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NSW Questions Related to Family Law - Thoughts?

Discussion in 'Family Law Forum' started by LawQuestion2, 24 August 2015.

  1. LawQuestion2

    LawQuestion2 Active Member

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    I have a couple of queries related to family law.

    1. I met my now spouse, who has children from a previous marriage, just over 10 years ago. I owned a home which I had purchased 10 years prior to us meeting. We started a business together using the home to finance the business. I was the director and the business ownership was in my name because of putting up the asset to finance the business. I drew dividends and wages from the business whereas my spouse drew wages only. My partner always paid child support as stipulated. The business closed down a couple of years ago due to the business prospects starting to look not very good.

    My question is, is his former spouse and their children entitled to any of the dividends from the business? We have no contact or care days with the children.

    2. The second situation in which I would like some understanding is, during the course of our relationship, the former spouse made it increasingly difficult for my partner to see the children and over a period of a few years would not allow unhindered access or relationships with the children. As a consequence, over several years, the relationship with the children continued to break down until such time that they no longer have any contact.

    The primary decision being made by my partner that it was too distressing for the children to be put under so much pressure each time they spent time with him. At this stage we thought that it would be possible to perhaps continue the relationship with the children once they became older, however to this date they have only contacted once and that was to seek money. During this time period my partner, now in his mid-30s, was contacted by his biological family and his step-family discontinued contact with him. This was as a result of marriage break-ups when my partner was also young. The children were unaware of this because they were too young to understand what was happening.

    After the breakdown in relationship between my spouse and the children we became aware that his former spouse had introduced his step-family to the children under the pretences that they are their biological family. My partner meanwhile has a very good relationship with his biological family.

    What rights do the children have? Do they have any entitlements in relationship to knowing their biological family? Our priority is for the psychological well-being of the children.

    My instinct is that the family court would look at meaningful relationships and make orders in based on the best interests of the children. Would they make some provision for them to be able know the details? Our instinct is to now leave the situation as it is because it would be too emotionally disturbing for the children to know the truth, as much as I find that saddening as members of their biological family may pass away before they ever get the chance to know them. Ironically this is also what happened to my partner, his grandparents had passed away before he got the chance to meet them as an adult.
     
  2. AdValorem

    AdValorem Active Member

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    Hi
    Did your spouse have a clean break from his former wife? Did they finalise property settlement by court order after they separated?
     
  3. LawQuestion2

    LawQuestion2 Active Member

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    Yes they divorced a couple of years prior to my meeting him. I should also add I was sole director of the business so carried all legal responsibility for the debts incurred by the business.
     
  4. LawQuestion2

    LawQuestion2 Active Member

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    The property settlement was for the property they were living in, under mortgage, which was settled 73% to her and 27% to him. The divorce was initiated by her. I should also add that when we started the business he had substantial personal debt $100K+ which was why I financed the business and took on the risk. She is convinced that she is entitled to dividends of the business.
     
  5. AdValorem

    AdValorem Active Member

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    Hi
    If there has been a clean break the former wife would not have a claim on any of your partner's assets that he may have acquired post settlement.

    In relation to the questions about the children: What rights do the children have? Do they have any entitlements in relationship to knowing their biological family? Our priority is for the psychological well-being of the children.

    The best interests of the children are paramount. To ensure that the best interests of children are met the children should be protected from physical or psychological harm.
    Section 60CC of the Family Law Act 1975 states how the court should determine what is in the child's best interests - see primary and additional considerations.
    Look also at section 60B of the Family Law Act 1975 which states what the children's rights are.

    Parental duties, powers, responsibilities and authority
    Each parent has parental responsibility for each of their children until they turn 18 years of age. If the parents have separated or remarry their parental responsibilities do not change because of the changes in the parents’ relationships.
    Under the Act parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
    It is the parents’ duty to protect their child from harm and to provide their child food, clothing and a place to live, financial support, safety, supervision, medical care and education.

    Equal shared parental responsibility
    Under the Act there is a presumption that “equal shared parental responsibility” is in the best interests of children. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in child abuse or family violence.

    Parenting orders
    If the parents have agreed how to share their parental responsibilities they can apply to the Family Court for parenting consent orders to reflect their agreement. If the parents cannot agree about the arrangements for their children they or other persons can apply to the Family Court for parenting orders.
    Your partner should seek legal advice about his particular circumstances.
     
  6. LawQuestion2

    LawQuestion2 Active Member

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    Thank you for taking the time to give me such a detailed response. You have confirmed what I thought to be the case in both instances.

    Unfortunately we are not in a financial situation to pursue anything legally (despite what she thinks about hidden riches!) and we are convinced that if we can't follow it through properly it only exacerbates psychological distress to the children. Whilst I know this logically it is still gut-wrenching to not be able to better able to protect them from the awful emotional distress they will have when they discover the people they've been bought up to believe are their paternal family are not related at all.
     
  7. LawQuestion2

    LawQuestion2 Active Member

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    Natalieinthegarden you might get an answer quicker to this if you create a new thread/topic. I only say this as I notice you mention you are going to court tomorrow.
     
  8. AllForHer

    AllForHer Well-Known Member

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    @Natalieinthegarden, this sounds like a more complex matter than what we are hearing about here, so any guidance we provide can only be very limited. I assume this is a parenting matter, so I've addressed it as such.

    The barrister is probably correct about the subpoenas - family law matters are heard under a 'less adversarial' hearing, so the rules of evidence are in some ways more lax than they would otherwise be. It's often the case that the judge will grant whatever avenues a party seeks in order to make their argument in favour of the children's best interests. If there is a significant history of unusual drug use, psychiatric treatment or criminal behaviour, for example, it would be in the children's best interests for the judge to know about that, as it would be given consideration when determining an outcome.

    If you're looking for examples of how the court handles contraventions of parenting orders, a simple search of the Austlii case database is your best bet - http://www.austlii.edu.au/. Family law cases are decided in both the Family Court of Australia and in the Federal Circuit Court, so you may wish to search each of those databases for cases involving contraventions. However, remember that family law is determined on a case-by-case basis, making it impossible to wholly and accurately predict outcomes based on the outcomes of other cases similar to yours. It's also dependent on your judge, as they each deliver very different decisions for what can often be very similar cases.

    In terms of legislation, section 70NAA explains that contraventions made without reasonable excuse can be dealt with as 'less serious' or 'more serious' contraventions, and this essentially comes down to how to you pitch your case to the judge. If it's the first time you've contravened orders and it's something minor, like forgetting to inform the other parent about a doctor's appointment, then it may be considered a less serious contravention. If, however, it's something like refusing to facilitate the other parent's time with the children, and you have in some way demonstrated no intention to follow that order in the first place, then it may be dealt with on a more serious basis. Sections 70NEA to 70NEG of the Family Law Act 1975 explains how the court deals with less serious contraventions of orders, and Sections 70NFA to 70NFJ explains how the court deals with more serious contraventions.

    I hope this helps.
     
  9. Natalieinthegarden

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    Thankyou, it is a parenting matter - it is very complex & very upsetting for all involved.

    It is thr first contravention as such, however due to refusals to engage in any contact with me it & the matter being filled in the manner it gas been m the period of time was just over 6 weeks - now over 3 months as my ex really only wants to see me punished & potentially emotionally distressed.

    He has filed a proposa that among other things, sees me fined over $10000 in form of a bond & the representation i have is non - believing therefore he informed me approximately 4 times i may lose my child. .. obviously I am quite anxious as to the potential outcomes

    I am having difficulty with posting anything in any other avenue than to simply hit reply as per the request.

    I completely respect the information being general as such - this site is more informative than the solicitors whi have received $12000 from me over the last 6 week period. Following the interim hearing tomorrow i shall have to seek alternative representation.

    Do you by any chance know og any matters that received sanctions etc.? I have been on the website however it's the time required to find something relevant & reading all materials. ..

    Thankyou
     

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