Last 2 public seminars – book now!
Don’t miss this opportunity to learn from Accredited Family Law Specialist, Michael Lynch. Only 2 seminars on the popular topic “7 Secrets to Surviving Property Settlement”.
In “plain-English” Michael will explain the complexities, identify the common traps and (more importantly) give you the tips to overcome them. Anyone about to separate or recently separated needs to know this!
For ONLY $30 you will receive a 1 hour information session with handouts and have the opportunity to ask questions. There will also be a SPECIAL OFFER for all attendees. There are only 2 seminars.
“7 Secrets to Property Settlement”
To register, call (07) 3221 4300 or email [email protected]. Book now, seating is limited.
Can a court compel a parent to move closer to the other parent?
The answer is yes, but only in rare circumstances.
Strictly speaking the order to compel is in reference to the child’s place of residence rather than the parent. A parent may be ordered to do all that is necessary to relocate the child’s residence but on a practical level this usually necessitates the parent moving as well, especially if they are the primary carer and that role is to continue.
Such an order was considered recently in an Appeal hearing. The mother of a 3 year old child had relocated 200km from Sydney after an incident of domestic violence from the father. At the time of the trial the mother and child had been living at her new location for 2 ½ years and the father had moved to be closer to the child closing the distance between the two households to 140km. At the first hearing the Judge compelled the mother to relocate the child’s residence to not more than 20 km from the father. The mother appealed.
On appeal the Full Court held that whilst the initial Judge had the power to make such an order the circumstances of this case did not justify the use of the power. In this case it was proposed by both parties that it would be in the child’s ‘best interest’ with the mother remaining the primary carer. The father was not seeking the child ‘live with’ him. The mother wanted to remain living in the location of her choosing, there was no equal restriction of movement placed upon the father and there was no identifiable need for the distance to be closed between the parents so as to ensure that a ‘meaningful relationship’ could be maintained between the child and father. The appeal was allowed and the limitation on movement was discharged.
Rights of pregnant woman and unborn children
The Family Court has no power to make orders in relation to unborn children. There is one limited exception however, and that relates more to the health and care of the pregnant woman. This exception is that a pregnant woman is able to make an application to the court seeking maintenance from the father for the costs of both carrying and birthing the child. Up until the birth of the child a pregnant woman has the right to move freely between States and Territories. This means that a father of an unborn child has no legal standing to prevent a pregnant woman from moving. Once a child is born however, that child also has rights and their rights may impact on the mother’s rights. A child’s rights include (but are not limited to) a right to be protected from harm and a right to have a ‘meaningful relationship’ with their parents. Once born, it is then open to either the mother or the father to apply to the court, once they have completed mediation, for Orders relating to parenting arrangements.
The focus of the legislation is always the ‘best interest’ of the child. The fact that a child may have no relationship with his or her parent would not prevent that parent from seeking a court order in relation to the child at some future point.
How to deal with trust property in property settlement
A spouse’s interest under a Trust, depending on the nature of that interest and the degree of control can be treated as property by the Family Court. A recent case has considered whether the assets held in a Trust were assets of the parties’ marriage for family law purposes.
- The husband and his sister were “appointors” of an Investment Trust. The husband was the sole director of the trustee company.
- The Investment Trust had an interest in (3) rental properties and had a net value of approximately $800,000. The properties were built by the husband through the marriage within the Investment Trust structure.
- During the parties marriage the husband operated a business cheque account on behalf of the Investment Trust. Over a number of years, the husband borrowed funds for the Trust by way of mortgage against matrimonial property. The husband and wife repaid these and then a subsequent repayment was received by the Investment Trust (some years later in some instances) and on each occasion without an interest component.
- The husband sought in the proceedings to establish that the Investment Trust assets were for the beneficiaries of the Investment Trust which included himself, his sister and their children to the exclusion of the wife.
- It was implausible that the wife would allow the parties to add to their mortgage to build up the assets in the Investment Trust if the Trust was only to benefit the parties’ children and the husband and his sister. This was particularly so when the wife worked full-time to meet the mortgage repayments of their home, which repayments were often higher due to amounts advanced to the Investment Trust.
- That the Investment Trust assets were property of the parties to the marriage for property settlement purposes.
This document contains general comments only and should not be relied upon as specific legal advice. Readers should contact this Office for detailed information or advice on any topic in this document. Changes to the law occur regularly, no responsibility for any loss or damage caused to any person acting in reliance on this document shall be accepted by the Principal of this Office. No part of this document may be included on any document, circular or statement without our written approval.