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Family
In Australia, domestic violence is a serious issue that affects both women and men, with one woman every 9 days and one man every month losing their lives to domestic violence. This issue is particularly prevalent among migrant communities, with victims of domestic violence being more common among migrants and those on temporary partner visas. This may be due to a range of factors, including concerns about their visa status, language barriers, lack of knowledge about government support, limited family networks, lack of alternative accommodation, or financial constraints that prevent them from leaving their abusive partners. Domestic violence includes not only physical violence but also psychological and financial abuse. If you are experiencing domestic violence, it's important to know that there are national and state helplines (service providers) that you can contact to seek assistance. These helplines can connect you with support services that can provide information, assistance, and referrals to local services that can help with safety planning, emergency accommodation, legal assistance, and counseling. Contact details can be viewed via below link. Support Services:respect.gov.au If you cannot speak English, you can request an interpreter to help you communicate with service providers. Some service providers can help you find short-term or medium-term accommodation to escape the violence, including accommodation where you can stay with your children. Qualified professionals such as social workers and counselors can advise you on available services that can meet your specific needs, and they will not force you to take any action against your will. By gathering information about available services, you can be empowered to act when you need to. Remember, domestic violence can happen to anyone, and seeking help is an important step towards ensuring your safety and well-being.
04 May 2023
Firm News
Reiko Reynolds was welcomed as a new member of the Japan Chamber of Commerce and Industry, Gold Coast Inc. at their New Year's party on January 20th, held at Lakelands Golf Club. During the event, she had the opportunity to introduce H & H Lawyers in a speech and meet Japanese business owners, professionals, and Consulate-General of Japan representatives based in Gold Coast, including Consul-General Mr. Masuo Ono, Deputy Consul-General Ms. Chieko Masuda, and Consul Ms. Harumi Narita.
06 Feb 2023
Firm News
H & H Lawyers is delighted to announce the following promotions. Congratulations to Tin-Lok Shea, Reiko Reynolds and Jeanie Lee.
01 Jul 2021
Family
Can an ex-spouse claim against an inheritance received by the other spouse after separation? Naturally, you may think that an inheritance received after separation should be excluded from the rest of the parties’ pooled assets. However, the Court has to consider all of the parties’ assets which were acquired before the commencement of the relationship, during the relationship and after separation as well as the parties’ contributions (both financial and non-financial). Having considered all of the assets and the contributions, the Court has the discretion to do one of the following: Treat certain assets received after separation differently in the above determination; or Include assets acquired after separation in the asset pool for division between the parties. These issues were recently considered by the High Court and the Full Court of the Family Court of Australia. Singerson & Joans [2015] The Husband inherited about $3,000,000.00 shortly after separation. The wife made significantly more financial and non-financial contributions as a homemaker, child-carer and breadwinner. The Family Court noted that not only the 4 years of contributions between separation and trial but also across the entire 15-year relationship should be considered. It also acknowledged the initial contributions made by the husband and his post-separation inheritance. The Court determined that the wife is entitled to 47.5% of all the property including the inheritance. The High Court declined to provide guidelines for Family Law Courts in respect of post-separation “windfalls” and supported that family court judges’ discretion be exercised in every individual set of circumstances. Holland & Holland [2017] This case involved a 17-year marriage with two teenage children. The parties separated in 2007 and were divorced in 2012. Three and a half years after separation, the husband received an inheritance from his deceased brother worth approximately $715,000.00. The inheritance was excluded from the asset pool available for division and was regarded as a “financial resource”. On appeal, the Full Court of the Family Court of Australia held that as a matter of principle, an asset should not be excluded from being considered altogether in the overall property settlement. However, the Court stated that it may, in some cases, be appropriate to treat certain assets separately depending on the parties’ differing interests to such assets or the degree of contributions made by the parties to such assets. Calvin v McTier [2017] This case involved an eight-year marriage with one child. Four years after separation, the Husband received an inheritance of $430,000 from his late father. The inheritance was equated to about 32% of the total asset pool which was about $1,340,000. The Husband argued that the inheritance should be excluded from the asset pool available for division as it has no connection to the parties’ marriage. However, the Court held that the inheritance be included and that the Husband made substantial financial contribution after separation because of the inheritance which was assessed to be 75% and the Wife’s as being 25%. The Court then made an adjustment of 10% in favour of the Wife, taking into account the disparity of the parties’ income earning capacities. The final division was 65% to the Husband and 35% to the Wife. The above cases demonstrate that all of the parties’ assets must be identified before the Court can make orders for property settlement and that the Court retains discretion as to how each asset is to be treated in each case. If assets are received after separation, the Court has the discretion to place them separately from the rest of the asset pool depending on the facts of each individual case.
29 Nov 2018
Family, Dispute Resolution & Litigation
When buying a home after marriage, there are many cases in which the purchase is made with the support of parents. If the marriage breaks down in such a situation, how does the court treat the funds received from the parents in the distribution of property? If there is any evidence such as a loan agreement that states that a fund is required to be repaid under certain conditions, a security deed or a record of a discussion between the parties that identifies the loan, the fund received from the parent is considered as a loan. If the money received is a gift from the parent, there is no obligation to repay it, and therefore, it is very likely that the money given to a couple in the long-term marriage will be regarded as a part of the common property. Considering whether the parent's funding was a loan or a gift, when calculating the total value of the parties' shared assets and determining their respective share, the court takes into account various factors stipulated in the Family Law Act. In many cases, it is not clear whether the parent's funding was a loan or a gift, and it often gives rise to a major problem during a divorce proceeding. For example, if a couple purchased a house for $800,000 with $400,000 in funding paid by their parents and has already paid out the loan, whether $400,000 was a loan or a gift is an important point in determining the total amount of common property. This becomes a more important issue if the amount of funding received by their parents accounts for a larger proportion in the total value. Accordingly, when considering funding a child, it is necessary to hire a lawyer in advance and to make the intent of the funding clear. Otherwise, the parents may be called upon their child’s divorce proceeding as a witness or required to submit an affidavit, which causes severe stress over a long period of time. Further, such proceedings will give rise to significant legal costs. In order not to spend too much money on legal fees during a divorce proceeding, it is recommended that parties start appropriate negotiations at an early stage for the settlement, so that things do not progress to the court due to property distribution issues.
15 Oct 2018
Real Estate
There have been many reports of defects in new apartments in the Sydney region. To address these issues, the Strata Schemes Management Act 2015 Part 11 provides new obligations that property developers must follow. Under the new law, property developers are required to pay NSW Fair Trading a deposit, equal to 2% of the value of the contract exchanged with the Construction Company. Until the deposit is paid, the developer will not be able to obtain the Occupation Certificate for the apartment which is required during settlement with the purchaser. Additionally, 15-18 months after completing the construction of the building, there is a mandatory obligation to inspect the building by an independent building inspector who has no affiliation with the developer. Should a defect be found, the Construction Company that built the building must repair any damages and the cost of such repair is covered by the bond. The new scheme will only apply in the following circumstances: Apartments with four floors or more; Residential or mixed residential/commercial buildings; and Construction contracts signed on or after 1 January 2018. (Apartments with fewer than four floors are covered by the Home Building Composition Fund.) The obligations imposed on property developers under this new scheme aims to detect and repair any defects early on, and to avoid situations whereby buyers and owners are forced to repair long-term defects which may be costly.
03 Oct 2018