On 28 February 2013, the Parliament passed the second of two Bills necessary to change the of name of the Federal Magistrates Court to the ‘Federal Circuit Court of Australia’ and the title of Federal Magistrate to ‘Judge’.

Attorney-General Mark Dreyfus QC MP said the name change more accurately reflects the Federal Magistrates Court’s modern role.

“This package of legislation is an important measure recognising the prominence of the Federal Magistrates Court’s circuit work and its accessibility for all court users,” Mr Dreyfus said.

The Federal Circuit Court of Australia (Consequential Amendments) Bill 2012 will operate together with the Federal Circuit Court of Australia Legislation Amendment Act 2012, and make consequential amendments to Commonwealth legislation to reflect the name and title changes.

“Updating references to the Court’s new name across the Commonwealth statute book will ensure a smooth transition for the Court and its users,” Mr Dreyfus said.

Passage of the legislation to change the name of the Federal Magistrates Court follows a recent $38 million injection into the courts in part to maintain services for regional residents, and complements other important court reforms by the Australian Government, including:

• implementing a transparent complaints process against judicial officers,
• expanding the diversity of judicial appointments,
• introducing legislation to establish the Military Court of Australia, and
• merging of the administrative functions of the Family Court and the Federal Magistrates Court to allow both courts to operate more efficiently and effectively.

Media release from the Attorney-General’s Office 

The Hague Convention on Child Abduction comes into force today between Australia and three additional countries: Ukraine, Singapore and Albania.

Source: CCH

By Loan Chow, Senior Associate

This is Part 3 of a three part series called “There’s a Black Sheep in My Family”.

To read Part 1, click here.

To read Part 2, click here.

Why Leave a Will?

So what is the point of doing a Will, if it will be contested and your wishes may not be given effect?

By leaving a Will, your wishes and intentions are recorded. The Will is a form of documented evidence of what your wishes were at the time you made the Will. Without a Will, the estate will be distributed in accordance with the laws of intestacy.

For example, a typical “Mum and Dad Will” often involves a gift of the whole estate to each other, and in the event that both parents don’t survive, the estate will be distributed equally between the children.

On intestacy, where the deceased is survived by children, the surviving spouse does not automatically receive the whole of the estate. The spouse will receive the sum of $150,000 and the household chattels, and if there is only one child, half of the residue of the estate.

If the deceased is survived by two or more children, the spouse will receive at best, one-third of the estate, and the children will receive the other two-thirds. This may result in the family home having to be sold in order to satisfy the distribution to the parties.

Also if the black sheep is a child, by a default application of the formula, he will get the same share as his siblings.

Don’t Use a Will Kit or Type up Your Own Will

A solicitor can ensure that your Will achieves what you want it to achieve.

A solicitor can ensure that your Will was validly executed, and can take steps to prepare independent records or statutory declarations of the reasoning behind why you have left a certain person out of your Will, or why one child is receiving less (or more) than the other children. This will be useful evidence in the event that a family provision application is made.

If there is any chance that a person may raise a question about your capacity to make a Will, a solicitor can liaise with your doctor to obtain a medical report stating that you understand the nature and effect of a Will, and that you are capable of making a Will.

Talk to your Financial Advisors and Solicitor

Let your financial advisor know of your concerns about what might happen to your estate in the future.

Your financial advisors can talk to you about any structuring tools or strategies that may assist in keeping the asset out of your personal estate. It is important that you also receive advice about any potential tax or stamp duty implications that may arise from any restructuring of assets.

Your solicitor and your financial advisor can advise you on how the proper use of beneficiary nominations for your superannuation and life insurance policies can ensure that certain people receive a direct benefit upon your death – outside of your Will and your estate.

Your solicitor and financial advisors can work together to help you address your concerns and hopefully put into place an estate plan which is in a good position, even if a black sheep decides to contest your Will.

The Australian Greens senator Sarah Hanson-Young re-introduced the Marriage Equality Bill into the Senate after the UK passed legislation to allow same-sex marriage.  The Senator says we are falling behind the rest of the world on this issue.

Britain’s passing of this legislation sees them join the ten other countries of the world that allow same-sex marriage.  The Bill passed by a large majority of 400 to 175.  It is predicted to pass the House of Commons this week.

Source: CCH

By Leanne Francis, Senior Associate

A recent family court judgement has highlighted and confirmed that parties to proceedings must answer reasonable enquiries about financial matters and provide the relevant material.

In this case a multi-million dollar resort in the South Pacific was sold and the wife, through her lawyers, asked the husband and his lawyers about the disbursement of those sale funds.   The sale proceeds were paid into a company.   The wife thought the funds were approximately $3.5 million.  The wife questioned the disposal of five withdrawals, in particular, totalling approximately one million dollars.  The wife commenced questioning the husband as far back as September of 2011 but the court held that no meaningful response was forthcoming.

In a desperate bid to get answers on the disappearance of this money, the wife subpoenaed her stepson as he was a company shareholder and had a close financial connection with the husband.  The wife then proceeded to add him as a party to the proceedings.  The wife happily ceased legal action against the stepson when he satisfactorily answered questions on the missing funds.    As a result of the husband’s failure to disclose and by forcing the wife into a position where she required court intervention to make the husband comply, he was ordered to pay the wife’s costs on an indemnity basis.

It is a reminder to all parties embroiled in family law litigation that you cannot avoid your obligation to hand over relevant financial documents and answer reasonable questions posed by the other party.  It is necessary to disclose documentation pertaining to items of property in the property pool including, but not limited to, superannuation balances, bank accounts, values of cars, boats and other personal items and mortgage information.

If you fail to hand it over, never fear, the court will make you do so, and pay the other side’s costs for the privilege.

By Loan Chow, Senior Associate

This is Part 2 of a three part series called “There’s a Black Sheep in My Family”. To read Part 1, click here:

What the Court Considers

Just because a black sheep can make a Family Provision Application, doesn’t mean that the black sheep will automatically “win”.

Firstly, the Court must be satisfied that the deceased did not make adequate provision for the proper maintenance and support of the black sheep.

The Court will take into account:

• the black sheep’s financial position;

• the size and nature of the estate;

• the history of the relationship between the black sheep and the deceased; and

• the relationship between the deceased and others who have legitimate claims upon his estate.

The black sheep must address two issues: 1) the moral claim and 2) financial need.

Moral Claim

The question is whether a “wise and just” Willmaker acted in accordance with his moral duty and contemporary community values.

Financial Need

The black sheep will be required to fully and frankly disclose his financial assets and liabilities, sources and details of income, and details of any circumstances which are likely to affect future assets and income, and that of his spouse.

The black sheep must demonstrate that he is in need of maintenance and support. Those who are less fortunate due to circumstances out of their control, for example ill health that prevents them from working, or they have children with special needs, are usually able to show “need”.

Need is relative. If an estate is large, the mere fact that the black sheep appears to be financially well off, does not bar a claim. “Need” is also not limited to immediate need. The larger the estate, the more likely the Court will consider providing for contingencies.

Time Limits

The black sheep will need to give notice of an intention to make a claim within six months of the deceased’s death.

A claim needs to be filed by Application in the Court within nine months of the deceased’s death.

The Court has the power to extend the time for the bringing of an application, taking into account:

1. Whether there is an adequate explanation for the delay;

2. Whether there is any prejudice to the other beneficiaries; and

3. Whether there is any unconscionable conduct by the black sheep; and

4. The strength of the black sheep’s case.

During this time, the Executor of the Will must take care to ensure that the estate’s assets are not dealt with in a way that is adverse to the black sheep’s interests. This will cause a delay in the administration of the estate.

The Federal Magistrates Court, only established in 2000, is to be re-named under legislation recently passed by the Parliament. The Federal Circuit Court of Australia Legislation Amendment Bill 2012 was passed the last week of November 2012 and will not only implement a new court name, but also change the title of Federal Magistrates to Judges.

Attorney-General Nicola Roxon said the legislation is an important measure to more accurately reflect the Federal Magistrates Court’s modern role and its accessibility for all court users.

“The newly named Federal Circuit Court of Australia clearly signals to all, the prominence of its circuit work to regional areas and the federal nature of its jurisdiction,” Ms Roxon said.

The Bill amends the Federal Magistrates Act 1999 and other legislation relating to Federal Magistrate entitlements.

“The legislation focuses on ensuring the smooth continuation of the Court and retain existing entitlements and arrangements for its judicial officers under the new name and titles,” Ms Roxon said.

The changes are expected to commence in the first half of next year, following introduction of separate legislation to cover consequential amendments to the many other references to the Court and Federal Magistrates in the Commonwealth statute book.

The Federal Circuit Court of Australia Legislation Amendment Bill 2012 and consequential amendments are part of the Government’s ongoing court reform agenda to provide greater certainty around the responsibilities and role of each of the federal courts.

Passage of the legislation follows a recent $38 million injection into the courts to maintain services for regional residents and disadvantages court users, and complements other important court reforms, including:

• implementing a transparent complaints process against judicial officers,
• expanding the diversity of judicial appointments,
• establishing the Military Court of Australia, and
• merging of the administrative functions of the Family Court and the Federal Magistrates Court to allow both courts to operate more efficiently and effectively

Article courtesy of the Attorney-General’s office.