Many individuals now plan to have children on their own without a partner.
This means that the traditional make up of a family is no longer clear cut and the law has to keep up with significant social and cultural changes in society making the definition of parents and families so much more complex.
Many parents who use formal or informal sperm donors or conceive a child outside of a married or de-facto relationship, want to know whether sperm donors have any parental rights once their child is born.
There are a number of relevant laws in place in New South Wales, but in summary a sperm donor is presumed to not be a parent of a child unless married or in a de-facto relationship with the mother at the time of conception.
The case of Masson, Parsons and Parsons is due to be heard by the High Court and concerns a lesbian couple who conceived a child using a sperm donor known to them. Perhaps more uniquely, the sperm donor has played an active role in the child’s life and was referred to as “daddy” by the child. He was also listed on the child’s birth certificate as the father and all parties agreed that the sperm donor would have a parenting role. Furthermore, the lesbian couple were not in a de-facto relationship at the time the child was conceived.
The mothers (the lesbian couple) sought to relocate to New Zealand with the child, therefore the sperm donor father opposed the relocation on the basis that he was a parent of the child for family law purposes and in this respect he had “equal shared parental responsibility of the child” (in conjunction with the mother), meaning that the mother was required to consult him, among other things, in regard to where the child lived.
The primary proceedings in the Family Court determined that the biological mother was a parent of the child, along with the sperm donor. The other ‘mother’ was not considered to be a parent. Naturally, the mothers appealed the decision.
The full appeal court of the Family Court overturned the decision and found that the sperm donor was not a parent due to the operation of the New South Wales law and the limitation of the Family Law Act 1975 to define a parent.
The matter has since been appealed to the High Court and is due to be heard on 16 April 2019. The father will argue that state law does not apply and that the definition of a “parent” is a question of fact in which biological and social factors, as well as a parent’s conduct should be considered to determine whether a person is a parent.
The Attorney General has also intervened in the proceedings and submitted that the definition of a parent under the family law legislation should be widened to include sperm donors.
As you can see, the law associated with children can be complicated. You should seek legal advice if you wish to embark on artificial conception particularly in light of the High Court case.
At Everingham Solomons we have the expertise and experience to assist you with specialised family law matters because Helping You is Our Business.
When married or de-facto parties with children separate they should try to enter into practical and child focused arrangements between themselves in regard to the care and welfare of their children.
The Family Law Act 1975 governs all family law matters in Australia.
The law states that parenting matters must always consider the best interests of the child as the paramount consideration. It must also ensure that children are protected from physical or psychological harm from being exposed to abuse, neglect or family violence.
Parents do not actually have rights over children, but rather they have “parental responsibilities”. This incorporates decision making by parents as to major long term decisions such as who children are to live with, what religion they may practice, and where they are to go to school for example.
Alternatively, children have “rights”. In other words, children have a right to a meaningful relationship with both parents so long as there are no factors which places the child at risk of harm.
It is always advisable to have parenting arrangements documented. Parties can enter into a parenting plan or consent orders. A parenting plan can include details on where children live, how they will communicate with the non-resident parent, and arrangements for birthdays and holidays. There may also be a review date built into the parenting plan which allows the parties to revisit the parenting arrangements at a later date to assess what is working well or whether something need to be changed.
Consent orders can also incorporate these arrangements but unlike a parenting plan, court orders are legally enforceable. Orders should be followed carefully. There are serious penalties for contravening parenting orders which may include a significant fine or a period of imprisonment for example.
Family lawyers can prepare parenting plans and consent orders.
For some parents, where there is a disagreement in respect to parenting arrangements, the law requires them to attend compulsory family dispute resolution, which is also known as “mediation” before embarking on making an application in court for parenting orders. In Tamworth mediation takes place at “Centacare” located in Marius Street.
There are some situations where mediation is unsuitable. For example, where children relocate without the other parent’s knowledge or where they are withheld by a parent for an extended period of time without a valid reason, if there is entrenched conflict, or if there are significant safety concerns about children being exposed to family violence, abuse or neglect when they are in the care of the other parent.
Legal advice should be sought as to whether an application to the court should be made these circumstances.
As mentioned previously, all parenting arrangements, whether detailed in a parenting plan or in court orders, must regard the child’s best interests as the paramount consideration. Parents should always enter into negotiations with the other parent with this principle firmly in mind.
At Everingham Solomons we have the expertise and experience to assist you with all parenting matters because Helping You is Our Business.
When a marriage breaks down, it is not automatic that a property settlement occurs under the provisions under the Family Law Act.
In the recent case of Higgins, which was before the Family Court in 2018, the questions arose as to whether or not a wife was entitled to a division of property under the Family Law Act.
The facts of this case were, the husband was aged 76 years, the wife was aged 43 years.
The parties met in 2006, at this time the wife was working as an escort, the husband became her client. The parties married in 2012 and separated in 2015.
The husband and wife never lived together during the course of the relationship and their marriage. In fact, the wife was residing and continued to reside throughout the marriage with her de facto husband. The wife had an eight year old daughter with her de facto husband. Throughout the parties relationship, which, in accordance with the wife’s evidence occurred in 2006, the husband supported her by paying for clothes, botox treatments, breast implants, rent and school fees for the wife’s daughter.
In 2010 prior to their marriage, the husband purchased a home for the wife in her name. Such home was purchased by way of finance from moneys borrowed from the husband’s company. The wife acknowledged that there was a loan to the husband on the property.
The home was purchased at Melbourne, the wife prior to the purchase of this home was residing in Brisbane. It was the wife’s evidence that she agreed to move to Melbourne to be financed and supported by the husband and to live in an unencumbered home or, as she referred to it in her evidence “a house with no strings attached”.
When the wife moved from Brisbane to Melbourne she continued to work as an escort.
When the relationship and marriage broke down, the husband’s company sued to recover the loan the financed the wife’s home. The wife opposed the application and sought that the home be declared as her asset. She, maintained that the loan should be considered as a gift to her. Further, she sought an order for spousal maintenance.
The Court said the marriage was “a commercial arrangement except with friendship considerations thrown in”. The parties never intended for their marriage to be for purposes of the protection of a relationship in the sense of a marriage.
It was suggested by the wife’s legal representatives that the husband benefited from the property being in the wife’s sole name for tax effective purposes. The loan was not referred to until after settlement of the purchase and the wife had no intention of repaying the loan to the husband’s company. The court said that “the wife thought the arrangement was just to help out the husband because of the tax problem”.
The Court determined that the wife could retain her interest in the home because “it was not just and equitable to alter the wife’s interest in the house on the basis of the contribution made by the husband and that he somehow did not get what he bargained for.”
The wife kept the house in her sole name to the exclusion of the husband. The wife’s request or spousal maintenance was dismissed.
The court determined that “just because the marriage had ended, or indeed because the parties were married at all, it does not follow that there will automatically be some form of property adjustment”.
At Everingham Solomons we have the expertise and experience to assist you with all family law matters because Helping You is Our Business.
Not all couples wish to marry, but commit themselves to each other. The term in which a couple who are committed and live in a domestic relationship together is referred to as a “de facto relationship”. In such relationships sometimes it is hard to pinpoint when the relationship commenced and when such relationship ended.
Such questions arose in the case of Weldon and Levitt (2017).
Short facts of this matter were as follows:
Relationship between the parties was a relationship for approximately 12 or so years.
The parties had two children together.
The parties held no joint accounts.
With the exception of 12 months the parties resided in separate residences, when residing in separate residences neither party shared expenses for each other’s households.
The de facto wife claimed a single parent benefit from Centrelink during the period of the 12 year relationship.
The de facto wife claimed child support for the parties’ children during the 12 year relationship. This was never challenged by the de facto husband, being the father of the two children.
The parties did maintain an intimate relationship at times during the course of the 12 years and, attended some events together as a couple.
During the course of the 12 years the relationship was characterised by domestic violence. The de facto wife sought protection of domestic violence orders for herself and the parties’ children.
At the conclusion of some 12 years of this relationship the de facto husband sought a property settlement. His application was that he receive 40% of the net proceeds of sale of the property owned by the de facto wife. The de facto husband lodged a caveat upon the de facto wife’s property. It was submitted by the de facto husband that the de facto wife’s property was the only significant asset of the parties and valued in the sum of $350,000.
The court was required to determine whether, based on all the circumstances and facts of the matter, the parties were in a de-facto relationship in order to ascertain whether their property interests could then be adjusted. In other words, the applicant had to convenience the court that the parties’ relationship was such that they were a couple living together on a genuine domestic basis.
Whether two people are in a de-facto relationship is dependent on a number of “criteria” found in the Family Law Act 1975 including but not limited to whether there was a common residence the parties shared, the existence of a sexual relationship, ownership and use of property, financial dependency and interdependency, and the degree of mutual commitment to a shared life, along with reputational and public aspects of the domestic relationship.
On balance, the court found that the parties had been in a “boyfriend/girlfriend” type relationship, but it could not be declared that they were in a de-facto relationship for family law purposes. The “de-facto” husband therefore was not considered a de-facto spouse and could not seek a property settlement against his former “girlfriend”.
At Everingham Solomons we have the expertise and experience to assist you with all family law and de-facto matters because Helping You is Our Business.
The Family Law Act in Australia determines whether couples are in de-facto relationships for the purpose of adjusting their property interests upon the breakdown of such relationships.
It is possible to be married and to have a partner who meets the definition of being a de-facto partner.
The court applies “elements” to determine whether, having regard to all the circumstances of the relationship that a couple “lived together on a genuine domestic basis”.
For example the court will look at aspects of the relationship such as:
The length of the relationship;
The nature and extent of the common residence;
The financial relationship between the parties;
Whether there was a sexual relationship;
Whether the parties acquired property and how they improved or used those property assets during the relationship; and
Whether there was a mutual commitment to a shared life.
The court applies its discretion as to the weight it will give to each of the “elements” of the relationship, however, in other words not every characteristic described above will need to be met for a de-facto relationship to exist.
The recent Family Court case of Sha & Cham FamCAFC161, upheld that a married man was found to be in a de-facto relationship with a sex worker whom he had a short relationship with from August 2012 until September or October 2013.
The short facts of the case are as follows:
The parties did not have a common residence but they spent significant and regular time together at the de-facto wife’s residence and maintained a sexual relationship;
The de facto wife stopped working and the de facto husband made periodic and lump-sum payments to her as well as paying the school fees of her daughter;
The parties did not purchase any property together but the de facto husband had purchased a lounge and armchair for his use at the de facto wife’s property;
Both parties agreed to conceive a child through IVF demonstrating a commitment to shared life;
The parties entered into a financial agreement which referred to the parties as being in a de facto relationship even after 4 months.
Obviously this case had a unique set of circumstances but nonetheless it shows that the court carefully assessed all the facts and circumstances of the case and found that on balance, a de facto relationship did exist, despite it being of a short duration and strongly contested by the de-facto husband.
At Everingham Solomons we have the expertise and experience to assist you with all family law and de facto matters because Helping You is Our Business.
The Family Law Act 1975 deals with adjusting the assets and liabilities of separated married and de-facto couples. A property settlement is not a “right”, but rather the court must consider if it is fair and reasonable in all the circumstances for a property settlement to take place at all.
If a property settlement is necessary, the court must consider what actually constitutes the assets and liabilities of the parties. Often the issue of liabilities becomes a vexed issue. For instance, is money provided by parents a gift or a loan which must be repaid? If it is deemed to be a gift was it made to one or both parties? If the money is a loan, is the loan secured or unsecured? Ultimately was the payment of money an asset or a debt which should be included in the asset pool?
The 2010 case of Sulo & Colpetti concerned an 18 year marriage and a net asset pool of almost $1million. The parties had 3 children.
There were a number of debts which were disputed. In particular the husband asserted that two sums of money advanced to him from his father during the marriage were actually debts owed to his father. The loans exceeded $380,000 in total. The sum of $150,000 was used to purchase property in joint names. The remaining money was applied by the husband to discharge mortgage debt on properties he owned.
The wife argued that the moneys from the father were gifts and should be factored into the asset pool.
The court agreed and determined that the moneys were not loans. The husband’s arguments failed for the following reasons:
The husband’s father never actively sought for the loans to be repaid by the husband;
The second loan agreement did not seek any interest to be repaid on the moneys and no moneys had been repaid by the husband;
The statute of limitations applied at the time of the property settlement and the father was out of time in demanding his son to repay the moneys even if he wanted to;
The son has signed an acknowledgement of debt after the statute of limitation period had expired.
It is imperative that loans are documented in such a way that they show the existence of an enforceable debt. This case highlights that you should seek the advice of a solicitor in regard to preparing documents such as a mortgage or a loan agreement whenever there is an advancement of significant moneys to family members particularly if you wish to try and protect that money from a marriage or de-facto relationship breakdown in the future.
Although a loan to a husband or wife, usually from a parent, may create a legally enforceable debt, if the obligation is not enforced and not likely to have been met, it may not be deemed a loan for family law purposes.
At Everingham Solomons we have the expertise and experience to assist you with all property matters because Helping You is Our Business.
When parties with children separate they should try to enter into practical and childfocused arrangements between themselves in regard to the care and welfare of their children. Arrangements should be structured and practical but also allow some flexibility. Children have a right to a meaningful relationship with both parents and any parenting arrangements should reflect this principle.
For some parents, where there is a disagreement in respect of future parenting arrangements, the Family Law Act requires them to attend family dispute resolution, which is also known as “mediation” before embarking on making an application in court for parenting orders. In Tamworth, mediation takes place at “Centacare”.
If parties are able to reach consensus at mediation they will enter into a “parenting plan” which they both sign and date. A parenting plan can include details on where children live, how they will communicate with the non-resident parent and arrangements for birthdays and holidays. There may also be a review date built into the parenting plan which allows the parties to revisit the parenting arrangements at a later date to assess what is working well or whether something needs to be changed.
There are some situations where mediation is unsuitable. For example, where children relocate without the other parent’s knowledge or where they are being withheld by a parent for an extended period of time without a valid reason, or if there are significant safety concerns about children being exposed to family violence, abuse or neglect when they are in the care of the other parent. Legal advice should be sought as to whether an application to the court should be made under these circumstances.
If a parenting plan is working well it can be made into “consent orders”, which are prepared by a family lawyer and filed in the court. Once parenting orders are made by the court they are legally enforceable and should be followed carefully. There are penalties for contravening parenting orders which may include a significant fine or a period of imprisonment for example.
There are very limited circumstances where parenting orders can be changed once made by the court. In this situation the party bringing an application to amend or set aside such orders would need to demonstrate a significant change in circumstances in bringing their application as courts do not wish to expose children to endless litigation.
All parenting arrangements, whether imbued in a parenting plan or in court orders, must always regard the best interests of the child as the paramount consideration. Parents should always enter into negotiations with the other parent with this principle firmly in mind.
At Everingham Solomons we have the expertise and experience to assist you with all parenting matters because Helping You is Our Business.
Married couples and de-facto parties may seek to have their property divided when they go their separate ways.
If this is to occur, the Family Court must consider whether it is just and equitable for the assets of separated parties to be adjusted. There is no automatic “right” to a property settlement.
The recent decision of Chancellor & McCoy [2016] FamCAFC256 delivered in the full Court of the Family Court reinforces this principle.
The facts of that case were as follows:
The parties lived together in a 27 year same sex de-facto relationship;
The parties lived in homes owned solely by one party with a small amount of money paid weekly to the other party for her occupation of the homes;
The parties were of similar age and both had worked full time;
There was no intermingling of finances;
There was no joint bank account;
Each party acquired property in their sole names;
Each party was responsible for their own debts;
Each party could use their wages as they chose;
Neither party made provision for the other in their Wills or life insurance policies.
The applicant in this case had assets worth $720,000. The respondent had assets worth $1.7 million. The most significant difference in the value of the assets was due to the respondent making greater contributions to her superannuation over a number of years, such that her superannuation was worth $887,724 whereas the applicant’s superannuation was worth $204,177.
The trial Judge who presided over the preliminary matter had said:
“It is easy to assume that where parties have been together in a recognised legal relationship, whether a marriage or a de-facto relationship, and during that relationship the parties have accumulated property, that it automatically flows that a property settlement will occur following separation.
In the majority of cases this is true…. but….this is not always the case.
There are matters due to their particular facts which cannot fall within that assumption and where it is not just inequitable to progress to an alteration of property.”
Accordingly the appeal was not allowed and the decision made by the trial Judge was upheld, that there be no adjustment of property.
In essence the lack of financial intertwining and financial planning for the future by the parties, as well as their evident separation of finances and continued individual ownership of property, meant that the Court was not prepared to allow the appeal and accordingly the property interests of the parties remained unchanged.
It is very important that you seek legal advice before embarking on a property settlement. At Everingham Solomons we have the expertise and experience to assist you with property matters because Helping You is Our Business.
As the holidays are upon us it is worthwhile remembering that for separated parents, the Family Law Act states that both parents have “equal shared parental responsibility” of their children, until such time that a court says otherwise.
“Equal shared parental responsibility” relates to parental responsibilities of children. It means that parents must make joint decisions about any major or long-term issues affecting their children. For instance where a child lives, and where they go to school, both constitute examples of long-term decision making. By law, both parents hold equal shared parental responsibility of their children.
There are some rare circumstances where one parent has sole parental responsibility for children however an order of the court would need to be made which effectively removes parental responsibility from the other parent. It may be the case that the risk to the child by one of the parents due to family violence or parental incapacity is such that the court may consider that only one parent should have parental responsibility for the child.
An example of where equal shared parental responsibility has been undermined, is where one parent covertly moves away from the other parent and they do not inform the other parent of the change in residence or change in school enrolment of the child. Clearly a decision made by one parent alone to relocate for whatever reason, is in breach of the presumption of “equal shared parental responsibly” which both parents hold.
Furthermore, it is also worth noting that despite the portrayal of bitter “custody disputes” in Hollywood movies and on television, parents do not have rights over their children nor does the court use language such as custody.
On the other hand however, children do have rights. Children have a right to a “meaningful relationship” with both of their parents if it is in the child’s best interests. Clearly if one parent relocates without the other parent’s knowledge or consent, the child’s right to having a meaningful relationship with both parents can be put at risk.
Parents should particularly consider how flippant or ill-considered decisions impact on their children’s long term happiness, welfare and stability and should seek to make decisions which are child focused rather than decisions which are convenient to that parent or which purposely seek to antagonise the other parent.
Parents should be practical and apply common sense when negotiating parenting agreements between them or engage solicitors to prepare parenting plans and consent orders following sound legal advice. Parents should avoid contested disputes wherever possible to prevent a child’s childhood from being spent in lengthy legal proceedings.
When marriages or de-facto relationships come to an end, it is suggested that parties finalise the financial and property matters between them.
The Family Court can make legally enforceable orders in respect of dividing the assets and liabilities of married and de-facto couples. There are also benefits of entering into orders including stamp duty exemptions and capital gains tax rollover relief when assets are transferred between parties.
The Court initially looks at the value of the parties’ assets and liabilities and then assesses the contributions made by the parties to the acquisition, maintenance and or improvement to those assets throughout the relationship.
Contributions may encompass direct financial contributions such as making mortgage repayments and indirect financial contributions such as working in an unpaid role in a family business. Non-financial contributions also include contributions made to the care of children and to the upkeep of the family home for instance.
After the court has considered the contributions made to the pool of assets, it may also consider if there are any special factors which might lend it to make an adjustment in one party’s favour. Examples include if one party cares full time for children, suffers from ill health, is older, or has no ability to work and earn income.
The court must be satisfied that any orders it makes in respect of financial matters, are fair and reasonable when considering all the facts and circumstances of the case.
The Family Court matter of Wah & Golah [2016] concerned a property settlement where the marriage lasted eight years but where the husband made overwhelming financial contributions at the commencement of the relationship and throughout the marriage.
At the time the matter was determined by the court, the asset pool of the parties was valued at $3.9 million.
At the commencement of cohabitation the husband owned two properties, shares, significant money in bank accounts, superannuation and motor vehicles. It was determined that the husband’s initial contributions totalled $2.4 million whilst the wife contributed just $280,000.
There were no children to the marriage. The wife was a full time homemaker and had minimal earning capacity at the commencement of the marriage.
Late in the marriage, the wife suffered a car accident which caused ongoing medical problems, but otherwise her earning capacity remained unchanged from the date of cohabitation.
The trial judge determined that the assets should be divided 87.5% to 12.5% in the husband’s favour. The wife appealed the primary judgment, seeking an adjustment due to her greater future needs, and the husband opposed an adjustment based on his significant financial contributions made to the marriage.
The Court of Appeal determined that it was just and equitable to maintain the division in the husband’s favour, but due to the wife’s ill-health and the likelihood that she would be unable to work in the future, the wife received an additional $786,000 in order to ensure that she could find appropriate accommodation and support herself in the future.
As you can see, regardless of initial financial contributions made by one party, the court must look at all financial and non-financial contributions and possibly other special factors including future needs when determining a property settlement.
At Everingham Solomons we have the expertise and experience to assist you with property law matters because Helping You is Our Business.
Many individuals now plan to have children on their own without a partner.