Family lawyer providing Q & A on the 2GB Chris Smith Afternoon Show discussing Family Law– 18 September 2018
Tuesday, 18 September 2018
CS – Chris Smith /CP –Catherine Parks /C1,2,3, etc – Callers
CS Okay – the issue of inheritance is quite a delicate one for families. It’s a particularly difficult and confusing matter when there is a separation. But the way the Family Law Act deals with this issue isn’t as black and white as you think and that’s what we will talk about in today’s Legal Matters segment. If you’ve got a question on family law, 131 873 is the telephone number. I’ve got a $100 Westfield voucher courtesy of Turner Freeman Lawyers and if you would like to jump on the open line, it’s 131 873 – if you’d like to talk to Turner Freeman direct in NSW you can call this number 1300 237 112 or Queensland 13 43 63 or the website turnerfreeman.com.au. Catherine Parks is a Senior Associate based in Turner Freeman’s Parramatta office. She specialises in family law and child protection and joins me now. She’s quite happy to take your calls. 131 873. Catherine. Thank you very much for your time.
CP Thank you.
CS Sorry to get to you a little bit late but Sir Tim Rice popped in…….
CP Very interesting.
CS It is …… he’s an interesting character and what a lifetime of incredible achievements. It’s just extraordinary. Now what exactly is an inheritance considered as under the Family Law Act?
CP Well an inheritance in all areas of law is a considered an amount of money that you receive from somebody’s Estate. The question that I often get asked is how an inheritance treated when parties separate. So often one of the parties would have received an inheritance from a parent – they’ve used that money to pay down a mortgage and then they go to the Family Court and the Family Court says “Oh well, let’s have a look at everything”…… including the value of the house, less the mortgage which is reduced by the inheritance and people want to know how that inheritance is treated and how much credit they get for that inheritance or often they ask if they can take that amount of money out of the asset pool and then look at the rest of the assets after that.
CS What about with a pending inheritance? In other words a person hasn’t received an inheritance, there’s a Court Order on separation of assets etc etc – the inheritance hasn’t come through – can they be given? Can one party be given ………..
CP Credit for the future?
CS Credit for the future?
CP Yes – look – it depends, there are so many variables about an inheritance – a future inheritance – so in a case where perhaps your ex-partner’s mother is 80 years old and she is quite well but you know that your ex-partner is in her Will and she has quite a lot of money, a Court will generally say “Well look she can change her Will at any time“. She could decide to go on some very expensive holidays – so she doesn’t leave much behind.. Her medical costs might be significant……
CS It’s an uncertain thing isn’t it?
CP It’s an uncertain thing and so generally unfortunately, you are not going to get much of a – it’s not going to be taken into account in any division of assets. If however you’ve got – there is an inheritance that is more definitive such as a very very elderly parent who is very unwell has no capacity to change their Will because they’ve lost that capacity and then it might be a different issue.
CS Okay. Ross – go right ahead – Catherine is listening.
Caller 1 – Ross
Ross Hello Catherine.
Ross I have two estranged son-in-laws.
Ross Both what would you call them…… ahhhhh. Domineering. A nicer way of putting it. And I’ve been unable to talk to my grandchildren. I have two grandchildren to the eldest one. One is 20 and the other one is 17. They haven’t spoken to me since we had words and my youngest two – I have two daughters – I haven’t seen one of her children ever.
Ross She’s now 4 and that son-in-law moved away from the family because he wanted full control.
Ross They’re in Canberra.
Ross The other one is 7 or 8 and I haven’t seen her since she was about 3.
Ross Do I have any rights to be able to go and see them?
CS Good question.
CP It is a good question. In relation – look, grandparents absolutely do have rights under the Family Law Act as they appropriately should. The 20 year old and the 17 year old – I’m sorry Ross I think that the 20 year old is not in the jurisdiction of any Court – the 17 year old is so close to being 18 that – I think it is unlikely. However……
Ross ………. 17
CP Sorry what’s that?
Ross He’s only just turned 17.
CP Yes – look I – generally with a 17 year old, the difficulty is that – you find that a Court can make any Order it wants but enforcing a 17 year old to do anything is a significant challenge. In relation to the smaller children though, absolutely, you can make an application to the Court and Orders can be made for grandparents to spend time with children and the test Ross is, is it in the children’s best interests? So it’s about a Judge making an assessment if your son in law continues to be resistant to you spending time with the grandchildren. Is it in the best interest for the children to spend time with you and that’s the whole assessment that goes on and it looks at the benefit of the child seeing you and knowing you and knowing the maternal side of the family, but also the impact that it will have I suppose on the children’s father as well.
Ross Yeah – well it’s gutted me.
Ross And I couldn’t believe that the son-in-law spoke to me the way he did. I’ve never spoken to him like that – um – I……. ring up when she had the baby in Taree…. and I wanted to find out how she was.
CP And children should have an opportunity to know their grandparents.
Ross ………….we don’t want to talk to you and blah blah blah. And that’s been it……anything he moved them away from Forster and down to Canberra.
CP Yeah – I’m sorry to hear that.
Ross Ohhh – it’s been terrible.
CS I can just imagine Ross. Very little that you can do as Catherine points out and I guess a lot of grandparents are in similar positions. Terry – go ahead.
Caller 2 – Terry
Terry Um. Just curious of this situation. My wife’s ex-husband moved overseas – advocated his responsibilities to his children here in Australia – became a Citizen of the country that he moved to and applied to get the child support back because Australia doesn’t reciprocal rights and has been able to garnish my wife’s tax return each year to recoup the 2 years of payment for his children.
CP Terry – I have never heard that before – that is a very unique situation. So is it…… .so she – he had paid child support and then he said that he’s paid it incorrectly and there’s been a garnishing Order against your wife?
Terry Ah – correct.
CP That’s very interesting. I wonder if I could get some details from you and have a look into that and in a bit more detail. That’s an extraordinary interesting set of circumstances.
CS Yeah – and Terry. I’ve got a $100 voucher for you – a Westfield voucher for you as well.
Terry Oh – thanks for that.
CS Okay – consolation prize – But we’ll get that $100 voucher to you – but Terry stay right there – we’ll put you back through to Hansel and we’ll make sure that we’ll get you in contact with Catherine off air. Frank – go ahead.
Caller 3 – Frank
Frank Yeah – hi – I’ve just got a quick one about step-mothers. My father passed away and my step-mother received the majority of the Estate. I received about 5% – I’m just wondering when she passes, am I entitled to claim – make a claim against her Estate even though we don’t really get on that well?
CP Frank – that’s actually a question under the Family Provision Act and even though we started this segment talking about inheritances and how the Family Court would deal with it, it is a slightly different issue. A claim under the Family Provision Act though is run through the Supreme Court and you can challenge a Will on the basis that you are a dependant or you are in a particular category of persons – but you have to show some kind of financial reliance on your step-mother which I don’t know if you have lived with her or ……..
CS Frank – we might get you to call us back when we do do Wills and Estates because it is more appropriate for that segment – but Frank go back to the line and we’ll make sure that we get your number. Judy – go ahead.
Caller 4 – Judy
Judy Oh – good afternoon.
Judy My question is, is that I have been separated from my ex-partner now for 8 years and when I last looked at divorcing him, I was told that we had to – in order to gain that divorce, we had to show the provisions that were made for our son whilst he was still under 18 – is that still the case?
CP It is Judy – but it’s not about you showing anything spectacular – it’s just when people come before the Court for a divorce – the Court just wants to know that a child is being cared for appropriately, that the father is paying or a mother is paying the child support that they should be paying – that the child is in school – it’s not that you need necessarily to have Court Orders in relation to the child – it’s just…….
CP Yeah – you’re coming into contact with the Court and the Court uses it as an opportunity to do a check up on what’s going on.
CS Okay – I’ve got to leave it there. Catherine Parks – thank you very much for your time this afternoon.
CP Thank you.
CS From Turner Freeman Lawyers.