Family Law Property Alert #1 2014: The Family Court and Special Contributions
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
The Appeal Court of the Family Court recently considered the question of whether the business acumen and successful investment ‘special contributions’ by the husband were enough to result in a property division significantly in his favour.
In the case of Kane & Kane [2013] FamCAFC 205, the answer was a resounding ‘no’.
Earlier this month the Kane & Kane decision from the Appeal Court of the Family Court made news headlines – “Husband loses $1million after Family Court rejects his ‘special skill’ ”: Sydney Morning Herald and “Divorce ruling likely to leave wealthy husbands with less”: The Australian.
This case was an appeal from a decision of a Judge who found that the husband’s contributions to the parties’ superannuation fund were substantially greater than that of the wife due to his acumen and successful investment and therefore the husband was entitled to a greater division of the superannuation fund upon separation. Read the rest of this entry »
Criminal Law – Other Sentencing Options: Forum Sentencing
Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family Law.
While the maintenance of an effective criminal law system is important to the preservation of an ordered society, it is well accepted that jail is not always the way to deter criminal behaviour. For this reason the NSW government has looked to other sentencing options to address undesirable behaviour. One such example, is forum sentencing.
Forum sentencing brings together the offender, the victim/s and other people affected by the crime. The aim is to try to repair the harm caused to the victim/s and community and provide an opportunity for the offender realise the real impact of their behaviour, and reduce the likelihood of re-offending.
Forum sentencing is only available in relation to certain offences where a plea of guilty has been entered and in certain registries (including Local Court registries in Raymond Terrace, Newcastle, Maitland and others). There must also be an identifiable victim and agreed facts.
Family Provisions Claims – Contesting a Will
by Lana Black
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
Chapter 3 of the Succession Act (the Act) governs Family Provision Claims in New South Wales. A Family Provision Claim (FPC) is an application for a Court order that provision be made out of a deceased’s estate for a person’s maintenance, education and advancement in life.
A FPC may only be made by an “eligible person” as defined in the Act. To qualify as an eligible person, an applicant must fall into one of the following categories:
- Spouse of the deceased;
- De facto of the deceased;
- Child of the deceased;
- Former spouse of the deceased;
- (i) Wholly or partially dependent on the deceased, at any particular time, and
(ii) Grandchild or a member of the household of the deceased; or - In a close personal relationship with the deceased.
Tape Recording in the Workplace – Can you use them? (Part 2)
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
In Part 1 we looked at a case in which an employee was dismissed for secretly recording a workplace disciplinary meeting. The Fair Work Commission found the dismissal was justified.
The recording itself was not part of the evidence in Schwenke; although the Commissioner inferred, form the content of Mr Schwenke’s affidavit, that it had been made. In this article we look at how, if at all, such a recording might find its way into evidence and the implications if it is admitted.
Depending on the State or Territory in which a person is employed, secretly recording a conversation may be a breach of legislation, that exposes the person making the recording to a criminal penalty. As a general proposition, if a recording is made “illegally” there are likely to be difficulties in having it admitted into evidence in any proceedings, including unfair dismissal proceedings because, as a matter of public policy, Courts and Tribunals will generally not accept illegally or improperly obtained evidence. The rules of evidence do not permit it. There are general exceptions to the rule such as whether the ‘probative’ (or persuasive) value of improperly obtained evidence outweighs other considerations, but these are relatively rare.
Tape Recording in the Workplace – Grounds to Dismiss (Part 1)
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Fair Work Commission recently dealt with an unfair dismissal application in which a central issue was whether a disciplinary meeting had been secretly recorded and, if it had been, what the consequences of it were.
A Mr Schwenke was dismissed summarily, following a second disciplinary meeting on 7 December 2012. During this meeting he told the employer’s representatives, that he had secretly recorded an earlier meeting. Mr Schwenke was dismissed, both on performance base grounds and because of the secret recording. In his application for unfair dismissal, and in his “submissions” on hearing, he appeared to assert that he had in fact secretly recorded the first meeting; however in his cross examination, he denied having done so (although he conceded he had told the employer’s representatives he made such a recording).
The FWC found, on the balance of probabilities, that the recording had been made. There was no dispute that any such recording was made without the permission of the employer’s representatives. The Commissioner said “Secretly recorded discussions are objectionable because one party is being deceptive and purposely misleading the other party. …”.
Intergenerational Loans and Gifts – A Family Law Perspective
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
For more than 30 years I have been advising on the need for parents to act more prudently when lending money or making large financial gifts to children. When these acts of generosity are not documented it makes it very easy later for an estranged spouse or ex de facto spouse of the child to dispute the gift, or the terms of the loan. This may lead to polarisation of the parties and additional costs and litigation in resolution of their financial settlement.
Documenting gifts, loans and variations of loans is not an impregnable panacea for all issues, but it should diminish the risks of that money not being repaid to you on a relationship breakdown, or if a gift, on it not continuing to be of benefit to your child after the settlement.
Judges in Family and Circuit Courts are regularly called upon to determine whether an advance of money from parents to a child:
– is a loan repayable to a parent as a debt, prior to adjustment of the other relationship assets; or
– is an asset of the child’s relationship to be divided between the child and their spouse or former de facto partner; or
– a financial resource of the child to be taken into account when the Court divides the assets of the separated couple.