Mll408: Family Law- Bradley Assessment Answer

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Task:

Relationship History

Bradley (‘the husband’) met Tamara (‘the wife’) at university in 1997. They were both studying at medical school however Tamara was on a student exchange from Russia – where she was born and raised. It was love at first sight and they married that same year – 3 months into their relationship. The day after the wedding ceremony they also began living together – before this time the husband was living at home with his parents and Tamara was boarding on-campus.

At the time of marriage the husband did not have any assets. The wife had $11,000 in a savings account. The wedding was a small affair with minimal cost and fuss. Both Tamara and Bradley graduated from medical school in 1998. In 1998, one month after graduating, Tamara secured a nursing internship at a public hospital nearby and was eventually offered a full time position. However, in early 2000 (a year into her employment) she found out she was pregnant and gave birth to their first child – Lily Jones. Lily Jones was born on 1 August 2000. During this time the husband completed his medical internship and in 2005 became a fully registered general practitioner at a private hospital where he still works today – The Melbourne Private Hospital.

Following the birth of Lily the wife did not return back to work. The main reason for this is because they did not have any family who could help with the care of Lily (the wife’s family lived in Russia and the husband’s family lived 1.5 hours away in rural Victoria) and could not afford child care. Further, the parties decided that it was in the best interests of their family if the husband continued to work, while Tamara stayed at home, due to his greater income capacity.

In 2011, Tamara contemplated returning back to work however she had fallen pregnant again. Their second daughter Rosie Jones was born on 1 February 2012. Between 2000 and 2013, the wife did not work. She was the primary carer of their children and also undertook all home-making duties – this included, but was not limited to; the nursing and feeding of the children, taking them to appointments (such as the dentist), she organised the birthday parties, drove Lily to school and other extra-curricular activities (including tennis and piano lessons), she helped Lily with her homework every night, she cooked everyday for the children and husband, she cleaned, shew paid the bills (electricity, internet, insurance etc.), and dealt with all repair and maintenance issues of their home. In doing so, this allowed for the husband to continue working to not only provide for the family but also establish a well-known, highly respected reputation within the medical community – which he did. Since beginning his career in 2005 at The Melbourne Private Hospital, the husband consistently worked an average of 50 hours per week and had an annual income between $150,000 – $200,000.

In January 2014, the wife returned to work on a part-time basis. The wife hired a nanny to take care of the children on Tuesdays and Wednesdays while she was at work. Thus, although she did return to work, she only had 2 x 6 hours shifts p/week and therefore was able to continue as the primary carer and homemaker for the family.

At the beginning of 2015 the husband and wife started experiencing difficulties within their marriage. The wife was extremely frustrated with the number of hours that the husband was working. He had promised her multiple times to cut down on the number of shifts he was doing. It was also at this time she started to express her desire to relocate the family to Russia, on a permanent basis. She missed her family and wanted them to have a stronger relationship with her children. The husband did not entertain this idea – which frustrated the wife. The husband thought the wife was being irrational and this was the cause of a number of arguments. The husband strongly felt that Australia was the best place to raise their c hildren and there was no need to relocate to a foreign country.

Over the course of the year the tension grew, the arguments became more frequent and lasted longer in duration – the parties would go weeks without speaking. The parties separated on 20 December 2015. They were divorced on 17 June 2017. Between 1997 to 2005 the parties rented a small apartment in Strathmore. Between completing their degrees, undertaking their internships and having Lily – times were tough. There were times when they could not afford to buy train tickets to get to work, clothing for Lily or to even pay their rent. Often they would have to ask the husbands  parents for money – his parents were very generous and it is estimated that they gave the parties approx. $50,000 during the marriage. The majority of this money was spent on items for Lily and rent. However, in 2005, when the husband became a fully registered GP and his income increased  substantially, they were able to purchase their first property together, in joint names, for $450,000 (‘the matrimonial home’ at 10 Rose Street, Coburg). The husband’s parent’s gifted them $20,000 and the wife’s parent’s gifted $10,000 toward the purchase price of the home. The rest was borrowed from the ANZ Bank. The husband has always paid the mortgage which is currently $650 per week. The wife continues to live in the home with Lily and Rosie.

Since returning to work in 2014 on a part-time basis, the wife has earnt $220 p/week – she has used her earnings to primarily pay for food for the family. The parties have always fought over money; particularly the wife’s spending. The wife loves designer handbags (her favourite are from Chanel) and watches. Since 2010 she has spent about $37,000 on handbags and $29,000 on watches (she owns 2 x Rolex’s). They have all been purchased using the joint credit card which still has a debt of $16,000 today. The husband’s father very recently passed away and has left him $600,000 and he is not sure if the wife will be entitled to this. He wants to ensure she does not get her hands on his father’s hard earned money. He also thinks the wife has money hidden in a bank account in Russia and knows that prior to getting married she inherited an apartment but does not know if she still owns it as she never discussed it with him.

The current assets are:
– The house: $450,000
– 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)
– The wife’s apartment in the Russia – the husband thinks it is worth $310,000

The liabilities are:
– ANZ Bank mortgage on matrimonial home: $140,000
– The joint credit card: $16,000 (that he has been paying the minimum on and continues to use it)

Action Required
You are a graduate lawyer. A client interview was held between Anthony Pratt (your ‘principal lawyer’) and Bradley Jones (the ‘client’). The client has sought advice regarding a number of children and property issues.

The husband wants Rosie to remain in Australia and wants to ensure that the wife is prevented from removing her out of the country without his permission. He does not want the child to travel internationally until she is 18 years of age – or with his consent. If the wife is to travel overseas then Rosie must stay with him. The husband wants Rosie to live with him and wants sole responsibility. He wants to be responsible for all matters regarding her health, wellbeing and education. He has indicated that he will agree to allow the wife to spend half the school holidays with Rosie.
He has a fractured relationship with Lily but he wants to mend this relationship and wants to spend equal time with her and to see her freely.
In respect of the property the husband wants the matrimonial home placed on the market. He is happy to split the proceeds 50/50 however he wants to keep his superannuation funds and to protect his inheritance. He is also worried that the wife will want him to pay spousal support which he will not agree to.

Your principal lawyer has referred the file to you and has asked that you undertake your own research and prepare a memorandum of advice (intended for in-house use by the principal lawyer only) on the issue of children and property.

This includes discussing, if applicable, and not limited to the following;

matters that are in dispute; the type of application that needs to be filed; any jurisdictional and eligibility requirements that must be met to initiate an application; any steps that the client will need to undertake (eg. pre-action steps and disclosure requirements); costs or time limitations involved; advise on the orders you will seek that are reasonable and realistic; advise on what the Court takes into account with respect to children and property and how the court obtains information if that matter is contested; offer an assessment as to the possible outcomes based on your instructions; the action to be taken; and explain the court process.

Where you feel the client has not provided sufficient information or you require clarification, you can highlight this in your memo.