This is just a quick post but it has a message about how important it is to take care of our children, the most precious asset of all.
I was recently taking a stroll through the local parkland gardens. 
I stumbled upon the following brass plaque encased in sandstone and surrounded by lavender in bloom.

From a distance I could see the word “Apology” and naturally assumed it was in recognition of those dear indigenous children stolen from their parents because of a misguided government policy and ignorant social conscience.
But as I came nearer I was quite taken aback as the intended recipient of this apology was revealed.
The apology was to the children, mothers and fathers who suffered loss through another terrible mistake by bureaucrats in the past.

In  1950s, 60s and 70s Australia it was a socially unacceptable thing for a single mother to keep her child after birth. The whole idea of a woman giving birth to a child out of wedlock or even worse without a known father was considered abhorrent by the church (which cut much sway at that time) and society in general. Women who fell pregnant were considered sexually promiscuous, morally loose and definitely not contenders for motherhood. The social stigma an unwed mother faced was enormous and government support non existent. 
So thousands of children were removed from their parents and many of those children grew up with feelings of loss, confusion about their identity, and fear of abandonment.
I know this for a fact,  I was one of those children. 

I need parents with adopted children to understand that separation and divorce is taken very hard by adopted children and the approach you take as you prepare to part ways needs to take that into consideration.
We like to hark on about how the Family Law Act wants all parties concerned to treat as important “the best interests of the child”.
But the thing is, for many adopted children your separation is another act of abandonment and can have a lasting affect on a child already struggling with identity.
Stability, family and love are at the very core of many adoptees’ concerns. When you are devising a post separation parenting plan do everything you can to help your adopted child deal with their emotions, fears and frustrations.
You may chose not to be spouses or partners forever but you need to do everything you can to ensure their worries and feelings are mitigated.
Finally, with my own story, I wanted to give you a happy ending.
I met my birth mum in 2000 and we have been like peas in a pod ever since.
In a way I feel I have finally come…home.

The courts have always given much weight to family consultant reports and expert opinions.
Family consultants meet with parents and their children not long after they are appointed by the court. They are appointed when mums and dads are unhappy with the current parenting arrangements for whatever reason and have made an application to the court seeking certain orders about parenting.

Super quick assessments

A parent normally has one meeting with that consultant by themselves and in most cases another meeting where the child is present. These one or two relatively short meetings, if they don’t go well, can lead to reports where one parent is portrayed in a lesser light than the other.
Reports that highlight one parent as being a deficient parent (for whatever reason), can eventuate into court orders where that parent may be given all sorts of conditions from limited access, to supervised parenting, to no parenting at all.
A family consultant report, acted on by the court, can have devastating consequences for the parent left behind.

Unaccountable consultants

A recent investigative report on the ABC website entitled “Unaccountable” noted many parents’ concerns about the increasing role the “family consultant” plays in court proceedings. The problem with many reports written by these court appointed experts is that they are being seen as highly biased to one party. As the ABC report noted, “In the family law system psychologists, psychiatrists and social workers can give evidence and impact cases, but a review has found no-one is keeping them in check”.

From a psychologist conducting interviews in wine bars, pubs and other places without privacy to a particular Sydney psychiatrist known as a ‘serial failure’ when it came to his role with the court, to children being intimidated and threatened at interview by psychologists to social workers writing subjective reports favouring one parent because they didn’t like the other. Is it any wonder many parents are concerned about these “Gods of the court” that seem accountable to nobody. 

A long-awaited report into the Family Court by the Australian Law Reform Commission (ALRC) urged the Federal Government to tackle concerns about the quality of these court appointed experts by introducing mandatory accreditation and lifting the veil of secrecy around them.

Dodgy report writing training

Presently, it doesn’t seem to take much to become a report writing expert. The Association of Family and Conciliation Courts (AFCC) which describes itself as “an interdisciplinary association of professionals dedicated to improving the lives of children and families through the resolution of family contact” is one of the lead players in training professionals in the area of report writing.

Now you would imagine that the training any psychologist, psychiatrist or social worker would need to write these do or die reports would be quite substantial. Alas, that is hardly the case.
Available online are the four modules you need to do to qualify as a Family Report Writer.
Pay the money, download the 4 modules and do them without any oversight or examination in the comfort of your own home and bingo you’re an instant family law expert who can assess parents and children!

So who can be a family consultant and what guidelines must they follow to when writing a report?
Family consultants tend to be psychologists or social workers who specialise in child and family issues after separation and divorce. However, as mentioned above, it seems you either learn your court report writing skills as you go or get them via an online course, with little direction. That doesn’t seem like very thorough training considering the ramification a negative assessment can have on one parent.

And when these reports are done with bias and/or inaccuracies and complaints are made by parents, the relevant investigative authorities are ducking and covering to protect their members. The ABC investigation notes that the Health Care Complaints Commission  after receiving a dozen complaints about one psychiatrist report writer, eventually stated after their investigation that “we took this matter seriously… but…the commission does not have the power to investigate a complaint about the conduct of an expert witness. This includes even if a complaint were to be referred to the commission. The ALRC report in March of 2019 found that psychiatrists and psychologists in private practice who provide family reports played a “crucial” role in legal cases.

It also found there was no way of holding them to account if they failed to meet the professional guidelines set by the court.

So even though there is a complaints process in place by the courts, it may indeed come to nothing or more to the point be looked at only after your family law matter has been finalised. Not really a big help when the horse has already jumped the cart.

What can the court do about below par family consultants?

The Court’s Child Dispute Services is responsible for overseeing the work of family consultants. If you are concerned about the conduct of a family consultant, or the report or memorandum they have provided to the Court, the appropriate forum for raising this is within the proceedings by cross examining the family consultant. That can be a real difficulty for self representers because there are certain ways you need to do this and it does take much skill.

If you wish to cross-examine the family consultant who prepared your report, you (or your lawyer if you have one) must write to the family consultant at least 14 days before the hearing in order to ensure they are available.

If you are seeking to have the family consultant assigned to your case replaced with a new family consultant, this can only be done by applying to the Court within the current court proceedings. You would make an application in a case with a procedural order that the family consultant be replaced. Again, your affidavit would need to have compelling evidence to explain why this needs to be done. Again, an onerous task for the self representer! If you need help with these applications we would be happy at The Legal Eagle to assist at our usual low cost.

Complaining

Complaints about family consultants, or the assessment they have conducted, cannot be investigated nor brought to the attention of the family consultant while your matter is currently before the Court. This is because the family consultant is an expert witness and doing so could be considered to be interfering with a witness in a matter.
You can also bring to Court’s attention issues relating to the conduct of an independent children’s lawyer but only if their conduct has adversely affected your current case. The Court cannot deal with such complaints after final determination of your matter.

It’s always worthwhile writing to an ICL to give them an understanding of your problem with them before going down a complaint pathway.

By the way, in relation to complaints about Independent Children’s Lawyers, you may wish to also notify the relevant State or Territory legal aid body responsible for appointment of the Independent Children’s Lawyer in your matter. Alternatively, there is also the Legal Services Commissioner.

One of the things that I find saddening about this is that no parent, already under stress from enduring a family law matter, should have to be also lumbered with biased or incompetent report writers and “experts”. This has been going on for far too long and simply adds more frustration to the parties involved. If you suspect you have a poor ICL, family consultant or expert act quickly and make your concerns very clear to the court. If that individual needs to be cross examined get a lawyer or barrister involved for that process rather than take on that task yourself.

Oh and If you want my blunt view on Independent Children’s Lawyers who don’t really represent children at all click HERE.

If you need some assistance with your matter we offer low cost help with all your documents and applications please drop us a line and let us know.
Unfortunately, we can not offer legal advice.
Please make a  appointment via our appointment app.

Parting may be a sweet sorry for William Shakespeare but if neither of you are in Romeo and Juliet mode anymore, what happens to the gifts you received from each other?
What happens to the rings and the jewellery?
What happens to that lovely cash present Aunty Doris gave both or one of you last year? 
Dividing marital assets at the end of a relationship can be quite straightforward, but how do the courts look at gifts and divorce?

It is not unusual for parents to give their adult children significant gifts to help them get ahead in the property market, to go on a holiday or perhaps to assist with the raising of their children. This is all perfectly standard and legal, and many people are lucky enough to receive monetary gifts from their retired parents.

A problem arises when the adult child receiving a gift of money is in a relationship and this relationship later ends.

Does the other spouse have a right to the money that was given as a gift?

How can a person hold onto their gifts in a property settlement?

Will the gift be counted as part of the divisible pool of marital assets?

Property settlements do not follow any specific formula and many different points come into consideration.

Here are some of the most important elements to consider when looking at gifts in property settlements:

Assessing Contributions In A Property Settlement

A property settlement involves identifying a couple’s – whether de facto or married – assets, resources and liabilities and working out their total value. This typically involves looking at bank accounts, superannuation, property, mortgages, loans and sometimes other physical assets such as cars.

Both parties’ contributions to the marriage are evaluated. Contributions can be classified as direct and indirect, financial and non-financial.

Non-financial contributions include caring for children and maintaining the household. These are viewed as equally valuable as earning an income to provide for the relationship and family.

The court will divide the assets according to the contributions made by each party to the relationship.

However, adjustments may be necessary to account for a difference in the spouses’ current or future earning capacities.

One spouse, for example, may be the primary carer of the couple’s children and therefore have a limited capacity to work.

A person may also be less able to work due to illness, age or other reasons.

Any gift received by a party to the marriage will most likely to be counted as a financial contribution they made to the relationship, even the often given bloody wedding toaster.

If the gift was received before the start of the relationship, it will be categorised as an initial contribution.

As this increases the contributions the gift recipient made to the marriage or de facto relationship, their entitlements in the property settlement are likely to increase as well.

But be careful – there are other factors that affect the division of assets, and every case is different and is considered on its own.

Who Received The Gift?

Because a property settlement is about assessing contributions to the relationship, an important question is who was intended as the beneficiary of the gift.

If one spouse in the relationship receives a substantial monetary gift, it must be determined whether the gift was meant for their sole benefit or for the benefit of the other spouse as well.

Unless it is clear that the gift was meant for the equal benefit of both people in the relationship, the court will usually consider the gift as received by only one party. This will then affect the assessment of contributions as well as the adjustments made in the property settlement.

However, the question of who the gift belongs to holds less weight the longer the couple were married or in a relationship.

When dividing the property and assets following the breakdown of a shorter marriage or de facto relationship, such as one lasting for five years, it is more likely that any monetary gift received by either party will be kept out of the divisible asset pool, remaining the property of the gift recipient.

For longer relationships lasting at least ten or fifteen years, regarding gifts in property settlements, it is less relevant which side of the family the gift came from. Here, the court is more likely to treat both spouses as equally entitled to the money.

Determining who receives gifts in property settlements or whether a gift is divided equally depends on the assessment of contributions and each party’s earning capacity.

Protection of Gifts When Getting A Divorce

If you are the person giving a significant gift to your adult child, the possibility of their relationship ending in the future and their spouse claiming the money can be a legitimate cause for concern.

There are some strategies you can use to protect against this possibility, even if you do not think it very likely, and to keep the gift in your child’s possession in the event of a relationship breakdown.

One way to safeguard any gifts in property settlements is by recording your gift as a loan to make it technically repayable to yourself.

Loans are treated differently in property settlements from outright assets.

The court will not consider it as part of the divisible pool of marital assets as it is money that needs to be repaid.

If the court decides to have the loan repaid using the resources in the asset pool, following the finalisation of the divorce you are able to regift the money to your child.

The second way to ensure a gift remains belonging to its initial recipient is to draw up a binding financial agreement, or a prenuptial agreement.

Here, both spouses acknowledge the existence of the gift as belonging to one spouse, and acknowledge that the gift is not divisible with the other spouse in the event of relationship breakdown. A binding financial agreement is a legal document, witnessed and signed by an authorised person such as a Justice of the Peace.

The Engagement Ring

Parents are not the only people who may be concerned about the division of gifts in property settlements.

When a relationship breaks down, the spouses can have their mind on a very significant and symbolic gift made from one to the other, the engagement ring. No matter how ugly the ring, it is always held close at heart.

Australian couples now marry later than ever before, the engagement period lasts longer and over 75 per cent of couples move in together before getting married. Because the ring is generally a very expensive purchase, exactly who it belongs to – the gift recipient or the gift-giver – becomes a very important question.

Up until around the mid-20^th Century, family courts typically considered the ring as belonging to the person who gave it to the other spouse. The thinking was that the gift was given in contemplation of marriage, but the marriage never happened.

Today, the law varies on who owns the engagement ring, and the court’s decision often depends on factors including the value of the ring itself, who gave it to whom and whether the couple cohabited.

For many couples, the engagement ring can be a significant purchase.

Engagement rings are often expensive pieces of jewellery, but the value attributed to gifts in property settlements is based on their current second-hand purchase price rather than their value at the initial time of purchase.

Therefore, engagement rings may diminish in value when considered as part of the property settlement.

If the judge finds the engagement ring to not be of great value, and therefore not worth any kind of division or transfer of ownership, they will then usually allow the person who received the ring to keep it.

However, engagement rings with a significantly higher second-hand value, and therefore more likely to be causing conflict in the property settlement, will generally be counted as part of the asset pool to be divided between the spouses.

Considering the engagement ring as a gift given with the promise or expectation of marriage may affect a court’s decision on who retains ownership of it following a break-up.

The court’s decision may depend on who gave the ring and who left the relationship.

If the person who was given the ring refused to fulfil the conditions of the gift – marriage – then they may have to return the ring.

If the person who gave the ring refused to follow through with the promise of getting married, they may have no claim to the ring in the property settlement.

All this is based on the assumption that the couple in question cohabited as a de facto couple while they were engaged.

To be entitled to a de facto property settlement, which does not differ from the property settlement of a married couple when they divorce, a couple must be living together on a genuine domestic basis, not related to each other and not legally married.

The majority of Australian couples live together before marrying, making the ending of an engagement and the ending of a marriage a similar matter before the family court and raising the same issues regarding gifts in property settlements.

Don’t forget to check out all our great family law info HERE.
HEY…
And if you’re sick of wasting money on a lawyer, or just want to self represent, we have a great team of legal drafters who can help you with your documents and forms and guide you through the court process at low cost.
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