Articles - elringtons lawyers

Family and Domestic Violence

Posted on20, January 201920, January 2019AuthorGemma Sutherland

The existence of domestic violence in relationships is sadly widely spread in today’s society. The perpetrators and the victims of domestic violence cannot be narrowed to one single social class or to their level of education or their wealth, it can affect people of all ages, gender, cultures and ethnicity. Frequently, marriages and de facto relationships end as a result of domestic violence. In such cases, it is necessary to act quickly to protect the victims of violence which predominantly are women and children. Each State and Territory in Australia has legislation addressing domestic violence designed to provide a fast and efficient method to obtain immediate and urgent protection from the violent party.

What Is Domestic Violence?

AIHW Family, domestic and sexual violence in Australia, 2018

AIHW Report: Family, domestic and sexual violence in Australia, 2018

The term “family violence” and “domestic violence” is defined differently in the ACT and NSW. Normally, the term is defined broadly, beyond simply physical violence on a person. In the ACT, the relevant legislation is named the Family Violence Act, 2016 which defines “family violence as the following behaviour by a person in relation to a family member:

physical violence or abuse;
sexual violence or abuse;
emotional or psychological abuse;
economic abuse;
threatening behaviour;
coercion or any other behaviour that—
controls or dominates the family member; and
causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour;
sexually coercive behaviour;
damaging property;
harming an animal;
stalking;
deprivation of liberty.

What Can a Victim of Domestic Violence Do?

If you are in immediate danger please call 000.

There are numerous other services available for victims of domestic violence such as:

ACT Domestic Violence Crisis Service Ph: (02) 6280 0900 (24 hours)
NSW Domestic Violence Line 1800 656 463
Canberra Rape Crisis Centre Ph: (02) 6247 2525
Victim Support ACT Ph: 1800 822 272 (24 hours)
Victims of Crime Assistance League (VOCAL) Ph: (02) 6295 9600
Lifeline Ph: 131 114 (24 hrs)
White Ribbon Australia
Kids Helpline Ph: 1800 551 800 (24 hrs)

Family Violence Orders and Apprehended Violence Orders

In the Australian Capital Territory and in New South Wales there is legislation in existence which allows parties to obtain orders to protect them from the violent member of the family: in the Australia Capital Territory these are known as “family violence orders” (FVOs), and in New South Wales as apprehended violence orders (AVOs).

Urgent Family Violence Orders

A victim of family violence may obtain urgent Family Violence Orders by applying directly to the Court (1), even after hours including weekends. Police officers may also bring an application on behalf of a victim.

The system is designed to be simple, quick and inexpensive. This applies in the ACT Courts and the NSW Courts. An application once lodged goes before the Court within a short time the same day in the absence of the perpetrator or alleged perpetrator of violence. If the Court considers that it is appropriate, interim Family Violence orders will be made and subsequently served on the perpetrator. The matter is normally listed for further mention afterwards to afford the other party the opportunity to put his/her side of the story and, to defend the matter in a final hearing.

If you have a family or domestic violence matter or just have some general enquires we can be contacted on 02 6206 1300. We are always ready to discuss this important but serious subject matter with you.

If you would like more information or to make an appointment in either our Canberra or Queanbeyan office please contact Gemma Sutherland:

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

Financial Agreements

Posted on14, January 201920, January 2019AuthorCarlos Turini

Binding Financial Agreements (BFAs)

AN INTRODUCTION

The terms “financial agreement”, “binding financial agreement” or “BFA” are often used loosely by lawyers and non-lawyers alike in reference to contractual agreements which parties may enter under the Family Law Act (1975) and other legislation such as the Child Support Assessment Act (1989).

As described below, there are maybe ten different variations of BFAs which parties may sign up to.

Among the most popular BFAs, there are two categories:

Cohabitation agreements – where parties make a contract about the future regarding their property and how it may be divided if they separate;
Property settlements – where parties have already separated and wish to formalise legally the division of their assets.

A definition of a BFA

A possible, general, definition of a BFA is:

A private deed or a contract that parties enter into in writing under the Family Law Act (1975) or the Child Support (Assessment) Act (1989) to formalise an agreement about their property or child support, either because:

they are about to marry or commence a de facto relationship and they want to make provision about how their assets will be divided between then if they separate;
they are in a marriage or a de facto relationship and they want to make provision about how their assets will be divided between then if they separate;
they separated, and they wish to formalise a property settlement for the division of their assets;
they are separated, and they wish to make provision for child support for their children as an alternative to an assessment for periodic payments under the Child Support (Assessment) Act (1989).

However, the above definition does not do justice to all the various alternative BFAs that parties may sign between themselves. For example, parties may enter a BFA about:

Spousal maintenance;
Superannuation;
A relationship which is not a marriage or a de facto relationship but a “domestic relationship” as understood under the Domestic Relationships Act (1984). This may include, for example:
two persons in a personal relationship although they are not living together; or
a carer and a patient such as a daughter and her mother or persons who are not related.

Ten Alternative Versions of BFAs

I counted ten possible variations of BFAs which parties may sign up to:

Why sign up to a BFA?

There are many reasons why people choose to enter BFAs.

When it comes to a property settlement, parties have no choice but to formalise legally their agreement for division of their assets. Parties may do this by signing a BFA or consent orders. There are two main reasons why their property settlement must be formalised legally:

A BFA will end the parties’ financial relationship, and neither will have a claim against the other under the Family Law act in future;
There are various exemptions in relation to stamp duty fees for the transfer of title to real property, shares and motor vehicles if parties may produce a BFA which reflects their property settlement. There is also roll over relief regarding capital gains tax which otherwise may be payable by a party.

With regard to cohabitation agreements the most common reason why parties choose to sign a BFA is to ensure clarity and certainty about the division of their assets in the event that they separate in the future.

Requirements for a BFA to be valid

There are various specific requirements under the Family Law Act which must be followed for a BFA to be valid.

In every case, for a BFA to be valid and enforceable:

a) It must be made in writing;

b) It must be signed by all parties;

c) Each party must obtain independent legal advice from his/her solicitor and:

i) Each solicitor must sign a statement or certificate of legal advice;
ii) The solicitors’ certificates must be exchanged between the parties and normally they are attached to the BFA.

In drafting the agreement, the lawyers and the parties must be aware that BFAs are sometimes challenged in court in the future after parties separated if one of party no longer wishes to abide by the agreement. The Family Law Act lists various reasons why a BFA may be set aside including:

a) If it was obtained by fraud;

b) If the agreement was created to defraud or defeat a creditor or another person;

c) If circumstances have changed since the BFA was signed:

i) relating to the care, welfare and development of a child of the parties and hardship would be caused to a party as a result and, as a result of the change, the child or, if the applicant has caring responsibility for the child or

ii) and it has become impracticable for the agreement to be carried out.

Cut and Paste Jobs and Templates

Far too frequently, BFAs which parties have entered into are subsequently challenged in court and set aside by the courts for various reasons, sometimes because basic errors have been made by the drafter and/or the clients.

Parties’ motivation to sign a BFA in the first place is often sound and it is a good idea to have a contract between themselves about their joint assets if they were to separate is a good idea and it normally ensures that there will be clarity and certainly when they separate and a BFA avoids future disputes in Court.

However, it is important for the parties and their lawyers to have a healthy respect for the necessary process to draft a good BFA. The errors which are sometimes made relate to the fact that the drafter did a cut and paste job and the agreement was not adjusted and refined to address the needs of the parties.

Precedents and templates (some which may be obtained in the internet) may be dangerous unless used wisely and carefully and adapted to the parties’ needs. There is a need for the parties and the lawyers themselves to apply themselves to the task of drafting a comprehensive agreement, in particular, about cohabitation agreements.

Obviously, there are many uncertainties about the future. It is impossible to predict all possible vicissitudes of life. However, it is important to reflect about all likely future events and to address those between the parties and the lawyers and make appropriate provision in the cohabitation agreement including, for example:

one party is likely to survive the other;
one or both parties may not have the capacity to make decisions about their affairs at some stage before death;
the children of the party who lost capacity may wish to make decisions which affect the other party adversely;
should the cohabitation agreement make provision for the surviving party to have the right to live in the other’s property for live if he/she survives the other?

These are matters which may be addressed simply by the original drafter applying appropriate care and precision.

If you are considering singing up into a BFA and would like more information or to make an appointment in either our Canberra or Queanbeyan office please contact Carlos Turini:

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

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What is a cohabitation agreement and why should I get one?

Posted on5, January 201917, January 2019AuthorCarlos TuriniLeave a comment

What are “financial agreements”, “binding financial agreements” or “BFAs”?

The terms “financial agreement”, “binding financial agreement” or “BFA” are often used loosely by lawyers and non-lawyers alike in reference to contractual agreements which parties may enter under the Family Law Act (1975). When using these terms, maybe one specific meaning is intended. However, there are various alternative agreements which may be entered under the Act.

In this article we look at one specific type of BFAs: “cohabitation agreements”.

Cohabitation agreements

A cohabitation agreement may be defined as a contract between two parties which makes provision about how to divide their assets if they separate in the future.

Parties to a cohabitation agreement are contracting out of the provisions under the Family Law Act which would otherwise give them rights and entitlements against each other for a property settlement. Instead, they wish for their contract to provide what are their rights and entitlements against each other.

A cohabitation agreement may cover all assets of the parties or some of their assets.

Pre-Nuptial Agreements and Other Cohabitation Agreements

A “pre-nuptial” agreement [1] is a type of cohabitation agreement which parties sign up to:

Before they marry;
In contemplation of their marriage
Addressing how, in the event of the breakdown of the marriage, their property is to be divided between them.

However, there are many other types of cohabitation agreements under the Family Law Act:

1) A cohabitation agreement signed up by parties:

a)      Before they commence a de facto relationship;
b)      In contemplation of the relationship;
c)      Addressing how, in the event of the breakdown of the marriage, their property is to be divided;

2) A cohabitation agreement by parties during their marriage;

3) A cohabitation agreement by parties during their de facto relationship.

Why enter into a cohabitation agreement?

There are many reasons why people enter into cohabitation agreements. We list below some of the reasons which parties sometimes advance.

Certainty and Clarity – One specific reason which seems to motivate all parties is to have certainty and clarity about their affairs and about the division of their assets if they separate in the future rather than being potentially subjected to the vagaries of a claim in court under the Family Law Act.

To protect assets and protect from debts introduced to the marriage or the relationship – The parties or one party may have significant assets and the agreement may provide for those assets to remain quarantined or separate from the relationship. The agreement may make similar provisions about debts.

To protect the farm/the family business – Sometimes the assets and finances of a party are closely linked or intermingled with his/her extended family as, for example, in the case of a family which owns a farm and wishes to keep it in the family. Another example is when a party is a co-owner with his /her parents and siblings of a family business. A cohabitation agreement may be a useful tool in those circumstances to quarantine the farm or business from a future family law claim.

Second Marriages – Frequently, the parties to a cohabitation agreement have been married before and have acquired assets of their own. They are committed to their new relationship but wish to protect their current assets from a future claim and to make provision for children from previous relationships.

Part of the motivation to enter into a cohabitation agreement in those circumstances sometimes is to ensure acceptance of the new relationship from their respective children.

What makes a good cohabitation agreement?

The best cohabitation agreement is one that fits the circumstances of the parties and their requirements.

Ideally, the agreement will be simple and direct.

Normally, parties wish to list:

Separate assets which each party already owns and which they wish to remain separate and not to intermingle it with the rest fo the parties’ assets;
New separate assets – normally parties wish to have the flexibility to use their separate assets as security or collateral to acquire new assets or to sell separate assets and acquire new separate assets
Future inheritances

In relation to joint assets, there should normally be a clear provision in the cohabitation agreement to the effect that the entitlement each party has to assets in joint names will be proportionate to the title they acquired when the parties initially purchased their joint assets.[2]

In the event of separation, the agreement should have a clear process for the parties to divide their assets between them including:

to give each party the opportunity to buy the other party’s interest in joint property; or
otherwise, how the joint assets should be sold that the joint assets be sold and how the proceeds will divided under the agreement.

A cohabitation agreement need not be fair. However, it is important to reflect on the following extract from the decision of the High Court in Thorne v Kennedy [2017] HCA 49:

“…Of course, the nature of agreements of this type means that their terms will usually be more favourable, and sometimes much more favourable, for one party. However, despite the usual financial imbalance in agreements of that nature, it can be an indicium of undue influence if a pre-nuptial or post-nuptial agreement is signed despite being known to be grossly unreasonable even for agreements of this nature.” [3]

There is a balance and it is important, at the time of drafting these agreements that the parties and their solicitors be aware about the need not to make the agreement grossly unreasonable.

There are many uncertainties about the future. It is impossible to predict all possible vicissitudes of life. However, it is important to reflect about all likely future events and to address these between the parties and make appropriate provision in the cohabitation agreement including:

one party is likely to survive the other;
one or both parties may become unable to make decisions about their affairs at some stage before death;
the children of the party who lost capacity may wish to make decisions which affect the other party adversely;
should the cohabitation agreement make provision for the surviving party to have the right, say, to live in the other party’s property for life if he/she survives the other?

When should you enter into a cohabitation agreement?

As we mentioned above, parties may sign up to a cohabitation agreement before or during their marriage or de facto relationship.

One word of caution about the timing of a cohabitation agreement is not sign up when the wedding or the commencement of the relationship are imminent. There is a risk, otherwise, that the agreement may be successfully challenged in future if a court concludes that it was entered under pressure. [4]

Pitfalls and Challenges of a Cohabitation Agreement

My personal experience is that considerable effort is required to plan and draft a cohabitation agreement appropriately. There is no “one size fit all” or template that can be used in every case.

Since cohabitation agreements became recognised under the Family Law Act [5], there have been various notorious cases when courts declared cohabitation agreements void and set them aside.[6]

Many family law specialist lawyers to this day refuse to advise parties in relation to cohabitation agreements because of the risk that an agreement they drafted may not survive a future challenge.

Those solicitors who are still prepared to represent parties and assist them with their clients’ cohabitation agreements normally take substantial care in the drafting of the agreements and, after an agreement’s signature, keeping records in safe custody including a copy of the signed agreement, file notes and copy of a comprehensive written letter of advice to their clients. This information is normally kept in case that the solicitor may require it as evidence in a future court case disputing the validity of the cohabitation agreement.

More recently, it has become less common for courts to set aside cohabitation agreements. Still, it is very important fo the lawyers and the parties to remain cautious about the agreement they wish to enter into.

Why Do Courts Set Aside Cohabitation Agreements?

– There are various specific requirements for a cohabitation agreement to be valid which are listed in the Family Law Act. [7] The Family Law Act also lists various reasons why cohabitation agreements may be set aside. [8]

Sometimes, parties and their solicitors make basic mistakes when drafting or executing cohabitation agreements. Cut and paste jobs lead to incomprehensible clauses, and incomprehensible agreements when even the names of the parties change without warning from John and Jenny to David and Debbie.

Basic requirements, for example, that each solicitor be properly qualified in Australia to practice as a solicitor and provide independent legal advice are not followed. Certificates of legal advice are not properly completed or properly signed.

Clients sometimes turn up to a solicitor with a template they drafted seeking that the solicitor “witness” it.

Basic mistakes may be avoided if the original drafter of the agreement applies appropriate care and precision and the lawyers and the parties have the appropriate respect for the process required.

If you would like more information or to make an appointment in either our Canberra or Queanbeyan office please contact Carlos Turini:

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

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[1] https://elringtons.com.au/2011/03/prenuptial-agreement/

[2] Frequently, parties agree to a clause in the agreement that if they acquire real property jointly, they will own it as tenants in common (not joint tenants) and each party’s entitlement to the real property under the BFA will be equivalent to the share of title they have – 30%, 40% etc;

[3] Thorne v Kennedy [2017] HCA 49 (8 November 2017) at Paragraph 56;

[4] Thorne v Kennedy [2017] HCA 49 (8 November 2017) was a case where the Trial Judge declared a pre-nuptial agreement void and set it aside as she concluded that the husband applied undue influence on the wife to sign it. The Judge described, among other things: the wife’s “…emotional preparation for marriage, and the publicness of her upcoming marriage.” Significantly, the High Court sided with the Trial Judge decision and, in the process, overruled the Full Court of the Family Court which would have allowed the cohabitation agreement to stand;

[5] Family Law Amendment Act 2000 (which took effect from 27 December 2000);

[6] See Thorne v Kennedy [2017] HCA 49 (8 November 2017) referred to in (2) above; see also Wallace & Stelzer and Anor [2013] FamCAFC 199 (‘the pole dancer case’);

[7] See section 90G and section 90UJ of the Act;

[8] See section 90K and section 90UM.

Adoption News

Posted on27, November 201827, November 2018AuthorCarlos Turini

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.

Children and Young Persons (Care and Protection) Amendment Bill 2018

Overview of Bill^[2]

(a) by amending the Children and Young Persons (Care and Protection) Act 1998 (the principal Act), as follows:

…….

(vi) to limit the period for which an order of the Children’s Court may allocate all aspects of parental responsibility for a child or young person solely to the Minister following its approval of a permanency plan involving restoration, guardianship or adoption

…….

(b) by amending the Adoption Act 2000 to enable the Supreme Court to make an order dispensing with a requirement for the consent of a person to a child’s adoption if the application for adoption is made by the child’s guardian.

The changes to the Adoption laws were approved by the NSW Government on Thursday 22^nd 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 26^th 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

10 useful tips for your Family Court Appearance

Posted on16, November 20181, January 2019AuthorGemma SutherlandLeave a comment

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:

Alternative dispute resolution

Personal safety

Be prepared

you and your solicitor should have discussed what the agenda is with regard to the Court attendance. You must have a clear idea about what you are seeking as discussed with your lawyer before the day. It is also useful to have a copy of all court documents with you so that they can be referred to if necessary. A useful suggestion is that you take a note pad and pen with you, so that you can make notes and what happens inside the court room.

Online court portal

Security

Entering the court room and addressing the Judge

If court is already in session when you enter the court room, it is proper to bow in the direction of the Judge as a sign of respect. When addressing or speaking to the Judge, you must stand up and address him/her as “Your Honour”. You will often see lawyers or individuals take prompts from the Judge. It is important to listen to what the Judge is saying to the party and to respond accordingly.

Wait your turn and be respectful

On any given day each Judge could have up to 20 or 30 matters listed on a “duty day” which need to be dealt with. You may need to wait some hours before your matter is heard. Normally, you should allow the full day to be available as the Judge ultimately decides when the matter will be heard during the day. Usually matters are listed in alphabetical order and then get heard as the Judge works down the list.

When your matter is eventually called, the Judge will ensure that both parties are given the opportunity to have their say (personally or via their solicitors) and address the issues that they believe need to be addressed. Each party will be given the opportunity to express their version of events or state opposing submissions. Unless you are called to give evidence in the witness box or you are self-represented, your solicitor would normally do all the talking.

You will quite possibly hear things from the opposing solicitor or the opposing party with which you do not agree. It’s important that you do not gesture, roll your eyes or express yourself loudly. Instead, you should have a notebook and be ready to pass on messages to your solicitor if necessary.

Adjournments

Normally, matters will not be finalised on the first court appearance unless the parties and their respective solicitors are ready and willing to negotiate while waiting to be heard. Matters have various “court events” and the usual practice at the conclusion of the first appearance will be adjourned to a later date. This will usually mean that the matter has been dealt with day to the extent that it can be on the interim issues. The matter may be referred to mediation or a counselor’s assessment or some other event. Normally, after the first appearance, there is a longer process involved and certain requirements that may be necessary in a matter before it may be finalised.

Children

Ordinarily the courts are not a place to take children. It is suggested that you arrange prior child care and or private care arrangements for your children for the day that the matter is listed. There is of course an exception to this if you have been ordered by the court to bring the children for example to be involved in family consultant interviews. In this instance you should make every effort to ensure the children are available at the time and day that you have been advised.

No violence

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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