Family and Domestic Violence

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:

  1. physical violence or abuse;
  2. sexual violence or abuse;
  3. emotional or psychological abuse;
  4. economic abuse;
  5. threatening behaviour;
  6. coercion or any other behaviour that—
  7. controls or dominates the family member; and
  8. causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
  9. behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour;
  10. sexually coercive behaviour;
  11. damaging property;
  12. harming an animal;
  13. stalking;
  14. 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

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:

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

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?

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.

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

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

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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