Recently the Local Court Magistrate was required to rule on whether a couple whose Islamic marriage included a contract that the husband pay his wife a $50,000 “deferred dowry” if he left her was enforceable.

The short facts were that the parties had married under Islamic Law in 2004.  The man divorced his wife under Islamic Law by telling her during an argument “you are divorced”.   The magistrate upheld the contract between the parties and found the contract was enforceable.  The decision was appealed to the Supreme Court of New South Wales on a number of grounds.

These included:

• the Magistrate did not have the jurisdiction, as it was a matter involving “Sharia Law”;
• the agreement was not properly executed pursuant to the New South Wales Property (Relationships) Act; and
• a further ground of appeal was that the contract (being the delayed payment of a dowry of $50,000) should not be enforceable as it was contrary to public policy.

In effect, it was argued the agreement was of certain “servitude”.  The requirement to pay $50,000 if the husband initiated separation or divorce was to compel the husband to remain married.  Also, it was argued that the payment was a penalty clause and was, therefore, void for illegality.

All these arguments were rejected by the Supreme Court of New South Wales and the magistrate’s decision was upheld.  The New South Wales Supreme Court went on to refer to decisions in other countries where such contracts were upheld.

Finally, the Supreme Court noted there was no Australian case law on this matter where cultural or religious tradition is raised and that this question and issue would be referred to both the Commonwealth and New South Wales Law Reform Commission for review.

At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.

Click here for more information on Jennifer Blissett.

An application was made before the District Court of NSW in late 2011 to trace the name of the biological father with the name of a former lesbian partner of the birth mother.

This application was made by a former lesbian partner of the mother of a ten year old child.  The former partner and the mother chose to have a child by artificial insemination.  The mother and the former partner met the sperm donor via a newspaper advertisement.  The mother was inseminated.  A child was born thereafter.  The sperm donor was registered on the child’s birth certificate.  Indeed, the sperm donor had a close relationship with the child and contributed tens of thousands of dollars to the child’s welfare.

In 2008 NSW law was amended to permit two women whom had a child when in a relationship to have BOTH of their names placed on the Register of Births as parents of the child.

Because of this change to the law, the former lesbian  partner sought to have her name replace the sperm donor’s name on the birth certificate.  He opposed the application.

The Court held:-

1. Under the provisions of the Status of Children Act, the rebuttable presumption in the father’s favour, that he is a parent is displaced by the irrebuttable presumption that because the child was conceived through a fertilisation procedure he is presumed not to be the parent;
2. The clear words of the Births, Deaths & Marriages Registration Act shows only two people may be shown on the Register as the child’s parents.
3. The sperm donor (biological father) agreed that there was no contractual agreement prior to the birth that he would be on the Register when he agreed to donate the sperm.

Whilst there might be conflicting views within the community as to who should be registered as parents, the law is clear.  The former partner was successful.

We have the experience and expertise to assist you with all your Family Law needs because Helping You is Our Business.

Click here for more information on Jennifer Blissett.

When orders have been made by the Court in relation to the welfare of children and it is time to hand the children over to the other parent, what do you do when the child says “I don’t want to go”. Do you put the child back in the car or do you encourage the child to go?

This was addressed in the recent case of Raider and Raider [2011] by Justice Forrest. The facts of this case were the mother lived in Sydney with the two children, aged 13 and 11, and the father lived in Surfers Paradise, Queensland.  The children were to spend time with the father during the school holidays and the mother was to give the father 28 days notice of when that was to occur.

The father alleged that the mother did not comply with the Orders because the children did not spend time with him over the holidays and he was not speaking to them on the telephone. The mother stated that they did not want to go nor speak to him.

Justice Forrest had to determine, in accordance with the Family Law Act, whether the mother had intentionally failed, or made no reasonable attempt to comply with those orders and if so, did she have a reasonable excuse.

To assist him in his determination, Justice Forrest relied on the Full Court’s decision of Stevenson v Hughes [1993] regarding the positive obligations to encourage access. He stated “They said that it is not a sufficient discharge … to say to the effect “you see, I tried, but the child does not want to go” and thereafter to figuratively fold their arms as if that were the end of the matter. They held that the custodial parent’s role is an active role with an obligation to positively encourage access.”

Justice Forrest determined that the mother had contravened three of the five allegations in that 1) she did not provide the father with the travel details 28 days prior, 2) she did not encourage the children to speak to their father on the telephone and 3) she provided the wrong days for the children to spend time with their father.

In relation to the last two allegations however, the Court found that the mother did have a reasonable excuse on the basis that the 13 year old boy had threatened self harm and it was in the childrens interest for them not to spend time with their father to protect their health and well being.

If you need assistance determining what is reasonable compliance of  children’s orders you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.

Click here for more information on Sara Burnheim.

Not only are parents morally obligated to support their children we should be aware that there is also an obligation for parents to maintain their children in a financial sense. Human nature being what it is, some parents, will not comply with their obligations to support their children. Indeed, failure of a parent to pay maintenance towards a child has been a ongoing social problem. Various Acts of Parliament have been enacted in an attempt to enforce maintenance payments with only a limited amount of success.

It is believed that arrears have become more readily recoverable since the creation of the Government instrumentality, the Child Support Agency (“CSA”).

For any number of reasons, parents defaulting in child support obligations may seek to travel outside Australia. In appropriate cases, Departure Prohibition Orders (“DPOs”) may be used to stop parents with outstanding child support arrears from leaving Australia. DPOs are an effective way to collect outstanding child support. In the year 2008-9 the CSA recovered around $5 million of overdue child support by using DPOs.

A DPO is an administrative order and does not need the endorsement of a Court. The power to issue such orders may be delegated to certain senior CSA officers.

Whilst it is not appropriate to set out all the provisions of such law, in an article such as this, certain features should be noted. The CSA can make a DPO when four conditions are satisfied:

• the relevant person has a child support liability;
• the relevant person has not made satisfactory arrangements to hold discharge to liability;
• CSA is satisfied that the person has persistently and without reasonable grounds failed to pay child support debt;
• CSA believes it is desirable to make such an order to ensure that person does not leave Australia without wholly discharging the liability or making satisfactory arrangements to do so.

Awareness of these provisions may assist parents in enforcing payment when a child support liability has not been paid.

At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law, because Helping You is Our Business.

Click here for more information on Jennifer Blissett.

Your first marriage did not succeed but you have now found a partner with whom you want to share the remainder of your life with. You both have children from a previous marriage but no children together. Your only asset is the matrimonial home and life is pretty comfortable.

What happens when either you or your spouse need to leave the matrimonial home due to ill health? Who is going to pay the costs when the cash is tied up in the matrimonial home? What happens when adult children become concerned for the welfare of their parent, not the marriage?

This was a question for the Full Court of the Family Court to determine in the matter of Stanford & Stanford [2011] Fam CAFC 208 after the children appeared on behalf of their parents.  The facts of this case were that the husband and wife were aged 87 and 89 respectfully. They had been married for 40 years, each having been married previously and each having adult children.

The wife was the husband’s carer for a number of years in the matrimonial home after he suffered 2 strokes. On 30 December 2008, the wife suffered a stroke herself and had to remain in full time residential care. The husband had recovered well from his strokes and he was able to remain in the former matrimonial home. He visited his wife three times per week and placed $40,000 into a trust account for her use.

The parties still were married but separated due to the ill health of the wife. The wife was in a nursing home which was paid for by her pension however her children were not happy with the level of care that she was receiving. Her children wanted to move the wife into a nursing home that required a $300,000 bond. The difficulty was that all funds of the wife were held in the matrimonial home and the husband did not want to sell as he was still able to live there.

In that regard, the Full Court of the Family Court had to decide whether it had the jurisdiction and the power to order that assets be divided when the marriage had not ended.

After much consideration the Full Court found that it did have the power to make Orders in circumstances whereby the elements of the marriage were gone despite the parties still being married. The Court outlined that it had to be just and equitable to make such an Order to ensure that both parties had the adequate support and financial provisions.

This is a significant case for those couples who have entered into second marriages and their funds have intermingled. Adult children may often seek to be involved to ensure that what they think is the best for their parent even if it may be to the detriment of that parent’s spouse.

If you have entered into a second marriage and want to protect your assets, or make provisions in the future for events such as above, please contact us to make an appointment because at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business

Click here for more information on Sara Burnheim.

The Law Society of New South Wales operates the Specialist Accreditation Scheme to help the general public find Solicitors who have proven expertise in particular areas of the law.

Before gaining accreditation a Solicitor seeking Specialist Accreditation must pass rigorous assessments in communication, problem solving, client relations and the law in the relevant area.

A successful applicant for Specialist Accreditation is also required to commit to ongoing mandatory continuing legal education in the specialty area which means that the Specialist must undertake twice the mandatory continuing legal education of a non-accredited Solicitor.

In the end result, people dealing with Accredited Specialists can be confident that they are dealing with a person of proven expertise in the particular field who is also required to continually update and maintain their skills.

The Specialist Accreditation Scheme commenced in 1992 and has been actively supported by Everingham Solomons since that time. At one stage Everingham Solomons was the only firm in New South Wales of more than four Principals where all the Principals were Accredited Specialists in various areas of the law.

With that background, the Directors of Everingham Solomons are very pleased to announce that Jennifer Blissett has been awarded accreditation in the area of Family Law. Jennifer becomes the sixth of the current solicitors of Everingham Solomons to achieve Specialist Accreditation.

Jennifer joined Everingham Solomons in 1999 and is the Director in charge of the firm’s Family Law section. She practices extensively in the areas of-

• Property division and settlements
• Parenting issues
• Care arrangements for children
• Divorce
• De facto relationships
• Child support
• Spousal maintenance

At Everingham Solomons we can offer a range of Accredited Specialists to meet your specific legal needs.

Because Helping You is Our Business.

Click here for more information on Ken Sorrenson.

Click here for more information on Jennifer Blissett.

My name is Sara Burnheim and I have recently joined Everingham Solomons.  I will be working mainly in the Family Law area.

It seems like a lifetime ago that I started my legal career here in Tamworth as a young undergraduate law clerk.

Now I am back some 6 years after leaving and I feel that I have come back home, a more experienced (and worldly) solicitor.

Since leaving Tamworth in 2005 I have had a variety of different experiences, from working in more remote communities, travelling overseas working and taking in the wonders of Europe, to a stint at Parliament House in Sydney.

Finally I have followed my true passion which is the law, and family law at that.

After working in Politics I came to the realisation that I am better at assisting individuals through their legal difficulties to bring them satisfaction and resolution, rather than being part of a global solution.

I am committed to ensuring that each client receives my full attention in their matter to give them the best results within the framework of the legislation.

I started my Family Law career when I was in Coonamble, principally working on children’s matters. When returning to the law, I worked for a Family Law firm in Bowral expanding my knowledge and confirming my dedication to that area.

I have  commenced my Masters in Family Law providing me with the most up to date knowledge and practice to give clients the service that they require.

I am thrilled to be back in Tamworth and at Everingham Solomons as part of a dedicated and committed team.

At Everingham Solomons, Helping You is Our Business

Click here for more information on Sara Burnheim.

When couples separate they are often required to divide the assets and debts that have been accumulated during the course of their relationship.  There are a number of ways this can be done.  The couple can agree to divide their property without court intervention.  Where the parties cannot agree on how to divide their assets or debt it is possible to apply to the court for orders as to how their property and debts should be divided.

When a case goes to court to determine a financial order, the court generally begins by determining the assets and liabilities of the parties.  The court considers what direct financial contributions each person has made (such as wages), it considers indirect financial contributions (such as inheritances). The court  also considers non financial contributions such as caring for children, domestic duties and also the respective age, health and ability to earn income is taken into account.

There are a number of broad principles that will be considered by a court when determining how an inheritance could be considered.  Assets are not protected simply because they have been inherited by one party.

The court will look at when the inheritance was received and the stage of the relationship at the time of the inheritance.  Generally, when an inheritance is received very late in the relationship or after separation the court will treat it as a contribution made by the spouse who received it, however, this is not always the case.  The size of the inheritance in contrast to the other assets owned by the parties is also relevant.

When there are no substantial assets owned by the couple but there is an inheritance it is more likely the court will make an order for a property settlement from the inheritance, even if the inheritance was received after the date of separation.

This was illustrated in the case of Schirmer and Sharpe (2005). The facts were that the parties were married for 9 years. During the course of the marriage the parties had four children. The total net property at the time of separation was $9,000.00. At the time of the trial it was $833,833.00. The increase was mainly due to an inheritance the wife received three years after separation. The Trial Judge made an order which took into consideration the financial contribution made by the wife (being the inheritance) ordering the wife to receive 90% of the asset pool the husband to receive 10%. The husband appealed this decision but the Full Court dismissed the appeal and found that the Trial Judge to be correct.

When you are considering separating or have separated, you should seek legal advice. At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.

Click here for more information on Jennifer Blissett.

Most family law matters that come before the court regarding children concern disputes as to where a child is to live, or how much time they are to spend with a parent.  However in a recent Family Court decision, the Court not only had to rule on the amount of time two children were to spend with each parent, but was also forced to step in and choose the name of a two year old girl because her parents could not agree on a name.

The child’s parents separated before the child was born and there had been no agreement in what the child’s name would be.  The child had not yet been registered and the mother referred to the child by one name and the father referred to the child by another name.

The child already went by the father’s surname, however in an attempt to compromise, the mother offered to hyphenate the first name.  The father would not agree however, claiming that the name the mother picked (even the hyphenation) was blasphemous to his Islamic faith.

It became apparent to Justice Forrest that the father was somewhat controlling of the mother and her capability to act independently of him.

Justice Forrest stated, “I am drawn to the conclusion that the father’s opposition to the name (chosen by the mother) is yet another example of his determination to control the mother and her parenting of these two children.”

What was also interesting in this case was that the father was married to another woman at the time of his “relationship” with the mother and in a sense had two women “on the go”.  He also had children to his other marriage.

The Family Court decided that whilst the girl will ultimately decide for herself which name she preferred to be called, it was the Court’s decision that until such time, the first name chosen by the mother should be used and ordered that the girl be registered by that name.

Should you require Family Law advice, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.

Whilst Australia prides itself on being a multicultural society and being accepting of the values of all cultures, the Courts have recognised that some practices may not always be in the best interests of children.

In a decision in late 2010, the Family Court of Australia restrained a 14 year old girl from leaving Australia, thus saving her from an arranged marriage to a 17 year old man she had never met.  The Department of Human Services was alerted to the problem when the girl stopped attending school.  After interviewing her, the Department was of the view that the girl did not appear to understand the consequences of marriage.

The Court accepted that it would be contrary to the girl’s welfare to permit her to be taken overseas for the purpose of the marriage.  The Judge was of the view that a 14 year old girl would not have the understanding of the significance of marriage, which would be attributable to an adult.  Given that the marriage could not be celebrated in Australia was another reason for the Judge’s decision.

The girl’s name was ordered to be placed on the Australian Federal Police Watch List and her passport was surrendered.

This decision demonstrates the Court’s views on both marriage and children.  Firstly, the Court highlighted the significant nature of marriage and that it should not be entered lightly.  Marriage is an institution, whereby both parties should enter it freely and with the proper understanding of all that marriage entails.

Secondly, the Court demonstrated that the best interests and welfare of children is the primary consideration in any proceedings in Australia, regardless of whether that conflicts with any cultural upbringing.

If you have any questions regarding any aspect of Family Law, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.

Click here for more information on Melissa Swain.