The Concept of Parental Alienation
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Family Law parenting disputes that end up becoming a case heard by aFamily Law Court often involve the concept of “parental alienation”. It relates to the situation of a child strongly preferring one parent over the other, to the point of rejecting spending time with the other parent. As parental alienation is a cause of conflict between separated parents that prevents them agreeing to amicable parenting arrangements in the best interests of their children, it is helpful for parents in dispute to have an understanding of the concept.
First, parental alienation is not “parental alienation syndrome”, which was a faddish psychological diagnosis that has been discredited in the past decade. Instead, parental alienation is one extreme end of a range of responses children are seen to have to their parents. The other (positive) extreme is where a child has a positive relationship with both parents and enjoys spending time with each. Next to that positive end is the still-positive situation where a child has an affinity for one parent, but enjoys spending time with both. Read the rest of this entry »
Restraint of Trade Clauses – The Devil is in the Detail
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Victorian Supreme Court recently considered a restraint of trade dispute. Mr Cottee resigned from Nexus Energy. He later agreed to become a director of Austin Exploration. Part of the argument before the Court was whether Mr Cottee became a director in breach of a restraint of trade provision preventing him being involved in an industry that was the “same as or similar to” that of Nexus.
Both companies were oil and gas exploration companies. The evidence before the Court was that Nexus was primarily an Australian based, offshore oil and gas exploration business. Austin was a mainly American based, on shore oil and gas exploration and production business. Austin did have some business interests within Australia, but at all relevant times they were dormant. Read the rest of this entry »
Interim Payment of Damages
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
A little known provision of the Civil Procedure Act was recently considered by the Supreme Court in Ryan v AF Concrete Pumping Pty Limited [2012] NSW SC 723. Mr Ryan was injured when concrete being pumped on a building site was blown through a pipe, hitting him in the face and head. Both the concreter and the head builder denied liability for the injuries that resulted.
Ordinarily, the award of, and payment of, damages must wait until the end of defended cases. However under Section 82(3)(c) of the Civil Procedure Act, the Court has a discretion, in certain circumstances, to make an order for an interim payment. To do so, the Court must be satisfied a plaintiff would obtain “judgment for substantial damages”. There are also a number of specific factors which, if proved, prevent an interim payment being made. Read the rest of this entry »
Family Law Property Settlement: When Bankruptcy Overshadows All
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Earlier this year, legislation was amended to make it clear that the Family Court’s own rules apply when a bankruptcy case is transferred to it from the Federal Court. It is still not widely recognised that Family Law Courts have bankruptcy powers in their own right where one of the parties to a Family Law property case is or may be declared bankrupt. This vesting of family law and bankruptcy powers in a single court has lead to a situation, in some cases, where the interests of the non-bankrupt spouse are balanced against the interests of the trustee in bankruptcy for the bankrupt spouse.
The usual approach that Family Law Courts adopt in determining an application for property settlement, and particularly in relation to longer marriages, is to firstly pool together all of the property of both parties, as to its value. From that single value is then usually subtracted the total value of the parties’ joint and several liabilities. In this way, payment of creditors is taken into account first, before the net value of the property is then considered available for division between the parties, according to their contribution and having regard to their future needs and other considerations. Read the rest of this entry »
When Lightning Strikes Twice: Death and Separation
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Two events that many resist planning for are their death and their separation from their spouse or de facto partner. Even though the probability of death is greater than that of separation, younger people often treat both as mere possibilities. It is therefore common for death and separation to be dealt with only when they loom and this means that both aspects are generally not considered at the same time. Yet, it should come as no surprise that death and separation sometimes strike at around the same time.
Someone negotiating a property settlement with their former partner could die with a last Will that provides for their former partner to receive all of their estate. Perhaps they do not die, but become ill or disabled to the extent of lacking capacity to manage their own financial affairs. An existing enduring power of attorney and appointment of enduring guardian may then result in their former partner having control of their financial affairs and living arrangements etc. Wills, powers of attorney and guardianship appointments therefore need to be looked at, as a priority, at the time of separation. Read the rest of this entry »