Tag Archive: court

  1. Character Assassination in Family Law

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    According to popular opinion, the bubonic “black plague” which ravaged and ultimately killed between 30 and 60% of the European population in the late 1340’s was caused and spread by the rats living in those areas at that time. Scientific investigation however, shows that the disease was never in the rats but instead carried by the fleas living in their fur. In truth therefore the rats’ only crime was failing to rid themselves of an unwelcome yet impossibly persistent parasite! Despite its obvious innocence however, the rat continues to bare the scorn and distain of the responsibility for the terrible events of those times.

    In a Family Law case whether over property division or children’s issues, spouses or parents are unfortunately quite prone towards making wild and highly damaging allegations of impropriety against the other.

    Sadly in many circumstances, the allegations are false or highly exaggerated and often leave the accused spouse/parent devastated and eager to clear their name.

    In any other scenario away from the Family Court, Queensland anti-defamation laws provide for the payment of monetary compensation and/or the publishing of retractions or apologies where appropriate. In a Family Law dispute however, these laws usually do not apply. In their place, a number of different protections have been set up as follows:

    • Non denigration Orders:  In children’s cases, Orders which prohibit parents and associates from making derogatory statements about the other parent/carer to or within ear shot of the children, are routinely made. The philosophy is that if a Court rules a parent can be trusted with the responsibilities of child care, then informing or reminding a child about a person’s past impropriety (whether false or true) will only serve to confuse and harm the child. Non denigration Orders are difficult to police but nonetheless have a definite quelling affect.  Although far less common, Family Court Judges also have the power to make Non Denigration Orders between warring spouses on non child related issues. For example in a recent case, a husband was ordered to cease referring to his ex wife as “gold digger” in the automatic money transfer being made between his bank account and hers on a weekly basis.
    • Non publication of Family Court proceedings: Section 121 of the Family Law Act makes it a crime punishable by up to 1 year’s prison for any person to publish, broadcast or otherwise communicate any information exchanged through the process of a Family Law case in any external forum without first obtaining the permission from the Court. By operation of this law therefore, derogatory statements, however hurtful are at least quarantined to the papers of the Family Court file and the ears of the Judge, Lawyers and Court staff who undoubtedly have “heard it all before”.
    • Bar Association Rule No. 40:  Under this Rule, a Barrister who questions or attacks a witness in the course of a trial and makes allegations of fraud or untruths without reasonable justification for doing so, can face disciplinary action from the Bar Association which could involve fines, suspension or even disqualification from practice in serious circumstances.
    • Section 117 Family Law Act:  Under this provision, a person who knowingly makes a false allegation or statement against another in Family Law proceedings must be ordered to pay the other person’s legal costs of the defence.
    • Section 67 Family Law Act:  Under this provision, a person who makes an allegation of child abuse against another is obligated to report the abuse to the relevant State’s Department of Child Safety.  This ensures that the relevant Government Department specialised for the investigation of these sorts of allegations is put on the case in a timely manner so that they may attempt to determine whether the allegation is true or false.  If the allegation is found to be false then both the Department and the Family Courts can take action against the false accuser although, this usually translates into the accuser having their time with the relevant child(ren) limited, controlled or stopped altogether.

    If the experience of the humble rat is anything to go by, a false allegation can quickly take a reputation from tarnish to black if not appropriately controlled and contained.  Ultimately, no system is perfect but thankfully the Family Law system does bring a number of very useful and effective initiatives to bear.

    Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice phone 3385 0999.

    The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.

     

  2. Paternity Issues and Child Support

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    Following the breakdown of a relationship, any parent who retains the care of a child under the age of 18 years is entitled to receive financial support from the child’s other biological parent to assist with the day to day cost of living.  These payments are assessed and child support assessments can add up to many tens of thousands of dollars and so in circumstances where a father believes he may not actually be the biological parent of a child, there is an understandable motivation to establish in truth, who the child’s father really is.  Paternity is also important for considerations such as medical histories of familial genetic disorders such as diabetes, cancer etc and any psychological welfare of the child which might be linked to questions over self identity.

    Under our current legal system, a male person will be legally recognised as the parent of a child if he signed the application for issue of the child’s birth certificate, legally adopted the child at any subsequent stage or the child was conceived at a time when the man was in either a marital or de facto marital relationship with the mother.

    In the adoption scenario, the biological father becomes irrelevant as the adopted father is then legally recognised as if he was the biological father.  In all other scenarios, the legal recognition of the male person as the biological father can be extinguished by application to a Family Court Judge.  These applications are typically called Applications for Non-Paternity Orders.  In the old days, these applications involved fairly colourful evidence about elicit affairs, secret liaisons, phone tapping, private investigators, photographs and the like.  Thankfully, these days with the development of scientific DNA testing techniques, all of the stress, trauma and cost of these styles of applications can now be avoided.

    Put simply, the DNA testing procedure takes a sample of genetic material (usually a swab taken from the inside of the mouth) from the mother, the child and the suspected father.  The procedure relies upon the scientific discovery that every child inherits precisely one half of their DNA make up from their mother and the other half from their biological father.  As the biological mother and child are obviously known, a DNA test simply therefore looks at that portion of the child’s DNA which is not referable to the mother and compares it with the DNA of the alleged father.  If the DNA matches then the alleged father is concluded to be the biological father with 99.99% certainty.  If not, then the test concludes with 100% certainty that the alleged father could not have parented the child.

    To gain an Order for paternity testing, an Applicant (be it by the mother or the father) merely needs to provide the Court with some plausible evidence that there may have been a different father responsible for conceiving the child.  A sworn Affidavit from the mother or the father about an alternate male partner at the time of the child’s conception will usually be sufficient.  With this evidence, the Court will then typically make Orders obligating the mother, the child and the suspected father to undergo the DNA test.  Because the Family Court does not have the power to sanction an assault, neither the mother or the father can be forced to deliver up a sample of DNA however a refusal by either parent gives the Court special powers to draw an inference of guilt by avoidance and make an Order that the suspected father is the biological father, even though the test was never performed.

    If all of the persons participate in the DNA test, the cost of the test is currently around $800.00 – $900.00 and results take approximately 10 working days.  Special procedures in the testing labs insure that false samples cannot be provided and both the Court and the parties have the liberty to make Orders compelling one or either of the parents to pay for the test or for the cost for instance to be shared equally initially with the suspected father then either forced to reimburse the mother for her half of the cost if the test is positive and for the mother to reimburse the father if the test is negative.

    Once the test results are known and delivered back to the Court, the Court can then make the Order of paternity or non-paternity based on the test conclusions.  If non-paternity is concluded, then the Child Support Act states that the father is immediately entitled to recovery of all money paid to the mother on account of child support from the point of the very first dollar paid under any assessment which is issued.  The Court however, has a discretion as to how these payments are to be made and may choose between the options of either a lump sum, a periodic amount or possibly even an off-set of these amounts against child support due against other biological children for which paternity between the father and the mother is certain.

    So far cases which have gone before the Courts however, have confirmed that any voluntary payments (ie. an amount outside or beyond the amount which has been assessed as payable) being made from the non-biological father to the mother for the support of the child cannot be ordered to be reimbursed.

    Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice phone 3385 0999.

    The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.

     

  3. Wills and the rules of construction – Gifts of Property

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    As is often the case with poorly drafted wills, the Court is left to make an order as to the intention of the testator in circumstances where the testator is no longer able to give evidence. As a result, the Court has over the years developed various rules that are used in the construction of wills to assist testators and those drafting wills to ensure that the testator’s intention is reflected in the terms of the will. These rules of construction are complex and are generally subject to a contrary intention appearing in the will.

    A fundamental rule in the construction of wills is that, in relation to the property of the deceased, the will speaks from date of the testator’s death and not from the actual date of the will.

    For example, a testator may gift “my car to my daughter Rebecca”. At the time of executing the will the testator owned a Toyota Corolla. However, a few years later the testator sold the Corolla and purchased a BMW and later passed away. In this example, Rebecca will receive the BMW, even though the deceased did not own the BMW at the time of executing the will.

    Conversely, a testator may gift “my Toyota Corolla to my daughter Rebecca”. If the Corolla is later sold by the testator and the testator did not own a Toyota Corolla when he or she passed away, the gift to Rebecca will fail. This is the case even if the testator sells the Corolla and leaves the sale proceeds in a bank account. The sale proceeds in the bank will fall into the residue of the estate and will not pass to Rebecca.

    It is possible to avoid this rule of construction, by ensuring the will is carefully worded to clearly illustrate the testator’s intention. However, if the wording used in the will is ambiguous, it may be necessary for the executors to apply to the Supreme Court for guidance in the interpretation of the will. This is an expensive and lengthy exercise, which can be avoided by executing a carefully drafted will.

    Another situation that should be considered when drafting a will is the devise of property subject to a mortgage or charge. For example, if at the date of the deceased’s death their house is subject to a mortgage, the beneficiary that is to take the house will also be liable for the mortgage attached. This rule also applies to personal property, such that the beneficiary who is to take an item of property which is subject to a legal or equitable charge, will also be liable for the charge so attached. Once again, this rule is subject to a contrary intention appearing in the will.

    A review of the will should be conducted every few years, or when a person’s circumstances change, to ensure that gifts intended to pass to a particular beneficiary will in fact pass to that beneficiary. Further, if it is intended that a gift will pass free of the mortgage or charge, this will need to be specially set out in the will.

    The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.