Nothing’s Gonna Stop Us Now

In my previous column published 27 November 2021, we reviewed the law regarding traveling overseas with or removing a child from Australia, when the child is a subject to family law proceedings.

In summary, Section 65Y of the Family Law Act 1975, prohibits the removal of a child unless it is done with the consent of both parties, or by Court Order.

Doing so is a contravention of certain provisions the Family Law Act, and may be looked upon as a criminal offense. The penalty may be up to three years imprisonment.

With the Covid-19 pandemic, which forced a moratorium on international travel, largely ending the opportunity for a parent involved in family law proceedings to unilaterally abscond with a child to proceedings, the recent resumption of international travel has once again opened the door.

We now turn to the remedies available to prevent this situation occurring, and in contrast to the words of 1980’s rockband Starship, something can stop them now.

If a party to a family law proceeding is concerned that the other party is planning to unlawfully remove a child from the country, the Federal Circuit and Family Court of Australia informs us there are three immediate remedies which can be sought to prevent this occurring:

  1. Prevent the issuing of a passport to the child. This is done by Application to the Court for a ‘child alert order’ which warns the Department of Foreign Affairs to prevent issuing a passport. It remains in place for either 12 months, until the child turns 18, or a Court orders otherwise.
  2. Delivery of passport to the Court. In circumstances where a passport has already been issued, a party may present the child’s passport to the Court and the Court will make orders to keep it for a specified amount of time.
  3. Court Order. The Court may make orders which restrain the child from being taken overseas, request the Australian Federal Police put the child on an Airport Watch List, or request the Australian Federal Police assist in enforcing the aforementioned orders.

In certain circumstances however, the horse may have bolted and a party, whether they are an Australian citizen or an international, may have taken the child overseas before any of the above injunctive restraints could be implemented to prevent it.

Matters involving the retrieval of a child from another country are often referred to as ‘Hague Convention Cases’, named for the governing legislation (and somewhat wordy) 1980 Hague Convention on the Civil Aspects of International Child Abduction, to which Australia is a signatory. Part three of this gripping series will discuss how family law practitioners may engage with international law to bring a child to family law proceedings back to Australia.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.

Binding Death Benefit Nominations: Traps to Look Out For

Headshot of Nick Hawkins - Solicitor at Everingham Solomons TamworthA Binding Death Benefit Nomination (BDBN) is a document that allows you to decide who will receive a benefit from any Superannuation you have accrued at the time of your death. Making a BDBN is an essential part of estate planning. A lot of people are not aware that their superannuation will not automatically be distributed through their Will. If you have seen a solicitor to create or update your Will, it is also worthwhile making a BDBN.

There are three main traps to look out for when making a Binding Death Benefit Nomination:

1. Make sure the nomination you have made is in fact binding. Superfunds will often offer binding and non-binding options. If you only have a non-binding nomination your superfund is not bound to follow your directions and they can use their discretion to decide how your superannuation is divided among your family. If you want to take the decision out of the hands of your superfund and ensure your wishes are followed, check the type of nomination you have made to confirm that it is binding.

2. The second trap of BDBNs is that they often lapse every three years. Some superfunds do offer non-lapsing nominations that are also binding. However, just like making a Will, your BDBN also needs to be reviewed every few years. A Binding Death Benefit Nomination that has expired is not enforceable, so it is important that you actively review the nomination and keep it up to date.

3. Not everyone is eligible to be nominated as a beneficiary of your superannuation. You can only nominate someone that is:
a. a dependant;
b. someone who is in an interdependent relationship with you (such as a partner or spouse);
c. your children, including:
i. stepchildren (provided the relationship between the child and their natural parent is not severed by death or divorce);
ii. adopted children; and
iii. adult children; or
d. your legal personal representative (such as the executor of your Will)

If you nominate your legal personal representative your superannuation will be directed to your executor(s) who must distribute it in accordance with your Will. This is the only way to direct your superannuation to someone that does not fall into one of the above categories.

When you make your BDBN your superfund will not know if the people you have nominated fit into one of these categories and will automatically assume you have made a valid nomination. Only once the BDBN comes into effect will the superfund consider your nominations. Anyone nominated that does not come under one of the above categories cannot receive a benefit from your superannuation and your nomination will be invalid.

If you need assistance or advice regarding Binding Death Benefit Nominations or other estate planning issues contact a solicitor at Everingham Solomons because Helping You is Our Business.

Click here for more information on Nick Hawkins.

I’m Leaving on a Jet Plane

As international travel is set to resume after, nearly a two-year pandemic induced hiatus, we turn our attention to the law regarding traveling or removing a child from Australia. Unlike the words penned by virtuoso John Denver in his famous 1966 song, it is not as simple as “I’m leaving on a jet plane” and certainly not “I don’t know when I will be back again.”

Under the provisions of the Family Law Act, parents have a presumption of equal parental responsibility. This presumption remains until a Court orders otherwise.

When separated parents wish to travel internationally with their child or children, they must be aware of the Family Law Act 1975 Section 65Y, which prohibits a parent/guardian from removing a child from Australia unless:
1. It is done with the authorisation and written consent of each of the parents/guardian; or
2. A Court Order has been made to allow such to occur.

Violation or breach of Section 65Y is a criminal offence. The penalty can be imprisonment for up to three years.

The exemptions to Section 65Y depend on the circumstances but generally only occur when the person removing a child from Australia:
1. Believes it is reasonably necessary to prevent the child being subject to family violence; and
2. The conduct is reasonable in the circumstances as the person perceives them.

As previously mentioned, if a parent or guardian cannot agree and written consent is not granted, an application to the Court must be made. Such Court must have jurisdiction to make Orders in accordance with the Family Law Act. The Court will consider, when adjudicating on an application for international travel, inter alia the following:
1. If it is in the best interest of the child to travel internationally;
2. If there a risk of a child’s relationship being disrupted or terminated with the non-travelling parent during the time of travel; and
3. If there a risk that the child will be detained in a foreign country or, not being returned to the child’s primary place of residency.

It is my intention to write a further advertorial where I will examine the remedies available to prevent a parent from removing a child from Australia or, in extreme circumstances, commencing proceedings to return a child from an overseas country.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.

 

Divorce: What does it mean to be “separated” from your spouse?

Headshot of Emily Cullen - Solicitor at Everingham Solomons TamworthIn Australia, a party to a marriage is able to make an Application for Divorce under Section 48 of the Family Law Act 1975 (Cth).
In order for an Application for Divorce to be granted, the Court must be satisfied of the following:
1. That there is a valid marriage;
2. That you:
a) Are an Australian Citizen; or
b) Live in Australia and regard Australia as your permanent home, or
c) Ordinarily live in Australia and have done so for at least 12 months before filing the Application for Divorce;
3. That the marriage has broken down irretrievably;
4. That the parties to the marriage separated and thereafter lived separately and apart for a period of not less than 12 months; and
5. That there is no reasonable likelihood of cohabitation being resumed.

On occasion, we have been required to consider what it means for parties to be “separated” and to have lived “separately and apart”.

In 1976, the Family Court of Australia considered this concept In the Marriage of Todd (No 2).

The facts relevant to the Application for Divorce were as follows:

  • Mr. Todd married Mrs. Todd in 1960;
  • Mr. Todd and Mrs. Todd has two children;
  • In November 1974, Mrs. Todd relocated from the former matrimonial home with the two children of the marriage;
  • In April 1975, Mrs. Todd and the children returned to the matrimonial home;
  • In 1976, an Application for Divorce was made.

In his judgment, the Late Justice Watson determined the following:
1. ‘Separation’ means more than physical separation – it involves the destruction of the marital relationship. Separation can only occur where one or both parties to the marriage form the intention to sever or not resume the marital relationship and act on that intention. Considering what comprises the marital relationship will vary for each couple.
2. ‘Living separately and apart’ – Unless there is a substantial resumption of the marital state, this element is considered present. It is important to note, casual intimate relations with your estranged spouse do not constitute an interruption to separation.
3. ‘Resumption of cohabitation’ – Once the necessary period of separation has been established, a Divorce should be granted unless the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

In the Marriage of Todd (No 2), the Late Justice Watson found that the marriage had irretrievably broken down and that the parties had lived separately and apart since November 1974. Despite the parties resuming their cohabitation in 1975, Justice Watson determined the matrimonial relationship was never restored and accordingly, it was appropriate for the Court to make and Order for Divorce.

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.

 

The Merger of the Family Court of Australia and the Federal Circuit Court of Australia

Headshot of Emily Cullen - Solicitor at Everingham Solomons TamworthIn February 2021, the Senate passed the Federal Circuit and Family Court of Australia Act 2020 providing for the amalgamation of our two specialist Family Law Courts in Australia: The Federal Circuit Court of Australia and The Family Court of Australia.

The Act provides for the establishment of a new Court, the Federal Circuit and Family Court of Australia (FCFCA) comprising of two (2) divisions:

  • FCFC Division 1 will continue the work of the Family Court of Australia, dealing with the more complex matters and exercising appellate jurisdiction; and
  • FCFC Division 2 will continue the work of the Federal Circuit Court of Australia and will be the point of entry for all new family law and child support cases. The FCFC Division 2 will also have jurisdiction over general federal law matters.

In a statement to the media on 23 February 2021, the Honourable Justice William Alstergren, Chief Justice of the Family Court of Australia, said “to improve the system we need a streamlined single point of entry, as well as harmonized rules, forms and case management approaches.”

Under the new framework, the number of specialist Judges will increase. There are currently 33 judges in the Family Court of Australia and 40 judges in the Federal Circuit Court of Australia. The amalgamation will allow for 35 specialist judges in Division 1 and 43 judges in Division 2.

The promising news for those who have current cases before either the Federal Circuit Court of Australia or the Family Court of Australia is that the structural changes should not have an immediate impact on the way cases are conducted and accordingly, should not result in further delays or backlogs.

Despite the structural changes, the core principle of the Court will remain the prioritisation of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate management of risk factors.

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

See articles written by Emily Spence

What’s in a name?

Applying to change your child’s name after separation or divorce.

Under the Family Law Act 1975 (Cth), parents are required to make decisions jointly in regards to all matters concerning their child’s long-term care, welfare and development.

If both parents agree to change their child’s name, the process is simple. In New South Wales, applications to register a change of a child’s name are governed by Section 28 of the Births, Deaths and Marriages Registration Act 1995.

‘The parents of a child may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the child’s name if –

a) The child’s birth is registered in the State, or
b) The child was born outside Australia, the child’s birth is not registered in Australia and the child has been a resident in the State for at least 3 consecutive years immediately preceding the date of the application.’

The approved form is titled an ‘Application to Register a Change of Name for a Child (Under 18)’. Once completed, this form should be lodged with the Registry of Births, Deaths and Marriages for determination. It is noted, if the child in question is over the age of 12 years at the time the application is lodged, that child will be required to sign the application form.

An application for registration of a change of a child’s name may be made by one parent in the following circumstances:

a) ‘the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law (including a corresponding law), or
b) there is no other surviving parent of the child, or
c) a court approves the proposed change of name.’

Expanding on part (c) as described in the above paragraph, prior to making an application to the Court, parents must attend a Family Dispute Resolution Conference in an attempt to resolve their differences. If it is not appropriate for the parents to attend such a Conference, the Family Dispute Resolution Practitioner will issue a certificate pursuant to Section 60i of the Family Law Act, enabling the parent or parents in receipt of the Section 60i Certificate, to make an application directly to the Court.

In the case of Chapman v Palmer (1978), the Full Court of the Family Court of Australia considered in what circumstances it would be appropriate to change a child’s surname. The Full Court determined the following factors should be considered:

1. The welfare of the child is the paramount consideration;
2. The short and long term effects of any change in the child’s surname;
3. Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with custody or care or control;
4. Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
5. The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
6. The effect of frequent or random changes of name.

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 Emily Spence.

 

Coronavirus – Managing Parenting in a Pandemic.

The coronavirus is having a significant impact on many public services and of course families. This includes the operation of the family law system and its associated courts.

The Family Law Section of the Law Council of Australia has recently published a Top 10 guide for separated parents during these testing times. Please see article below.

– Jennifer Blissett

Separated parents experience both the joys and stressors of parenting. But additional pressures and stresses such as those associated with the Covid19 Pandemic can be hard to accommodate and provoke anxiety in parent and child alike.

The Family Law Section has compiled these TOP TEN suggestions to help separated parents navigate this difficult time.

1. Stay healthy
Model best practice habits (for kids, family and friends) to minimise the risk of spread of the virus – frequent and thorough hand washing and responsible social distancing. Simple routines become habit forming.
Guidelines are available at https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/what-you-need-to-know-about-coronavirus-covid-19#protect-yourself-and-others

Let the other parent know that you (and all members of the household) are following these guidelines – we all worry that others are not taking things as seriously as we should and assurances bring peace of mind and good will. As with all co-parenting, consistent messaging across households is ideal.

2. Be present and considered
This is a serious health challenge. Children will have heard much through their schools, networks and media.

Children are not necessarily able to accurately process all of this information in a way that allows for peace of mind. Older children whose studies and major social events such as school formals and celebrations have been cancelled may be unsettled and anxious. Younger children can readily become confused and scared by perceived magnitudes of risk.

3. Meeting your obligations
If your parenting matters are regulated by court order or agreement, you must still meet your obligations under those terms unless a reasonable excuse applies. If arrangements become unclear or cannot be met (eg: quarantine, travel restrictions or because schools close) use common sense to find solutions to challenges. If you anticipate a change, give the other parent plenty of notice and an explanation so they also have time to adjust.

4. Adapt
If schools are closed and changeover normally occurred after and at school or sporting events, nominate or start planning for another neutral and public location that will be suitable – and where social distancing practices can be maintained.

Sporting activities or activities parents planned to do with children during school holidays or weekends are unlikely to now be available. Think about whether you will be required to work from home and whether that is feasible when children are in your care.

If time arrangements with the other parent or important people cannot occur, find other ways to try to maintain the connection – including digital communications.

5. Be open
Try to be on the same page with the other parent about the things you will each do in your respective households (and in your wider communities) to limit exposure to the virus and to shield the children.

If a child is showing any symptoms, that information should be shared immediately with the other parent, and an agreed response implemented. Know what your own self-isolation plan will be so that you are able to share that with the other parent if necessary.

Try to engage openly and honestly with the other parent about your worries and if there has been a risk of exposure to the virus, be honest about that (at which point mandated responses will be required in any event, which will include isolation or quarantine and may include testing).

6. Be mutual
Think about how you would like the other parent to engage with you about these issues, and model that engagement. Make accommodations to the other parent if they are possible and good for the children – and expect such accommodations in return. If time can’t occur at one point, suggest it occur at another point.

All parents and children will benefit from some mutually agreed give and take.

7. Be compassionate
Very few people can apply certainty to their planning in times of stress and may respond to data about risk in ways that may seem disproportionate to you – but understand that we do not have a playbook for how to plan for or respond to this crisis. Being calm in times of high stress is hard – but you are more likely to reduce the conflict if both are making the best effort possible.

8. Be solution focussed
At this time, more than ever, the need for parents and other adults concerned with the care of children to find compromise in the interests of children, is absolutely clear. Courts will increasingly have limited availability; dispute resolution services may be hard to access and common sense coupled with respectful engagement may be the surest path.

It’s an opportunity to find new ways to solve old problems.

9. Help out to the extent you can
People may lose jobs or experience a reduction in their income. This may impact what can be paid by way of child support or the contribution to other expenses.

Try to be understanding of the situation the other parent is in – financial worry will probably exist in both households. The message and legacy of these days should be, as far as possible, that both parents and households worked together to find a solution that was as good as possible for the children.

10. Be patient and positive
This situation is not going to resolve overnight. Changes to the way we work, socialise, communicate and parent will come in the next few weeks and months.

Make a conscious effort to embrace the good and joyful moments in each day, stay connected by phone or social media to friends or family who can support you and remember that you are the beacon for your children at this time.

For more helpful links and practical advice see: https://www.cdc.gov/coronavirus/2019-ncov/prepare/managing-stress-anxiety.html

Is A Sperm Donor A Parent? – Sophie Newham

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.

Click here to learn more about Sophie Newham.

Parenting arrangements after separation – Sophie Newham

SKNWhen 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.

Click here to learn more about Sophie Newham.

Am I entitled because it was convenient? – Sophie Newham

SKNWhen 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.

Click here to learn more about Sophie Newham.