Changing a Child’s Name

Posted on April 3rd, 2019

Some relationships come, and go. Children might have multiple siblings to different fathers and/or mothers, and it is not uncommon for a change to a child’s surname to be contemplated.  There can be valid arguments for and against such a change, and in the context of blended families, such matters frequently require determination by Judges in the family courts.

An order to change a child’s name is a parenting order and therefore must only be made in the child’s best interests, after taking into account considerations in Section 60CC of the Family Law Act.   Over the years, cases have also distilled a number of practical factors to be considered when considering the merits of a change.  These include: Read the rest of this entry »

Separation in the age of the internet

Posted on March 27th, 2019

We undoubtedly live in a digital age. We bank and shop online and we download music, movies and television. Email and text message are prominent forms of communication.

We also socialise online. With so many people sharing so much on sites like Facebook and Twitter, it can be easy to forget that these sites are not private – they are in the public domain. And in increasing number the internet, and in particular Facebook, is implicated in the breakdown of marriages and relationships. Read the rest of this entry »

Additional support for families to recover financially after separation

Posted on March 11th, 2019

On 20 November 2018, the Australian Government announced a package of measures to improve women’s economic security – the Women’s Economic Security Package (WESP).

The WESP includes $98.4 million in new funding for family law services and initiatives, to commence in the 2019-2020 financial year.   The measures have been announced as specifically supporting women and their families, but should benefit families generally, and include: Read the rest of this entry »

New statistics on marriage and divorce

Posted on February 28th, 2019

We are all touched in some way by relationships, starting and ending.  On 27 November 2018 the released the following statistics, which are of interest:

  • A total of 3,149 same-sex weddings were held in Australia between 9 December 2017, when amendments to the Marriage Act 1961 came into effect, and 30 June 2018.
  • The median age at marriage for male same-sex couples as at 30 June 2018 was 48.5 years of age, compared to 39.0 years of age for female same-sex couples.
  • There were 112,954 marriages registered in Australia in 2017, a 4.7% (5,447) decrease on marriages registered in 2016.  Whilst the number of registered marriages has slowly declined over time, the number of de facto relationships voluntarily registered is growing on an annual basis. There were 14,626 relationships registered in 2017, over double the number registered only 5 years ago in 2013 (7,281).  It is not possible to register de facto relationships in Northern Territory or Western Australia.

Read the rest of this entry »

Making the rules the same for everyone

Posted on February 20th, 2019

When parties to a marriage or a de facto relationship want Court Orders to divide their property, time limits apply as to when they can bring an application.  A party to a marriage has 12 months from the date of their divorce (not separation) to ask the Court for Orders; and a party to a de facto relationship has 2 years from the date that they separate.  On the application of one party, the Court can give permission to extend this time limit in certain circumstances. Read the rest of this entry »

If you need to flee – ending a lease when there is domestic violence

Posted on February 14th, 2019

The Government recently passed a Bill amending the Residential Tenancies Act to provide some assistance to tenants who need to escape a domestic violence situation.

Those tenants will need to give their landlord/agent (and any co-tenant) a Domestic Violence Termination Notice and attach either a:

    • Certificate of conviction for the DV offence;
    • Family Law injunction;
    • Provisional, interim or final DV Order; or
    • Declaration made by a medical practitioner (form prescribed).

Read the rest of this entry »

Busting some Family Law misconceptions

Posted on February 5th, 2019

The emotional side of ending a relationship can leave those involved completely unprepared for financial separation – often not helped by some notions that float around (well-intentioned) back-yard barbeque and water-cooler conversations.

Property held by one person at separation is theirs
Under the Family Law Act 1975 all assets and liabilities go into the “asset pool” – they don’t have to be in joint names. This can include an interest in assets owned with another person and an interest in assets held by a Trust. Read the rest of this entry »

Am I in a de facto relationship? Part 2

Posted on January 31st, 2019

Section 4AA(2) of the Family Law Act lists factors to be considered in the determination of whether or not a couple are or have been living together on a genuine domestic basis. These factors can be any, or all, of the following:

  • the duration of the 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
  • the degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
  • the care and support of children
  • the reputation and public aspects of the relationship.

Read the rest of this entry »

Am I in a de facto relationship? Part 1

Posted on January 23rd, 2019

Am i in a de facto relationship - part 1People often seek an answer to this question because it has a financial impact on them. Family courts have jurisdiction to make orders in respect to maintenance and property settlement between persons living in de facto relationships if they are satisfied that there is a de facto relationship, and the total of the periods of that relationship are at least 2 years; or that there is a child of the de facto relationship; or that the claimant has made direct or indirect financial and/or non-financial and/or homemaking  contributions to their property and a failure to make an order would result in serious injustice to the claimant.

You cannot be in a de facto relationship with another person if you are married to that person, or if you are the child or adopted child or descendant of the other person; or you have a parent in common, who may be an adoptive parent of either or both of you.   Read the rest of this entry »

Exceptions to the rule – Who’s listening?

Posted on January 17th, 2019

Exceptions to the rule - who's listening?S 7(1) of the Surveillance Devices Act 2007 (NSW) sets out a general prohibition to a person using a listening device to record a private conversation to which the person is a party. Section 7(3) of the Surveillance Devices Act sets out exceptions to the operation of s 7(1), so that the general prohibition does not apply on particular conditions.

In a recent case, a mother’s lawyers sought to have a recording admitted as evidence and relied on one of the exceptions.  They argued the mother was a principal party to a conversation and consented to the listening device recording the conversation because it was reasonably necessary for the protection of her lawful interests. The reason for the material was that it was evidence of family violence in circumstances where the father denied such family violence, and where family violence often occurs largely behind closed doors and in this particular instance, on an isolated property. Read the rest of this entry »

My Health Record: Are your children at risk?

Posted on January 14th, 2019

My Health Record: Are your children at risk?

In 2012 the Australian Government commenced a digital health record system known as My Health Record.  In May 2017, the Government announced that the system would transition into an ‘opt-out’ basis, rather than ‘opt-in’ due to a lack of uptake.  This means that unless they opt out by 31 January 2019, every Australian (including children) now has a My Health Record. This includes your health information such as healthcare providers you have seen, treatments you have received, and medicines you have been prescribed. Read the rest of this entry »

Issues with Expert Evidence

Posted on November 9th, 2018

Issues with Expert EvidenceMany cases before the courts involve expert reports – such as medical evidence in personal injury cases; accounting evidence in loss of profit cases; and valuation evidence in property cases. However as a 2016 Supreme Court case shows, unless the report demonstrates that the expert has relevant expertise; and expresses the opinion in a way that allows a court to understand how the opinion was reached, it may be rejected as evidence.

The particular case was a complex fire/arson dispute relating to a fire at a property at Mosman in Sydney. At the time of the fire, significant extensions/renovations were underway. The insurer declined the claim on the basis that the property owner had set, or colluded in setting, the fire and had made misrepresentations in relation to his insurance claim. Read the rest of this entry »

Loans to Children – Don’t be Vague

Posted on October 25th, 2018

Loans to Children – Don't be VagueWhen making loans to children, you will probably be nagged by conflicting emotions and truisms.  Should I document the loan for clarity? But they look so happy together and can use it more now than after I die. I worked hard to earn that money; what if there’s another GFC and I need to be repaid?   It’s all peace now, but should I prepare for war? Will a stitch in time save 9?

I cannot over emphasise the need for clarity and documentation when making loans to children.  If it is a loan, it needs to be documented and shown that there is an intention to create legal relations.  The loan document should record the amount(s) being advanced; the interest rate, if any; the term of the loan; and when it must be repaid. If it is a large enough amount and you want security, then you should insist on a registered mortgage.  Speak about the “elephant in the room” with your child’s partner/spouse, as awkward and difficult as that might be.  It is a loan to your child and it will need to be repaid. Read the rest of this entry »

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court

Posted on September 21st, 2018

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court In the week that Australia was changing prime ministers, significant changes were being introduced for consideration in relation to the proposed restructure of the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA) –  the courts that resolve family and relationships disputes.

On 23 August 2018 the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 were introduced to the House of Representatives. Read the rest of this entry »

Things to tell your Family Law lawyer in the first consultation

Posted on August 29th, 2018

Top 8 things to tell your Family Law lawyer in the first consultationI understand that no one likes to air their dirty laundry to a lawyer they have just met. But, in the context of Family Law there are three important things to bear in mind:

  • You cannot change your past. It is important to be honest about the past if it is relevant to the outcome;
  • If I am going to provide you with sound legal advice, it is vitally important that I know about all the skeletons hidden away in your closet. This is especially true in Family Law, when every seemingly forgotten fact from your past could be important in determining the matter – or in a bad case, could be used by the other side to build a case against you; and
  • I take the duty of confidentiality that I owe you very seriously. Without your express consent I cannot reveal the information you to tell me.

Read the rest of this entry »

The three questions kids are thinking about separation and divorce

Posted on July 9th, 2018

The three questions kids are thinking about separation and divorceRecently the Australian Institute of Family Studies released their Report “Children and young people in separated families: Family Law system experiences and needs”. The report involved interviews with 61 children aged between 10 and 17 years from 47 families in Victoria, New South Wales, Queensland and South Australia.

In summary, the recommendation from the Report is to “give children a bigger voice more of the time”.

From the comments the children made in the interviews, and from what my clients have told me over the years, children involved in Family Law disputes tend to ask the same kinds of tough, wrenching questions about separation and divorce. Read the rest of this entry »

If the husband was the puppet master, who was the puppet?

Posted on July 3rd, 2018

If the husband was the puppet master, who was the puppet?In a recent Family Law Full Court case, it was not in dispute that the husband exercised control over his 99 year old father’s unit trust (UT) including directing agents on behalf of the UT, using the UT’s assets as security for his own personal borrowings; intermingling his funds with the funds of UT and, since 2002, treating the UT as if it was his own.   It was the expectation of his estranged wife therefore that the assets of the UT should be included in the assets to be adjusted between the parties on settlement because the father’s UT was simply a puppet for the husband.

The Full Court and the trial Judge however disagreed and found, that whilst the father remained the owner of the UT, he was not a puppet of his son.  The husband had some “lawful right to benefit from the assets of the trust” and controlled some of the dealings of the UT, but they were not satisfied that the UT was a device used by him for his sole benefit. Read the rest of this entry »

Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Seeing a parent or a social event: which one prevails?

Posted on February 21st, 2018

As children get older their priorities change, and friends and social groups become increasingly significant to them. This creates a tension between the importance of socialising children and the importance of children spending time with their parents – particularly the parent with whom they do not live.

The Family Law Act obligates a parent to do all they can to encourage children to attend with the other parent pursuant to Orders. Read the rest of this entry »