979) 4 Fam LR 583 – Appeal allowed – The matter be remitted to the trial judge for rehearing.
  • Maloich & Maloich [2014] FamCAFC 153 – 28/08/2014 – View PDF
    FAMILY LAW – APPEAL – FURTHER AMENDED NOTICE OF APPEAL – where the wife puts no proper grounds of appeal before the court – where the husband opposes the appeal – where there is no basis identified by the wife that would lead to appellate interference with the trial judge’s orders – appeal dismissed.
  • Everett & Everett [2014] FamCAFC 152 – 26/08/2014 – View PDF
    FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where the Federal Magistrate made an order for adult child maintenance until the completion of tertiary education – Where the appellant father submits that the Federal Magistrate erred in placing no temporal limitation on the order for adult child maintenance and that the reasons for making the order were inadequate – Where the Federal Magistrate erred in both respects – Where the orders were otherwise unjust and unreasonable – Where the Federal Magistrate found that it was necessary that an order for adult child maintenance included an allowance for the adult child to purchase a motor vehicle and an amount for house cleaning and pool servicing – Where the “necessity” for the provision of a motor vehicle and house cleaning and pool servicing was not established by the Federal Magistrate – Appeal allowed in part – All orders set aside and the matter remitted for re-hearing.FAMILY LAW – APPEAL – CROSS-APPEAL – Where it is submitted that the Federal Magistrate erred in not backdating the order for adult child maintenance – Where the time of the commencement of the order was a matter of discretion – Where the Federal Magistrate’s discretion did not miscarry – Cross-appeal dismissed.FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant father seeks to adduce further evidence on the appeal – Where some of the evidence sought to be adduced is not controversial, was not available to the applicant father at trial, and is potentially relevant to a matter agitated on the appeal – Where the balance of the evidence is not relevant to the appeal – Application allowed in part.FAMILY LAW – APPEAL – COSTS – Where no order for costs made – Where the appeal has succeeded on a point of law – Costs certificates granted to the parties for the appeal and re-hearing.
  • Sullivan & Tyler (No. 2) [2014] FamCAFC 151 – 11/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROCEDURAL – Where there are a number of appeals relating to the same factual history – Where it is appropriate to consolidate appeals – Where reason for expedited hearing no longer exists and order for expedition is discharge order – Where it is accepted that the mother did not receive a copy of the Stay orders and was unaware of the correct date to file a Notice of Appeal – Where leave is granted to file a Notice of Appeal out of time.
  • Valdez & Frazier (No. 2) [2014] FamCAFC 150 – 18/08/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of discretion – Where the applicant failed to establish an adequate explanation for his failure to apply for an extension of time – Where consideration of the grounds of appeal find that it would not be an injustice to the applicant to not grant an extension of time – Where applicant filed an application to reopen the case in order to adduce affidavit evidence – Where the applicant contends that the evidence reinforces the merits of the proposed appeal – Where the potential of prejudice to the respondent is relevant and would involve a further appearance with costs in circumstances where the proposed appeal adds little to the merits of the case – Where the matter does not warrant an order of indemnity costs against the applicant – HELD – Appeal dismissed.
  • Jollie & Dysart [2014] FamCAFC 149 – 15/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – with whom a child lives – where orders were made that the parties’ child live with the father and spend limited time with the mother – where those orders represented a very significant change to the erstwhile care arrangements for the child – where the mother appeals on a number of grounds – where the mother challenges the weight given by the trial judge to a range of evidence, in particular the opinions of a single expert – whether the trial judge erred in the weight given to the single expert’s evidence – where no error demonstrated – where the mother also contends that the trial judge’s discretion miscarried in the making of a recovery order that was stayed for up to three and a half years – whether the trial judge’s discretion miscarried – where that issue is tied to a further challenge to the adequacy of her Honour’s reasons – where her Honour’s reasons do not reveal the path that led to her Honour’s determination that the recovery order was presently in the child’s best interests – where her Honour’s reasons do not reveal the basis for a determination that the recovery order would be in the child’s best interests at any point in the next three and a half years – error demonstrated – appeal allowed in part – where the recovery order and ancillary orders set aside – where remaining substantive orders remain in force.FAMILY LAW – APPEAL – STAY – where the appellant mother applied for a stay of the substantive parenting orders – where that application was dismissed – where the mother appeals that order – where the appeal against the substantive parenting orders has largely failed – no error demonstrated – appeal dismissed.
  • Maclin & Maclin [2014] FamCAFC 148 – 15/08/2014 – View PDF
    FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE HEARD BY A SINGLE JUDGE OF THE APPEAL DIVISION – COSTS – Where the trial judge dismissed the husband’s application for costs and ordered that the husband pay the wife’s costs of the substantive parenting and property proceedings and three applications – Where the husband relied upon an offer to settle which would have seen the wife receive a greater sum of property division – Where the judge was correct in dismissing the husband’s costs application as the final orders made were vastly different to the husband’s offer – Where the husband argued that the judge wrongly exercised his discretion in making the costs orders in favour of the wife – Where although is it unusual to order costs in first instance parenting proceedings, the judge’s decision was not amenable to appellate intervention – Where costs were ordered for an application contained as an interim property order sought by the wife within her response to the husband’s initiating application – Where the reasons suggest that the judge believed the application and hearing to be a discrete court event – Where costs were ordered for an application that was not heard and the husband’s explanations regarding his conduct subsequently were never tested – Consideration of the appellate principles contained in House v The King (1936) 55 CLR 499 and De Winter v De Winter(1979) 4 Fam LR 583 – Appeal allowed in part – Two costs orders set aside – Matter not remitted.FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the husband sought to rely upon transcripts of proceedings not included in the draft index, evidence of the sale price of certain property and material not before the trial judge by way of presumed administrative error – Where it is appropriate that the transcripts of the proceedings be adduced – Where the evidence of sale price was not relevant – Where the material not considered by the trial judge may have altered the decision of the judge and should be adduced – Application allowed in part.
  • Bevis & Bevis [2014] FamCAFC 147 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions – Where the assets were of negligible value, apart from a property acquired by the husband from an inheritance after separation – Where the parties had significant superannuation entitlements, mainly held by the husband – Whether the trial judge erred in assessing post-separation contributions by giving insufficient weight to the husband’s inheritance and the large increase in value of his superannuation – Whether the outcome was outside the range of discretion – Appeal dismissed – No order as to costs.
  • Shaw & Shaw [2014] FamCAFC 146 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – application in an appeal for reinstatement following abandonment of appeal.
  • Padnall & Padnall [2014] FamCAFC 145 – 14/08/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – LEAVE TO APPEAL – where the husband seeks leave to appeal and if leave is granted to appeal against orders made by Federal Magistrate Simpson (as his Honour then was) – where the wife opposes the appeal – where the orders appealed provide for the husband to pay the wife interim spousal maintenance in the sum of $1,462 from 11 May 2012 until the final hearing of the matter – where the Federal Magistrate erred in failing to take into account a bank account held in the name of the wife and in assessing the needs of the wife including all of the expenses of the children of the parties – where the errors of principle relied on to establish leave are comprised in the proposed grounds of appeal – where there is merit in four of the five proposed grounds of appeal pursued – where leave to appeal is granted – where the appeal is allowed in part – where given the nature of the errors of the Federal Magistrate identified his Honour’s orders must be set aside and the matter remitted for rehearing – where the matter has been transferred to the Family Court of Australia and thus the rehearing will take place before a judge of that court.FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – where the husband seeks to adduce further evidence which goes to his income and his capacity to pay spousal maintenance – where the evidence sought to be adduced does not establish error by the primary judicial officer – where in any event the evidence is controversial – where if the evidence is admitted the wife would seek to present her own evidence and to cross-examine the husband and the authors of the documents the husband seeks to present – where the husband did not seek to vary or discharge the order made but instead sought to address the issue through an appeal – applications to adduce further evidence dismissed.FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where both parties sought costs certificates for the appeal and any rehearing in the event that the application and the appeal were successful – where each party should bear their own costs – where the appeal succeeded on a question of law – parties granted costs certificates.
  • Spencer & Spencer [2014] FamCAFC 144 – 08/07/2014 – View PDF
    FAMILY LAW– APPEAL – Application to extend time to appeal – Where the proposed appeal lacks merit – Where the explanation for delay was inadequate – Application dismissed – Applicant ordered to contribute to the respondent’s costs in a fixed sum with enforcement delayed.
  • Tau & Casmore [2014] FamCAFC 143 – 11/08/2014 – View PDF
    FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend the time to file a notice of appeal – Where the applicant failed to appear – Where the proposed appeal was unmeritorious – Application dismissed.
  • Cadman & Hallett [2014] FamCAFC 142 – 11/08/2014 – View PDF
    FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the trial judge declared that a de facto relationship existed between the parties – Where an application for summary dismissal of the application was before the trial judge – Where the issue before the trial judge was when the de facto relationship ended – Where the appellant submitted that the trial judge had erred finding that the relationship ended in mid-2010 – Where the ground of appeal misstates the trial judge’s finding – Where no error demonstrated – Where the appellant relied on a single factor in the determination of whether a de facto relationship existed pursuant to s 4AA of the Family Law Act 1975 (Cth) – Where the trial judge referred to the circumstances and gave appropriate weight to those circumstances – Where it was further submitted that the respondent, in attempting to arrange a “sham” marriage for the purposes of staying overseas, should compel a finding that an intention had been conveyed to the appellant to end the relationship – Where this would not necessarily be inconsistent with a de facto relationship continuing – Where no error demonstrated – Appeal dismissed.FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the appellant sought an order for costs – Where a costs order was not opposed by the respondent – Costs order made in favour of the respondent.
  • Wheedon & Gomer [2014] FamCAFC 141 – 08/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the children and the mother be permitted to relocate with the children – where the father has a history of alcohol dependence – where the father represented himself on the appeal – where the majority of the father’s grounds of appeal were premised upon the contention that the trial judge erred in making findings that were not based on the evidence – no error demonstrated – appeal dismissed and no order as to costs.
  • Rimmington & Healey [2014] FamCAFC 140 – 07/08/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – with whom the child is to live – parental responsibility – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the parties’ twin sons and the father would have no time or communication with them – where the father represented himself on the appeal – where the father’s Notice of Appeal contained 45 grounds – where, during the appeal, the father condensed his challenges to ten “grounds”– where the majority of those “grounds” were premised upon the contention that the trial judge erred in accepting the mother’s evidence over his own evidence – where no such error was demonstrated – where the father also contends that the trial judge made various errors of law and errors of fact – whether the trial judge so erred – where no error demonstrated – appeal dismissed – father ordered to pay the mother’s costs of the appeal.
  • Kashani & Kashani [2014] FamCAFC 139 – 05/08/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – VALUATION – Where the parties have lived apart for over ten years – Where there were limited assets of the parties – Where the appellant wife disputes the value of a unit purchased by the respondent husband in North America – Where the trial judge adopted the value contained within the respondent husband’s balance sheet – Where the wife asserted there was an agreement as to the value of the unit – Where the trial judge was not provided with any evidence regarding the agreed value of the unit at trial – Appeal dismissed.FAMILY LAW – APPEAL – PROPERTY – CONTRIBUTIONS – Where the appellant wife submits that the trial judge erred in relation to the weight placed on the respondent husband’s sole parenting of the parties’ child, a payment made by the wife to the husband, and the wife’s upkeep of the former matrimonial home – Where the appellant wife further submits that the trial judge erred in not making an adjustment in favour of the appellant wife pursuant to s 75(2) of the Family Law Act 1975 (Cth) due to the duration of the marriage, the appellant wife’s health issues and minimal prospects of future employment – Where the findings made by the trial judge were reasonably open and within a proper exercise of discretion – Appeal dismissed.
  • Adcock & Adcock [2014] FamCAFC 138 – 29/07/2014 – View PDF
    FAMILY LAW – APPEAL – Consent orders.FAMILY LAW – COSTS – Costs Certificate.
  • Tokely & Tokely [2014] FamCAFC 137 – 29/07/2014 – View PDF
    FAMILY LAW – APPEAL – RECOVERY ORDER – Where the child was taken into the father’s care and not returned – Where the mother’s evidence was that, until removal, she had been the primary carer of the child – Where the mother sought orders on an urgent basis returning the child to her – Where the trial judge acknowledged that the matter was urgent – Where the trial judge made orders adjourning the matter for 4 months to allow the father to file additional evidence and to allow the matter to be heard in a circuit court closer to where the parties lived – Whether there was a denial of procedural fairness by failing to properly engage in the issues by determining the recovery order application or failing to set the recovery order application down for hearing in a suitable time frame – Where the evidence suggested that an urgent hearing was required – Where the length of the adjournment and the listing of the matter for mention as opposed to hearing did not meet the urgency of the situation – Where it was accepted that a lengthy adjournment was tantamount to a refusal of the application on an interim basis – Where the trial judge did not determine whether the child’s best interests were to be served by remaining with the father – HELD – Appeal allowed.
  • Melton & Maddison [2014] FamCAFC 136 – 30/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Whether the trial judge provided inadequate reasons for imposing a restraint on the child spending time with the father’s family members – Where the trial judge referred to ss 60CC(2)(b), and 60CC(3)(m) of the Family Law Act 1975 (Cth) when determining whether to impose the restraint – Where the evidence supporting the imposition of the restraint was uncontradicted – Where the trial judge was asked to consider the father’s living arrangements when making orders for the child to spend time with the father – Where the trial judge was entitled to frame orders for the future arrangements for the child, having regard to past conduct of the appellant father and his family – Where the trial judge’s discretion did not miscarry – Appeal dismissed.
  • Maldera & Orbel [2014] FamCAFC 135 – 30/07/2014 – View PDF
    FAMILY LAW – APPEAL – STATUTORY CONSTRUCTION – Proper role of objects provisions in legislation considered – Where greater weight attached s 60B (objects and principles) than s 60CC – B & B: Family Law Reform Act 1995 (1997) FLC 92-755 considered as to the role and significance of s 60B – Where B & B: Family Law Reform Act 1995 provides that a judge is expected to identify and discuss the significance and weight of relevant s 60B factors and that where there are no countervailing factors, s 60B may be decisive – Where regard may be had to objects clauses to resolve uncertainty or ambiguity in the legislation but not to control clear statutory language or command a particular outcome of exercise of discretionary power – HELD – B & B: Family Law Reform Act 1995 overruled to the extent that it holds that s 60B does more than provide context, indicate the legislative purpose of Part VII and operate as an aid to construction of the Act.FAMILY LAW – APPEAL – CHILDREN – PARENTING ORDERS – With whom a child lives – Where in a parenting case undertaken between a parent and another person interested in the welfare of the child, the fact of parenthood requires careful consideration – Part VII does not prescribe a hierarchy of applicants – Where s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex – Where the significance for a child of parenthood is to be weighed and considered along with other matters identified in s 60CC – Where child had lived with grandparent most of his life – Where application for a family report refused – Where no Independent Children’s Lawyer – HELD – Error established as to determination that it was in child’s best interests to live with his father – Orders in favour of father set aside and proceedings remitted for rehearing.
  • Sheill & McMurr (No. 2) [2014] FamCAFC 134 – 28/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – FINAL OR INTERLOCUTORY ORDERS – Whether the appealed orders were final or interlocutory – Where primary judge adopted procedure referrable to applications for interim orders and described the orders as interim – Licul v Corney (1976) 180 CLR 213 applied – Whether the judgment or order finally disposes of the rights of the parties in the principal case – Where the test is concerned with the legal rather than the practical effect of the judgment – Where the application of the test rests on the nature of the order made and not the nature of the application made to the court – Where it was conceded that the order under challenge could be reversed at the final hearing – HELD – Orders made were interlocutory.FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother knew the date of the hearing and the date to file her affidavit material and did not do so – Where the mother did not attend the hearing – Where procedural fairness requires no more than the opportunity to be heard – Where his Honour was entitled to rely on untested evidence in circumstances where it was an interim hearing and the mother did not file any evidence to cast doubt on the evidence relied on – HELD – No denial of procedural fairness – APPEAL DISMISSED.
  • Estella & Morena (No. 2) [2014] FamCAFC 133 – 23/07/2014 – View PDF
    FAMILY LAW – APPLICATION IN AN APPEAL – Application to file a notice of appeal out of time – Where leave was granted to file a notice of discontinuance at the commencement of the hearing – Application dismissed.FAMILY LAW – COSTS – Where the respondent made application for costs – Where the respondent had only been informed that the applicant was not pursuing the application the day before the hearing – Where the proposed appeal had no merits and the application would not have been granted – Where the respondent is in receipt of a grant of legal aid – Where the public purse has been put to expense in responding to the application – Application allowed.
  • Harrell & Hancock-Harrell [2014] FamCAFC 132 – 23/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim parenting decision of a Federal Circuit Court judge out of time – Where the delay is adequately explained – Where the applicant makes allegations about the respondent misleading the court – Where the appeal, if allowed, would be unmeritorious and of no utility – Application refused.
  • Enmore & Smoothe [2014] FamCAFC 131 – 23/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the appellant mother alleged a risk of child sexual abuse and the Federal Circuit Judge did not suspend interim orders allowing the respondent father to spend unsupervised time with the child, but transferred the proceedings to the Family Court – Whether the Judge erred by failing to act on evidence that was “not far-fetched, fanciful or remote” – Whether the Judge erred by relying on evidence other than that of an expert – Whether the Judge placed excessive weight on inconsistencies in the evidence – Appeal dismissed – Submissions to be filed in relation to costs.FAMILY LAW – APPEAL – CONTRAVENTION – Where the respondent father brought contravention proceedings in relation to orders that allowed him to spend unsupervised time with the child – Where the Judge found that the mother did not have a reasonable excuse for breaching the orders and required the mother to enter into a bond to comply – Whether the Judge erred by relying on the reasons delivered in the substantive proceedings – Appeal dismissed – Submissions to be filed in relation to costs.
  • Scrymegeour & Scrymegeour [2014] FamCAFC 130 – 23/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – PROCEDURAL FAIRNESS – Where the appellant husband submitted that the trial judge adopted a different course from that discussed at trial – Where the trial judge adopted a single pool approach including the parties’ assets and superannuation interests when both parties submitted a two pool approach would be appropriate in the circumstances and despite the concurrence of the trial judge with this approach during the trial – Where the respondent wife sought at trial 50 per cent of the superannuation assets of the parties and the appellant husband proposed that the wife receive 45 per cent, the trial judge determined that the respondent wife should receive 65 per cent of all assets including superannuation – Where the parties at trial were in agreement that any periodic spouse maintenance order should be confined to two years – Where the trial judge’s orders required payment of periodic spouse maintenance for five years – Where the parties were not given any opportunity to be heard on the adoption of a single asset pool, on the percentage division of the superannuation assets or the duration of periodic spouse maintenance – Where the result was manifestly unjust to the appellant husband – Appeal allowed.FAMILY LAW APPEAL – COSTS – Where the appeal succeeded on a relatively narrow question of law which should have been apparent to the parties – Where the appellant husband needed to articulate concise grounds of appeal – Where the success of the appeal on an obvious point warrants the payment of some costs by the respondent wife to the appellant husband – Where the appellant should not receive all costs because of the needless expense incurred by the respondent wife in addressing grounds of appeal not pursued – Respondent wife to pay one-half of the appellant husband’s costs of the appeal – Costs certificates granted to the parties for the re-hearing.
  • Matthews & Matthews (No. 2) [2014] FamCAFC 129 – 19/06/2014 – View PDF
    FAMILY LAW – APPEAL – INTERIM PROPERTY ORDERS – Where the trial judge made an order providing for a lump sum payment to the wife – Where appellant complained that the terms of the order did not disclose the source of power being relied on by the trial judge to make that order, i.e. whether it was an order for costs, interim property settlement or child maintenance – Where the appellant also appealed on the basis that the trial judge did not provide any published reasons for the orders – Where the respondent conceded that the appeal should be allowed – Appeal allowed – Where the Full Court re-exercised the discretion and made orders for interim property settlement pursuant to ss 79 and 80(1)(h) of theFamily Law Act 1975 (Cth) – Costs certificates granted.
  • Poisat & Poisat [2014] FamCAFC 128 – 21/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – where the appellant father sought at trial to vary final parenting orders – where the father challenges on appeal the trial Judge’s application of the “rule in Rice v Asplund” – where the father contends the trial Judge erroneously confined herself in the manner in which she dealt with the father’s application for a variation of parenting orders – consideration of the “rule in Rice v Asplund” – whether the trial Judge erred – where nothing to indicate the trial Judge’s discretion miscarried – no error demonstrated – father ordered to pay the mother’s costs of the appeal.
  • Jurchenko & Foster [2014] FamCAFC 127 – 18/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the Magistrate made orders preventing the mother from relocating the child’s residence from Perth to a town in the Pilbara – Whether it is appropriate for a judicial officer to provide a preliminary view before trial – Whether it is necessary for expert evidence to be provided before a judicial officer can make a finding about the likely effect of a relocation – Where the mother said during cross-examination she would remain in Perth if relocation was refused and where the Magistrate erred by proceeding on the basis that this was a proposal – Where the Magistrate erred by focussing on the maintenance of a meaningful relationship with both parents at the expense of a proper consideration of all other relevant factors – Where the Magistrate gave insufficient attention to the impact on the mother’s new family of the relocation being refused – Where the Full Court was satisfied that the Magistrate erred by failing to carry out a proper evaluation of the competing proposals – Appeal allowed – Matter remitted for rehearing – Costs certificates granted to both parties for the appeal and the rehearing.
  • Layton & Layton [2014] FamCAFC 126 – 17/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – ADEQUACY OF REASONS – Where the appellant husband submits that the Federal Magistrate’s reasons were inadequate – Where the Federal Magistrate refused to “add back” an amount of $50,000 into the asset pool for a personal loan – Where the Federal Magistrate disregarded that the respondent wife had apparent sole use of the loan – Where no weight was given to a purported loan agreement between the parties – Where the Federal Magistrate’s reasons do not support the conclusion reached in relation to the property to which the percentage distribution (arrived at on the basis of contributions and s 75(2) factors) was to be applied – Appeal allowed.FAMILY LAW – APPEAL – COSTS – Where no order for costs made – Where the appeal has succeeded on a point of law – Both parties to receive certificates for the appeal and rehearing.
  • Tethys & Tethys [2014] FamCAFC 125 – 17/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY – Where there was a property overseas – where the husband did not disclose this property – where the valuation of this property was not clear – where the husband and the wife had two businesses – where there were tax implications of those assets.
  • Vismay & Shaw [2014] FamCAFC 124 – 16/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – with whom a child spends time – where the effect of the orders was the father spent less time with the children – whether spending less time with the children was an error which was “plainly wrong” – Whether the finding was open to the magistrate – where there was nothing “plainly wrong” about the finding – where the finding was open to the Magistrate.FAMILY LAW – APPEAL – CHILDREN – Child related proceedings – Evidence – where a trial judge is not required to advert to every piece of evidence or submission – where the report writer’s evidence was that the children were sensitive – where there is no error.FAMILY LAW – APPEAL – Delay and/or prejudice – Whether delay in delivery of judgment has made the decision unsafe or contributed to error – where the delay in delivery of judgment has not made the decision unsafe or contributed to error.FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – where the appellant is ordered to pay the respondent’s costs.
  • Nada & Nettle [2014] FamCAFC 123 – 16/07/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Relocation – where a child lives – best interests of a child – reasonably practicable – where the mother unilaterally relocated – where the father was not told the mother relocated until just before a contravention hearing – where the court was not told the mother relocated until a directions hearing before a contravention hearing – where the trial came from a contravention application – whether the trial judge followed the “legislative pathway”.FAMILY LAW – EVIDENCE – Admissibility – where the mother was self-represented at trial – where the mother gave evidence about legal advice – whether the trial judge should have given the mother a warning.FAMILY LAW – EVIDENCE – whether the trial judge should have called a witness – whether the trial judge should have instructed the mother to call the maternal grandfather – whether the trial judge drew an adverse inference – Jones v Dunkel.
  • Gahen & Gahen [2014] FamCAFC 122 – 11/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s general practitioner to give oral evidence or file affidavit material – Where the potential for the general practitioner to give evidence was raised in a directions hearing but not further pursued – Where extracts of the general practitioner’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the proposed evidence is inadmissible or could not be accorded significant weight – Application refused.FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s psychologist to give oral evidence or file affidavit material – Where the potential for the psychologist to give evidence was raised in a directions hearing but not further pursued – Where extracts of the psychologist’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the affidavit sought to be relied upon contains unjustified opinions that the dependent may be unqualified to give – Application refused.FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing allow the child’s childcare worker to file affidavit material – Where the childcare worker reported a conversation she had with the child to the Department of Community Services – Where the evidence is almost wholly inadmissible – Application refused.FAMILY LAW – APPEAL – CHILDREN – ALLEGATIONS OF SEXUAL ABUSE – Where the mother’s belief that the child had been sexually abused whilst in the father’s care was found to be honestly but not reasonably held by the trial judge – Where the child had been medically examined on more than one occasion – Whether this aspect of the evidence invited evaluation of the child’s representations – Whether the child’s representations were true or false – Where the trial judge made a conclusion about the veracity of the child’s representations – Whether evidence is in fact directly contradictory to the trial findings was not addressed in the argument – Appeal dismissed.
  • Pace & Pace [2014] FamCAFC 121 – 11/07/2014 – View PDF
    FAMILY LAW – APPEAL – CONTRAVENTION – Interlocutory parenting proceedings – Where one party unilaterally relocated –Where there was a contravention – Whether there was reasonable excuse – Where the primary judge found there was limited evidence – Where there was no evidence of persuasive error.FAMILY LAW – APPEAL – CHILDREN – Family violence – Whether the trial judge erred in making an order for equal shared parental responsibility – Whether equal shared parental responsibility was inapplicable because of domestic violence – Where no submission was made to the trial judge about equal shared parental responsibility – Where equal shared parental responsibility is not inapplicable.FAMILY LAW – APPEAL – EVIDENCE – Whether the trial judge placed too much weight on the father’s evidence – Where the mother raised questions about the father’s bona fides in a property transaction – Where the issue before the primary judge related to the mother’s evidence – Where there was no error.
  • Higginson & Higginson [2014] FamCAFC 120 – 08/07/2014 – View PDF
    FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the appeal was allowed by consent in circumstances where the parties agreed that the trial judge’s orders were manifestly unjust – where the circumstances were appropriate for the grant of costs certificates to the parties in relation to the costs of the appeal and the new trial.
  • Kedis & Kedis [2014] FamCAFC 119 – 07/07/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant seeks a further adjournment to file an amended Notice of Appeal containing proper grounds of appeal – where the adjournment is opposed – where the ground of appeal set out in the Notice of Appeal does not raise any appealable error of fact or law by the trial judge – where the oral application of the appellant for a further adjournment is dismissed – where the appeal is groundless – appeal struck out.FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs for the work involved in responding to the appeal and for the appearance of counsel and solicitor today – where the appellant opposes any order for costs – wife’s costs to be paid by the husband as agreed or in default of agreement as assessed.
  • Carroll & Carroll [2014] FamCAFC 118 – 08/07/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – PROPERTY – where the husband appeals final property settlement orders – where the appeal is opposed by the wife – where as a result of findings on contribution the Federal Magistrate determined that the property of the parties be divided as to 75 per cent to the wife and 25 per cent to the husband – where the husband asserts that the Federal Magistrate’s assessment of his contributions was manifestly inadequate – where the principal challenge appears to be that the Federal Magistrate’s reasons for her finding on contributions were inadequate – where there is a wide discretion reposed in the court pursuant to s 79 of the Family Law Act 1975 (Cth) – where the wife says the complaint can only be as to weight – where it is not apparent from the findings how the Federal Magistrate arrived at the percentage division that she did – where the Federal Magistrate erred – appeal allowed.FAMILY LAW – APPEAL – NOTICE OF APPEAL – REMIT OR RE-EXERCISE DISCRETION – where there is a need for further evidence which may be controversial – where the Appeal Court is not equipped to hear cross-examination and to determine disputed issues of fact – where if the Appeal Court re-exercised the discretion the only avenue of appeal open to the parties would be to seek special leave to appeal to the High Court of Australia – where the appropriate course is to remit the proceedings to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Baker – proceedings remitted for rehearing.FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where both parties seeks costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the appeal has been allowed on a question of law and there is no order for costs – costs certificates granted to the parties as sought.
  • Esperanza & Giminez [2014] FamCAFC 117 – 04/07/2014 – View PDF
    FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time or for failing to file the application expeditiously – where the appeal has no merit and is doomed to fail – where there is prejudice to both parties depending on the result – where the justice of the case requires the refusal of the application – application dismissed.
  • Prusta & Kertescz [2014] FamCAFC 116 – 02/07/2014 – View PDF
    FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the parties agreed that the appeal should be allowed and the orders set aside – Where both parties sought costs certificates in the federal appeal – Where the trial judge had made errors of law – Where the appeal had been heard in the necessary sense – Application allowed.
  • Sheill & McMurr [2014] FamCAFC 115 – 02/07/2014 – View PDF
    FAMILY LAW – APPEAL – Application in an Appeal – Where the mother sought an extension of time to file an appeal and expedition of the appeal – Where the evidence established an acceptable explanation for the mother’s failure to file a notice of appeal on time – Where the issues on appeal, if successful, could enable the court to set aside the orders – HELD – Appeal granted.
  • Miller & Miller [2014] FamCAFC 114 – 30/06/2014 – View PDF
    FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against interim parenting orders that the child spend week about time with the mother and the father.
  • Moore & Moore [2014] FamCAFC 113 – 27/06/2014 – View PDF
    FAMILY LAW – APPEAL – Where the wife appealed against a dismissal of her application to revoke the approval of a Deed pursuant to s 87(8) of the Family Law Act 1975 (Cth) – Where the wife asserts the husband misrepresented the true ownership of the very valuable asset of a trust – The findings made by the trial Judge were open to him on the evidence – Where the wife asserts the husband provided misleading information concerning disbursement of the proceeds of sale of two properties – The document provided was not misleading and in any event, the wife did not rely on any representation – Where the wife asserts the husband failed to disclose an arrangement between the husband and his mother relating to a mortgage – The trial Judge’s findings were open to him – Where the wife asserts the husband exerted undue pressure on her in circumstances where a mortgage was called up – The trial Judge’s findings were open to him – No merit in any grounds of appeal – Appeal dismissed.
  • Caballes & Tallant [2014] FamCAFC 112 – 27/06/2014 – View PDF
    FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – CONTRAVENTION – Where the trial judge found that the mother had contravened consent orders on one occasion but not another, but ordered no sanction – Where the trial judge denied procedural fairness to the father by departing from the procedure outlined in r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) and not explaining to the father the process that was to be used at the hearing – Where the trial judge did not allow the father the opportunity to address him on why in relation to the count not established not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse – Appeal allowed.FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – PARENTING ORDERS – Where the parties agreed that an order providing for the exchange of information should be set aside – Where the parties proposed a variation of this order – Where the order is in the child’s best interests – Order varied by consent.

Five things that you should know about divorce

You need courage to face a difficult situation like divorce. Normally separation occurs gradually and not suddenly. If you find yourself in the divorce market, there are things you need to consider and depending solely on loved ones alone for insight might not help you much.

1. In Australia, there are nationwide laws, in USA laws differs between states. As an example divorce in California is different from separation in Utah. Though they vary mainly on division of assets, divorce can only be started in the state where you live. You can not forum shop other states at your choosing.

2. Nowadays, an easy divorce (“no-fault”) has become common and is the usual process now. This way the parties can form their own agreements on most matters and works best where no custodial children are involved. Lawyers may not be necessary at all unless used to formalise agreements in a way that satsifies the Court.

3. Some states demand a trial separation before grant of divorce. During the trial separation, the couple should live apart without any interaction. Often times, the parties discover after a break that they don’t want to separate, or their life will be even more flawed than before.

4. An ‘at-fault’ separation (not Australia) involves a party breaching the marriage agreement via desertion, adultery or ruthlessness to the other partner. There are different type of ruthlessness such as verbal or emotional cruelty or physical cruelty. Several of the States do not call for an initial trial separation for at-fault separation. When both partners end up being guilty of committing violation of marital contract, the principle of contrast righteousness is used. This technique contrasts the offenders as well as identifies which celebration is guiltier. It is quite challenging to confirm the degree of guiltiness via simple word of mouth which could drastically alter the direction of case and also choose division of possessions and residential property.

5. If you are encountering the divorce now, you need to know the certain separation law associating with your State in which the instance is submitted, also if you are under a difficult circumstance. Proper advice and knowledge will certainly help you manouvre the pitfalls of your own divorce.