Essay on Seminars on Family Law

Seminar 7

In seminar 7, the main topic of discussion was matrimonial property in the case of family law. In the seminar, I learned about various issues relating to finances when it comes to family law. This includes the various mechanisms that are used to decide how the matrimonial property and finances are going to be divided or shared. I learned that it is extremely essential for the couple to disclose all their finances and property in the family law financial proceedings. The full disclosure is important because there are many dire consequences of the failure to disclose all the relevant documents and details of the finances and property under review.

In the Stanford v Stanford (2012) case, the high court made a decision and concluded that separating the assets and property of elderly married couples after they separate as a result of one of the couples moving to a nursing home is not just or fair. In the case, the high court reached a decision that the full court had erred in its decision to award the step daughters of Mrs. Stanford the settlement obtained from their mothers house. The high court reasoned that the full court did not have the power to make property orders between parties that were still intact in marriage. This is applicable even when one of the parties had died.

The three propositions that apply when exercising the discretionary power under s79 and s90SM include the necessity of the identification of the current individual property of the couple, despite s 79 conferring a broad discretion, it is not without proper guide, and that the separation of matrimonial property does not is not necessarily just and equitable.

In case Mrs. Stanford herself made the application for separation before her hospitalization, the case could have gone differently. This is because the main reason why the court decided that the full court erred in its decision is because the marriage was still intact despite the involuntary separation. Hence, in case she made the application for separation herself, then her daughters could have gotten the settlement. Another essential consideration in the case is whether the Mr. Stanford was willing to foot all the bills that his wife needed for her treatment. Even if the marriage was still intact but Mr. Stanford was unwilling or failed to provide the financial support required for caring for his wife, the full court decision could have been upheld.

Seminar 9

In seminar 9, the main topic under discussion is the spousal maintenance and alteration of property after separation. In this seminar, I learned about the various considerations when valuing the contribution of each party in the marriage in terms of the total assets and finances and how it can be determined whether a souse deserves spousal maintenance.

In the case under investigation, the solution to whether Kym deserves spousal support or whether there should be an alteration of the spousal property after the separation can be explored and analyzed using the 5-step approach used by the Family Court post-Stanford. From the approach, I learned that the first step is the identification and valuation of the existing legal and equitable interests of both parties in regards to their property. Hence, in this case, I would investigate the needs of the Kym and Charles in reference to their property. The most just and equitable interest for each party should be indentified in this case.

The second step I learned about in the seminar is where it is determined whether it is fair and equitable to alter the property of the parties in question. This is done in consideration of the specific case under scrutiny. Therefore, in this case, it is essential; to find out whether the division of the matrimonial property is fair and equitable according to the specific situation facing the couple. Personally, I believe that it is fair and equitable to alter the property of Kym and Charles. This is because Charles plans to re-marry again and hence he is definitely going to be mix-up matrimonial property that Kym has interests in. Hence, it is important to identify the various fractions of property that each party commands and then give each one of them, his or her share to avoid problems that might come up as a result of Charles remarrying. Therefore, it is fair and equitable to alter the property of the parties when the situation of the case is considered.

The third step in the approach is to recognize and assess the contribution of each party when it comes to the matrimonial property and the general welfare of the family. This is where the roles played by each party in the family are considered. In the case of Kym, and Charles, It is first of all essential to consider the property that Charles had before getting married to Kym. The house that Charles had bought before the marriage belongs to him alone. Additionally, the role played by each party in the family is important. Hence, in this case, it should be noted that Kym spent her time taking care of the children and she had to sacrifice her work and career as a nutritionist. Therefore, despite the fact that she was mostly at home when Charles worked, she is entitled to half of the property they acquired during the time they were married. Moreover, I would consider the fact that Charles was the sole bread winner of the family and he always provided the best he could for them.

The next step in the approach is to consider the additional matters in the case. In the case of Kym and Charles, it is essential to note that Charles won a lottery worth 1.2 million and Kym is concerned on how he spent the money. Additionally, Charles has recently stopped paying spousal support to Kym claiming that she can now take care of herself. It is also important to note that Charles has decided to resign from his job and Kym, on the other hand, has decided that she will go back to school to finish her qualifications as a nutritionist.

The final step is to resolve the case after considering all the facts and then coming up with a decision that is both fair and equitable. After considering then facts provided about the case above, I do not believe that Charles should continue to pay spousal support to Kym. This is because he has r4esigned from his job. Apart from resigning from his job, Kym has decided to finish up her qualification as a nutritionist and hence it is safe to conclude that her income will improve. Additionally, when deciding the property to be given to each party in the case, the lottery that Charles won should not be considered in the case because it was solely his lucky and it had nothing to do with the matrimonial property

References

Books

Sheehan, G., & Hughes, J. (2001). Division of matrimonial property in Australia. Australian Institute of Family Studies.

Parker, S., Parkinson, P., & Behrens, J. (1999). Australian family law in context: Commentary and materials. The Law Book Company.

Article

Nyst, C., & McAdam, R. (2014). Family law: Tax Office takes aim at separation property settlements: Draft ruling impacts private company transfers. Proctor, The, 34(4), 24.

Sifris, A., & Rodrick, S. (2016). 100 Years of Open Justice in Family Law Proceedings in Australia.

Oldham, J. T., & Parkinson, P. (2017). Evaluating Judicial Discretion-Family Property Law in Australia and the USA Compared.

Case Laws

Bevan and Bevan [1995] FLC 92-368; (1993) 19 Fam LR 35

Stanford v Stanford (2012) 247 CLR 108

Legislations

s79(1) Court may make orders altering property interests

s79(2) Court must not make orders unless satisfied they are just and equitable

s79(4) court must take certain considerations into account (including s75(2) factors) when exercising its discretion.