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Third Edition ALL PINK UNDERLINED TEXT IS A CLICKABLE
LINK. LINKS FOLLOWED BY AN ARROW ( Nicholes Family Lawyers Telephone: + 613 9670 4122 Welcome. Welcome to our December edition of the Nicholes Newsletter! News & Events:
What’s New:
Visit www.nicholeslaw.com.au
New Developments In The Law The Government has published its new attempts
to target parents who are avoiding the payment of child support A four (4) year program costing $168,000,000 is expected to bring in five (5) times the number of referrals to the Australian Taxation Office. The Child Support Agency and the Australian Taxation office have joined forces in a new tax return lodgement program, targeting parents who are avoiding paying child support. The Government has reported that three (3) months after the program began, the Child Support Agencies already referred 125,000 people to the Australian Taxation Office who had not lodged their personal tax returns. As tax returns are the "first point of call" for calculating the amount of child support the parent must pay, the Government is attempting to track down parents who "dodge their child support responsibilities" by failing to lodge tax returns. The tax return lodgement program is part of the Government's intense compliance reforms to the child support scheme. Annulment of a Bankruptcy in Family Law A person seeking an Order of Annulment of a bankruptcy must apply to the Court following the procedure laid down in the Bankruptcy Rules (Part 7 division 7.1). An Application for Annulment may be made to the Federal Court or the Federal Magistrates Court if the bankruptcy is claimed to have been an abuse of process designed and for Family Law proceedings by the bankrupt spouse. Also, under Section 35(1) of the Bankruptcy Act, the Family Court has jurisdiction in bankruptcy where the trustee is a party to a property settlement or spousal maintenance proceedings as defined in the Family Law Act, where the Federal Court has referred the matter to the Family Court under Section 35 of the Bankruptcy Act. Once matters are transferred to the Family Court, that Court is bound to give full force and effect to the provisions of the Bankruptcy Act. Superannuation Two (2) recent cases in respect to the amount of superannuation referrable to a marriage, (T & T 2006, FAMCA 207) and (M & M 2006, FMACA 913) have seen the demise of the “West and Green” approach and a move toward providing more considered evidence to substantiate the amount of superannuation referrable to a marriage. “West and Green 1993 FLC 90-647” saw a formula developed to give a spouse an amount of money once their former spouse being a member of a superannuation fund had retired as it was not possible to split the superannuation interests. Today the “West and Green” formula is no longer used as superannuation can now be split. In M & M the Full Court when looking at an invalid Police Officer’s superannuation interest valued at $1,100,000.00 with a marriage of thirteen (13) years compared to the Police Officer’s fund membership of twenty (20) years, the Full Court stated “all that is required is that the contributions of the parties be valuated in relation to superannuation as they are of any other assets. Further there may be real injustice in doing so as there is frequently far less contributed to a fund in the early years of the membership compared to later years. A formulatic approach does not take account of the years in which greater contributions were made, often later in marriage, nor the effect of contributions over many years of marriage which may have diluted initial contributions”. T & T also involved an invalid New South Wales Police Officer who had superannuation interests valued $1,900,000.00. In both cases the main issue was how to account for the value of the superannuation that was brought into the marriage when the period of fund membership was significantly greater than the period of marriage. In both cases the Courts had little alternative but to make a considered estimate as to the amount of superannuation referrable to the marriage. Today Practitioners are required to obtain Family Law valuations as at the date of marriage to ascertain the member’s superannuation entitlements to be able to compare the superannuation interests from the date of marriage and then at the end of the marriage. Most superannuation funds allow for members to be able to obtain figures dating back to the early 1990’s although it is still highly unlikely that records can be obtained prior to such date. The other alternative is to make estimates based on the likely range of salary that the member would have received comparable to the superannuation history during this period. What both T & T and M & M show is that now a more considered approach is required to substantiate the quantum of superannuation referrable to a marriage. If you have any family law queries or questions arising from this Newsletter, please do not hesitate to contact our office.
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December 2006
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