Allegations in family law proceedings could result in criminal offences

Allegations in family law proceedings could result in criminal offences

Raising children with your ex-partner following separation can be difficult and stressful and many parents find themselves embroiled in Court proceedings to determine ongoing arrangements for their children.

Often, parents will legitimately make various allegations about the other in relation to matters such as family violence, abuse or risk of abuse to the children or the capacity of their ex-partner to properly care for the children. In other cases, false allegations might be made as a parent considers it will help them “win” their case and prevent the other parent from having an ongoing relationship with the children.

There have been many cases determined by a Court where one parent has alleged the children have been abused by the other parent (or their new partner). In some of those, the allegations have been unfounded with no evidence to support the allegations and have resulted in the Court deciding it is in the best interests of the children to live with the parent against whom the allegations were made, due to the risk of or actual psychological harm to the children as a result of the other parent’s misbelief.

More recently, in the case of Huda & Huda (No.2) [2020] FCCA 1804 the Court decided documents should be forwarded to the Commonwealth Director of Public Prosecutions to consider whether the Father should be prosecuted having regard to the adverse findings made against the Father during the course of his family law proceedings. In that case, the Court found the Father had falsely accused the Mother of sexually abusing the children including that the Mother had:

  • engaged in sexual intercourse with a man in front of the children;
  • masturbated in front of one of the children; and
  • engaged in sexual relations with the children since the children were born

Such allegations are extremely serious. Ultimately, after hearing all of the evidence, the Court concluded the Father made the allegations even though they were false (and when he knew them to be false) and there was no proper basis for the allegations. The Court considered the Father may have committed criminal offences, including the giving of false testimony and fabricating evidence. The matter will now be investigated by the Commonwealth Director of Public Prosecutions.

Contact Us
If you require family law advice, please contact Renée Kinman, Senior Associate and Accredited Family Law Specialist on (07) 3009 8444 or [email protected] to arrange an initial consultation.

I lost my job during COVID-19 – Do I still have to pay Child Support?

I lost my job during COVID-19 – Do I still have to pay Child Support

We have not heard the word “unprecedented” used more than we have over the past eight months, however, it is arguably the most accurate word to describe the trying times we have faced and are likely to continue to face for some time. There has been little course for us to follow and consequently, the pandemic has largely impacted our finances and income and many are not able to meet financial obligations. As a result, the court has been overwhelmed by applications to vary Financial Agreements between parties.

As family lawyers during this pandemic, we have received many enquiries from clients who are not able to maintain their financial obligations and are not sure what to do. We firstly recommend that clients make contact with their former spouse in an endeavor to reach an agreement between themselves. This has largely been successful, however, there are some instances where a party to an agreement has been forced to apply to the court to vary the agreement or set the agreement aside in circumstances where an alternate arrangement cannot be reached.

Most recently, a Family Court Judge was asked to determine whether a Binding Child Support Agreement (that is, child support payments) should be set aside due to the impacts of COVID-19. Pursuant to section 136(2)(d) of the Child Support Assessment Act, the court may set aside a Child Support Agreement if the court is satisfied that exceptional circumstances (relating to the applicant or subject child) have arisen since the Agreement was made and that the applicant or the child will suffer hardship if the Agreement is not set aside.

In this case, a father owned a business that supplied products to international businesses. Due to the COVID-19 pandemic, travel restrictions have been placed upon the international sector as well as all States and Territories within Australia. The father’s business (and by default, his financial circumstances) were significantly impacted by approximately 90% as a result of the pandemic. He therefore brought an application for a Binding Child Support Agreement to be set aside on the basis that his income was not what it was at the time he entered into the Agreement in April 2012.

Consequently, the court was satisfied that the outbreak of the COVID-19 pandemic was an exceptional circumstance and that the father would suffer financial hardship if the Agreement was not set aside. It is important to note that the court gave consideration to suspending the Agreement for a period of time, however, given the uncertainty surrounding the likely duration and impact on the future conduct of the father’s business as a result of COVID-19, the Judge could not determine whether the father’s business would recover in the future sufficient for the father to meet his child support payments under the Agreement.

If your income has been significantly impacted as a result of COVID-19 and you are unable to meet your child support obligations, please contact the Family Law Team at Rostron Carlyle Rojas Lawyers for further advice.

#Thinktwice before you Tweet! Social Media and Family Law

Thinktwice before you Tweet! Social Media and Family Law

With the tap of a finger, it is now faster than ever to share our lives, thoughts and feelings with the world. Whilst there are so many benefits to social media such as having the ability to keep in touch with family and friends we may not otherwise be able to and having a platform to express our views, there are also consequences of sharing our lives on social media that we must bear in mind.

If you find yourself in the midst of family law proceedings, your case may ultimately be damaged by your (historical and/or current) social media posts. As most would be aware, Kanye has recently posted a series of inflammatory tweets regarding his wife, Kim Kardashian, and ‘momager’, Kris Jenner. If it has not already, it may soon be impressed upon Kanye the importance of turning your mind to what you do in fact post on social media; as any post, comment, tag, tweet and the like may be used as evidence against you to demonstrate concerns for your mental health, to highlight your spending habits, extreme views or partying antics.

There are strict rules around what evidence can be put before the court, however, due to the treatment of laws of evidence in family law (particularly in relation to parenting matters) social media content is often found admissible in court proceedings and can be taken into account by the court when determining the outcome of a case.

Consequently, social media posts may present somewhat of an issue for a party (and their credibility as a witness) if, for example, that party is:
1. Asserting a de-facto relationship did not exist and there are postings of them and their ‘friend’ plastered across social media with the hashtag #loveofmylife;

2. Alleging financial difficulties and is then seen showcasing their excessive expenditure on Instagram; or

3. Posting about their #wildnightatthestrippers whilst the children are supposedly in their care.

Regrettably, some clients have discovered the hard way that even if their social media accounts are private, these posts have still found their way into their former partner’s Affidavit before the court and used as evidence against them.

In addition to that, court documents may be prepared in family court proceedings, either by your former spouse or by an independent person such as a court expert, which you find inflammatory, untrue, biased or downright ludicrous. Some of us might not #thinktwice about posting the document/s onto our social media pages coupled with our thoughts on the matter, or for some parties, posting their ill-fated experience with a particular court expert to an online forum.

It is imperative to note that it is an offence under section 121 of the Family Law Act to publish “by other electronic means or otherwise [disseminate] to the public or a section to the public” any account or part of a court proceeding. If found guilty of this offence, a person may be fined or imprisoned for up to one year.

With the above in mind, it is imperative that you #thinktwice before you post on social media, as the consequences of a post may ultimately impact the outcome of your case.

COVID-19 and your parenting order – to breach or not to breach?

COVID-19 and your parenting order – to breach or not to breach

Family Law Courts have recently had to determine whether parents have contravened parenting orders during the COVID-19 pandemic by not making children available to spend time with the other parent, and if they did, whether there was a reasonable excuse.

Under the Family Law Act 1975 (Cth) a contravention can occur if a person intentionally fails or makes no reasonable attempt to comply with an order. However, if the contravention was necessary to protect the health or safety of a person and the period of the contravention was not longer than was necessary to do that, the person breaching the order may have a reasonable excuse.

In Kardos & Harmon [2020] FamCA 328, the Father lived in Brisbane and the Mother and 3-year-old child lived in Adelaide with the Mother’s parents. The Mother was concerned for the health of the child and her family, the impact of cross-border restrictions and interstate travel.

The Court dismissed the Father’s application as the Father was not able to establish a contravention however still considered whether the Mother had a reasonable excuse for not complying with the order, if there was a contravention. The Court determined Queensland’s cross-border travel restrictions did not prevent the Mother and child from travelling from Adelaide to Brisbane. However, the Mother’s actions were necessary to protect the health of herself and the child as they would not have been able to maintain safe social distancing while flying and there was an unacceptable risk of the child coming into close contact with a person infected by the virus, which could be catastrophic.

The Court clarified a parenting order is to “…operate in the context of the restrictions and sanctions imposed…” and “…despite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.”

Whether a parent had a reasonable excuse for contravening a parenting order was also considered by Chief Judge Alstergren in Pandell & Walburg (No.2) [2020] FCCA 1853. In that case there was no dispute the Mother had contravened parenting orders by not making the 4-year-old child available to spend time with his Father since late-March 2020. The Court had to determine whether there was a reasonable excuse for the contravention as the Mother had obtained advice from the child’s treating doctor that due to the child’s medical condition he was at risk and should remain isolated at home with the primary parent (the Mother).

Before the Court decided the matter an updated specialist medical report was ordered. That report essentially set out the child was not at high risk. The Mother continued to withhold the child following the issue of that report.

In this case the Court determined the Mother had a reasonable excuse for the contraventions until the date the specialist report was issued, however from that date she did not. To address the contravention the Court ordered the child spend some make-up time with the Father and varied the existing parenting order by increasing the time the child spends with the Father until the matter returns to the Court for Hearing in August 2020.

Contact Us
It is vital you obtain legal advice from a family lawyer if you are contemplating not complying with a parenting order or parenting plan. Our family law team at Rostron Carlyle Rojas Lawyers are here to help you navigate this unprecedented situation and answer any queries you might have.

Please contact us on (07) 3009 8444 or the following email addresses:

Tuskeen Jacobs, Partner & Accredited Family Law Specialist – [email protected]
Renee Kinman, Senior Associate & Accredited Family Law Specialist – [email protected]
Alana Pointon, Lawyer – [email protected]

Coronavirus (COVID-19) and Family Law – Your rights and responsibilities

covid-19 and family law-rights

In light of the evolving directives and recommendations from both Federal and State Governments to keep abreast of COVID-19 (coronavirus), you may have questions about how these changes might affect your family law matter including: –

– Do I have to comply with a Parenting Order or Parenting Plan?

– What happens if a parent is exhibiting symptoms, tests positive or is hospitalised due to Coronavirus?

– What effect might this have on my obligations under a Property Order or Financial Agreement

– Do I still have to pay child support?

We have set out below some general advice and information, however urge you to contact us for advice particular to your circumstances if you still require any clarification or are unsure what you should do.

Firstly, if you are able to, attempt to communicate with your former spouse to reach a common-sense resolution. These are difficult and anxious times for everyone. Now is a time to try and work together if you can. We appreciate however this is not possible in all circumstances. Please contact us if you require assistance with any negotiations.

If you do reach an agreement about a change in your current arrangements, it is important to document that agreement. How that should be done will depend on your particular circumstances – for some an exchange of text messages/emails which clearly state the agreed changes will suffice. In other situations, the agreement may need to be captured in correspondence passing between legal representatives, a Parenting Plan or you may need to amend your existing Court Order or Financial Agreement. Please contact us for further advice about what you might require.

Do I have to comply with our Parenting Order or Parenting Plan?

Firstly, you should comply with all directives issued by Government. Read those carefully as there may be an exemption for complying with Court Orders. For example, in relation to the directive in relation to the Queensland border, there is an exemption for Court Orders, including Family Court Orders. A practical example of this is when a parent is required to travel across the border to effect a changeover in accordance with a Court Order. The exemption is not likely to apply to Parenting Plans or informal parenting agreements. As such, you will need to try and reach an agreement with your former spouse about alternative arrangements.

While retaining a child contrary to a Parenting Order might result in a technical contravention of that Order, these unprecedented circumstances may be a relevant consideration for the court to consider, if that was to occur. The Family Court has issued a statement confirming that in its view, “it is imperative if an Order cannot be strictly adhered to and is varied by the parties, the parties ensure that the purpose or spirit of the Orders are respected when considering altering arrangements, and that they act in the best interest of the children”.

To avoid a possible contravention of an Order, if you and your former spouse reach an agreement on alternative arrangements, it is preferable to formally document this agreement in a Parenting Plan.

A Parenting Plan cannot be enforced by a Court. As such, there are no formal consequences for non-compliance with a Parenting Plan.

What happens if a parent is exhibiting symptoms, tests positive or is hospitalised due to COVID-19 (Coronavirus)?
It is reasonable to suggest that if a parent is exhibiting symptoms, tests positive to coronavirus, is required to self-isolate or is hospitalised, that a child should go into the care of the other parent, provided there is no court Order prohibiting contact between the child and that parent, and no risk factors such as family violence or abuse. In that instance, the parent should make alternative arrangements for the care of the child, for example with a family member or friend.

If there is a period of time when a child is not able to spend time with a parent, then you should consider increasing communication between the child and that parent, whether by phone, face-time or email – whichever might be more convenient and age appropriate for your child.

What effect might Coronavirus have on my obligations under a Property Order or Financial Agreement?

COVID-19 (Coronavirus) may impact upon your ability to implement the terms of your Property Order or Financial Agreement. For example, to effect a transfer and/or refinance of property/assets, cash payment to your former spouse, sale of a property or make payment of spousal maintenance.

Again, it is imperative you discuss any change in your circumstances and any concerns you might have about your ability to comply with an Order or Financial Agreement with your former spouse if you are able to. If not, please contact us immediately so that we can enter into negotiations on your behalf.

Non-compliance with an Order or Financial Agreement may lead to enforcement proceedings and/or interest penalties, which are costly and time consuming. To avoid this, it may be that your Order or Financial Agreement has to be varied or set aside by a court. This should be done without delay and you should contact us for further advice.

Do I still have to pay child support?

Your obligations to pay child support as determined by the Child Support Agency (‘an assessment’) or as agreed to in a Limited Child Support Agreement or Binding Child Support, Agreement will continue.

If there has been a change in your income and/or employment, then in the case of any assessment, you should contact the Child Support Agency as soon as possible to advise them of that change.

If you have a Limited Child Support Agreement or Binding Child Support Agreement, you should obtain further advice from us as to your obligations under those Agreements and whether they can be varied to take into account any change in circumstances, or if you have grounds to cease your obligations or terminate the Agreement.

Contact Us

Our family law team at Rostron Carlyle Rojas Lawyers are here to help you navigate this unprecedented situation and answer any queries you might have. Please contact us on
(07) 3009 8444 or the following email addresses:

Tuskeen Jacobs, Partner & Accredited Family Law Specialist – [email protected]
Renee Kinman, Senior Associate & Accredited Family Law Specialist – [email protected]
Alana Pointon, Lawyer – [email protected]

Inheritances and family law – will the Court order that I get back what I put in?

inheritance

It is not uncommon for a party to a marriage or de facto relationship to receive an inheritance either before, during or after their relationship. Put simply, unless the parties entered into a Financial Agreement (made pursuant to the Family Law Act 1975 (Cth)) setting out how any inheritance would be dealt with in the event of separation, then:

• the inheritance is not excluded or otherwise quarantined from the assets and liabilities to be divided between spouses following separation; and
• the amount of the inheritance is not allocated back to the spouse who received it.

How a Court determines a split of assets between spouses?

The following 4-step approach is applied by the Court:
1. Ascertain the current assets, superannuation, liabilities and financial resources of the parties
2. Assess the contributions (financial, non-financial, homemaking and parenting) of the parties at the commencement of, during and after their relationship
3. Assess the future needs of the parties (for example, who might have the care of infant children, any difference in the parties’ income earning capacities, the age and state of health of the parties)
4. Consider whether the proposed orders are just and equitable in all of the circumstances

What impact does it have?

How an inheritance is dealt with in the event of separation will generally involve consideration of the following:

• The timing and the length of the relationship
• The amount received
• How it was applied
• The financial circumstances of the parties at the time of the Court’s decision

The timing of the inheritance is important. For example, if a party received their inheritance in the early years of a 25-year relationship then depending upon the amount and how it was applied, the inheritance may not result in a significantly higher contributions assessment to the party who received it. This is because often during long relationships each spouse makes various financial, non-financial, homemaking and parenting contributions which can offset a financial contribution by way of an inheritance.

Conversely, if the inheritance was received late in the relationship or after separation or the parties were in a short-term relationship, then the party who received it will likely receive a higher contributions assessment.

inheritance

The amount received will affect the Court’s ultimate determination. If modest in light of the parties’ combined net assets (for example a $50,000 inheritance compared to net assets of $1.5 million) then this may have little effect on the Court’s assessment of contributions. However, if the inheritance comprised $1 million of a $1.5 million property pool, then it is highly likely the contributions would be assessed in favour of the spouse who received the inheritance.

It will also be relevant for the Court to consider how the inheritance was applied. If it was used to fund family holidays or extravagant purchases and is no longer represented in the parties’ net assets, then it will carry less weight when assessing contributions compared to an inheritance which was used to purchase a family home or investment property, establish a share portfolio or contribute to superannuation and that asset/s still exists at the time of determination. It may also be relevant in the Court’s determination if the inherited funds are kept separate and not otherwise intermingled with the parties’ joint assets.

The financial circumstances of the parties at the time of any determination is also a relevant consideration, particularly if a spouse has received an inheritance following separation. For example, if the parties had net assets of $1 million and there was a post-separation inheritance of $500,000, a Court would not likely consider it just and equitable if one spouse received total net assets of $500,000 and the other spouse received the remainder plus the inheritance (total assets of $1,000,000). In that instance the Court may consider awarding the spouse without the inheritance a larger percentage of the net assets.

What if you are a beneficiary under a Will or Estate but the testator has not yet passed away?

This question often arises when a party or their spouse has a parent who is elderly or unwell. A future inheritance will generally only be taken into account by the Court if the testator’s death is imminent and there is evidence of that (for example, a medical report) and what entitlement the spouse might have in the testator’s estate. In that instance, the inheritance cannot be included in the assets to be divided between the parties but the Court can consider it at step 3 of the 4-step process in assessing the parties’ future needs.

How can an inheritance be protected?

As between spouses, the only way to protect an inheritance in the event of separation is to enter into a Financial Agreement pursuant to the Family Law Act 1975 (Cth). For a Financial Agreement to be binding it must meet specific requirements set out in the legislation, including that before signing the Agreement each party to the Agreement obtain independent legal advice as to:
• The effect of the agreement on the rights of that party; and
• The advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement
The terms of a Financial Agreement are tailored according to the individual circumstances of the case and most importantly, what agreement can be reached between the parties. A Financial Agreement can be entered into before, during or after a marriage or de facto relationship. Some options for a Financial Agreement are:
• Any assets (including an inheritance) a party has at the commencement of their relationship are excluded from any division of assets between them;
• Any assets (including an inheritance) a party acquires in their sole name during the relationship are excluded from any division of assets between them;
• Any inheritance received by a party is excluded in its’ entirety; or
• The Agreement specifies what portion of that inheritance the other spouse receives in the event of separation.

If you and your spouse have separated and there is the possibility you might receive an inheritance into the future it is important to finalise your property/financial settlement with your spouse as soon as possible (and before the death of the testator) and have any agreement reached formally documented in either Consent Orders filed in the Family Court of Australia or in a Financial Agreement. Provided your agreement is formally documented and there are no other grounds (such as fraud) on which the Order or Agreement can be set aside, then your spouse cannot later claim they are entitled to receive any portion of an inheritance you might receive into the future.

If a testator is concerned about whether any gift they leave to a beneficiary will be attacked in family law proceedings, then the testator might wish to consider whether there are any asset protection options available to them and make any changes to their Will and estate planning while they still have capacity to do so.

If you require family law advice, please contact Tuskeen Jacobs or Renée Kinman, Queensland Law Society Accredited Family Law Specialists on (07) 3009 8444 to arrange an initial consultation.

Sexually transferred debt- the right to substitute a party for a tax liability in a property settlement

sexually transmitted debt

While there is no doubt that a taxation liability of one spouse can be taken into account as part of a property settlement, the Family Court has recently confirmed that one spouse can be substituted for the other spouse in what is commonly referred to as sexually transmitted debt. This in terms of a liability owing to the Australian Taxation Office.

In Tomaras & Tomaras and Official Trustee in Bankruptcy and Commissioner of Taxation, the Wife and Husband agreed that the Wife’s debt to the Commissioner of Taxation (approximately $250,000) was to be passed to the Husband, in that he would be substituted for the debt.  Proper notice was given to the Commissioner, who opposed the making of the Order.

The Commissioner was granted permission to intervene in the couple’s property settlement proceedings, resulting in the matter being referred to the Full Court of the Family Court of Australia.

In dealing with the case, the Full Court had to examine whether the Commissioner of Taxation was firstly bound by the relevant provisions of the Family Law Act.  This is because there is a presumption that statutory provisions in general terms, do not bind the Crown.

The Full Court determined that the Crown presumption did not apply as the Crown could certainly benefit from the provisions of sexually transmitted debt (for instance, the substitution of such a debt could allow a more financially wealthy party to assume the debt, rather than an impecunious spouse).

sexually transmitted debt

Why is this decision important?

Where a non-financial spouse ends a relationship with significant personal taxation liabilities, it may be open to that spouse as part of their property settlement, to seek a substitution order rather than the liability remaining in their sole name or being paid from the available property.

For other spouses who may have been unwilling to share in the burden of a taxation liability accrued during the relationship, the liability can be included in the available property and can also be transferred directly to the other spouse if it would be just and equitable to do so. This case highlights the importance of spouses being aware that they may ultimately be responsible for another spouse’s taxation liabilities or penalties arising from their failure to lodge taxation returns or meet payment of taxation liabilities.

The principles of the case are important, but before Husbands and Wives get excited about substituting each other for pending tax debts, the Commissioner must be afforded procedural fairness (i.e given sufficient notice about the proposed Order) and further, if it is not foreseeable at the time, that the Order would result in the debt not being paid in full – in other words, if there is any doubt about the debt being paid in full by the substituted party, then the Court could not make the Order.

This case demonstrates that when it comes to tax liabilities:

  • Parties should consider substitution of taxation liabilities as an option when drafting orders sought or negotiating settlements. However, note that the Order should be phrased in such a way as to direct the Commissioner to substitute one party for the other as opposed to stating that a party be solely responsible for the debt; and
  • It cannot be assumed that the tax liability will remain with the original tax payer in property settlement proceedings.

Financial planners and/or accountants should be consulted early in negotiations to advise as to the most tax effective way in which the ability to substitute parties to a taxation liability should be undertaken.

At Rostron Carlyle Rojas Lawyers we pride ourselves in understanding the needs of our clients and helping them to navigate a property settlement that minimises their exposure to taxation and disruption to their professional lives, wherever possible.

If you require family law advice, please contact Tuskeen Jacobs or Renée Kinman, Queensland Law Society Accredited Family Law Specialists on (07) 3009 8444 to arrange an initial consultation.

Breakdowns in De Facto relationships

de facto relationships

When a relationship breaks down, it can be a very painful experience for both parties involved. If you are married, breaking up can sometimes be a lot easier when it comes to dealing with the legal side of things. However, if you and your partner never made that commitment and have been living together as a couple, then splitting up can sometimes be a bit more complicated. This is what is called a de facto relationship.

Rostron Carlyle Rojas are the leading experts in family law in Brisbane and understand how difficult dividing assets up can be when a de facto relationship comes to an end. There is more to breaking up than just dividing your CD collection between the two of you. As the law recognises de facto relationships in several different ways, it can be quite difficult to understand what your rights may be. That is why it is advised you seek a family lawyer.

In some areas of the law, a de facto relationship is treated like a marriage

In some areas of the law, a de facto relationship is treated like a marriage. For example, a de facto partner might be entitled to the same rights as a married person when one partner dies without a will, or superannuation is claimed after the death of a partner. There could also be entitlements should one partner become ill and decisions about their health need to be made or organ donation needs to be considered.

However, there is a common misconception that if you have lived with someone for a certain period of time, then you are automatically entitled to half of everything they own. A relationship is defined by more than just time. That is why it is essential that you seek professional advice, who can tell you exactly what your rights are and how you can go about claiming what you are entitled to properly.

If you and your ex-partner had children together, then you need to find out where you stand when it comes to child maintenance and what visitation rights you have. A good family lawyer can also help deal with any disputes there might be over debt, property agreements and shared belongings. They will advise you on the correct way of dealing with the issues surrounding your break up and should it be heard in a family law court, they will fight your case and help you find a solution to the problem.

For more advice concerning a defacto relationship and the legal rights you have, talk to a lawyer at Rostron Carlyle Rojas today.

Testamentary capacity and delusional beliefs

Wills Estates

Making a will when one is under a false or mistaken belief about a material fact can be one factor that goes to the question of legal capacity, but there must be a higher element indicative of a mental deficiency inconsistent with testamentary capacity, and not simply a false or mistaken belief.

In Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753, the NSW Court of Appeal found that a will made in 2004 leaving the whole of an estate to a niece was valid, despite findings of mistaken belief about the conduct of a disappointed beneficiary and other evidence of a lack of capacity.

Ms Hordern died in 2014. In 2001 she had executed a will leaving the whole of her estate to her niece, Ms Richardson. In 2004 she had executed a further will revoking the 2001 will and leaving the whole of her estate to Ms Carr.

Ms Richardson alleged that the 2004 will was invalid because Ms Hordern lacked testamentary capacity when she signed it. By a cross-claim, Ms Carr sought probate of the 2004 will.

In the first instance, after a two day hearing in the Equity Division before Robb J, his Honour found that Ms Hordern lacked testamentary capacity when she executed the 2004 will.

Ms Carr successfully appealed the decision.

In upholding the appeal, the court held:

1. the trial judge erred in finding that Ms Carr did not discharge her onus of proving that the 2004 will was the will of a free and capable testator; and

2. erred in finding that a material false belief that Ms Hordern had concerning Ms Richardson was a delusion that indicated that, when Ms Hordern signed the 2004 will, she did not have the capacity to comprehend and appreciate the claims of potential beneficiaries, including in particular Ms Richardson.

The Court of Appeal discussed the significance of false beliefs held by testators or testatrices, and the circumstances in which they may indicate a lack of testamentary capacity. The starting point in any claim as to incapacity is Banks v Goodfellow (1870) LR 5 QB 549, which requires consideration of the testator’s:

1. capacity to understand the nature of the act of making a will and its effects;

2. understanding the extent of the property the subject of the will; and

3. capacity to comprehend moral claims of potential beneficiaries.

In this case, the testatrix while suffering from some ailments, including dementia and memory loss, under some mistaken beliefs, and enjoyed a glass or 2 of scotch was not so badly affected as to lack the requisite mental capacity to make a valid will.

The Court cited with approval the words of Gleeson CJ in Re Estate of Griffith when he said, “[t]he power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter”.

Findings that testamentary capacity has not been established because the deceased has laboured under what are found on analysis to be no more than mistaken beliefs would inappropriately erode that important right.

Challenging a will based upon a lack of testamentary capacity is a complex and sometimes difficult task, and legal advice must be sought before embarking on what can be a very costly and disappointing exercise.

For advice and assistance on challenging a will, contact us.

Michael Sing

Partner

When two become one – The impending merger of the Family and Federal Circuit Court and what this could mean for separated families

The Federal Government recently announced that the Family and Federal Circuit Courts of Australia will soon be merged in an attempt to slash blown-out waiting times and reduce trauma for families.

 

Both courts have power to decide family law disputes, however the Family Court is reserved for more complex family law matters such as, valuation of interests in trusts or corporate structures, matters that involve a child welfare agency, allegations of sexual or physical abuse or international relocation of children.

 

The Federal Circuit was originally established to deal with the shorter, simpler family law matters, freeing up the Family Court.   In addition to hearing family law matters, the Federal Circuit Court is also responsible for hearing general matters such as administrative law, bankruptcy, industrial law and migration.

 

Presently in Brisbane, there are 4 Family Court judges and 11 Federal Circuit Court judges.  The merger will see judges from the Family Court hear family law matters, while Federal Circuit Court judges will continue to hear family and general matters.  Over time however, all judges will hear both family and general law cases.

 

Statistics released show that the median time taken to reach a trial has grown in both courts, with a national average of 15 months in the Federal Circuit Court and 17 months in the Family Court.

 

Often times, a matter may commence in the Federal Circuit court but issues arise that deem the matter complex, meaning the matter will be transferred to the Family Court.  Once transferred between courts, a matter does not ‘skip the queue’ of matters awaiting court dates.  It is allocated a date alongside all other matters filed in court that day, irrespective of the matter having been in the court system for months already.  With over 1,200 matters transferred between the two courts each year, the consequence is a delay in the progression and resolution of matters and invariably a ‘double up’ in legal fees.

 

Attorney-General Christian Porter says the merging of the two courts will “remove the red tape that drags out complex trials and will have the potential in time to allow up to an extra 8000 cases to be resolved each and every year.”

 

The merger will also result in there now being one set of court rules and unified practices and procedures in place, making it not only easier for the increasing number of self-represented litigants that appear before the courts every day, but providing more certainty as to possible court outcomes.

 

For confidential advice and assistance about your family law situation, contact Accredited Specialist in family law, Tuskeen Jacobs of Rostron Carlyle Rojas Lawyers at [email protected] or 07 3009 8444.