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In matters relating to children, the jurisdiction of the Family Court is not limited by whether or not the parents were in a relationship. The Family Court can make orders with respect to children whether their parents were married, never married, lived together, never lived together, etc. The only children for whom the Family Court cannot exercise jurisdiction are those who at the time are subject to State welfare laws. However, the property and spouse maintenance jurisdiction of the Court can only be invoked if you have been married or in a defacto relationship (heterosexual or same sex). The English language is still yet to have the perfect words to describe each and every relationship that exists in modern society. “Husband”, “Wife”, and “Marriage” are easy, but for years our language has struggled to provide a word that best describes the parties to a defacto relationship. I do not think…

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Defining when a relationship starts and when it ends is not as simple as you might think  By Ann Northcote, Director – Farrar Gesini Dunn One of the first things a family lawyer will ask a new client is when their relationship started and ended.  To some people this is not a difficult question.  They may not have lived together until their date of marriage and that after a period of unhappiness, they moved out on a particular day.  The reason why it is important is because the legislation is built around concepts such as the duration of the marriage or relationship and contributions made including indirect contributions, non-financial contributions, and contributions as homemaker. The duration of a defacto or same sex relationship is also important for jurisdictional purposes.  Unless you have had a child together or substantial contributions have been made, for defacto and same sex couples you need…

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The issue of property settlement between married and de facto parties is complex and technical.  A High Court decision has now made this more the case. If you are 40 something and one of your parents (or both) have re-partnered and you are wondering about the effect this may have on your inheritance, then read on. If you think a property settlement cannot happen whilst you are not separated, think again. Generally speaking, the Court cannot make a property settlement order unless it is satisfied that, in all the circumstances, it is ‘just and equitable’ to do so. The case of Stanford v Stanford [2012] HCA 52 has highlighted the importance of carefully considering this term. The husband and wife were married for over 40 years.  Both parties had been previously married and had adult children.  The family home was registered in the husband’s sole name. During the relationship, they each made…

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In the aftermath of a relationship breakdown, negotiating about property or children with a former partner can be very challenging.  It can be tricky to work out what is really important to you and then to communicate this to your former partner.  After all the difficulties and effort it can be such a relief when you finally come to an agreement.  But what happens after an agreement is signed?  How does the way an agreement was reached affect how each party behaves afterward? We wrote last month about  Sid and Nancy  who had a disagreement about the amount of child support Sid pays Nancy each week.  Nancy thought that the child support payment should be calculated to include the hours the children spend at school as time with her.  Sid thought that the time should be calculated based on the number of nights the children spent with each parent. So…

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Trying to define a de facto relationship can be a pretty difficult task.  A relationship can come in all sorts of shapes and sizes and all sorts of combinations, depending on the individual preferences of the people involved.  Today’s relationships can vary widely – from couples who spend time together on a ‘no strings attached’ basis, to couples who live together and have combined all aspects of their domestic life, with numerous variations in between.  For example, a de facto relationship could look like that of Brad Pitt and Angelina Jolie, who have children together, have joint finances and openly express the depth of their commitment to each other.  Other ‘couples’ might look more like Hugh Hefner and his Playmate girlfriends, and don’t seem to fit into traditional relationship roles and ideas about monogamy. However whilst all this diversity and flexibility might seem fantastic for the couples personally (and for…

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Last month we wrote about de facto relationships and how a couple could know when they had entered into one.  We looked at the case of Bill and Laura, a couple who began to live together on a part time basis and combine their finances.  Bill and Laura discovered that they were in a de facto relationship as defined by the Family Law Act and if they were to separate they could be vulnerable to a claim in the Family Court. Now that Bill and Laura have realised that they are in a de facto relationship, how can they find a way forward that won’t leave them feeling anxious about any future problems?  They both want to keep living together and keep having joint finances but both want to protect assets that they have acquired prior to living together. One possibility is that Bill and Laura could enter into a…

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Choosing the right lawyer in a family law matter can often be difficult.  A family lawyer is, for most people, someone seen for a small, but crucial, part of their lives- the end of a relationship. We are not like your business/commercial/property lawyer who you see from time to time over a number of years for different transactions.M Often your business lawyer is not able to be your lawyer in your family law matter as they may have acted for your spouse as well as you over the years. They may have prepared your Wills or acted for you in the buying and selling of homes. This is called having a conflict of interest. Even if they have not acted for your spouse, your business lawyer may have met your spouse over the years and feel uncomfortable about acting against that person. In addition, many business lawyers do not practice…

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Maximising the pool of assets When required to determine how the assets will be divided when two people in a marriage or defacto relationship separate, the court uses the following process: What are the assets available for division? How did the parties contribute, both financially and non financially, to acquiring, improving, and conserving the assets? What are each party’s current circumstances and future needs? Is the result just and equitable? Usually, the main scope for dispute arises in steps two and three where parties dispute how they contributed to the assets or the weight that should be given to their current circumstances and future needs.  Frequently, the significance of the first step of this process is overlooked. There is rarely a difficulty in attributing a value to liquid assets such as bank accounts and share portfolios – the value given to such assets is the realisable cash value of the…

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In 2008 we launched a new family law business specialising in and focussing on out of court solutions, called Consensus Family Lawyers.  Consensus was well received by our clients and our referrers and the practice moved well into emerging and modern areas of family law including negotiating and drafting complex agreements and collaborative divorce. Meanwhile, Farrar Gesini & Dunn remained successful with a focus on client-focussed family law litigation.  The service we offer is to give our clients certainty about fees and clear and realistic advice about the process and the likely outcome.  If we can manage expectations in those fields, then our clients are better equipped to deal with the inherent delay, cost, and emotional toll of litigation. What we found, when reviewing the differences between the two practices, is that our lawyers at Consensus wanted more exposure to litigation and our lawyers at Farrar Gesini & Dunn wanted…

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Believe it or not, not all difficult divorces need to end up in Court. Over the last several years, the Family Law community in Australia has been introduced to a practice known as Collaboration. Collaboration is a process available to resolve family law matters and keep parties out of Court. Each client is represented by his or her lawyer through a series of meetings. It also allows the parties to structure more creative solutions which go beyond the scope of the Court. All information and advice is given openly in the round table meetings. This process also helps to address any power imbalance between the parties, so that one party is not bullied into a settlement. What makes Collaboration unique from other methods of dispute resolution is the contract that is signed by each of the parties and their lawyers, committing not to go to Court. If the matter doesn’t…

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“I’m leaving on a jet plane…(dont know when the kids will be back again)…” How to avoid an international child custody dispute There has been a lot of publicity lately about the four girls caught in the middle of a dispute between their Australian mother and Italian father.  This case has been in the Family Court and will now be heard in the High Court. It serves as a good reminder that overseas travel by your children with your ex-partner is something that should not be taken lightly.  Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  Countries who sign the Convention agree that children, who are brought to their country without the consent of a parent in the other convention country, should be promptly returned to their country of residence. In broad terms, it has been a good example of international cooperation…

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Quite a lot of separated parents will have a dispute about their child’s surname.  Situations often occur when this becomes an issue.  For example, if a child lives mainly with one parent (and perhaps has a limited relationship with the other parent), that parent may want their child to have their surname.  Or, a child may have either his or her mother or father’s surname and one parent wants their child to have a hyphenated surname (perhaps because they feel that this will ensure their child has a connection with both parents).   Sometimes, if a parent changes their surname or remarries, they may want to change their child’s surname as well. From a legal perspective therefore, the main issues that arise are when one parent wants to: Use a different surname to what is on their child’s birth certificate; or Change a child’s birth certificate to state a new surname;…

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The Italian Job…what actually happened in the return of the four sisters to Italy. By Adam Bak, Solicitor, Farrar Gesini Dunn The Family Court has endured heavy media scrutiny recently in a case in which a Judge ordered the return of four sisters, then aged between 8 and 14, to Italy. The Facts The brief facts of the case were that the mother, reported as Ms Garning, was born in Australia but moved to Italy when she was 16.  She fell in love with the father, reported as Mr V, and they married and had children in Italy.  Ms Garning and Mr V separated in 2008.  In 2010 Australian passports were issued for the four children and Ms Garning brought the children to Australia.  They remained in Australia for 2010 and 2011. The Law Australia is a signatory to the Hague Convention.  The Hague Convention is an international treaty which, in…

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In 2006 there were major changes to the laws concerning child custody in Australia.  The aim of the reforms was to bring about generational change in family law and the cultural shift in the management of parental separation away from litigation and towards co-operative parenting. The Government set up 65 Family Relationship Centres around Australia to help people reach co-operative parenting solutions without ever needing to go to court.  Family Lawyers, observed was that there was a significant level of misunderstanding in the community about the changes in the law brought about by the 2006 reforms.  Many people thought that the law now required that children spend equal time with each parent after separation, or at least adopted that position as the starting point. It does not. The widespread nature of that misunderstanding has had a number of effects.  It has led to agreements being reached between parties where one…

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When the Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced in May 2006, the phrase “presumption of equal shared parental responsibility” was introduced as a concept in the Act.  It has attracted a lot of publicity both in relation to what it actually means (i.e. does it mean a presumption of ‘equal time’?) and the effect of the new law on children. The presumption in fact requires major decisions for the long-term care and welfare of the children to be made jointly.  These “major decisions” revolve around issues such as education, religion and medical treatment. One of the most significant misconceptions arising from the introduction of the presumption is the belief that “equal shared parental responsibility” translates into an “equal shared care” arrangement for the children of separating parents. This is not necessarily the case.  Whilst the Act requires the Court to consider an arrangement whereby the children spend equal time…

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The idea of a “pre-nup” has traditionally been considered a romance killer, a reflection of a lack of commitment by at least one of the parties to a marriage, or subject to the Hollywood stereotype of a rich old man marrying a gold-digger. In Australia the “pre-nup” is called a “Binding Financial Agreement”.  The  amendments to the Family Law Act 1975 extend Binding Financial Agreements to those in a de facto relationship. Increasingly in Australia traditional perceptions are giving way to the acknowledgement that a Binding Financial Agreement is a practical solution to the reality of the statistics regarding the number of marriages that end in divorce.  More than that, a Binding Financial Agreement accommodates the complexities arising in blended families where people are entering into their second and subsequent relationships with property from their previous relationships. Coping with the emotional pain, stress and turmoil of a relationship breakdown can be made…

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Do I need a will? It depends on what you want to happen after you die. If you do not have a will, the distribution of your estate is governed by the rules of intestacy. In Victoria, those rules are found in the Administration and Probate Act 1958. Who gets what depends on your circumstances including whether you have a partner, whether you have children and whether those children have received other property from you. If you have a will, the distribution of your estate is governed by the terms of your will. Should I see a professional to make my will? Again, it depends. If you want the safety and security of knowing that your will is going to be effective and distribute your estate according to your intentions, then it is recommended that you retain the services of a professional to draft the necessary documents. But an estate…

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Your will and power of attorney are only two elements of your overall estate plan that need to be considered. Other matters when we can advise you on including setting up Family Trusts; death benefit nominations for your superannuation fund; and relevant insurances. In many cases it may also involve entering into a Financial Agreement. Because of our vast experience in family law, we are well placed to give you technical and practical advice about how best to protect your family’s wealth, and the wealth of future generations to come, especially in the event of family breakdown. Estate Planning case study- the Estate of Peter Brock The Estate of Peter Brock (a famous race car driver of course) is an excellent example of the importance of proper estate planning. By way of background, Peter had his first will prepared in 1983. It was professionally drafted and properly executed. It was…

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Financial Agreements (aka ‘Binding Financial Agreements’, ‘BFAs’ or ‘pre-nups’ as they are often referred to by the public) are Agreements which set out what is to happen in relation to property settlement and/or spousal maintenance in the event of a relationship breakdown. Couples, including those who intend to be married; are currently married; intend to be in a de facto relationship (including same sex partners); are currently in a de facto relationship; are separated; or even divorced are all able to enter into Financial Agreements. A Financial Agreement basically acts as an insurance policy. It can give you piece of mind so that you know that if something does go wrong and there is a separation, both parties are clear on what is to happen. We find that when parties enter into Financial Agreements, it can actually strengthen a relationship because it reduces the stress on the parties (and the…

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There are a number of issues that arise in family law disputes under the umbrella of ‘international’ issues. Financial Agreements and Binding Child Support Agreements for international couples Often when parties enter into a Financial Agreement, there are international issues to consider when the parties reside in a an overseas jurisdiction at the time of separation. There may also be issues which arise when one (or both parties) are residing in an overseas jurisdiction at the time of signing the Agreement. These are important things to think about at the time of entering into these Agreements, and they are matters which we are able to provide you with advice on. In relation to Binding Child Support Agreements, issues can also arise when one (or both) of the parties and/or are living in an overseas jurisdiction. We can advise you in relation to these issues and how best to protect yourself….

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We’d be happy to talk to you about how we can help you with issues regarding gender identity, both for adults and for children… Examples of just some of the questions we can help you answer are: What is a “special medical procedure” for a child? Is the administration of hormones to a child a “special medical procedure”? My child wishes to change their gender, what is the process? My child believes they’re transgender, and I and my child’s doctor/s have agreed about an appropriate way to manage this, do I still need legal advice? Is my child old enough to consent to medical procedure/s to change their gender? Do we need to apply to the court for permission for our child to undergo a gender change procedure? My child is gender diverse. Are their any legal issues I should be aware of? I’m an intersex adult. Are there any…

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Adoption is a wonderful thing! However, it is a very complicated process therefore it is very important to seek advice from professionals prior to embarking on the process to ensure that it goes as smoothly as possible. There are also some alternatives to adoption that may be more practical depending on the circumstances. We can talk with you and understand your situation, what you would like to achieve and then advise you the best way to achieve that. We are experts in adoption and we’d be happy to talk to you about how we can help you with adoption… Examples of just some of the questions we can help you answer are: What countries can I adopt a child from? How can I adopt a child who was born in Australia? How can I adopt a child from overseas? What risks are involved in intercountry adoption? What is the Hague…

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Unfortunately domestic violence (also called intimate partner violence or family violence) and abuse affect many families and children. The definition of domestic violence (DV) is broad and varies according to the context. There are many different types of conduct which can constitute DV. In Victoria, Intervention Orders are made by the Magistrates Court. You can make an application for an Intervention Order personally or the police can make one on your behalf. If you wish to make an application yourself, it is advisable that you make an appointment to seek specific legal advice prior to doing so. The orders that can be sought under the Intervention Order legislation include (among other things) orders that prevent a person from approaching a specific property or place, or being within 100 metres of the protected person, or contacting the protected person. They can also be flexible to allow exceptions for example, if the…

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Under the Child Support (Assessment) Act 1989, parents and primary carers of a child can make a claim for child support from the other parent. As a parent of a child it may be the case that you are eligible to receive child support from the other parent, or that you may be liable to pay child support to the other parent. There is a great deal of publicly available information on child support and below we endeavour to set out some of the basic information which may be of use to you. However, child support is a very complex area of the law and you need specific advice which is targeted to your specific circumstances. If you would like further information in relation to child support please call or email us to make an appointment with one of our lawyers. The ‘Child Support Agency’ The Department of Human Services…

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There are two types of private child support agreements that parties can enter into as follows: Limited Child Support Agreements (section 80E) Some of the features of a Limited Child Support Agreement are as follows: They only last for a maximum period of three years. There needs to be an administrative assessment by the Child Support Agency which is already in place and the Agreement cannot provide for payments of periodic child support which are less than the assessed amount. The Agreement must be registered with the Child Support Agency. A party can at any time obtain a notional assessment of child support and if the notional assessment changes by more than 15% from the provision of periodic child support in the Agreement, then the Agreement can be unilaterally terminated. You do not require legal advice prior to entering into the Agreement, although we strongly recommend that you do as…

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There are a number of circumstances whereby either parent may apply for a change to the child support assessment formula. These include: The costs of spending time with or communicating with the child is more than 5% of your adjusted taxable income amount. The child has special needs. There are extra costs in caring for, educating or training the child in the way both parents intended. The child has income, an earning capacity, property and/or financial resources. You have provided money, goods or property for the benefit of the child. The costs of child care for the child/children under 12 years of age are more than 5% of your adjusted taxable amount. You have out of the ordinary necessary expenses to support yourself. The assessment does not correctly reflect either parent’s income, property and/or financial resources and/or the assessment does not correctly reflect either parent’s capacity to earn an income….

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Australia has agreements in relation to the enforcement and collection of child support and maintenance with a number of overseas countries. This means that in certain cases child support and maintenance obligations which are created in overseas jurisdictions can be enforced (and will be collected by) the Child Support Agency in Australia. It also means that in some circumstances child support/maintenance liabilities which are created in Australia are enforced/collected in overseas countries. In order for an overseas maintenance liability to be enforced by the Child Support Agency in Australia, in most cases the liability needs to be registered with the Child Support Agency and an application needs to be made to the Agency to enforce the liability. If a parent has a connection with Australia and they seek to have an overseas maintenance liability changed, then in some circumstances they may be able to apply to the Family Courts in…

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Whether you resolve matters out of Court, go to Court or settle the matter somewhere along the way, we think it is important that you have a lawyer who understands your needs. We attend the Family Court, the Federal Circuit Court, the Supreme Court of Victoria as well as the Children’s Court and the Magistrates Court on a regular basis. We are skilled advocates and we excel in courtroom advocacy. Our lawyers attend Court for a range of matters including divorce, interim hearings, duty lists, agency work, discovery, contested subpoena matters, case assessment conferences, conciliation conferences, Less Adversarial Trials, final hearings, appeal matters etc. We litigate to protect your interests and get the best outcome for you. In addition to our litigation skills we are also trained in Collaborative Practice (or Collaborative Law), which is a form of alternative dispute resolution which focuses on out of Court settlements. We are…

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The Federal Circuit Court of Australia as well as the Family Court have the power to deal with divorces (see Part VI of the Family Law Act 1975). The Family Court website sets out the process for applying for a divorce and also provides information on the requirements. You can have a look at that here: www.familycourt.gov.au Although the process of applying for a divorce can be relatively straightforward, in some cases it can be more complicated and it is very important that all steps are completed in order to ensure that the divorce goes ahead. The term ‘separation’ also has specific legal meaning. If you would like further information in relation to divorce and separation please call or email us to make an appointment with one of our lawyers. Requirements for applying for a divorce In order to apply for a divorce in Australia, there are a number of elements…

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Filing the application and the divorce hearing The application for divorce can be made jointly or by only one party. Once the application is completed and the relevant documents are attached (e.g. a certified copy of the marriage certificate and any translations which may be required), the application must be signed and witnessed appropriately. It is then filed with the Court upon payment of a filing fee. The application is then given a date for the divorce hearing before the Court. Whether or not you or a legal representative will be required to attend the divorce hearing will depend on whether there are children of the marriage under the age of 18 years and whether the application is made solely or jointly. Serving the divorce on the other party If the application for divorce is a sole application then it will be necessary to prove to the Court that the…

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In certain circumstances a party may apply to the Family Courts for a decree of nullity of marriage. Though limited, the circumstances in which a party may be granted such a decree, are when there is one or more grounds that the marriage is void (see Section 51 Family Law Act 1975). These grounds include: Where it is a marriage that took place after 20 June 1977 and: either of the parties was, at the time of the marriage, lawfully married to some other person (see Section 23B Marriage Act 1961); The parties are within a prohibited relationship (such as related in a certain way); Consent was not considered ‘real consent’ (see Section 23 Marriage Act 1961). Either of the parties is not of marriageable age (e.g 18 years).

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The idea of a “pre-nup” has traditionally been considered a romance killer, a reflection of a lack of commitment by at least one of the parties to a marriage, or subject to the Hollywood stereotype of a rich old man marrying a gold-digger. In Australia the “pre-nup” is called a “Binding Financial Agreement”.  The  amendments to the Family Law Act 1975 extend Binding Financial Agreements to those in a de facto relationship. Increasingly in Australia traditional perceptions are giving way to the acknowledgement that a Binding Financial Agreement is a practical solution to the reality of the statistics regarding the number of marriages that end in divorce.  More than that, a Binding Financial Agreement accommodates the complexities arising in blended families where people are entering into their second and subsequent relationships with property from their previous relationships. Coping with the emotional pain, stress and turmoil of a relationship breakdown can be made…

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