Melissa Raftis

Melissa Raftis

A Form 13 Financial Statement is filed in any cases involving financial issues, including property settlement matters, spousal maintenance, child support and at times children’s cases.

If when you complete the Form, it does not allow you to provide all of the information to enable you to make full disclosure, you should file an Affidavit including the further information.

At Perth Family Lawyers we have noted some consistent errors in Form 13 Financial Statements to be aware of:

  1. Question 9 Total Wages or Salary before Tax – this should reflect your weekly gross salary (which means the amount you get paid BEFORE you pay tax);
  2. Question 19 Total Income Tax – this is where you insert the weekly income tax that is deducted from your salary or wages;
  3. Question 20 Superannuation – you should only note superannuation payments that you meet directly from your income. It is not uncommon for a Form 13 to be completed which includes the amount paid directly by your employer to your superannuation fund.
  4. Question 32 Total of all other Expenditure – this figure is often not included by litigants, but should represent that total of all your other weekly expenditure.  A good guide to working this out, is to complete the last page of the Form 13 Financial Statement to gauge your other expenditure each week.

If you need assistance or advice with the completion of a Form 13, why not contact the friendly, professional team at Perth Family Lawyers.

Tuesday, 16 October 2012 00:00

Capital Gains Tax and Family Law

To sell or not to sell can be an important question in Family Law.

Have you separated and are you considering retaining assets that if sold would result in a Capital Gains Taxation Liability? If so, you should consider that the CGT Liability is likely not to be considered a ‘liability’ of the marriage by the Court in determining an appropriate distribution of the asset pool between you and the other party.

That said, if you do intend to realize the asset in the short to mid-term, you should advise your solicitors of this fact, so that the proposed sale can be foreshadowed in any agreement or Order, and thus the resulting Capital Gains Taxation can be considered in the pool of assets and liabilities.

The issue of Capital Gains Tax Liability has been considered in the case of Rosati and Rosati (1998) FLC 92-804 where their Honours considered the approach to be adopted to a CGT cost upon he sale of assets relevant to the property proceedings.

The solicitors at Perth Family Lawyers can assist you further, and also recommend that you obtain financial advice regarding the composition of any property settlement you are considering.

Tuesday, 16 October 2012 00:00

Duty of Disclosure in Family Law Matters

In all family law matters there is an overriding duty of all parties to provide full and frank disclosure.

This duty it to provide all other parties in your case with all of the information and documents that at relevant to the issues in your case.  Family law cases are not about misleading the other party, but rather being totally honest and open about your financial situation.

Your duty to disclosure commences immediately once a family law dispute arises and continues until your case is finalized.  This means that you are required to consistently provide information and documents to the other parties in your case as they come to hand.

The Family Law Rules 2004 provide a complete list of the rules of the duty of disclosure and you can speak to the lawyers at Perth Family Lawyers to gain a better understanding of your duty of disclosure.

Tuesday, 16 October 2012 00:00

How Is Property Settlement Determined?

In determining an appropriate property settlement, the law is well settled and set out in the case Hickey & Hickey and the Attorney-General for the Commonwealth (Intervener) (2003) FLC 93-143.
Essentially, it involves a four step process as follows:

  1. Identify the asset pool available for distribution between the parties;
  2. Assess the respective contributions by each of the parties to the property available for distribution including contributions made by way of direct or indirect financial contribution, non-financial contribution, and as a homemaker and a parent;
  3. Identify any of the factors prescribed at Section 75(2) of the Family Law Act 1975 which are applicable to the parties and determine whether there should be an adjustment to either party;
  4. Assess whether the outcome achieved after a consideration of the above results in a settlement which is fair and equitable in all of the circumstances of the matter.

If you need advice from a Family Law perspective on Property Settlement, then call us at Perth Family Lawyers today.

Wednesday, 16 March 2011 00:00

Perth Family Lawyers Service Commitment

You often hear people complaining about lawyers, accountants and doctors not returning calls and not really being interested in their clients. Such conversations can often be heard at social occasions where people are fed up with the disdainful attitude of some professionals.

Here at Perth Family Lawyers, we are dedicated to delivering excellent client service.

Wednesday, 09 March 2011 00:00

Child Protection

The Department of Child Protection (DCP) is the government agency which is responsible for protecting children in the State of Western Australia. Where parties have been contacted by the DCP in respect of their children, legal advice should be immediately obtained regarding the matter.

The DCP have power to remove children from their parents or carers in circumstances where it is considered that the child is at risk. The DCP are required to bring an Application before the Children's Court in relation to the removal within specified time periods.

In the event that the DCP are threatening to, or have removed the child from a parent's care, parties should obtain legal advice immediately. Relatives may also consider seeking to become parties to a case of this nature, to offer their home as a placement option in circumstances where the child cannot return home.

Wednesday, 09 March 2011 00:00

Violence Restraining Orders

A Violence Restraining Order can be issued by the Magistrates Court after an Application is completed and filed by a party seeking the Order, or by the Police on behalf of a party (the protected party). The Application will then be heard by a Magistrate and, in some circumstances, can initially be heard in the absence of the other party.

A Violence Restraining Order can be made to prevent another person from committing an act of abuse, breaching the peace, causing fear or intimidating another person or damaging property. The Court can make the Order if satisfied that there has been an act of abuse or the threat of an act of abuse and that, without the Order, the behavior is likely to continue.

If an Order is made, initially it is referred to as an Interim Violence Restraining Order. The Police or Court staff will personally serve the Interim Violence Restraining Order upon the other party. After service is effected, the Order becomes binding and any breach of the Order should be reported to the Police.

After the Order has been served, the other party (the person bound by the Order) has 21 days to lodge a written objection at the Magistrates Court. Following this, the Application will be relisted for hearing and the person bound can oppose the making of a Final Violence Restraining Order. Further, an Application for a Violence Restraining Order can be resolved by the party bound agreeing to enter an 'Undertaking'. An Undertaking is a written promise to the Court which often mirrors the wording of a Violence Restraining Order which can remain in place for a specified period of time. Unlike breaching a Violence Restraining Order, breaching an Undertaking does not involve the Police, and it is unlikely that any criminal proceedings will flow from the breach. A breach of an Undertaking however can be used as evidence in future proceedings to obtain a Violence Restraining Order.

A Violence Restraining Order is a serious Order of the Court. A breach of the Order can result in significant criminal penalties and criminal conviction. Perth Family Lawyers are able to assist our clients in providing advice regarding Violence Restraining Orders and representation at court. Further information in respect of Violence Restraining Orders can also be obtained by attending at the local Magistrates Court.

Wednesday, 09 March 2011 00:00

Spousal and De facto Maintenance

Spousal or de facto maintenance orders provide for a spouse or de facto partner to provide financial support to their former partner either in a lump sum payment or on periodical basis. Maintenance of this nature can be ordered in circumstances where a party to a marriage (or a de facto relationship) has the capacity to pay an amount by way of financial support to their former partner, and the former partner has a reasonable need for the financial support. Generally, this involves the Court considering the income and expenses of each of the parties and determining the appropriate level of financial support to be provided.

In cases where one party has an illness or disability which prevents them from working, the Court is likely to find that they have a reasonable need for financial support and will then consider the other party's capacity to provide support. Similarly, if a party has ceased employment in the workforce for a significant period to care for the children of the relationship and is then unable to obtain appropriate employment, the Court may order that an amount of spousal or de facto maintenance is appropriate.

Perth Family Lawyers are well equipped to provide our clients with advice in relation to receiving or paying spousal or de facto maintenance.

Tuesday, 08 March 2011 00:00

Parenting Plan

A Parenting Plan is an agreement reached between the two parents of a child regarding the child, which is dated, and signed by both parents. A Parenting Plan does not need to be formalized through the Family Court; however, it does not have the same effect as an Order of the Court.

An Order of the Family Court is binding and enforceable, whereas a Parenting Plan is not binding and enforceable but can be used as evidence in later proceedings as to what was agreed between two parties at the time it was signed.

Further, the legislation provides that if proceedings are commenced between parties and a Parenting Plan had previously been in existence, then the Family Court will have regard to that Plan in considering the proceedings.

A Parenting Plan can assist in minimizing conflict, as it is a written document to which both parties have agreed. However, in cases where parties intend to complete a comprehensive Parenting Plan, Perth Family Lawyers recommends that parties seek legal advice in relation to the Plan to ensure it addresses all relevant matters. At Perth Family Lawyers, our solicitors are equipped with the knowledge and experience to assist our clients in relation to Parenting Plans, ensuring that all necessary matters are considered.

Tuesday, 08 March 2011 00:00

Relocation

The term 'relocation' is used to describe circumstances when one parent either wishes to, or has, permanently moved a child from their locality. Such a move may be a only short distance away, such as within the same State, or moves of greater distance, such as interstate and international moves to another country.

Separated parents who are considering relocating should obtain legal advice immediately.

Similarly, if the other party is considering relocating the children, we urge our clients to immediately obtain legal advice, as time may be a critical element in such a matter. Often, it is a much simpler course to prevent relocation, rather than trying to persuade a Court to return the children after a move has taken place. This is further made problematic if no action was taken when a party had been aware of the other party's proposed move.

The Family Court of Australia and the Family Court of Western Australia have power to order that children be returned to their previous locations if they have been moved without the other parent's consent. The Court cannot restrain parents from moving, but they have the power to make Orders preventing a child from being moved. The Court will consider the child's best interests in determining what Order to make and, accordingly, the circumstances of each particular case are considered.

In the event that both parents are in agreement about a proposed relocation and the subsequent arrangements for the children to spend time with each of the parties, this should then be formalized by way of a Parenting Plan or a Consent Order. Perth Family Lawyers are able to assist our clients with negotiations in attempts to reach agreements, as well as drafting and formalizing matters where agreement is reached.

In the event the parties are unable to agree in relation to a relocation, Perth Family Lawyers are able to assist with the initiating of an Application in the Family Court of Western Australia seeking Orders to permit the relocation of the children.

Parties should obtain legal advice about their personal circumstances and the best way to move forward in respect of relocation issues, whether they have reached agreement or not.

At Perth Family Lawyers, we have extensive experience in dealing with relocation cases. If you require advice in relation to relocation, please contact our offices to make an appointment with one of our experienced solicitors.

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