The Family Way Nov 05

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					              THE FAMILY WAY
           An occasional newsletter produced through the ACT Law Society’s Family Law Committee
           intended to advise all ACT practitioners of current issues in Family Law.

ACT Family Law Committee Newsletter                                                   NOVEMBER 2005

SUPERANNUATION NEWS                                    Com Super will now accept post dated orders from
                                                       28 Dec 2002 – the date of introduction of the su-
Thanks to Peter Skinner, our Newsletter sponsor,       perannuation splitting regime. This is relevant
for the following article on Superannuation:           where, for example, the intent of the parties is to
                                                       split the superannuation at time of separation. A
What Happens to Tax when Super is Split                post dated order will allow the member to retain all
                                                       post separation contributions applicable to his or
•    Where a superannuation payment is split,          her share of the reduced superannuation whilst
     any payment to the non member spouse              allowing the NMS entitlement to grow at the man-
     (NMS)is taken to be a new ETP (ie eligible        dated escalation rates.
     termination payment which maintains its
     status in the superannuation regime)              A post dated order cannot be used if the interest is
                                                       in the payment phase (otherwise monies would
                                                       have to be recovered from the member).
•    All ETP components are split proportionately
                                                       An alternative to post dated orders is to calculate
     – this is important as some have minimal tax
                                                       the value of the NMS account at separation and
     eg, pre 1983 components or no tax at all –
                                                       then to calculate the escalation amount. The sum
     undeducted contributions.
                                                       of these two amounts would feature in a base order
                                                       at the current date. The advantage of this approach
•    However, the pre 1983 component is not            is that the NMS would know the amount of interest
     transferred to the NMS unless the NMS has         that has been allocated – what is on the table is a
     pre 1983 service. This could be a fruitful        larger sum and sometimes, it is the presentation of
     75(2) argument as the after tax outcome will      the offer that counts!
     be greatly different compared to a 50% split
     of the gross family law value.
                                                       FAMILY COURT NEWS
•    NMS will be assessed against their own rea-       There was a Family Court Forum meeting held on
     sonable benefit limit (RBL). The splitting of     16 November. Greg Burnett attended on behalf of
     the RBL could be financially beneficial to        the Family Law Committee. Matters arising include:
                                                       1.    Registrar Routh is preparing a sample docu-
•    Surcharge liability never applies to a NMS.             ment for filing prior to a conciliation confer-
                                                             ence to assist the profession.
•    There is capital gains tax relief associated
     with a splitting order or agreement. This is      2.    We are again reminded that if a matter has
     mainly relevant to SMSF.                                settled prior to a Conciliation Conference or if
                                                             the conference cannot proceed for any rea-
Breaking News – ComSuper now allow post-                     son, can practitioners kindly inform the Reg-
dated Orders                                                 istrars as soon as possible to avoid them
                                                             needlessly preparing for the conference be-
Practitioners would be aware that ComSuper has               forehand. The same applies to matters listed
only ever accepted orders that have the operative            in the Registrar’s Directions List on Thurs-
date 7 days after the date of the Orders.                    days (at noon). If this continues to be a prob-

               Specialising in Superannuation Valuations for Family Law Purposes
                       Principal - Peter Skinner E:
                         former Deputy Commissioner of Superannuation at ComSuper
W:        M: 0403 222 143          T: 07 3901 7210           F: 07 3901 7241
                                        The Family Way - November 2005

      lem for the Court, the transgressors may               FEDERAL MAGISTRATES’ COURT
      have to front up in the Defaulters’ List.
                                                             Both of the Canberra-based Federal Magistrates
3.    Two of the Court’s Registry staff are now              will be going on circuit in 2006 with FM Brewster
      Justices of the Peace and are able to wit-             doing the Bega and Batemans Bay circuit and FM
      ness documents.                                        Mowbray undertaking the Wagga Wagga circuit.
                                                             The waiting time from filing to hearing remains at
4.    The current time from filing to hearing in             approximately nine months.
      Canberra has fallen dramatically – down                The Federal Magistrates Court is also using the
      from generally 24 months to approximately              National 1300 telephone service.
      35 weeks (nine months).                                Kate Hughes, formerly of the ACT Legal Aid Office
                                                             has been appointed as a Federal Magistrate in
5.    The Family Court has now produced CD                   Melbourne. Our Law Society President, Greg
      ROMs to give to ‘clients’ containing all of the        Walker, will be sending her a letter of congratula-
      Courts’ forms, fees, kits etc. They are avail-         tions on behalf of the members.
      able from the Registry.                                Concerning FMC court vacation - pre 9/1/06 a Fed-
                                                             eral Magistrate will be available to hear urgent
6.    The Canberra Registry is to introduce the              cases. The After Hours Telephone Service will op-
      Children’s Cases Programme (CCP) on 1                  erate throughout the period. From 9/1/06 FM Don-
      March 2006. Training is being planned to               ald and Louise Henderson (who starts next week)
      include the profession – which will probably           will be on duty in the Parramatta registry. Urgent
      be undertaken through the Law Council of               hearings can be arranged via the Canberra Regis-
      Australia’s Family Law Section. It will be co-         try to Parramatta. For further information FM Don-
      ordinated by Simon Kelso (Registry Man-                ald's Associate (Ms Keegan) may be contacted on
      ager) and Justice Le Poer Trench.                      02 9893 5728 and Louise Henderson's Associate
                                                             on 02 9893 57691.
7.    The Family Court is proposing to hold a half-
      day workshop early next year on subpoenae              FAMILY LAW COMMITTEE NEWS
      and evidence. Stand by for further details.
                                                             As advised in the last newsletter, Mr Kym Duggan
8.    The Duty Lawyer scheme is working very                 of the Family Law Branch of the Commonwealth
      well. There have been more than 250 people             Attorney-General’s Department addressed our
      using the service between May and October.             Committee on the proposed changes to the Family
      There was discussion on expanding the                  Law legislation. He has provided us with an excel-
      hours offered to include appointments.                 lent summary which he wrote for the Queensland
                                                             Law Society. Further amendments are expected,
                                                             so this is not a definitive guide at this stage. If any
9.    Finally, commencing in 2006, it is planned             practitioner would like to have an emailed copy,
      that the Subpoena List will commence at                please feel free to contact Sue-Ellen Keir of the
      9.30am, rather than 10am. Only the appli-              Law Society, Kay Barralet or any other member of
      cant (ie the issuer of the subpoena) need be           the Family Law Committee.
      in attendance. Orders will be made in the
      absence of the other party or their represen-          LAW COUNCIL NEWS
      tative. The ‘usual’ Orders will be made to in-
      spect, copy and photocopy material pro-                Denis Farrar is the ACT representative on the Law
      duced. The Court will advise us of the com-            Council’s Family Law Section. This committee
      mencement date.                                        meets at least quarterly and undertakes an enor-
                                                             mous amount of work for the profession at a na-
NATIONAL TELEPHONE NUMBER                                    tional level. One of their roles is lobbying Govern-
                                                             ments and addressing proposed legislation. Denis
Due to a large volume of telephone enquiries from            has reported to our Family Law Committee on the
the public, both Courts have introduced a ‘1300’             following:
National Family Court telephone line. This number
is 1300 352 000. Landline calls will be automati-            1.    Defacto Property matters – all States bar
cally redirected to a Registry close to the caller’s               South Australia have now referred power to
location. Mobile calls will go to the Hobart Registry.             the Commonwealth to legislate in respect of
The ubiquitous national call centre will be operating              the property of defacto partners. NSW, Victo-
from April 2006 and will be based at Parramatta. It                ria and Queensland have legislated and Tas-
will be known as the client enquiry line.                          mania will shortly do so. The Commonwealth
                                                                   will then enact legislation by inclusion in the

                                      The Family Way - November 2005

     Family Law Act. Drafting is underway, but no                tral celebration of the summer solstice holi-
     amendments are expected before mid-2006,                    day as practiced within the most enjoyable
     due to other priorities of the Federal Govern-              traditions of the religious persuasion of your
     ment. The legislation will not apply to same-               choice (but with respect for the religious or
     sex couples. The changes to the legislation                 secular persuasions and/or traditions of oth-
     will mean that the Family Law Act will univer-              ers, or for their choice not to practice reli-
     sally apply to both de jure and defacto part-               gious or secular traditions at all) and further
     nerships. Queries have been raised how-                     for a fiscally successful, personally fulfilling,
     ever. Will the minimum two-year duration rule               and medically-uncomplicated onset of the
     for the length of the relationship still apply?             generally accepted calendar year (including,
     Where is the property located and are there                 but not limited to, the Christian calendar, but
     implications under the previous State laws? If              not without due respect for the calendars of
     Western Australia does not legislate as fully               choice of other cultures). The preceding
     as the other States, how might this affect                  wishes are extended without regard to the
     couples living in that State? These and other               race, creed, colour, age, physical ability, reli-
     weighty matters will need some debate we                    gious faith, choice of computer platform or
     suspect.                                                    sexual preference of the wishee(s).

2.   Child Support changes – there are changes
     afoot here as well. New legislation is being
     considered by the Government based upon
     recommendations made by its Ministerial
     Taskforce. Changes proposed will resulted in           KAY BARRALET
     about 95% of assessments being reduced.                Mazengarb Barralet Family Lawyers
     There is a current article about the proposed          Tel: 6230 0199
     changes in the most recent “Australian Fam-  
     ily Lawyer” journal. It covers lump-sum pay-
     ments, recommended new formula and ac-
     counting for contact times.


Practitioners are reminded that the Federal Magis-
trates Court does not resume operations until 16


1.   Congratulations to Michael James (Trinity
     Law) and his wife Lisa Manzoney (ACT Gov-
     ernment Solicitor) for the happy arrival of
     their new baby boy, Darcy.

2.    Best wishes being sent to Jane Atchison
      (Farrar Gesini & Dunn) and husband Dan on
      the upcoming birth of their first child, due
      early December.

2.    Our best wishes go to Jane Godtschalk and
      Ian Nash of Counsel who tied the knot on 25
      September. We wish them much happiness
      together for the future.

4.   The members of the Family Law Committee
     wish all our colleagues a safe and happy
     Christmas/holiday season and much pros-
     perity for us all in 2006! Or, as pleaded in the
     alternative: Please accept without obligation,
     express or implied, these best wishes for an
     environmentally safe, socially responsible,
     low-stress, non-addictive, and gender- neu-


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