Memorandum of Advice: Family Law Issues of Bradley's Family - 2018

This memorandum of advice provides a legal analysis of Bradley's family law issues, focusing on child custody, property division, and spousal support within the context of the Australian Family Law Act 1975. The memorandum addresses the specific concerns of Bradley, including his desire for full custody of his daughter Rosie, preventing his wife from removing Rosie from the country, protecting his inheritance, and avoiding spousal support payments. It examines the relevant legal principles concerning parental responsibility, spousal maintenance, and property adjustment, outlining the factors the court considers when making decisions. The analysis emphasizes the importance of the child's welfare, financial contributions of each party, and the court's discretionary powers to ensure just and equitable outcomes in family law disputes. The memorandum also discusses the steps involved in property division, including asset identification, valuation, and consideration of future needs.

Family Law Memorandum of Advice 1
Family Law Memorandum of Advice
Student by (Name)
Professor’s (Name)
College
Course
Date

Family Law Memorandum of Advice 2
MEMORANDUM OF ADVICE
TO: ANTHONY PRATT (PRINCIPAL LAWYER)
FROM: A GRADUATE LAWYER
DATE: 4TH MAY, 2018
CASE NO:
RE: LEGAL ADVICE ON THE ISSUE OF CHILDREN AND PROPERTY OF BRADLEY'S
FAMILY.

Family Law Memorandum of Advice 3
INTRODUCTION
Sometimes if you can't fix it, you have to let go, is my precise and explicit anecdote for
this particular case. No human being is perfect and so do the relationship and the marriages we
engage into. Marriage can be the hardest stage in someone’s life because, without peace and
understanding between the couples it can't prevail, it is premised on love and happiness, but on
the way, and this may not reflect when the partners move along. It is sometimes full of
frustrations and irrationality but all the same, it can still be called marriage perhaps, because of
the dynamics and the complexities associated with the case.1 Now, basing my arguments on
Bradley’s family issues of children and property, I want to categorically point out that the
breakdown of a marriage or de facto (inclusive of the same sex) relationships can generate
various matters or issues which may need some critical attention and resolution. Some of these
issues may be and not limited to: divorce, property adjustment, spousal maintenance, child
support, parenting arrangements and adult child maintenance. Regarding the Australian Family
Law, all of these matters except child support fall under the Family Law Act (FLA) 19752. It is
federal legislation that works in all states and territories.3 The jurisdiction is enforced by the
1Rachel Birnbaum, BalaNicholas and Bertrand Lorne, "The rise of self-representation in Canada's family courts: The
complex picture revealed in surveys of judges, lawyers and litigants." Can. B. Rev. 91 (2012): 67.
2Renata Alexander, Domestic violence in Australia: The legal response. Federation Press, 2002.
3Renata Alexander, "Family violence in parenting cases in Australia under the family law act 1975 (Cth): The
journey so far–where are we now and are we there yet?." International Journal of Law, Policy and the Family 29.3
(2015): 313-340.

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Family Court of Australia and the Federal Magistrates Court. But some parts like Western
Australia has its individual Family Court but applies federal legislation in on matters about the
mentioned ones.4 Bradley’s family is riddled by a number of these issues that I wish to address in
the following discussions.
QUESTION PRESENTED
Matters that are in dispute in Bradley’s family
Bradley was served with a legal order preventing him from living in his matrimonial house with
his family, who were name as the protected members because his wife claimed that he was
physically violent to them. The law states that if a partner is physically violent to their family,
then he/she is given a court order to prevent them from getting near their family. Bradley wants
her little child Rosie to remain in Australia and prevent his wife from moving her out of the
country with his consent. Clause 40 part 1 states that both parents have the custody of their
children who are less than 18 years, so Bradley claims that the wife cannot take Rosie out of the
country without the approval of Bradley. He also want to have a full custody of Rosie and mend
his relationship with Lily as well as spend more time with her. The family law act clearly
outlines that at the time of separation between couples, both parties are entitled to be joint
custodians of their kids who are below the age of 18. If either of the parents wants the full
custody of their child, they must apply for an order in the court for the custody of the child. In
that case, the law must investigate the welfare of the child and in that case, the wishes of the
4Nola Webb and MoloneyLawrie, "Child-focused development programs for family dispute professionals: Recent
steps in the evolution of family dispute resolution strategies in Australia." Journal of Family Studies 9.1 (2003): 23-
36.

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child are taken into account. If Bradley wants the full custody of Rosie, then he must apply for an
order of custody before he is entitled as the full guardian of Rosie. He wants to sell his
matrimonial home, protect his inheritance and prevent his wife from demanding for spousal
support. The clause 51 of family law act demands that a partner should support the other partner
so long as they are in a position to do so or if the other partner is not able to support themselves
adequately or if they are not in a position to secure permanent employment. In accordance to
Bradley’s case, he is in a position to support his wife, but his wife on the other hand is able to
support herself financially, so Bradley will not be forced by the law to support her if he is not
willing. But the court should use all the legal grounds regarding this matter their jurisdiction so
that both parties are served justice and fairness.
FACTS
The type of application that needs to be filled
I strongly believe that provisions of the family law act are important in this particular case. The
family law act demands that both parties should take part in their parental responsibilities about
children, shared property and spousal support in case of divorce.
Parental responsibility
In reference to the case of Bradley, he wanted to be the full custodian. It is a legal requirement
that the spouses should share an equal responsibility to their children. The law requires that any
partner who wishes to take the full responsibility of a child must fill an order for guardianship.
He/she must also be financially stable enough to be able to support the child. Bradley would
have been forced by the law to fill the guardianship order which must fulfill the following
requirements:

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1. The welfare of the child is taken into account. In that case, the court should have
considered if Rosie was safe to live with her father or not.
2. The child’s wishes should also be considered. Rosie would only live with her father only
if she was willing.
3. A child’s wishes are only neglected only if he/she is less than 14 years or if the prevailing
circumstances force demand so.
The court demands that the children’s guardians should take care of them irrespective of their
status, whether they are divorced or remarried. The guardian can only support the child until
he/she attains the age of 18 where the child has freedom of choice. However these parental
responsibilities may still be extended if the child mentally handicapped. In Bradley’s case, he
wanted to protect the child and prevent her mother from taking her out of Australia before she is
18. However, the child would have been in a better condition, if he/she is being taken care of by
the both parents.
When the court is giving orders concerning the child, it must take into consideration the welfare
of the kids and ensure that orders are at the best of their advantage.
1. Guaranteeing that the kids get parental support from both parents
2. Protecting the kids from being mistreated or hurt physically, psychologically, or
emotionally.
3. Giving the kids the advantage of having both parents. Though Bradley wanted to live
with Rosie, it was important that she gets parental support from both parents.
Spousal Support

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In marriage or a de facto relationship each party or spouse is obliged to help maintain the
other party in the event that; one party is unable or cannot support and maintain herself or
himself adequately and subsequently if one party has the capability of contributing and
maintaining the wants of the party in need of the assistance. However, in assessing the capacity
of a party whether he or she can support himself or herself, the Court has the legal ground to
disregard income-tested pension to which that individual may having. If Court will exercise its
jurisdiction they must consider menu factors highlighted in the Act encompassing the following:
i. The age and condition of the wellbeing of every one of the parties;
ii. Their particular salary, property, and monetary assets;
iii. Their ability for suitable beneficial business;
iv. An obligation for the care and support of any children or different people;
v. The degree to which one party may have added to the income, earning
capability, property or money related assets of the other parent;
vi. The duration of themarriage or relationship and its effect on the procuring
limit of each party;
vii. A way of life for each party which is sensible in the conditions.
viii. If either party is living together with someone else, the money related
conditions of that cohabitation.
ix. The qualification of either party for an annuity, remittance or advantage.
x. The superannuation privileges of either party.

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xi. The need to ensure a party who wishes to proceed with the part of the
parent.
xii. Liability for child maintenance and support.
xiii. The impact of any request on the earning limit of a party.
xiv. Any other certainty or situation which the equity of the case requires to be
taken into account.
For this particular case, the client (Bradley) should be served by the Court by the
preempted legal aspects regarding spousal support, in the event Tamara the wife applies or
petitions the Court for spousal maintenance. In which case, the Court is obliged to make a
determination or jurisdiction based on the mentioned legal aspects. In my view, the wife is likely
to petition the Court on this matter because she has some leverages including the children and the
properties they share.
Property Adjustment
Australia has got a discretionary regime for the matters about the division of properties
on the broken marriages. The law that equally extends to the breakdown of de facto
engagements, including matters about the same-sex relationships.5 Here the jurisdictional
consideration and eligibility include the qualifying period of the relationship which is supposed
to be at least two years, the presence of children in that relationship, the period or time of
separation and certain demographical factors. The Court has the capacity and general powers to
go against the interest of parties in their property and to make such decisions and orders as it
5 Cook, Kay, and Kristin Natalier, "Gender and evidence in family law reform: A case study of quantification and
anecdote in framing and legitimising the ‘problems’ with child support

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regarded appropriate.6 The discretion is limited and restricted only by the requirement that any
single order must reflect or must be premised on justice and equity in particular occasions of the
case. In consideration of what orders to make in the case of Bradley’s application, the Court
should adhere to the following:
i. The ratio of contribution by each party in acquiring, conserving or
improving the property. These contributions can sometimes be made either financially or
non-financially, directly or indirectly, or made by a single party or on behalf of a party.7
ii. Contributions concerning the welfare of the family made up of the parties
and all children including all those made in respect of the homemaker or parent. They do
not qualify to be tied to any particular assets and to be seen regarding substantial but
rather not token.
iii. The impact of any proposed order on the salary or the earning capacity of
the parties.
iv. The matters set out about the determination of the maintenance to the
extent that they help to the property division.
v. Any liability either party may possess for the child support.
The property division is a quadruple step that calls for the Court to: identify and establish
the value of all the assets in question and resources and quantify the liabilities of either party
6 Bridge, Jane, et al, A practical approach to family law. OUP Oxford, 2012.
7 AUSTRALIA. (2007). Annual report. Canberra, Commonwealth Govt. Printer.

Family Law Memorandum of Advice 10
regardless of whose name they bear and their geographical location.8 Each party has got an ideal
mandate to give full, explicit and frank disclosure of all data or information concerning their
financial aspects to the other party in the presence of the Court. Similarly, the assets should be
liquidated (the value determined) to assess the contribution of each party.9 The Court has to
consider the financial resources, avenues and the future requirements of every individual party
and any that matters in relation with justice and equity, to ascertain whether any excess
contribution or adjustment is needed in favor of either party basing on the same menu factors.
10Finally, the Court has to reflect back and evaluate or examine whether the orders proposed
should be served by the contributions and the requirements of the parties are just and equitable in
all circumstances.11 Another additional step considers whether either party capable of receiving
the spousal maintenance may be needed if the property division does not enable a party to take
care of themselves adequately. The property in question is according to the client is the following
assets, upon which the Court shall serve an order based on legal steps preempted.
- The matrimonial house: $ 450,000
8 UNIVERSITY OF ALBERTA. (2008). Family law administration: court services. Edmonton, the Institute,
University of Alberta.
9 Samia Bano, Gender and justice in family law disputes: women, mediation, and religious arbitration. Brandeis
University Press, 2017.
10 Jane Bridge et al. A practical approach to family law. OUP Oxford, 2012.
11 Greg Mantle et al, "Whose wishes and feelings? Children’s autonomy and parental influence in family court
enquiries." British Journal of Social Work 37.5 (2006): 785-805.

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- His superannuation with HESTA: $340,000 (last he looked)
- Her superannuation with MAP: $3,500
- His Mercedes Benz C63 2013: worth $75,000 (purchased brand new by
the husband in 2013)
- Her BMW 1 Series 2008: worth $7,000 (purchased brand new by the husband in
2008)
If the client maybe was applying for a divorce, then all of these are suppose to be
addressed as part of the divorce, and once it is completed, there is no turning back in the future.
For this matter it very important for the client to be legally advised before signing of any
document that may bring controversies in the future.12 Because once the process is finalized for
instance the divorce the client if he signed any document in favor of his ex-spouse then actually
he may probably not be able to reverse it in future.13 Supposing the client was not divorcing but
rather looking to divide common law property then in case of any mistake in signing the
documents then still he can pursue the matter at the Supreme Court (Family Division) nearest
him.
Legal Advice to the Client
12 Stephen Livingstone et al, Prison law. Oxford University Press on Demand, 2008.
13 Kay Cook and Natalier Kristin, "Gender and evidence in family law reform: A case study of quantification and
anecdote in framing and legitimising the ‘problems’ with child support in Australia." Feminist Legal Studies 24.2
(2016): 147-167.

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Bradley should first of all look for legitimate guidance before choosing what to do next in
his current situation. A legal advisor or a lawyer can enable him to comprehend his lawful rights
and duties, and clarify how the law applies to his case. A legal counselor can likewise enable him
to achieve a common understanding with the other party- the wife Tamara without going to
court. He can look for legitimate counsel from a lawful guide office, community legal aid center
or private law office. Court staff can help him with inquiries concerning court frames and the
court procedure, yet can't give him lawful advice. Maybe if all these processes and procedures
are unlikely to yield much for the client, the Court will settle the dispute by trying to adhere to
the entire legal framework necessary for this particular case, and ultimately justice and equity
will be served to the client.
DISCUSSION AND ANALYSIS OF FACTS
How the Court obtains Information if this particular matter regarding Bradley’s
family Matter is contested
Basing on Bradley's case, the Court may obtain the information they will rely on in dispensing
their jurisprudence through; The Family Law Act 1975 (the Act) that will expect Bradley to get a
certificate from an enrolled family dispute resolution specialist before he records an application
for a request in connection to a child under Part VII of the Act.14 Part VII of the Act covers
applications for a few distinct kinds of requests identifying with children. The most widely
recognized are applications for child parenting orders; that is, an application requesting that a
court make orders about the parenting arrangements of the child (Rosie and Lily in Bradley's
14GeraldKoocher and Keith-Spiegel Patricia, Children, ethics, and the law: Professional issues and cases. Lincoln
Nebraska: University of Nebraska Press, 1990.