Friday, 28 March 2014

Documents in family law cases can make all the difference

One of the differences between social workers and lawyers is that social workers like to listen to people, while lawyers like to use documents. Documents at times can damn someone’s case in court.

Many years ago I acted for a mother who had acted foolishly, and I figured was at risk of the Family Court judge removing the kids from her care and placing them with dad. That was until I discovered that the father used to obsess about his work and go there for hours, instead of caring for the children. Much as he said that he was caring for the kids, if I could prove that he was at work, then the father must have been lying, and the kids must have been cared for by my client, which would mean that the judge would be unlikely to take the kids off my client.

I quizzed my client carefully to find out if there were any documents that would show his movements. The eureka moment was subpoenaing the father’s security swipe card movements at work. Reams and reams of paper were produced. And what they showed was without doubt- the father was at work at all hours of the day and night- not at home caring for the children as he claimed. He was shown to be a liar, and even more importantly, it showed that my client had cared for the children. The result: only on the basis of the swipe card movements the kids got to stay with my client. Thorough preparation made all the difference.


Wednesday, 26 March 2014

Avoid the tax slug when you do a family law property settlement

“The ATO’s slugged me $9,000!” said my new client when she came to see me. “How rich! All I did was a property settlement with my ex.”
All of which was true, but what I soon discovered was that my client had not taken the most basic step of a property settlement- having orders made by the Family Court by consent. This is because she and her ex decided, at least in her case without the benefit of legal advice, to have an informal property settlement. And now she was wearing the consequences.
The deal was that she would transfer her share of the investment home to the ex, and he would transfer his share of the family home to her. Capital gains tax was not payable by him on the transfer of the family home, as there is an exemption for CGT on family homes. However, because there was a transfer by her to him of the investment property, capital gains tax was payable by my client, which was calculated at $9,000. It was too late the fix the mess, as the transfer had already occurred.
When the bill came in from the ATO, my client immediately phoned her ex, demanding that he pay the $9,000. His response- he couldn’t, because he had to pay stamp duty on the transfer. Again, because they hadn’t gone through the right procedures, tax was payable by him, when it could so easily have been avoided.
The moral of this tale? When splitting up, always get advice from someone who knows- an accredited family law specialist, and take simple actions approved by the government that avoid spending hard earned moneys on otherwise unnecessary taxes.

Tuesday, 25 March 2014

Attention to detail wins Family Court cases

I have lost count of the number of cases where my attention to detail made all the difference to whether my client was successful or not in a case. For example, a father swore that his criminal history was attached to his affidavit. When I looked at his criminal history, I noticed the very small print that said it had been printed by police on Christmas Day, some months after the father’s last conviction. Alerted, I wrote to the father’s solicitors- and voila!- it turns out that there was another criminal offence- when he had broken into someone’s house and terrorised them, resulting in a suspended jail sentence. Oops!

I remember well two superannuation cases- both involving accredited specialists on the other side. In one, the specialist was insistent that a valuation not be obtained. My client’s super should have been worth $1 million, but on the papers was worth only a quarter of that. The specialist cost his client about $400,000.

In the other, the superannuation statement said that it was worth $200,000. Well, that was on the top of the page. The specialist calculated that the value of my client’s super was $200,000. Whoops! In the fine print on that same page, that I saw and he should have seen if he had been careful with the document; if certain conditions were met (and had been met), my client’s super was worth double that: $400,000. I got ethical advice on that one. I could not mislead the other lawyer, but nor was I obliged to correct his (major) error. The other lawyer cost his client about $120,000.

It is absolutely essential when engaging a lawyer that you have one who has that attention to detail. Otherwise it could cost you a lot of money, or have disastrous repercussions for you in court.