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Cracking the Egg

We work all our lives to create a nest-egg that will hopefully sustain us comfortably in our retirement, and in this day and age most of us jealously consider our superannuation investments to be our own precious, private nest-egg. To some extent it’s true. Superannuation funds are held in trust, and therefore they can’t generally be attacked by creditors, even a bankruptcy situation. But that doesn’t mean they are unassailable.

Many of my Family Law clients facing matrimonial property settlements wrongly assume their superannuation is locked away and can’t be carved up as part of the property settlement. I’m afraid it’s just not true. In the event of a relationship breakdown, all assets owned by both parties, including money held in super, must be identified and valued as part of the joint property pool, to be divided up between the parties, regardless of when it was acquired.

For the purposes of a property settlement, spouses have the option of taking their respective superannuation entitlements into account in the property settlement, by leaving them untouched and accounting to their spouse for their value from other assets, or alternatively by splitting the superannuation interest via a ‘payment split’. The most appropriate option will depend on the particular circumstances of each case. If it is convenient to make use of a payment split to effect property settlement then the superannuation of one spouse will be split so as to transfer part of that spouse’s superannuation into a superannuation fund in the name of the other spouse.

Before assessing whether or not you will be required to share your superannuation with your spouse for the purposes of a property settlement, it is essential to identify the nature and type of the superannuation interest you have, and its value. Once this is done, you are able to examine the effect of any proposed settlement and the likely consequences of any superannuation split, and decide whether or not it is in your best interest to make a payment split.

Either way, when you come to the property settlement table in Family Law proceedings, inevitably the whole nest egg will certainly be cracked.

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Netflix

Scary Stories

This summer many of us became budding couch detectives and expert criminologists, all from the air-conditioned comfort of our very own lounge-rooms, as we sat glued to the TV screen and on the edge of our seats, watching the rivetting Netflix series Making a Murderer. Without giving away too much for those who haven’t finished the series, Making a Murderer is a documentary treatment of the true crime story of Steven Avery, a man convicted of sexual assault and attempted murder, and then exonerated and freed from prison after serving 18 years for the crime. But the story doesn’t end there, and – SPOILER ALERT – the next shocking turn of events has left many people stunned and outraged over the terrifyingly capricious and sometimes sinister workings of the American legal system, leaving many scratching their heads and asking ‘could what happened to Stephen Avery happen here in Australia?’

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The short answer is yes, of course it can and does happen in our very own backyard. We don’t have to look any further than the infamous Lindy Chamberlain case to dispel any doubt of that. After nine-week-old baby Azaria Chamberlain disappeared during a family camping trip to Uluru in 1980, her distraught parents Lindy and Michael Chamberlain maintained they saw a dingo leave the tent where their baby daughter had been sleeping on the night she disappeared. When police found what they thought was baby’s blood in the Chamberlains’ family car, Lindy was accused and convicted of killing her child. She spent three years in prison for the crime before her conviction was overturned after it was found the so-called “baby’s blood” was actually car battery fluid. Eight years after the child’s disappearance investigators eventually uncovered new evidence that unequivocally confirmed the Chamberlains’ original story. Finally, in 2012, a new coronial inquiry confirmed a dingo had indeed taken baby Azaria from the campsite in 1980, and had caused her death.

The producers of the series Making a Murderer have been criticised for leaving out key pieces of evidence from the trial to sway viewers’ perception. Maybe so, but they have certainly raised some very compelling questions about the American criminal justice system. If the story they told is even half true the Steven Avery case calls into consideration just about every scary agent for wrongful conviction one could imagine, from junk science, incompetence, and ham-fisted investigative techniques, to downright down-and-dirty double-dealing, and it could sound some timely and important warnings for Australian authorities. The truth is wrongful convictions do occur, and not just in America.

Whether or not Steven Avery is an innocent man is still an open question, but his new lawyer claims his defence team is on the cusp of what will be an exciting new development. A second series perhaps? Only time will tell.

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About the author: Natasha Murakami
A fourth-generation Gold Coaster, Natasha completed a Bachelor of Business degree (Majoring in Management) in 2009 at the Gold Coast campus of Griffith University, before obtaining her Bachelor of Laws degree from the same university in 2013. Since early 2012 Natasha has been a part of the Nyst Legal team, working principally as Chris Nyst’s offsider in family and criminal law. Since her admission to practise as a solicitor of the Supreme Court of Queensland Natasha has conducted a vast range of matters in all Queensland courts, and in the Local, District and Supreme Courts of New South Wales.

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Dog and Child

Dogs and small children

The old show business adage warns you should never work with animals or children. They’re unruly, unpredictable, and way too cute, and in the end they’re always going to steal the show. It’s a pearl of wisdom usually attributed to the curmudgeonly actor-comedian W C Fields, of whom writer Leo Rosten once quipped “Any man who hates dogs and small children can’t be all bad.”

But WC Fields didn’t hate children. After all, he was once one himself. Born William Claude Dukenfield in 1880, he quit school after the fourth grade to work with his alcoholic father selling vegetables from a horse cart. At the age of eleven he ran away from home, living in a hole in the ground and surviving on stolen food scraps before snagging his first job, delivering ice door-to-door. At age thirteen he went into Vaudeville, working fairs and amusement parks across the country as a juggler and comedian, dragging himself up by his bootlaces.

Ten years later Fields was performing at Buckingham Palace and starring at the Folies-Bergere in Paris. He went on to appear in forty-five motion pictures between 1915 and 1944, and became one of Hollywood’s highest-paid entertainers.

So Fields knew show business, and he knew something about life as well. And he knew the inherent danger of working with cute kids.

I was reminded of the great WC Fields’ facetious adage when I recently advised an educational facility regarding the uncorroborated complaint of one of its young students about one of its staff members. The incident had allegedly occurred openly in front of a group of fellow students, none of whom provided any useful support for the complaint, but likewise there was no adult present to support the staff-member’s adamant denial of misconduct.

The kid was cute, like all kids, and like most kids these days, knew all his rights. The staff member was predictably outraged over the attack on his character, and clearly terrified when his Blue Card was promptly cancelled, whereupon he was stood down from normal duties pending determination of the allegation.

We lawyers often talk about the presumption of innocence in favour of an accused person, but in reality the recent shocking revelations of gross institutional misconduct perpetrated by successive generations of clergymen, educators, carers and others in authority, has skewed that presumption, in fact if not in law, in favour of the juvenile complainant. It was one word against the other, but not surprisingly, despite some healthy skepticism about the boy’s complaint no one was inclined to take any chances. The matter was referred to the police, an investigation ensued, and ultimately a criminal charge was laid.

Twelve months later, after a great deal of heartache and expense, the charge was thrown out of court.

Thankfully, in this day and age most children are made well aware of the power they rightfully hold to bring adults to account. But of course that welcome development brings its own danger of abuse. So how does one advise anyone to safeguard against that possibility? Unfortunately there is no easy answer.

But I have to think there’s little doubt what guidance WC Fields would have proffered.

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About the Author: Chris Nyst
Chris is one of Australia’s best known and most experienced lawyers. He co-founded the prestigious Griffith University Innocence Project, is an adjunct professor of law and a regular guest lecturer and speaker on corporate regulation, criminal law and advocacy. He is also an award-winning novelist and filmmaker, and former director of Screen Queensland.

Read more from Chris on the Nyst Legal blog