Monday, 18 July 2016

The real faces of domestic violence

I saw today a very powerful article by ABC showing the faces of Australian women killed in 2015 as a result of domestic violence. The faces of these women put faces on the statistics. These women were real, and now are gone, never to return. When we think about the impact of domestic violence on our society and on our children, never forget these women and women like them.

The article, and the haunting portraits are here.

Sunday, 17 July 2016

Pauline Hanson's family law policy

I have set out below Pauline Hanson's family law policies. It seems a policy written by men who are bitter about their divorce experience- for men bitter about their divorce experience. One of the policies is to abolish the Family Law Courts and replace it with a Tribunal, to be appointed with people who are non-lawyers and non-judges, and presumably not pesky social workers either.

 During the Howard era, a Parliamentary committee recommended the abolition of the Family Court of Australia. Instead, the Howard government boosted funding for mediation enormously- to such a degree the amount spent by the taxpayer on mediation was greater than that of the courts, and set up what is now the Federal Circuit Court of Australia.

One of the views about why the court was favoured over a tribunal was that it was considered that a court was much more likely to protect women and children who are subject to or exposed to violence and abuse. After all, in a tribunal, there may not be any right to representation- which will fall particularly hard on women who have been the subject of domestic violence.

Presumably when One Nation talks of the Family Law Court, it is talking of the Family Court of Australia, the Federal Circuit Court of Australia and possibly funding at least for the Family Court of Western Australia.

I must be missing something. The policy calls for abolition of the Family Law Court- but then says that protracted cases or incidents involving violence or abuse are to be dealt with in the respective courts. Which courts? The tribunal? Or State courts? Or the Federal Court of Australia? Given that an estimated 80% of matters before the Family Court of Australia and the Federal Circuit Court of Australia involve allegations of violence and abuse, what happens with these cases?

Another policy is that if you owned the property before hand, you get to keep it but otherwise it's a 50/50 split. Great for men- bad for women. It hardly seems a fair way of resolving matters.

Just as the policy of three strikes and you're out- if you deny the other parent three access visits- look out you're before the tribunal to look at moving the kids over to your ex. Without ever condoning breaches of court orders- good bye best interests of children. Punitive policies trump the rights of the child, apparently.

And here are the policies:


FAMILY LAW COURTS: CHILD SUPPORT SCHEME

Pauline Hanson’s One Nation believes that safe, secure and happy societies require as a guiding principle, strong functional family units. One Nation considers governments should recognise this basic principle and adopt responses that are aimed at long term family stability. One Nation believes that until a fair and just system is found for both parties, we will see the continual rise of domestic violence and suicide and murders associated with custody battles.
The following principles will be adopted by One Nation to rectify unjust applications from the Family Law Court and Child Support Agency.
  • One Nation supports mediation.
  • The Family Law Court will be abolished and replaced with a Family Tribunal.
  • The Family Tribunal will consist of people from mainstream Australia. Respected members from local community groups encompassing health, social and community interests groups will be invited to participate.
  • The functions and operation of the Child Support Agency will be reviewed and extensive community consultation will occur to develop appropriate guidelines for operations.
  • The punitive maintenance regime will be overhauled as a matter of urgency – key factors in this review include:
    1. A formula that recognises the new cost of maintaining two households.
    2. A pre–determined formula for non-custodial parents that in which additional incomes for overtime or a second job do not cause maintenance payments to increase.
    3. Recognition that a child’s standard of living following divorce cannot be maintained at it’s pre-divorce level.
    4. A formula based on after tax income not before tax income.
    5. New families and their needs to be recognised in maintenance schedules.
    6. A formula that recognises the number of children, their ages and individual requirements.
    7. Property owned prior to the relationship will remain the possession of the individual. Settlements will be based on a 50 / 50 split between partners.
    8. Recipients of Sole Supporting Parents (SSP) benefits will require counselling and verification of a family breakdown. When the youngest child reaches school age the SSP will be required to obtain work based on job availability, opportunities and qualifications.
  • Protracted settlements or incidents involving violence or abuse will be dealt with in the respective courts. Both parties will be entitled to legal aid and the unsuccessful party will pay the costs. Perjury charges will be enforced in court.
  • Joint custody is the option of choice for ONE Nation. It gives recognition to the vital role both parents have in relationships with their children. Joint custody can provide some stability in an environment that is otherwise turbulent for children.
  • Ideally the same case managers will work with families from entry to exit. Denied access will be referred to the case manager for immediate investigation. Three denied access visits will result in the non-custodial parent and custodial parent facing the tribunal to discuss shifting custodial arrangements.
  • Family centres will be developed and these centres will manage the family tribunals and associated support services including counselling, life style management, parenting plans, preparation with self representation and advocacy support. The family tribunals will be able to conduct a country circuit.
  • National Forums will be organised throughout Australia to identify family needs and identify community solutions that will assist in strengthening and maintaining the family unit. Responses to the forum will be pro-active and urgently address legislative inadequacies.

Fifteen tips on how to stay sane during property settlement

For over thirty years, twenty as an accredited family law specialist, I have assisted countless clients in property settlements. Here are my fifteen tips on how to stay sane during property settlement

Tip 1: remember your children


It may sound dumb- because after all you are thinking about a property settlement, and things are fixed with your kids, right? But it is essential at all times to focus on your kids first while also thinking about or actioning a property settlement. To do otherwise, means you could be failing in your primary duty- as your children's parent. Fighting between parents can and does impact on children even when not about them.

Some years ago I gave advice to a client that he would not have to repay a loan to his former parents in law because the loan was drafted in such a way that it was outside the limitations period: they could not sue him for repayment of the loan. I warned him that by taking this technical legal point, that it might poison the well, particularly with his children. Sensing that he would save tens of thousands of dollars, my client instructed me to take the limitation point.

Some months later my client came back to me and said that his children were not speaking to him. They were adults. I asked why. The answer- because he had taken the limitation point, they were disgusted that he would not be repaying his former parents-in-law, the children's grandparents. When he asked what he could do, I reminded him of my earlier advice. I said that he could drop the point, or could nominate a lower figure, so that at least the pain of his former parents-in-law would be eased. He refused to do so- and then wondered why his children weren't speaking to him.

Tip 2: drop the anger


I can't emphasise this enough. Once it's over, it's over. Let the anger go. When it comes to property settlement, all anger does is fuel the fires- and lead to at times a HUGE increase in cost and delay. Anger leads to hate. Hate leads to bitterness. Bitterness leads to destruction.

I remember many years ago when I had two complex property settlements side by side. Each involved a husband who came into the marriage with multiple properties and businesses. Each were tough cases. In each case the husband represented himself, and I represented the wife. In one case, after particularly hardnosed negotiations, we settled it. After getting barrister's advice, real estate valuations plus an accountant's valuations, my client was out of pocket $10,000. In the other case, with very similar facts, my client spent $300,000! The difference-  the husband in the first case was realistic, but the husband in the second case decided to put every possible roadblock in place (including a series of lawyers from time to time) to try and pressure my client to come back. He threatened her. He threatened to kill me. I ended up on the protection order. The domestic violence case ran for 7 days, still a Queensland record (the usual domestic violence trial runs half a day to a day). We had 30 + appearances in the Family Court BEFORE a 9 day trial- then a stay application and an appeal. I had to move home. We ultimately had appearances in four courts (Family Court , two separate Magistrates Courts, and the Federal Court). And the difference- the attitude of the husbands- one of whom was a hardnosed businessman who engaged in realistic negotiations- and the other a hardnosed businessman who used his anger that his wife had dared leave him to result in a scorched earth policy. If he had been sensible, and not angry, he could saved each of the parties an enormous sum of money and years before the courts.

For the same reason, your lawyer's role should be to represent your interests and not your anger. Doing the former will speed up your matter, and decrease your costs. The latter will increase your costs, slow the matter down, and put you at risk of having a costs order made against you.

Tip 3: get the best legal advice you can afford


Getting the best advice that you can afford means that a lawyer hopefully with lots of experience will be able to head you in the right direction, not tilting at windmills, and will be able to give you pointers as to what to look out for.

Funnily enough, it's usually helpful when your ex does the same, and gets legal advice from a lawyer who knows what they're doing. Your ex should then realise his or her dreams of world domination, or at least trying to punish you for leaving, are probably not worth the effort. Usually the more expensive lawyer your ex gets, the higher the chances of settlement.

Ask around as to who is good. An accredited family law specialist is a good starting point. Contact the Law Society in your State for a referral.

Tip 4: listen to your lawyer!


It may make for uncomfortable listening, but it is important to heed the advice of your lawyer. It could save you big bucks and lots of heartache. More importantly, if you do decide to tilt at windmills, it'll almost certainly impact on your kids. Your lawyer's role is primarily to give you objective legal advice- not be your best friend, nor your counsellor.

Tip 5: have a support network


Separating is one of the hardest things to do - EVER- and it is essential that you have a support network. If you don't have one- get one. Join a club or a church- meet new people. Friends and family can help you get through the crisis quicker, and help you remain focussed.

Tip 6: get a counsellor


I can't emphasise this enough. If you are about to enter into the most far reaching financial decision of your life, do so with a clear head.

Tip 7: get financial advice


Your lawyer is not allowed to give you financial advice. That is what financial planners do. I have found it is very helpful for clients to be part of a team working collaboratively for the client- so the client also gets financial advice, and can therefore make informed decisions about she or he might do depending on how the split occurs.

Tip 8: think positively


It is easy to catastrophise - and think that your whole world is going to come crashing down on you. Most of the time that doesn't happen. You wake up the following day! Take each day at a time. Be kind to yourself. While it may seem hard to think positively in such a period of gloom, being positive (and let's be clear, I mean being realistic) can make all the difference.

Tip 9: get fit


Having a fitness regime will help you through the difficulties. Endorphins and oxygen kick in when you exercise. The brain is emptied of its rubbish and allowed to function clearly again. You feel stronger and more positive about the world. Chances are, there will be less risk of wallowing in depression if you are fit.

Tip 10: come prepared!


One of the essential steps in sorting out a property settlement is working out the balance sheet. What do the two of you own? Who owns what? How much is it worth? Is there a defined benefit superannuation fund? Are there companies or trusts?

And to make things even more complex, lawyers will want to know - what was everything worth when the two of you got together- and if you have been separated for a while- what is everything worth now, compared to when you split up.

If there is going to be a dispute about who contributed what and when, get as much documentation as you can to show in an objective sense who paid what and when, or how much something was worth back then.

For tips about how to write up a balance sheet- see my post: the 8 steps on to write up a balance sheet.

If you are going to a mediation, or having negotiations with the other side,  prepare for each step. A client who is switched on can help guide their lawyer in their instructions- and can save huge amounts of time on the lawyer's part.

Tip 11: negotiate, negotiate, negotiate!


Whether talking to your ex direct, or through lawyers, or outside the court room, or in mediation- chances are you will be negotiating on the way through- and again, and again, and again. Sometimes clients put all their eggs in one basket- for example, they focus on the mediation to the exclusion of everything else- for the trial or for mediation. Better to think that what you are engaged in with your ex is a continuum of negotiations and process until it is over. Be realistic, but assertive!

The range of property settlement is that - a range- and what one judge might do is different to what another might do- even in similar circumstances. Many years ago, I took part in an exercise when lawyers were asked to assess the range on property settlements. Of the 60 lawyers in the room, spanning in experience from old practitioners to green newbies, there was heated disagreement about many of the exercises- and a range of 15%. For example in one case a lawyer was adamant that one party would get no more than 55%, and another lawyer was adamant that the same party would get 70%!

If your lawyer tells you that the percentage will be precisely x%, for example 45%, and not a range- beware, beware, beware. It is rarely thus.

Tip 12: focus on costs


If you are lucky, and you are smart, you could have a property settlement done and dusted for under $4,000. If you are unlucky, it could cost you a lot more.

A colleague of mine said many years ago that many of his clients when told of the range of likely property settlements and the range of costs would invariably hear the high end of the range for property settlements and the low end of the range for costs!

Work out in percentage terms in your matter what the likely costs outcome might be. If your lawyer says that you and your ex are 10% apart- and you have a net pool of $400,000- well, that's $40,000. And if your lawyer says that it is going to cost you $20,000, there's 5%, or half the difference.

Tip 13: prepare for death

It is important to have peace of mind to make sure that if something goes wrong, your children have been properly provided for.

Death and taxes, as Ben Franklin said, are inevitable. You may be unlucky and die before your property settlement is over. Instead of leaving a mess for others (and potentially cutting your kids out of the will), make sure you have an up to date will, and consider other basics: severing any joint tenancy and nominating beneficiaries for your superannuation and life insurance. Talk to your financial planner about these as well as getting legal advice. Accidents and illnesses happen.

When I was young and green, I had a client who was seeking 60% of the property. Aside from a few odds and sods, it was ALL owned by her husband. He was a general good for nothing who had made a lot of money. One Friday afternoon, the day before court (as court was on the Monday morning) the four of us- my client, her ex, his lawyer and me- found ourselves around a table trying to cut a deal. It didn't work- and didn't go down well with me or my client when I asked the husband: "Who owns the 50 foot boat?" He responded: "A man in Sydney." I might have been green, but I could smell a liar way back then. We didn't settle. I made arrangements to meet my client at court on Monday morning.

Instead, on Monday morning my client called me and said she was not coming to court. Being young and green, I yelled at her: "You have to come to court now!" She then told me that her ex had died on Saturday on THAT boat, which incidentally he owned, and that he hadn't changed his will, so she was executor and sole beneficiary. At that point my client was effectively suing herself in the Family Court. While she was sad that he had died, she was also very happy that instead of getting, at most, 60% of the property, she was now getting 100%, because he hadn't changed his will!

Tip 14: avoid court


Only mad people and lawyers like court. It is best to avoid at all costs. The outcome is uncertain, and how long it takes is unknown- but as reports have come in over the last year- getting worse. You might be told that you have two years to trial, and possibly another year after that for judgment.

Having said all that- court is the only place where someone can order your ex to do something. Negotiations and mediation cannot. It is the option of last resort, but sometimes painful though it is, you may have little choice but to go there.

Tip 15: formalise the deal


If you don't formalise the deal, you may end up with a liability to pay  stamp duty, withholding tax,  capital gain tax or a potential future claim from your ex. Formalise! Formalise! Formalise! This will normally be by way of consent orders (orders made by a court in which the parties have consented to being made) or a binding financial agreement, and sometimes by both. Each will depend on your case's unique characteristics.

The 8 steps to write up a balance sheet

One of the things that I learnt from 30+ years of helping clients with property settlements (20 of which as an accredited family law specialist) is that working out the property pool is one of the most vital. Knowing what your cake is and its size is essential before it is cut up.

I have lost count the number of times when other lawyers haven't focussed on what is the pool - and as a result a dispute at times has occurred which was entirely avoidable, while that lawyer comes up to speed.

Because of the need to know what the pool is, I always ask my clients before the first appointment to prepare a balance sheet and bring it in. Here are my tips about how to write it up.

Step 1: list all the property

List out all the property owned by each of you. Put beside each item who owns what- and then how much that property is worth.

I like to put under each item the debt for that item. For example, the husband and wife might own a house together. I will list out the address, who owns it, and the estimated value. I will then put as the next item who the mortgage is to, for example, Commonwealth Bank, and how much is owned- and them come to a net figure for that asset.

Step 2: total all the property

This then gives you the total gross property.

Step 3: list all the liabilities

Now list out the liabilities in the same way . Don't double count! If you have put the mortgage and the car loan, for example, in the list of assets, don't put them in here as well.

Step 4: total the liabilities

Step 5: subtract the liabilities from the gross assets

This will give you the net assets. Put this figure down.

Step 6: list the superannuation


In the same way, list the superannuation you believe each of you own.

Step 7: total the superannuation

Step 8: VOILA! Total the net property and superannuation

This will now give you the total net property pool of you and your ex.


Saturday, 9 July 2016

The mechanics of a Hague Convention case

What is the Hague Convention?


Australia, along with many other countries, is a signatory to what is commonly called the Hague Convention, which enables children to be returned to their home country when they have been abducted abroad. There many Hague Conventions, but the 1980 one is the one concerning international child abduction. There are two other Hague Conventions that might also apply- one from 1961 and one from 1996. I'm going to focus on the 1996 Convention.

What are Hague Conventions?


Hague Conventions are, not surprisingly, conventions signed at The Hague in the Netherlands. They are written up under the control of the Hague Conference on Private International Law, a body which has been in existence since before World War One. The Hague Conference in turn is comprised of several member States. Australia is one of the oldest members, being a member since before World War One.


What is private international law?


When people go overseas, their legal problems often go with them. The problem is that law in other countries is not the same as the law back home. This is the essence of private international law.


Step one: does the Hague Convention apply in your country?


For the Hague Convention to apply, there must be a wrongful removal of a child from country A to country B or a wrongful retention of the child in country B- in other words it was entirely proper to have removed the child from country A, for example, for a holiday, but the child has been held over. Is your country a signatory? If not, the convention does not apply. Is country B a signatory as well? If not, the Convention will not apply. Both countries need to have signed up. It's easy to check- just look here or here.


Step 2: has there been a wrongful removal or wrongful retention?


There has to have been a wrongful removal or wrongful retention. Without either of these, the Convention cannot be invoked. For example, some time ago I had a Hungarian case. Hungary allowed a parent to take a child overseas without the consent of the other parent for up to 1 year. What on the face of it was a wrongful removal, on closer checking was not, because the removal was allowed under Hungarian law.

Step 3: when did it happen?


To get the kids back, the wrongful removal or wrongful retention must have happened, and happened within the last year before the application is lodged. A parent who agreed to the children going overseas for a holiday, but the time for the holiday has not expired, means that there is not  a wrongful retention yet (and may never be, if the child is returned in time). There are different approaches by courts in different countries about when wrongful retention in particular commenced. Legal advice on the ground in both countries is preferable.

Step 4: is the child 16 or soon to be 16?


If the child is 16 or over, do not go any further, as the Convention does not allow the return of children 16 and older. It can be problematic getting early teens back in any event, as often they may have firm views.

Step 5: the wrongful removal or wrongful retention was in breach of the person's rights of custody


The parent (or other person who has rights of custody, such as a grandparent), needs to show that they have rights of custody, as defined under the Convention, such as the right to decide where the child lives, and that those rights were interfered with. Most of the time this can be fairly readily established.

Some years ago I had a tricky case between Australia and New Zealand. I acted for the mother, who was seeking that her child be returned to Australia. She was seeking orders against her parents, who had taken the child to New Zealand. Their first defence was that they had rights of custody. Oh dear, if only their lawyers had taken the time to read the Convention carefully. There was no defence. What the grandparents relied upon was an order in New Zealand that said that they had custody of the child. However, the same order said that they and my client had guardianship- which in turn met the definition of cusotdy within the meaning of the Convention.

Step 6: Was the child an habitual resident?


It's necessary to show that the child was an habitual resident in country A. Most of the time this is pretty easy, but sometimes with people who move around a lot, it can be a lot harder to show.

Going back to my New Zealand case, the grandparents moved around a LOT- between NZ, Australian and Papua New Guinea. They kept one step ahead of my client. As soon as she got close to them and her child, off they would go again. Finally, they moved from New Zealand, settling in Queensland. My client found out, sold her belongings, and came across. She then discovered that just before she came over, they moved again- from southern to northern Queensland- no doubt to prevent her from having contact.

When she finally discovered where they were, my client trekked to north Queensland to discover that they had gone - again. They had gone just 24 hours before she turned up.  Their time with the child in Australia had been some 6 months or so- but they had settled in Australia and were not mere tourists.

It was obvious to me that the child was habitually resident, for the purposes of the Convention, in Australia, and ought to be returned to Australia, where my client now lived, she having altered her life to follow him.

I was told by Australian and New Zealand officials that I was in the wrong- because the child came from New Zealand. I was vindicated when halfway through the hearing the New Zealand judge told the grandparents that they could choose to go back to Australia or he could the child returned without them- because the child was habitually resident at the relevant time in Australia. The child came back to Australia- and ultimately into my client's care.

 

Step 7: who prepares the documents?


How the Hague Convention works is that the stay at home parent (or other person with custody) fills out forms,  and then lodges them with their country's government, which sends them to the government of the second country, which applies in the court of the second country for the return of the child.

Usually this means that the abducting parent has to spend a lot of money to defend the application, and the stay at home parent does not.

A parent who wants to get their child back is best advised to get a lawyer who has run these type of applications before, like me, to draft their material. While you can rely on the government to do so, it might be slow, and it might miss out on some nuanced point - which makes all the difference.

Step 8: what is the other country like at returning kids?


Don't make the mistake of assuming that because the other country is a Hague Convention country that the child will be returned quickly. Do your homework. Find out, preferably from a lawyer who has run Hague Convention applications in that country as to what thsat country is like.

Some countries do not grant legal aid on these applications, and require the stay at home parent to fund the legal proceedings for return. If the child has been taken to the US, for example, the stay at home parent in Australia has to pay for the lawyers to have the child returned. This can be very expensive.

The US State Department has a very useful report, setting out where, in US eyes, there is non-compliance. Some countries are very poor at returning children, such as South Africa, as I discovered when I visited there in March.

Step 9: are there any defences?


There are a number of defences or road blocks. Typically they are:

  • did the stay at home parent consent or acquiesce to the removal or retention?
  • was that parent exercising rights of custody? 
  • is there a grave risk to the child if the child is returned to that country?
  • will the return of the child be in breach of fundamental human rights obligations?
  • does the child object to being returned, and has attained an age and level of maturity that the child's views can be taken into account?
  • are there funds to ensure the child can go back (possibly with the abducting parent) and be accommodated and provided for in the first country?
Even if a defence is made out, they can be quite tricky - because aside from the highly technical nature of the case, a defence is discretionary. A parent might have made out the defence, but the judge may make an order in any event for the return of the child.

When a stay at home parent  is preparing the application, these defences should be considered- and as best can be - directly answered.

It shows that one must be careful in running a case. Last year the abducting parent (I was for the stay at home parent) was told by an Australian judge that she was "gaming the system" after she had filed in the Australian court a document saying that there was no risk of the children being in the father's care- no family violence, no child abuse and no risk of either- but had told the New Zealand court that there was "grave risk" in the children being returned in effect ot my client's care.

Step 10: get the lawyers to speak to each other


In the "gaming the system" case, I was able to speak to the lawyer handling the case in New Zealand. This was very helpful in ensuring the children were returned promptly. Getting the lawyer's name and contact details were the tricky part- because Australian and New Zealand authorities considered that they should be the sole conduits of information. 

Step 11: are there alternative procedures?


With some countries there can be alternative procedures. These should be considered before walking down the path to a Hague Convention application. The alternatives need to be considered, if only to be ruled out.

One alternative might be to rely on the 1996 Hague Children's Convention, which if it applies can be quicker and more certain.

Alternatives may be more expensive and slower, and less certain (or quicker, cheaper and more certain). What might be legal to do at home (such as grabbing your child back) might result in prison time abroad. Legal advice is needed- again in both countries- before going down the path that Sally Faulkner trod, that resulted in her being detained and then charged.




Australian Divorce Blog named in the top 100 divorce blogs worldwide

Well I didn't see that coming! This blog, the Australian Divorce Blog, has been named in the top 100 divorce blogs worldwide. It is the only Australian divorce blog on the list.

The blog has had over 500,000 hits, and I hope I continue to keep it relevant.

Monday, 27 June 2016

Joe Hockey's great big red tape nightmare part 2

Today I had the privilege, along with our other solicitors at Harrington Family Lawyers,  of receiving inhouse training from Murray Howlett and Jennifer Veitch, both from chartered accountants Pilot Partners about the withholding tax regime that starts on Friday. Although it looks like a nightmare, their flowchart above simplifies the nightmare created by this red tape monster.

Their key message- if you need to get approval from the ATO- which you will need to do with every bit of real estate to be transferred over $2 million, do so as early as possible, so that you have the ATO's certificate in hand for up to a year.

The process is supposed to be automated, and is bound to have delays, sooner or later. There are approximately 3 or 4 employees at the ATO devoted to issuing certificates- when the ATO estimates there will be 240,000 transactions a year. Or to put it another way- there are 5,000 transactions a week (assuming a 48 week year, allowing for leave entitlements), making each of the 4 employees (assuming there are 4 not 3) sign off on 1,250 transactions per week, or 250 per day. On a 37 hour week, that is 34 per hour, or just under 2 per minute.

The ATO estimates that turnaround time should be 14 days. I am not so optimistic.

One could imagine that if you are the vendor or indeed a husband in a property settlement and the house has a net value of over $2 million, you might be concerned by seeking the certificate if you have been behind in your taxes. I am sure the ATO will use this opportunity to engage in data matching and then say it wants the money, or it issues a garnishee notice, or it refuses to issue a certificate until money is paid to it.

For the person acquiring the property, if there has been a failure to withhold the right amount in the right way, there is potential for the ATO to come asking for more!

What is more, when there is a company or unit trust that has greater than 50% of the gross value of its assets are held in land (no matter the value) and 10% or more by value of the shares or units are to be transferred, no matter how they are to be transferred, it is wise to obtain a certificate declaring that the vendor is not a foreigner. Failure to do so might incur the acquirer a great big tax bill, penalties and interest from the ATO.

It is unclear yet what happens in the common or garden transfer from husband to wife (or vice versa) when their family home is worth more than $2 million. Say it is worth $2.4 million. The home is owned in half shares by each of the husband and wife. If the husband does not obtain the certificate from the ATO, the wife is obliged to retain 10% of the gross value- and pay that to the ATO, and not pay it to the husband.  It is unclear if the amount to be withheld is $120,000 (being 10% of the husband's share) or $240,000 (being 10% of the total gross amount). The fact that there might be a $1 million mortgage over the property is irrelevant- the withholding tax is calculated on the gross, not the net value.

However, in rollover relief cases, the amount to be withheld (and this is the windfall work for accountants) is calculated on 10% of the cost base amount calculated for CGT. Let's go back to the example above. Let's assume that the cost base is $1 million of the total value of the property. That might mean that the amount to be withheld is $100,000 or $50,000.

With that simple example, one can see that the wife, to protect herself, might wish to withhold $240,000, but the husband (if he will not or cannot obtain the certificate) says the amount should have been just $50,000. It remains unclear in that example if BOTH the husband and wife need to obtain the certificate.

Lots of room for argument between lawyers. Lots of red tape and nightmare for anyone from now on.

Imagine there is a grazing property. The wife is transferring her interest to the husband. The station has been in the family forever, and he knows a thing or two about cattle. He couldn't imagine not holding on to it. The property is worth $6 million. If she doesn't supply the certificate in time, does he withhold $600,000 or $300,000? If the cost base is $2 million, does he withhold $200,000 or $100,000?

But - what if each of the titles is worth less than $2 million? Let's say there are 7 titles, and each is not worth more than $1 million. Then no withholding tax may need to be held.

BUT- if the station is owned by the family company, and therefore there will need to be the transfer of shares in the family company from the wife to the husband, then without the declaration by the wife (, the husband might pay wittholding tax on settlement of $100,000 or $200,000.

For distressed sellers, there can be variation certificates issued by the ATO to ensure that secured creditors don't miss out. These can be applied for by the acquirer, the disposer, and by third parties, such as the bank that has security. One can see banks applying for these certificates as many times as needed.

The types of cases that are caught include:

  • sales
  • exercise of options
  • family law property settlements
  • estates
  • internal restructures, including possibly changes of trustees.
We are at the beginning of a great big, costly red tape learning curve. Lucky us.