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Can you be separated and live under the same roof?

Before a person can apply for a divorce they have to be able to establish to the Family Court that their marriage has irretrievably broken down. This can be established if the Court is satisfied that the parties to the marriage have separated and have lived separately and apart for a continuous period of not less than twelve months prior to the filing of the Divorce application.

 

The twelve month period commences from the date of communication of an intention to separate.

 

Separated but living under the one roof explained 

 

Being separated and living under the one roof is when a husband and wife separate but continue to live in the same home. It may be for any length of time – a few days, weeks, months or years following separation.

If the husband and wife lived in the same home during part or all of the required 12 months separation period, they need to provide additional details to the Court before they can apply for a divorce.

 

Two practical examples of how it works:

 

  1. The parties have been separated for 18 months. They have lived in the same home for the first 8 months after separation. They need to provide additional details about living under the one roof for two of the last months to the Court.

 

  1. Husband and wife have been separated for 4 years. They lived in the same home for 2.5 years after separation but for the past 1.5 years have lived in different homes. Here they do not need to provide extra information to the Court

 

Additional proof required  
The additional details are provided through an affidavit (which is a document sworn or affirmed by the party). The affidavit needs to establish evidence before the Court that there has been a change in the marriage, gradual or sudden, showing that the parties have separated. If the parties are making a joint application each must file a separate Affidavit.

 

If the Application for Divorce, relying on separation under one roof, is made by one party alone then there must be an additional Affidavit from someone else corroborating the evidence – and this could be a relative, close friend, or family member over the age of 18 years.

 

The Affidavit should contain the details that show the ending of the marital relationship and this usually includes the following:

 

  • Not sleeping in the same bed
  • Separation of financial affairs such as separate bank accounts
  • Separating household tasks
  • Reduction in or cessation of shared activities
  • Not representing that you are still in a relationship, such as no longer socialising together
  • Communicating to family and friends that you have separated
  • Notifying Government Departments that you have separated if you receive Centrelink benefits or Child Support and attach any correspondence showing this

 

It is easier to prove separation under one roof if you can show there were good reasons why you had to continue or resume sharing the same accommodation (such as for the sake of the children or one party could not find or afford separate accommodation) and that husband and wife intend to live apart in the near future.

 

Household services still being done can be explained

 

The Court understands that sometimes following a separation, husband and wife may still have to share the same accommodation and one party may still perform some household services for the other, such as washing or ironing, for example, where it is necessary for the running of the home and the convenience of others who live there. This does not adversely affect the application.


Attendance at Court

 

If it is a sole application and there are children under 18 years (whether relying on separation under one roof or not) the Applicant and/or their legal representative must also attend Court for the Divorce hearing.

 

In cases where there is a joint application and both parties are relying on separation under one roof and there is Affidavit material from both, then there is no need to attend.

 

In all other cases the Applicant and/or their legal representative need not attend so long as the Court has sufficient detail about the circumstances of your separation in your Application and Affidavit.

 

 

Conclusion

 

If you know someone who may need family law assistance, particularly if they are thinking of divorcing and continue to live under the one roof they should seek legal help from a lawyer experienced in family law. As you can see more details need to be placed before the Court to explain the circumstances.

 

For any help call us on 03 9497 2622 or email amsr@amslaw.com.au.

Employee or Contractor – do you know the difference?

It’s important for all businesses to have systems in place to determine whether workers should be classified as employees or independent contractors, as tax, super and other government obligations are different depending on whether the working arrangement is employment or contracting.

Employees generally have PAYG withholding, super and fringe benefits tax paid by the employer. Contractors generally look after their own tax obligations.

 

If you get it wrong and fail to meet your obligations, you risk having to pay penalties and charges.

 

What factors do you need to consider?

 

There are a number of factors which need to be taken into account which help determine whether a worker could be classed as an employee or an independent contractor.

 

It is important to realise that no single factor can determine if a person is an independent contractor or an employee. To correctly determine whether a worker is an employee or contractor, you need to look at the whole working arrangement.

 

A worker isn’t automatically a contractor just because they have an ABN or specialist skills or you only need them during busy periods.

 

Courts will look at the whole relationship between the parties when determining the status of a person’s employment.

 

The Fair Work Ombudsman has produced a table of common indicators that may contribute to determining whether a person is an employee or independent contractor:

Indicator

Employee

Independent Contractor

Degree of control over how work is performed Performs work, under the direction and control of their employer, on an ongoing basis. Has a high level of control in how the work is done.
Hours of work Generally works standard or set hours (note: a casual employee’s hours may vary from week to week). Under agreement, decides what hours to work to complete the specific task.
Expectation of work Usually has an ongoing expectation of work (note: some employees may be engaged for a specific task or specific period). Usually engaged for a specific task.
Risk Bears no financial risk (this is the responsibility of their employer). Bears the risk for making a profit or loss on each task. Usually bears responsibility and liability for poor work or injury sustained while performing the task. As such, contractors generally have their own insurance policy.
Superannuation Entitled to have superannuation contributions paid into a nominated superannuation fund by their employer. Pays their own superannuation (note: in some circumstances independent contractors may be entitled to be paid superannuation contributions).
Tools and equipment Tools and equipment are generally provided by the employer, or a tool allowance is provided. Uses their own tools and equipment (note: alternative arrangements may be made within a contract for services).
Tax Has income tax deducted by their employer. Pays their own tax and GST to the Australian Taxation Office.
Method of payment Paid regularly (for example, weekly/fortnightly/monthly). Has obtained an ABN and submits an invoice for work completed or is paid at the end of the contract or project.
Leave Entitled to receive paid leave (for example, annual leave, personal/carers’ leave, long service leave) or receive a loading in lieu of leave entitlements in the case of casual employees. Does not receive paid leave.

 

A simple way to help tell the difference

 

The Australian Taxation Office on its website uses the following simple descriptions:

  • Employees work in your business and are part of your business.
  • Contractors run their own business and provide services to your business.

 

Why is the distinction important?

 

Employment relationships are regulated by specific labour protection laws and various awards and workplace agreements. These laws generally provide a higher degree of protection to employees than the general commercial laws that regulate contractor relationships.

 

This protection includes minimum conditions and standards of employment for employees including minimum entitlements for leave, public holidays, notice of termination and redundancy pay.

 

Adopt good business processes

 

Business owners need to keep records to support any decision on whether a worker is an employee or contractor and the factors relied on to make that decision.

 

Most of the information needed to support the decision can be found in a service contract for independent contractors or an employment contract for employees, which should accurately reflect the actual conditions of the working arrangement.

 

All contracts should:

  • be in writing
  • specify whether it is a contract for services or an employment contract;
  • set out the period of engagement and the remuneration;
  • include dispute resolution provisions;
  • specify if/how the relationship can be terminated.

 

Penalties

 

It is illegal for an employer to misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement or make a knowingly false statement to persuade or influence an employee to become an independent contractor.

 

Under the Fair Work Act inspectors can:

  • seek the imposition of penalties for contraventions of sham contracting arrangements.
  • apply to the courts to grant an injunction or an interim injunction if an employer seeks (or threatens) to dismiss an employee for the purpose of engaging them as an independent contractor. The purpose of the injunction would be to prevent the dismissal from occurring, or otherwise remedy the effects. Courts can also make other orders to have the employee reinstated or compensated.

 

If you need more information or if you need assistance or advice on how to proceed please call us on 03 9497 2622 or email amsr@amslaw.com.au.

Challenging a deceased estate – have you missed out?

The Administration and Probate Act 1958 (Vic) (the ‘Act’) allows the Court to make orders to provide for a claimant from the estate of a deceased person.  This means that the Court may change a deceased person’s Will or administration on intestacy to award a person funds or assets from the estate.

Family Provision Orders are distinct from challenging the validity of a Will which might arise in circumstances such as fraud or forgery, lack of mental capacity of the Will-maker, undue influence or lack of process.  Rather, a family provision claim is a claim based on an alleged entitlement from somebody who has otherwise not been provided for or is insufficiently provided for under a Will or an intestate estate.

If you are considering making a family provision claim, strict time limits apply.  Generally, a claim must be made within six months from the grant of probate or letters of administration (in the case of intestacy).  The Court has discretion to extend this timeframe however it is often difficult to justify such an application and extensions are not readily granted.  Obviously, an out of time claim will add to the cost and administration of bringing an application.

In determining a family provision claim the claimant must first fall within the eligibility criteria.  Next the claimant must show that the deceased owed a moral obligation to provide for him or her and failed to do so.  Finally, the Court considers a range of factors to determine whether the person will succeed in a claim and, if so, what adjustment should be made from the estate.

Who is eligible to make a claim?

An applicant must be an ‘eligible person’, meaning:

  • a spouse or domestic partner of the deceased at the time of the deceased’s death;
  • a former spouse or domestic partner of the deceased who at the time of death had not reached a property settlement with the deceased;
  • a child or step-child of the deceased;
  • a child, adopted child or step-child of the deceased who at the time of the deceased’s death was a minor, full-time student aged between 18 and 25 years, or of any age and under a disability;
  • a person, child under 18 years, student aged between 18 and 25 years or child under a disability, who for a substantial time believed that the deceased was his / her parent and was treated by the deceased as his / her natural child;
  • a registered caring parent of the deceased;
  • a grandchild of the deceased;
  • a spouse or domestic partner of a deceased’s child who dies within one year of the deceased’s death;
  • a member of the household of which the deceased was also a member (or a person who was previously a member and would have likely been a member in the near future).

The Court’s powers to make an award

The Court may order an award for family provision to an eligible person.  A claimant must prove that, at the time of death, the deceased had a moral duty to provide for the claimant’s proper maintenance and support and the distribution proposed under the Will or in administration failed to provide for this.

Certain categories of eligible persons face higher thresholds.  An applicant who is a registered caring parent, grandchild, partner of a deceased’s child who dies within one year of the deceased’s death, or household member, cannot be awarded provision unless the Court is satisfied the person was wholly or partly dependent on the deceased.

In the case of an adult child or step-child who is not disabled, a full-time student under 25 years, or a person who believed the deceased was his / her parent and was treated accordingly, the Court must also consider the ability of that person to provide sufficiently for himself/herself.

Factors to be considered – a balancing act

The Court will take into consideration the degree to which the deceased had a moral obligation to provide for the claimant and compare this with the proposed distribution (if any) from the estate.

The Court looks at the Will and any evidence regarding the deceased’s intentions with respect to the claimant.  The nature and length of the relationship between the claimant and the deceased, as well as the deceased’s obligations to that person, any other person and the actual beneficiaries, are also considerations.

The size of the estate is relevant as are the needs, financial resources and earning capacity of the claimant.  These factors are compared with those of any other eligible persons or the actual beneficiaries.

The liability of a third party to maintain an eligible person and the character and conduct of the eligible person is also considered.

The following examples show how the Courts have determined previous family provision claims.

 

Example 1 – family provision awarded to adult step-son

The claimant (step-son) was left out of his step-mother’s Will.  The claimant’s late father was the second husband of the deceased.  The deceased had inherited significantly under the claimant’s father’s Will.  The father’s Will provided for the deceased in the first instance and then to the claimant and niece of the deceased.

The deceased had no children and her most recent Will left her substantial estate to her niece and nephew.

The Court found that the step-son, who had modest assets, was ‘dutiful and respectful’.  There was no evidence that the deceased had a particularly close relationship to the niece and nephew (the main beneficiaries under her Will).

In all of the circumstances the Court found that the deceased had a moral duty to provide for the claimant and made a family provision order in his favour for 30% of the estate.

Example 2 – further provision awarded to de facto partner

The claimant and the deceased were in a de facto relationship spanning approximately eight years.  The deceased died in 2008 and left a right of residency in his home and $100,000 to the claimant.

The value of the deceased’s estate was approximately $1.5 million and the de facto partner claimed further provision.  The application was opposed by the deceased’s two children as executors of the estate.

In its determination the Court considered the nature of the relationship between the claimant and the deceased and the deceased’s moral obligation to the claimant.  In the circumstances, the Court amended the right of residency in the deceased’s property to a trust in the sum of $420,000 so the estate could purchase a modest residence in which the claimant would have a life tenancy (a greater interest than the right of residency).  The legacy of $100,000 was increased to $198,000.

Conclusion

Family provision claims are complex with many factors taken into consideration.  Legal advice should always be sought particularly given the strict time limits for making claims, the eligibility criteria and the factors the Court must consider in awarding a claimant.

Your lawyer can advise you on the potential of bringing such a claim and your likely chances of succeeding.  If you believe you have been left out of a Will and would like a confidential discussion, please call us on 03 9497 2622 or email amsr@amslaw.com.au.

Social media and family law – Just don’t do it!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life.  Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones.  But what happens when people going through a relationship breakdown take to social media?  Usually little good comes of it, and sometimes quite a lot of bad can result.

 

Social media as evidence

If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer to search social media to see if they can find out anything damaging about you that could be used as evidence. For example, if you are involved in a financial dispute and might be claiming that you cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of your latest holiday or new car.

Similarly, when involved in a parenting dispute, you would be wise not to post to Facebook about your latest “big night out”, especially if the children were in your care at that time.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another.  So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.

Of course, many people have social media privacy settings which limit the information that can be seen by non-”friends”. If you haven’t set your social media privacy in that way, you would be wise to do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.

 

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.

Secondly, the Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

 

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

 

Conclusion

Unless you and your former partner can find a way to privately use electronic communication to help you co-parent your children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

Not only would you not want to find your Facebook posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings.

If you or someone you know wants more information or needs help or advice, please contact us on 03 9497 2622 or email amsr@amslaw.com.au.