I do not want to be covered by the new property settlement laws relating to de facto and same sex couples- what can I do?
It is possible for a couple living in de facto relationship to make it clear that they do not want the recent changes to the laws to apply to their relationship.
Couples can make an agreement about how they will distribute their property and maintain each other if their relationship breaks down at some future time. The agreements are called binding financial agreements and can only be entered into after both parties have obtained independent legal advice.
The agreements must be in writing and there must be a certificate from each of the solicitors who provided the advice confirming they explained the law and the advantages and disadvantages of the agreement to the party.
Binding financial agreements can be made before entering into a relationship or during a relationship.
If you have a problem and require the assistance of an experienced and caring family and relationship lawyer, Mullane & Lindsay’s family Law team of Mark Sullivan, Vivien Carty, Ashleigh John and Kristy Davis at can assist you.
The importance in evidence of usual practices
Tony Cavanagh is a principal at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
It is unfortunately the case that in many professional negligence claims, including claims against solicitors, the usual practice of the professional often looms large in determining whether there may have been a breach of retainer or of duty. This is generally because the professional’s file does not contain any, or any adequate, written evidence of the advice given or steps taken which the professional is contending amounted to discharge of the term of retainer or of the duty.
Two relatively recent decisions illustrate how the courts can deal with usual-practice evidence. They show that having a usual practice is not as good as being able to demonstrate that specific advice was actually given, but that, in at least some routine situations, having a usual practice, and being able to establish that practice by objective means, can be very important to a defence.
Elayoubi v Zipser
In Elayoubi v Zipser [2008] NSW CA 335 the court was dealing with a medical negligence claim. An infant suffered oxygen deprivation during birth, resulting in spastic quadriplegia and intellectual disability. The plaintiff’s tutor claimed against both the hospital at which the mother’s previous child had been born (for failure to warn of the consequences of having a further vaginal birth) and against the hospital at which the relevant birth actually occurred.
Property Settlement: What is a de facto relationship?
A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’. It can exist between 2 people of the opposite sex, or between 2 people of the same sex.
All the circumstances of the relationship will determine whether a couple have a de facto relationship.
These include:
- the duration of their relationship
- the nature and extent of their common residence
- whether a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them
- the ownership, use and acquisition of their property
- their degree of mutual commitment to a shared life
- whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
- the care and support of children, and
- the reputation and public aspects of their relationship.
If you have a problem and require the assistance of an experienced Newcastle Family Lawyer’s, Mullane & Lindsay’s family Law team of Mark Sullivan, Vivien Carty, Ashleigh John and Kristy Davis at can assist you.
New Judge for Family Court in Newcastle
On 13 July 2009, Justice Stewart Austin was sworn in as a Family Court Judge, resident in Newcastle. He replaced Justice Graham Mullane who retired in 2008. The Honourable Graham Mullane is now a consultant with our firm.
Mullane & Lindsay’s Family Law Partner Mark Sullivan had the privilege of appearing before the Chief Justice of the Family Court and Justice Austin on behalf of the 2,400 + Members of the National Family Law Section of the Law Council of Australia to welcome Justice Stewart Austin to the Bench of the Family Court.
In his address Mark said it was a credit both to Justice Austin and to the Attorney General that his appointment has been so warmly received by the legal profession and is regarded widely as a quality choice.
“Today is a day for optimism, for His Honour and for all those associated with the Family Court in Newcastle…We applaud the Family Court and the Attorney General’s commitment of judicial resources to the Newcastle Registry and the timely baton change. We look forward to His Honour hitting the ground and running. We wish His Honour every success in his new role.”
Industrial Relations Reforms – The Workplace Relations Bill
The area of workplace relations and employment law is set to experience some important changes if the Rudd government’s Workplace Relations Bill becomes law as anticipated from 1 July 2009. Much will depend on the final “shape” of the new legislation, but it is presently anticipated some of the changes will include the following:
- At present, there is no right to claim unfair dismissal under Federal law if the employer has 100 or more employees. The Bill proposes to restore unfair dismissal rights to all employees who are subject to Federal law.
- If the employer has 15 or less employees, the Bill proposes that an unfair dismissal claim can be made if the dismissed worker had been employed for 12 months or more. If the employer has more than 15 employees, the relevant period will only be 6 months.
- Under the present law, even employers with more than 100 workers could generally oppose unfair dismissal claims on the basis that the dismissal was for “genuine operational reasons”. The new law is expected to still include a “genuine operational reasons” defence; but the Bill proposes that the criteria will change. This may become particularly relevant if employment is terminated due to redundancy – the fairness of the redundancy process is likely to be one of the factors forming part of the “genuine operational reasons” test.
Family Relationship Services
The Federal Government has announced that it will invest more than $100 million over the next two years to assist families deal with relationship difficulties.
The funding will support early intervention services including counselling, skills training and mediation, as well as post-separation services including family and couples counselling, specialised family violence services, dispute mediation and parenting support. These services will be delivered through 60 Early Intervention Services, 40 Family Relationship Centres and 30 Post Separation Services around Australia.
The Newcastle Family Law Team at Mullane & Lindsay is well positioned and trained to assist families on the breakdown of their relationships:
- The Honourable Graham Mullane, a former Judge of the Family Court is a consultant to the firm.
- Mark Sullivan and Vivien Carty are Law Society Accredited Specialists in Family Law and between them have more than 50 years experience acting for clients in family law related matters.
- Mark Sullivan is on the Family Law Section of the Law Council’s Country Committee.
- Vivien Carty is on the panel of Independent Children Lawyers and acts in this capacity in the most intractable of residence and contact cases.
- Ashleigh John is a committee member of the Hunter Valley Family Law Practitioners Association and a committee member to the Newcastle Gateways Project which co-ordinates family relationship services and organisations in the greater Newcastle region.
- Kristy Davis has practised in the area of family law for more than 5 years.
If you have a problem and require the assistance of an experienced and caring family and relationship lawyer we can assist you. We are available for consultations at our Tea Gardens office each Monday, Wednesday (by appointment with a family lawyer) and Friday between 2:00 pm and 5:00 pm at 191 Myall Street Tea Gardens or at our Newcastle office at any other time during business hours (T: 4928 7300).
Making the process easier for adoption
The process for adopting children has become a little less onerous under recent amendments to the Adoption Act in New South Wales.
The length of time a child has to live with adoptive parents before an application for adoption can be made has been reduced.
The length of time a child has to live with a step parent has decreased from three years to two years, and the time a child has to live with a relative has decreased from five years to two years.
The legislation has also made amendments in favour of couples wishing to adopt children, who now need only to have lived together as a couple for a continuous period of two years, as opposed to the previous requirement of three years.
Adoptive parents still need to comply with age and jurisdictional requirements under the Adoption Act, before an Application can be made to adopt a child.
Ashleigh John is a member of Mullane & Lindsay’s Family and Relationship Law team.
If you require any further information regarding adoption or any other family and relationship law matter, please contact Ashleigh or any of the Mullane Lindsay Family Law team, Mark Sullivan, Vivien Carty or Kristy Davis. Kristy Davis is present at our Tea Gardens office on Wednesday afternoons by appointment. (Tel: 4928 7300).
Risks for Employers in Contracting Relationships
Over the last 10 – 15 years, many employers took steps to get employees “off the books” by engaging labour through contractor relationships rather than employment relationships. In at least some cases, employers “converted” employees into contractors. In the transport industry for example, many employed truck drivers were required to establish their own company and obtain their own insurances; and then contract back to the “employer” to provide essentially the same services as when they were employees.
Employers who may wish to adopt similar practices today may be liable to prosecution. The Workplace Relations Act (1996) (Clth) was amended with effect from 1 March 2007 to incorporate provisions relating to “sham” contracting arrangements.
The new provisions are relatively complex, and cannot be dealt with in detail in an article of this nature. Employers should however be aware, in general terms, that they are liable to prosecution if they enter a sham contracting arrangement and that the new provision is drafted in such a way that the employer has the onus of proving they were not in breach of the new law (rather than the traditional position, in which a prosecutor bears the onus of proving that an offence occurred).
The penalties for breach of the new provision are up to $33,000.00 where the employer is a company, so the exposure of employers could be substantial – particularly in the case of a major workplace restructuring that affects a number of workers.