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melbourne family lawyers

Were you in a de facto relationship?

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.

But what counts as de facto? Does going to all the same events together, does attending family gatherings, does having a hild?

In Crick & Bennett [2018] FamCAFC 68 (13 April 2018) the Full Court (Ainslie-Wallace, Aldridge & Watts JJ) dismissed the De Facto Husband (DF Husband)’s appeal against Tonkin J’s declaration that a de facto relationship existed while he lived in the De Facto Wife (DF Wife)’s home from 2001 to 2014. He argued that despite having a child in 2003 they had lived apart under one roof since 2004, never acquiring any joint property or operating any joint account.

The DF Wife gave evidence that the parties went out to events where they ‘presented as a couple’ but the DF Husband denied this. The DF Husband accepted that the parties attended many family, social and school events with their child but denied that when they were at these events the parties ‘presented as a couple’. The Full Court indicated that the DF Husband “did not set out any facts or circumstances that could illuminate his assertion and it is impossible to attribute any probative weight to that evidence.”

In this case, the Full Court placed highest importance to the determination of whether the parties had ‘a relationship as a couple living together on a genuine domestic basis’ [s4AA(1)(c)) of the Act]. The concept of whether the parties are a ‘couple’ is part of the test. The primary Judge in this case found that between the alleged period the parties attended many social and family events including family Christmases, birthdays, events held at the parties home and at their relatives’ home as well as the child’s school functions. The Full Court continued to state “This was significant evidence of the public aspects of the . . . relationship and supported a finding that there was a de facto relationship. If the appellant wished to contend that the parties’ conduct at those events led to a different conclusion then it was incumbent on him to adduce evidence to support that proposition”.

Other than establishing that you were ‘living together on a genuine domestic basis’ you’re your former partner, you must satisfy the Court of all of the following:

  1. you meet one of the following four gateway criteria

    1. That the period for the de facto relationship is at least 2 years

    2. That there is a child in the de facto relationship

    3. That the relationship is or was registered under a prescribed law of a State or Territory

    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice

  2. you have a geographical connection to a participating jurisdiction

  3. your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

In the event of a breakdown of a de facto relationship, you must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.

If you are uncertain as to whether your relationship constitutes a de facto relationship, or if you are in one that has unfortunately broken down and you would like to discuss further what your entitlements are, please do not hesitate to contact one of our approachable and experienced family lawyers. The number to dial is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au.

Who stays in the home?

When your Ex Won’t Move Out…..

There are times when both parties wish to remain in the family home post separation.  You may feel you have a greater right to remain in the home; maybe it was your home prior to the relationship or marriage.  You perhaps made greater financial contributions to the home or have primary care of the children, or you simply may have nowhere else to go nor the financial resources to leave.

Whatever the reason in the event of family law separation both parties are legally entitled to live in the family home.  It does not matter whose name is on the ownership of the house. 

If you leave the house, you do not lose your rights to a share of the house, or other property. You can also legally protect your interest in the family home if your name is not on the title by placing a caveat on the property which registers your interest in it.

You cannot be forced to leave the property at the mere demand of the other party in the absence of safety concerns.   If there are no safety concerns, no court orders have been breached, the removal of one party from the residence cannot even be enforced by the police.

Can you change the locks?

It is generally not advisable to change the locks as a tool to evict a party from the property, in addition to increasing the acrimony between the parties it can also reflect poorly in any subsequent court proceedings.

If the property is owned by one party, that party has the right to change the locks, if it is jointly owned then both parties are able to change the locks.  If the property is being leased then the landlord should be consulted about the lock change.   Even if the party who is remaining in the property is not the legal owner, it can nonetheless be justifiable for them to change the locks if the other party has moved out and has removed their possessions.  It is argued that the remaining party is entitled to the peaceful enjoyment of their residence, similar to that of a tenant.

How can I get my partner to leave?

To legally force your partner to leave the home and stay out, you will need to obtain an exclusive occupancy order from the court.  These orders are usually only made in circumstances involving threats, domestic violence and/or safety concerns for one of the parties or their children or whether the children are being exposed to parental conflict.  

We would need to explore the pitfalls of remaining in the home with your former spouse – weight it up against what you want to achieve by remaining in the property and is there a better option for you.  For example, if the costs of establishing a new household is a deterrent, we may need to consider whether an application for urgent or interim maintenance to fund relocation would be appropriate.

Can I take the children with me?

You can take the children with you if there are concerns about your safety and the children’s safety.  However, if you want to move away with the children and the move makes it difficult for the other parent to see them you need to try to get agreement first.

If you are afraid to try to get the other parent’s agreement and are worried about your safety, we can speak to you about your options.

If your former partner refuses to vacate the home or wish to discuss your options prior to separation and your matter generally, you should contact our office to make an appointment on 9614 7111.

Adoption Visa – Australia (Subclass 102 visa)

The Australian Adoption visa (subclass 102) lets a child come to Australia to live with their adoptive parent. The child can already be adopted or be in the process of being adopted. The adoptive parent sponsors the child for this visa and usually applies on their behalf.

This is a permanent residence visa. If the adoption is through a State or Territory adoption authority, you can lodge the application before the adoption is finalised.

To apply for the Adoption Visa (Permanent) (Subclass 102), the child must be:

  • outside Australia when applying for the visa
  • adopted:

- with the involvement of an Australian State or Territory adoption authority (either under the Hague Adoption Convention, a bilateral adoption with a competent authority of another country, or another adoption agreement)
- under the laws of a country other than Australia and their sponsor or their sponsor's partner has and been living outside Australia for the 12 months before the child applies for the visa

  • sponsored by their adoptive parent or their adoptive parent's partner
  • under 18 years of age when the application is lodged and when it is decided.

The child must also be sponsored by an adoptive parent who is:

  • an Australian citizen; or
  • the holder of an Australian permanent resident visa; or
  • an eligible New Zealand citizen.

What this visa lets the child do

It allows the child to:

  • travel to and stay in Australia indefinitely
  • work and study in Australia
  • enrol in Medicare, Australia’s scheme for health-related care and expenses
  • apply for Australian citizenship (if they are eligible)
  • sponsor eligible relatives for permanent residence
  • travel to and from Australia for five years from the date the visa is granted – after that time they will need another visa to enter Australia

Guardianship of children adopted from overseas

  •  If an adoption is not finalised or if it is not recognised by a state or territory adoption authority when the child enters Australia, the Minister for Immigration and Border Protection will be the guardian of the child. The guardianship powers are delegated to state and territory welfare authorities.
  • The minister stops being the guardian if any of the following occur:

- the child becomes an Australian citizen
- the child turns 18 years of age
- an Australian adoption order is made for the child

Adoptive parents living in Australia

Your relevant Australian State or Territory Central Adoption Authority (STCAA) must be involved in managing the adoption process with the country where the child is living.

If you are considering adopting a child from outside Australia, you should contact the central adoption authority in your State or Territory.

Privately arranged adoptions

Australian STCAAs do not generally support privately arranged adoptions either from in or outside Australia, including the adoption of children who are relatives. They are not able to help children or sponsors to meet the eligibility requirements for granting a visa to an adopted child.

Important: If you want to proceed with an adoption from outside Australia, which has not been arranged by your STCAA, it is strongly recommended you first seek legal advice both in Australia and in the country where the child lives.

Adoptive parents living outside Australia

Adoptions that are undertaken by Australian citizens, permanent residents or eligible New Zealand citizens who usually live in countries other than Australia, and that are arranged without the assistance of an Australian STCAA, are known as expatriate adoptions.

It is important to obtain appropriate advice before embarking on the adoption process.  Nevett Ford Lawyers has expertise in all aspects of the adoption visa process and can provide advice and assistance.

Please contact us today for further information:

Telephone: +61 3 9614 7111

Emailmelbourne@nevettford.com.au

Is your Recovery Order Application warranted?

Recovery orders are usually made for a child to be returned to their primary carer, or the parent with whom a parenting order states the child lives with or the parent who has parental responsibility for the child.

In Renald & Renald (No.2) [2017] FamCAFC 133 (14 July 2017) on appeal, Thackray J set aside a Magistrates’ Court refusal to make a recovery order for the Mother. In this case the Father withheld the children after the Mother agreed to him having the children outside Interim Orders, saying the children did not wish to return to the Mother. Thackray J said that an order requiring the child to be returned “may send a message to the legal profession and their clients that the Court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk”.

On one hand, parents should not be taking matters into their own hands, particularly swaying away Court Orders, including unilaterally withholding a child or removing a child from his/her primary carer where no evidence of risk is present. Aside from the fact that there is a potential breach of the Orders, you may run the risk of a recovery application with an order for costs made against you.

On the other hand, before rushing off and making an application for recovery order, it is always sensible to see if the situation can be resolved between the parents outside Court. It might be worthwhile sending a text to the other parent withholding the child setting a deadline, for example – “you are currently in breach of the Orders, unless you return the child back by 10:00am tomorrow, I will have to take legal actions in Court”. The Court would want to see that you have taken steps to find the child and made several attempts to negotiate with the other parent for the child’s return before taking appropriate action to involve outside authorities such as the Australian Federal Police to find, recover and deliver the child to you. It is also important that you collect as much information as possible about where the child is likely to be to increase your chances of recovering the child. Therefore your Affidavit material is absolutely crucial in this circumstance.

If all else fails and the child is still not returned to you, consider seeking legal advice from our friendly and experienced family lawyers who can assist you promptly through this emotional and difficult situation.

Myths of Child Support

Myth 1: “I don’t see the kids, so I don’t have to pay child support.” Or “If you don’t pay child support, you won’t be able to see the kids.”

The Family Law Act 1975 recognizes that it is in the best interests of a child to have a meaningful relationship with both parents, and to be assured that he/she is supported financially, whether they are biological or adoptive parents, same sex or otherwise. Preventing your child from spending time with the other parent simply because he/she refuses to pay child support would be viewed by the Court as pushing your child/not acting in your child’s best interest.

Myth 2:Child support must always be assessed by the Child Support Agency of the Department of Human Service.”

If the parents are hostile and cannot reach an agreement as child support, Child Support Agency can assess how much child support should be paid. The assessment is formula based and takes into account several factors, including:

  1. Taxable income of each of the parents;
  2. Costs of raising the child or children;
  3. Percentage of time the child or children spend with each parent (usually only nights are taken into consideration);
  4. The age of the child or children;
  5. The cost of living of each of the parents;
  6. Whether there are any other dependant children.

Whilst either parent may request the Child Support Agency to make an assessment of the amount of child support one parent must pay to the other, parents can come to their own agreement about how much child support should be paid. Parents may negotiate a private agreement about child support. They may agree on a sum less than or greater than the amount assessed by the Child Support Agency. The parents may agree on the method of paying significant expenditures such as private school fees, uniforms, sporting fees, etc. They may also agree on a lump sum arrangement. In these circumstances, it is usually advisable for parties to enter into a Child Support Agreement.

There are two different types of Child Support Agreements: Binding Child Support Agreement and Limited Child Support Agreement.

Myth 3: My ex-partner and I can sign a piece of paper stipulating the amount of child support to be paid without getting lawyers involved.”

If parents decide to enter into a Limited Child Support Agreement the parties are not required to get legal advice before entering into a limited agreement however a child support assessment must already be in place and the annual rate payable under the agreement must be equal to or more than the annual rate of child support payable under the child support assessment.

Binding Child Support Agreements on the other hand can be made for any amount that the parents agree to. However, Child Support Agency will not accept a Binding Child Support Agreement without each parent first obtaining independent legal advice. They require legal practitioners to complete a Certificate to verify that parents received legal advice before entering into a binding agreement for Child Support.

You should contact one of our experienced Family Lawyers on 03 9615 7111 or email us out of hours on melbourne@nevettford.com.au for further advice with respect to the issues of child support or about which one of these Agreements is more suitable to your needs.

Husband’s Business Suddenly Gains Value Post Settlement – What’s a Wife to do?

$93 million dollars! The Age today made headlines with this splashy article about ongoing legal battle that was brought before the Family Court of Australia. The parties have been given the pseudonyms of Mr and Ms Wills, and you can read their case here http://www.austlii.edu.au/au/cases/cth/FamCA/2017/183.html

In this case, the parties were married for 35 years before they split. On 27 April 2015, their property dispute was finalised where the wife received a division of assets worth $15 million. The Wife has then filed an application for this agreement to be disregarded, claiming that the Husband had failed to disclose relevant information relating to an interest in a business which later resulted in him receiving $93 million.

As it appears to have turned out, on 1 May 2015 the Husband was said to have “determined to take the initial steps to the making of an Initial Public Offering (IPO)” for the business. Their property dispute was finalised on 27 April 2015.

Having not seen the full details of the case, it is hard to say exactly who said what, knew what and when, and so we cannot comment definitely on what will happen. But there may be some value in looking at cases where the property ‘pool’ consisted mainly of lottery winnings (bought by the husband), as in the case of Elford v Elford [2016] Fam CAFC.

In Elford the Appeal Judge upheld the trial judge’s decision that the winnings were not a joint endeavour but rather recognised that the husband made the sole contribution to the winnings – therefore dismissing the wife’s appeal to a greater share in the property pool.

The question then is whether the wife receives any entitlement to the $93 million.

Only an experienced lawyer such as one from our family law team would be able to navigate you through complex scenarios such as the above – we are contactable on 03 9614 7111 or otherwise out of office hours on melbourne@nevettford.com.au.

Binding Financial Agreements (BFA)

Parties can enter into a BFA before marriage (s 90B), during the marriage (s 90c), after a divorce (s 90D), before entering into a de facto relationship (s 90UB), during a de facto relationship (S 90UC) or after the breakdown of a de facto relationship (s 90 UD). Both heterosexual and same-sex (LGBT) couples can enter into a BFA.

A Binding Financial Agreement (or BFA) is a written document signed by both parties to a relationship which contains provisions about the division of property in the event of a separation. It must comply with either Part VIIIA or Part VIIIAB of the Family Law Act 1975 and parties to the Agreement must obtain independent legal advice about the Agreement.

A Binding Financial Agreement is often referred to as Prenuptial Agreement (prenup or prenups), Cohabitation Agreement, Postnuptial Agreement (postnup or postnups), Property Settlement Agreement or Divorce Settlement Agreement.

Binding Financial Agreements entered into prior to or during a Marriage or De Facto Relationship

Advantages

  1. It allows parties to protect assets and financial resources which existed prior to the relationship from a claim for division after separation.
  2. It allows parties to protect an inheritance or gift they received prior to the relationship, during the relationship or after separation.
  3. In some circumstances, it allows parties to remove their respective responsibilities towards the other to provide spousal maintenance.
  4. It provides a degree of certainty to the parties as to how their assets, financial resources and liabilities will be treated in the event they separate and remove any anxieties they may have about entering into a relationship in the first place.
  5. It allows parties to be clear about the responsibility of debts such as credit card debts, home loan, personal loans, business loans, etc.
  6. In conjunction with a will, it allows parties to plan their estate and ensure that their children, especially any children from previous relationships, are not disadvantaged in the division of the estate.
  7. It allows parties to determine their property settlement without the intervention of the Courts and costly legal disputes.

Examples of when a Binding Financial Agreement may be useful

  1. When one party has significantly more assets and financial resources than the other, a BFA (whether entered into before or during the relationship) allows that party to keep those assets and financial resources safe from the other in the event that they separate.
  2. When both parties have significant assets and financial resources and they both wish to quarantine those assets and financial resources from the other in the event that they separate.
  3. When one or both parties have children from previous relationships and wish to protect all or part of their assets and financial resources for their children.

Binding Financial Agreements entered into after separation

Advantages

  1. It allows parties to keep the terms of their settlement agreement away from the eyes of the Courts, the Australian Taxation Office (ATO) and other persons and organizations.
  2. It allows the parties more flexibility in how they wish to determine their financial matters.
  3. In some circumstances, it allows parties to remove their respective responsibilities towards the other to provide spousal maintenance.

Examples of when a Binding Financial Agreement may be useful

  1. When parties have complex property, business or trust arrangements which they wish to keep as private as possible.
  2. When the settlement terms are more in favour of one party and as a result may not be approved by a Court.
  3. When the parties need a quick resolution to their financial affairs and wish to avoid an agreement which requires the review and approval of a Court (consent orders).

We have a competent and approachable team of family lawyers who is able to assist you in determining the right kind of Binding Financial Agreement for your circumstances. We recommend you contact us on 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au.

Preventing unlawful removal of children from Australia

Do you have concerns that your child may be removed from Australia against your permission? Have you agreed to your child traveling overseas with the other parent but there is a genuine fear that they may not return your child to Australia?

We understand that this would be a stressful situation for any parent.

If so, it may be important that you act immediately to prevent this. You will need to obtain a Family Law Watch List from the Family Law Courts preventing or limiting your child from travelling outside Australia. A Family Law Watch List is also otherwise known as an Airport Watch List. If the situation is urgent, the Courts may make an Order on an ex parte basis.

The Family Law Watch List directs the Australian Federal Police to put your child’s name on the Watch List which in effect, operates at all international departure points including sea ports until discharged by the Courts. It is crucial to note though that the Family Law Watch List does not restrict interstate travel. The Australian Federal Police will not place your child’s name on the Family Watch List without a Court Order, unless in very limited circumstances.

If a child does not have a valid passport, Australia requires the other parent’s signature on the Passport Application form. If this is the case, and you suspect the other parent may fraudulently make an Application, you may, at first instance, consider whether a Child Alert Request will suffice. A Child Alert Request is a warning to the Department of Foreign Affairs and Trade not to issue an Australian Passport for a child without first making further enquiries (https://www.passports.gov.au/passportsexplained/childpassports/Pages/childalerts.aspx).

If the other parent has an international passport, you can make enquiries with embassies/consulates about the possibility of the other parent obtaining an international passport for your child. If there continues to be a real risk your child could travel on an international passport, you can make an application for your child’s name to be placed on the Family Law Watch List.

When facing with an application for a Family Law Watch List, or an application for the child to travel overseas, the Courts uphold its primary consideration being the child’s best interests – Will a travel abroad be in the child’s best interest? What is the time period and reason for the intended travel? Is there a real risk that the child will not be returned to Australia? Is the intended/likely travel destination a Hague Convention country? To find out whether a country is a Hague Convention country, go to https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionontheCivilAspectsofInternationalChildAbduction.aspx.

On the other hand, if you are a parent considering removing a child from Australia without the other parent’s consent, or relocating overseas, you should think twice as your actions may constitute an offence punishable with imprisonment up to three years. If you wish to relocate with your child, you should consult the other parent seeking an agreement in writing, or seek Court Orders allowing your child to travel or relocate.

If you have a pressing fear that your child may be removed from Australia unlawfully, or you simply wish to know more about international travel arrangements, you can contact our attentive Family Law team on 03 9614 7111 or Melbourne@nevettford.com.au.

Protect Your Family’s Investment

Many people choose to invest in property in Australia for their retirement, as a source of income, or to assist their children with somewhere to live. This is true of both local buyers and overseas purchasers. When you do this however, you should turn your mind to how Australian family law will consider this type property in the event that there is a separation involving yourself or your children in the future.

If a parent buys a property for their child, their child marries and then divorces, it is not as simple for the parents as getting their money back out of the property ‘dollar for dollar’. Australian family law will usually consider this assistance from a parent a type of financial contribution, not a loan, and is not inclined to repay the money as if it were a normal debt. Often people will walk away from a relationship having lost not only a lot of money themselves, but also a lot of their family’s money, resulting in increased family tension.

At Nevett Ford Lawyers, our large and experienced team advise and assist with a range of solutions to help to protect you and your family in these situations. When you purchase a property, we recommend considering a Binding Financial Agreement under the Family Law Act to protect yourself and your children, as well as ensuring loan documents are drafted to assist in recovering money if necessary. We are also able to draft Inheritance Agreements to help to protect inheritances from family law disputes in the future. We can even draft Agreements that will operate for couples who are not yet married but may do so in the future and want to make just one document to cover these different situations.

It is important to look at these types of documents and have them prepared when everything is going well, to protect you in the event of future uncertainty. Determining the right kind of document for your circumstances is a skill at which our lawyers excel, and we recommend you contact us to enable you to make this important decision in an informed manner. Our number is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au

What is urgency for parenting cases?

Parents in the heat of family law situations will often want to know if the Court can help them with their dispute urgently. To a parent in the middle of a dispute situation – they may not have seen their child for months, or they may want to change their current arrangements – their situation may appear genuinely urgent. However, this is not the test that the Court applies in determining whether a matter should be listed urgently in front of a Judge or Registrar.

In the matter of Fowler & Glover (http://www.austlii.edu.au/au/cases/cth/FCCA/2016/2595.html), the Court considered what test is, and should be, applied to determining whether something should be heard urgently when it is delivered to the Court Registry to file.

In that case, the Father had not seen the child concerned since separation, with there being a delay of some more than six years between separation and the Father seeking Orders. The Father was trying to get orders made in time for his planned visit to the area where the child lived. The visit was scheduled for only a month after the Court documents were being filed. The Court empathised with the situation, but emphasised that the reality of the Court’s resources were that the Court was already overlisted (above capacity) with other matters. Nevertheless, the Court clarified that it continued to overlist urgent matters, which were described as typically involving ‘allegations of serious and immediate risk of harm to children.’

This reflects our experience. The Court will largely only overlist / list urgently parenting situations where there is the immediate risk of harm to a child. An immediate risk will usually be a threat to the safety of a child well above and beyond any harm that is suffered as a result of a delay in that child’s relationship with a parent.

A good family lawyer will be able to advise you on how to identify what are, and are not, good reasons to list urgently, and be able to make a compelling case to the Court for why urgency is justified. Our lawyers will advise you on this and other practical measures to take in relation to your situation, and are available to speak to you on 03 9614 7111 (tel:0396147111) or Melbourne@nevettford.com.au