Adoption News

Adoption has been in the news recently with changes to the NSW adoption laws and recommendations for a national adoption law.

Currently the laws for Adoption in Australia vary from state to state rather than an Australia wide law that is easily navigated. The adoption system as it stands in Australia does not guarantee a stable healthy environment for the more than 47,000[1] children living in out-of-home care.

Adopting a child is a very sensitive topic; there are many reasons why a child could be in “out of home care” and may become available for adoption. The situation can be very stressful for both birth parents and those wishing to adopt.

Changes to NSW Adoption Laws

Recently the NSW government changed the adoption laws to allow Adoption without parental consent. The changes impose two-year deadlines on permanency decisions and narrow the grounds for these decisions to be varied or challenged.

The changes are outlined below.

The changes to the Adoption laws were approved by the NSW Government on Thursday 22nd November amidst amongst much consternation from community organisations. Aboriginal leaders and community members say the changes will lead to another stolen generation. Aboriginal children and young people make up almost 40% of those in the out-of-home care system.[3]


Federal Parliamentary Committee [4]

An Inquiry into local adoption was opened in March 2018 by the Commonwealth Social Policy and Legal Affairs Committee. Its report was released today the 26th Nov 2018. The Committee has recommended the Federal Government work with the States and Territories to enact a national adoption law, after committing to a national adoption framework. “The system, as we currently have it in Australia, is trapping many of these children into an unhealthy cycle,” Julia Banks the Liberal MP said while launching the report in Canberra on Monday.[5]

A national adoption law would make the current state-based system less complex, more consistent and lead to more adoptions.

At elringtons we have significant experience in adoptions for children under 18, adults and all other family matters regarding parenting issues. If you would like legal advice on any of these issues please contact our family law team.

For more information on or to make an appointment in either our Canberra or Queanbeyan office please do not hesitate to contact Carlos Turini:

+61 2 6206 1300 | e: info@elringtons.com.au


[1] https://www.sbs.com.au/news/committee-recommends-establishing-national-adoption-law

[2] https://legislation.nsw.gov.au/#/view/bill/8b9dcb7d-133a-4db3-ad71-fe82fb7d6111

[3] https://www.theguardian.com/australia-news/2018/nov/23/adoption-without-parental-consent-legalised-in-nsw

[4]https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Localadoption

[5] https://www.sbs.com.au/news/committee-recommends-establishing-national-adoption-law

Will a Restrictive Covenant Prevent Your Development?

Quite possibly the answer is- no!

The case of Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833, is very instructive with respect to both a local Council’s ability to override covenants and the circumstances in which an owner can have contractual provisions declared unenforceable.

The case decides that where a Council has requested a restrictive covenant or design guidelines be included in a subdivision and these are carried forward in the contract special conditions (even if not contained in a s88B instrument) then the contractual provisions are enforceable against an owner.  However, if Council didn’t make the request and subsequently approves a development contrary to the contract, then the contract is not enforceable against the owner-even though the owner was a party to the contract.  This is because of the power of councils to ignore a covenant if they are approving a lawful development.

S 3.16 of the Environmental Planning and Assessment Act (formerly s28) provides the legislative authority and most councils today have a provision in their Local Environmental Plans consistent with s 28 or the later s 3.16.  The only condition is that the Governor or Minister’s consent is required for the LEP provision, which would not be there if consent had not been granted.

Therefore, local Councils have the power to simply ignore a covenant and the cases say that the covenant is rendered null and of no effect if council lawfully approves a development which is contrary to the covenant.  Moreover, if the council didn’t ask the developer to create the covenant the developer can’t insist that you comply with it on contractual grounds.

Further information:

Restrictive Covenants

For more information or to make an appointment in either our Canberra or Queanbeyan office please do not hesitate to contact Rod Anthes:

+61 2 6206 1300 | e: info@elringtons.com.au

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10 useful tips for your Family Court Appearance

By Gemma Sutherland

Going to court can be stressful and unnerving for those who have not experienced it before.

Here are 10 useful tips which may help you on the first appearance in Court:

For more information see:

Federal Circuit Court

Family Courts of Australia

Video shared from: Tips for your court hearing – Family Court of Australia

We hope that these useful tips provide you with some information and allow for some reassurance of what to expect when going to court.

Should you have any questions about a family matter that is in court, you can contact Gemma Sutherland or to make an appointment in either our Canberra or Queanbeyan office:

e: gsutherland@elringtons.com.au | p: +61 2 6206 1300

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Charitable Gifts in Wills

By Mitchell Evelyn

Leaving a gift to a charity in your Will can be a great way to provide generous support which might ordinarily be outside your financial means. As with any other gift in your Will, it is important to make sure that any charitable gift is clear, well considered and carefully drafted to ensure that your wishes are carried out after you have died.

Here are some of the key issues that you may wish to consider:

Elringtons Lawyers are big believers in giving back to our local community, so if you are considering leaving a gift to a charity in your Will, call elringtons experienced Estate Planning team on (02) 6206 1300 and make an appointment today. For information about elringtons’ partner charities, see our community page.

For more information or to make an appointment in either our Canberra or Queanbeyan office please do not hesitate to contact Mitchell Evelyn or Kerin Cotchett:

+61 2 6206 1300 | e: info@elringtons.com.au

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Court should become the last resort for resolving family parenting and property disputes!

The Crisis in the Family Court System

There are numerous media reports about the fact that the Family Court system is in a state of crisis. There are long delays in the resolution of parties’ disputes by the Court and this causes much angst for the parties and their children often resulting in mental health issues for all involved but is especially concerning in children. One recent article on the topic is from Katherine Gregory entitled Judges go public: Family Court shouldn’t be ‘making do’ . Fingers are pointed in various directions to cast blame depending on who you listen to including that there is a chronic lack of funding and resources, that the aggressive attitude of some lawyers is to blame and so on.

As a significant measure, in an attempt to address the existing crisis in the Family Court System, the Federal Attorney General announced some months ago, quite unexpectedly and without much apparent consultation, the merger of the Family Court with the Federal Court. There has been substantial criticism about this measure, for example by the Law Council of Australia President, Morry Bailes who stated:

“Our current understanding is the Australian Government will not make any new appointments of judges to the specialised Division 1 of the new court, meaning the quality of the family law justice system would reduce under this change. Australians may no longer have access to a court that specialises in family law.”

The message from various Judges and other people involved in the Family Court system is that a Court having to resolve a family law dispute should be the last resort.[1]

Alternative Dispute Resolution

Former Federal Circuit Court Judge, now barrister, Stephen Scarlett suggested that alternative dispute-resolution methods, like mediation and arbitration should be more prevalent so only matters needing a judicial decision made it to court in the first place:

“Only those that can’t be resolved that way should go to a hearing.” [2]

This would not only reduce the load on the courts but offer faster and often more effective means to achieve suitable outcomes for the parties in dispute. Alternative dispute resolution offers many ways to resolve family matters quickly, fairly and inexpensively through mediation and negotiation.

In some circumstances the ADR process cannot be applied:

  • There always must be a level playing field between the parties involved in the process.
  • Sometimes, the parties are not suitable.
  • There may be a history of domestic violence in a case which makes the prospect of parties having to negotiate via an ADR process inappropriate.

However, in the clear majority of cases, about ninety-five per cent (95%) parties want to resolve their dispute and they manage to resolve their family law dispute before the matter reaches a final hearing. [7]

The family lawyers at elringtons are committed to following all avenues of negotiation and mediation before suggesting court proceedings.  Elringtons has two family lawyers, Carlos and Anya, who are nationally accredited mediators , Carlos is also a NSW Family Law Accredited Specialist.

To contact Carlos or Anya or to make and appointment in either our Canberra or Queanbeyan office:

Carlos Turini: Accredited Specialist Family LawSpecialist accreditation and Nationally Accredited Mediator

e: cturini@elringtons.com.au  | p: +61 2 6206 1300

Anya Aidman: Family Law Solicitor and Nationally Accredited Mediator

e: aaidman@elringtons.com.au | p: +61 2 6206 1300

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[1] https://www.lawcouncil.asn.au/media/media-releases/as-it-stands-merging-courts-unlikely-to-alleviate-family-law-crisis

[2] https://www.abc.net.au/news/2018-10-31/judges-go-public-family-court-shouldnt-be-making-do/10450514

[3] https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx

[4] https://elringtons.com.au/2018/11/family-law-dispute-resolution/

[5] http://www.mondaq.com/australia/x/170796/Arbitration+Dispute+Resolution/Alternative

[6] Ibid.

[7] https://elringtons.com.au/2011/03/family-law-settle-out-of-court/