Hello everyone,
At the end of a relationship if you can not agree The Family Court will divide all of the property and superannuation that you and your partner have, irrespective of whether it is in your name or in joint names. Even if your assets are held in a company or trust, if you control that company or trust then those assets are also usually available for division.
Thus all the property, investments and superannuation you have, including your business, even if your spouse has never walked through the door of that business, are at risk.
Fortunately it is fairly simple to protect yourself and your assets from relationship breakdown. Binding Financial Agreements (“BFA”) have been law in Australia for a number of years and if executed properly will protect your assets and business if your relationship breaks down.
The purpose of a BFA is to allow parties to determine when things are going well, what will happen to their assets and financial resources when things go bad. The parties are able to make commercial decisions about their future in much the same way as they make decisions about employment and how they run their business.
With one in three marriages ending in divorce, couples commencing relationships later in life and with de facto and same sex couples now having the same rights as married couples more and more people should consider contracting out of the Family Law Act and signing a BFA.
A BFA is a contract between two people, irrespective of gender, who are living together in a genuine domestic relationship and who want financial certainty.
By signing a BFA the couple knows from the start of the relationship the implications of the financial decisions they make during their relationship. They are taking control rather than taking a risk and ultimately giving the control of what should happen to their assets to a court.
Ideally an agreement should be signed from the moment you start living together. However, if you have been living together or have been married for a while it is still possible and advisable to enter into such an agreement.
These agreements protect your assets and dictate what will happen in the unfortunate even of relationship breakdown. Agreements can be as limited or as detailed as you like. They can last for the entirely of your relationship or for a limited period.
You can agree to exclude just the income and assets you had before you started living together and divide what you earn whilst you are together. Alternatively you can agree that everything you have now or will earn during the relationship is excluded.
You may elect to exclude certain things, like your business but not others, for example you can agree that your partner can have half the house that you live in, but that he or she has no claim to any investments or other property that you acquire. Any inheritance or gift from your family can also be excluded.
There is a perception that signing such an agreement is not romantic. At the beginning of your relationship you might believe that your spouse will do the right thing by you and that you can trust him or her.
At the end of the relationship it is likely that the trust you had has disappeared and been replaced by anger and greed so that your spouse wants you to “pay”. He or she will look to you for money and assets so they can look after themselves in the future.
In simple terms everyone who is considering living together should immediately get advice from a Family Lawyer on the advantages and disadvantages of signing a BFA. There is no time limit as to when an agreement can be signed; it can be signed before to after you start living together or in anticipation of or even after your marriage.
You should seriously consider signing such agreements if:-
• you have significant assets or significantly more than your partner;
• you wish to preserve the your business, company or family trust;
• you wish to preserve assets for your children of previous relationships:or
• you expect a significant inheritances that you wish to preserve.
If your partner is not willing to sign such an agreement then maybe you should question what they expect from you financially. Of course if the relationship stands the test of time then such an agreement will be unnecessary, but why take the risk?
You do not question it when it is suggested you get investment or tax advice. You should also consider getting Family Law advice and controlling your assets in the event your relationship breaks down. Otherwise you are giving away control of your assets and financial resources to a court to decide for you.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Monday, December 12, 2011
Monday, November 14, 2011
The Collaborative Law Movement
Hello everyone,
This month I want to let you know about Collaborative Law.
I did the training to become a Collaborative Lawyer when it was first being introduced into Australia in 2006.
At the time of the first training I was not convinced that we needed Collaborative Law – 6 years later the movement is growing momentum and I have just completed the training again, and now I am firmly of the view that collaboration will be used in more and more family law matters.
Collaborative law has been practiced in the USA and Canada for over 15 years and has grown in popularity both there and in Australia.
Collaborative law is a non-adversarial approach to resolving matters, whereby the parties and their lawyers (and often other professionals such as accountants and psychologists) enter into a formal agreement to focus on settlement rather than litigation.
In fact the parties and the lawyers agree not to go to court at all. What is unusual about this is that you can not get halfway through the negotiation and “throw in the towel” and go to court. If the process breaks down the contract means that you have to start all over again as the lawyer you have used, as well as the other professionals must withdraw.
Other than to talk about the process (or mechanics) the lawyers will not speak to each other in the absence of the parties. Any advice that a party is given is known by the other party, there is no room for tactics and brinkmanship. Each party knows exactly what both their lawyer and their spouses lawyer has said and indeed how much they cost.
The parties resolve matters in a serious of open meetings with their lawyers and the other professionals. When a resolution is reached consent orders or a Binding Financial Agreement is signed.
Collaboration is not for everyone – but if people are honest and willing to negotiate and operate in an open forum it will probably mean the relationship they will have with each other moving forward will be far better than the relationship they will have it they have to “fight” in court.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
This month I want to let you know about Collaborative Law.
I did the training to become a Collaborative Lawyer when it was first being introduced into Australia in 2006.
At the time of the first training I was not convinced that we needed Collaborative Law – 6 years later the movement is growing momentum and I have just completed the training again, and now I am firmly of the view that collaboration will be used in more and more family law matters.
Collaborative law has been practiced in the USA and Canada for over 15 years and has grown in popularity both there and in Australia.
Collaborative law is a non-adversarial approach to resolving matters, whereby the parties and their lawyers (and often other professionals such as accountants and psychologists) enter into a formal agreement to focus on settlement rather than litigation.
In fact the parties and the lawyers agree not to go to court at all. What is unusual about this is that you can not get halfway through the negotiation and “throw in the towel” and go to court. If the process breaks down the contract means that you have to start all over again as the lawyer you have used, as well as the other professionals must withdraw.
Other than to talk about the process (or mechanics) the lawyers will not speak to each other in the absence of the parties. Any advice that a party is given is known by the other party, there is no room for tactics and brinkmanship. Each party knows exactly what both their lawyer and their spouses lawyer has said and indeed how much they cost.
The parties resolve matters in a serious of open meetings with their lawyers and the other professionals. When a resolution is reached consent orders or a Binding Financial Agreement is signed.
Collaboration is not for everyone – but if people are honest and willing to negotiate and operate in an open forum it will probably mean the relationship they will have with each other moving forward will be far better than the relationship they will have it they have to “fight” in court.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Tuesday, September 20, 2011
The benefits of using a mediator
Hello Everyone,
My blog is a bit later than usual this month because I have recently spent six days doing some intensive training to become a qualified mediator.
Whilst mediation is increasingly used in all areas of law, it is particularly useful in Family Law.
The Family Court refers many matters to mediation and although mediation is widely used during court proceedings, with lawyers involved, it can also be used by parties without lawyers before and after matters proceed in court.
The point of mediation is for the mediator to facilitate an agreement between the parties.
Importantly the mediator does not give advice or make decisions for the parties, but the role of the mediator is to facilitate discussions so that, hopefully, the parties can make an agreement themselves.
In the emotionally charged area of family law, mediation gives parties an opportunity to be truly heard on all of the issues troubling them, which may not necessarily have a “legal” solution.
For example, today I referred an old client to mediation. My client and her ex-partner have court orders in place, but the court orders do not give them practical solutions on how to deal with each other on a day to day basis about issues relating to their child.
No court can force people to be civil to each other, or to respect the other parent’s needs or wishes, but hopefully by working through the practical problems with a mediator the couple will be able to effectively co-parent into the future.
The benefit of having a neutral family lawyer as a mediator is that they are well versed in the issues relating to families who have separated and future problems that may arise.
If both parents are willing to participate in mediation, rather than go to court, they are more than likely to come to an agreement that they can live with, rather than have on imposed upon them by a judge, however, mediation must be voluntary or it is unlikely to be successful.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.
If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555
My blog is a bit later than usual this month because I have recently spent six days doing some intensive training to become a qualified mediator.
Whilst mediation is increasingly used in all areas of law, it is particularly useful in Family Law.
The Family Court refers many matters to mediation and although mediation is widely used during court proceedings, with lawyers involved, it can also be used by parties without lawyers before and after matters proceed in court.
The point of mediation is for the mediator to facilitate an agreement between the parties.
Importantly the mediator does not give advice or make decisions for the parties, but the role of the mediator is to facilitate discussions so that, hopefully, the parties can make an agreement themselves.
In the emotionally charged area of family law, mediation gives parties an opportunity to be truly heard on all of the issues troubling them, which may not necessarily have a “legal” solution.
For example, today I referred an old client to mediation. My client and her ex-partner have court orders in place, but the court orders do not give them practical solutions on how to deal with each other on a day to day basis about issues relating to their child.
No court can force people to be civil to each other, or to respect the other parent’s needs or wishes, but hopefully by working through the practical problems with a mediator the couple will be able to effectively co-parent into the future.
The benefit of having a neutral family lawyer as a mediator is that they are well versed in the issues relating to families who have separated and future problems that may arise.
If both parents are willing to participate in mediation, rather than go to court, they are more than likely to come to an agreement that they can live with, rather than have on imposed upon them by a judge, however, mediation must be voluntary or it is unlikely to be successful.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.
If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555
Wednesday, August 10, 2011
What to expect when you meet a family lawyer.
Hello Everyone,
I was recently asked what people should expect when they make an appointment to see a family lawyer.
Most people think that you only need to see a lawyer when your relationship breaks down, but as I have set out in previous blogs; people should also think about seeing a lawyer before they start to live with someone or when they marry to protect their assets in the event that their relationship breaks up.
If you are seeing a family lawyer at the beginning or at the end of a relationship the basic information the lawyer needs will be the same, and that is the specific details of your relationship.
I like to start at the beginning of the relationship and I am likely to ask the following types of questions:-
• The full name of both you and your partner and your dates of birth;
• When you started your relationship and more importantly when you started living together;
• The occupation and approximate salary of both of you when you started living together and information as to how occupations and salaries have changed;
• The assets and liabilities you had when you started living together;
• How have assets been accumulated since – when did you buy assets, how much did you pay for them and how did you fund their purchase;
• If and when you had children – the full names and dates of birth of the children – how you have as a couple cared for children and financed the family since children were born;
• What assets you have now – regardless of if they are in your name, joint names, your partners name or in a company or trust that you control; and most importantly
• What do you want to happen in the future with respect to your assets and children?
Seeing a family lawyer is not like sitting a test. If you can’t remember exact dates or amounts in the first interview, it doesn’t matter, the information can always be found later on, but to give you proper advice as to how to protect your assets during a relationship or to ensure you the best possible result at the end of the relationship, your family lawyer will need to know the specifics of your relationship. Every relationship is different and thus the advice we give is different and tailored to that individual.
After you meet with your lawyer you may decide to do nothing, you may decide to speak to your partner or you might ask your lawyer to write a letter on your behalf. Again it will depend on your particular circumstances.
After your initial advice you will receive a cost agreement which sets out how you will be charged and you may have to pay your lawyer a retainer up front - this will be explained to you by your lawyer.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.
If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555
I was recently asked what people should expect when they make an appointment to see a family lawyer.
Most people think that you only need to see a lawyer when your relationship breaks down, but as I have set out in previous blogs; people should also think about seeing a lawyer before they start to live with someone or when they marry to protect their assets in the event that their relationship breaks up.
If you are seeing a family lawyer at the beginning or at the end of a relationship the basic information the lawyer needs will be the same, and that is the specific details of your relationship.
I like to start at the beginning of the relationship and I am likely to ask the following types of questions:-
• The full name of both you and your partner and your dates of birth;
• When you started your relationship and more importantly when you started living together;
• The occupation and approximate salary of both of you when you started living together and information as to how occupations and salaries have changed;
• The assets and liabilities you had when you started living together;
• How have assets been accumulated since – when did you buy assets, how much did you pay for them and how did you fund their purchase;
• If and when you had children – the full names and dates of birth of the children – how you have as a couple cared for children and financed the family since children were born;
• What assets you have now – regardless of if they are in your name, joint names, your partners name or in a company or trust that you control; and most importantly
• What do you want to happen in the future with respect to your assets and children?
Seeing a family lawyer is not like sitting a test. If you can’t remember exact dates or amounts in the first interview, it doesn’t matter, the information can always be found later on, but to give you proper advice as to how to protect your assets during a relationship or to ensure you the best possible result at the end of the relationship, your family lawyer will need to know the specifics of your relationship. Every relationship is different and thus the advice we give is different and tailored to that individual.
After you meet with your lawyer you may decide to do nothing, you may decide to speak to your partner or you might ask your lawyer to write a letter on your behalf. Again it will depend on your particular circumstances.
After your initial advice you will receive a cost agreement which sets out how you will be charged and you may have to pay your lawyer a retainer up front - this will be explained to you by your lawyer.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.
If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555
Wednesday, July 6, 2011
The role of the Independent Children's Lawyer
Hello everyone,
In many family law cases involving children’s issues the court will ask Victoria Legal Aid to appoint an Independent Children’s Lawyer (“ICL”).
In Victoria there are a panel of ICL’s some of which are employed by Victoria Legal Aid and others in private practice. I am on the ICL panel and act as an ICL in both the Family Court and Federal Magistrates Court.
The role of the ICL is to help the court decide what arrangements are in the best interests of the child or children.
It is not the role of the ICL to do what the child wants.
If the child is mature enough the ICL might meet with them to explain what the court does and ask them what they want – but the ICL is not bound to act in accordance with the child’s instructions.
The ICL must:
• Act in a way that they believe is in the child’s best interests.
• Ensure all the relevant evidence is before the court including evidence from teachers, doctors, psychologists, the Department of Human Services and the Police.
• Form their own view about the child’s best interests based on the evidence before the court.
• Be completely independent of both parents and facilitate negotiations between them.
• Ensure the court is aware of any wish expressed by the child.
• Make recommendations to the court to ensure the child’s interests are protected.
• Encourage the parents to put the interests of the child before their own.
• Question the witnesses including the parents at the final hearing.
Children do not usually give evidence or go to court. The ICL is there to ensure the child is heard.
The ICL is a party to the proceedings and will be represented by counsel at the final hearing.
The court is not bound to follow the recommendations of the ICL, as they are only one of the parties, but the opinion of the ICL usually carries significant weight, due to the fact they are independent of the parents and acting solely in the interests of the child.
Usually Legal Aid will pay the costs of the ICL, however, Victoria Legal Aid will generally ask each party to make a contribution to these costs.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
In many family law cases involving children’s issues the court will ask Victoria Legal Aid to appoint an Independent Children’s Lawyer (“ICL”).
In Victoria there are a panel of ICL’s some of which are employed by Victoria Legal Aid and others in private practice. I am on the ICL panel and act as an ICL in both the Family Court and Federal Magistrates Court.
The role of the ICL is to help the court decide what arrangements are in the best interests of the child or children.
It is not the role of the ICL to do what the child wants.
If the child is mature enough the ICL might meet with them to explain what the court does and ask them what they want – but the ICL is not bound to act in accordance with the child’s instructions.
The ICL must:
• Act in a way that they believe is in the child’s best interests.
• Ensure all the relevant evidence is before the court including evidence from teachers, doctors, psychologists, the Department of Human Services and the Police.
• Form their own view about the child’s best interests based on the evidence before the court.
• Be completely independent of both parents and facilitate negotiations between them.
• Ensure the court is aware of any wish expressed by the child.
• Make recommendations to the court to ensure the child’s interests are protected.
• Encourage the parents to put the interests of the child before their own.
• Question the witnesses including the parents at the final hearing.
Children do not usually give evidence or go to court. The ICL is there to ensure the child is heard.
The ICL is a party to the proceedings and will be represented by counsel at the final hearing.
The court is not bound to follow the recommendations of the ICL, as they are only one of the parties, but the opinion of the ICL usually carries significant weight, due to the fact they are independent of the parents and acting solely in the interests of the child.
Usually Legal Aid will pay the costs of the ICL, however, Victoria Legal Aid will generally ask each party to make a contribution to these costs.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Tuesday, June 7, 2011
Can I use a surrogate to have a baby?
Hello Everyone,
I have just been reading about the changes to the law in Victoria which allow people who are unable to conceive a child naturally, to now legally have a child using a surrogate.
The January 2010 Assisted Reproductive Treatment Act (“ART”) gives Victorians the option of having a child using a surrogate, however, even with this new legislation, there are still a significant number of issues and a registered ART provider can only carry out a procedure if the surrogacy arrangement has been approved by a Patient Review Panel.
Unlike the USA, in Victoria a woman can not be paid to act as a surrogate, and she can only seek reimbursement for the costs associated with having the child and entering into the surrogacy arrangement. Examples of when a surrogate may be used are:-
1. If a woman is unable to physically become pregnant and/or carry a child a term, if she has a health condition which would make pregnancy dangerous, or if she is at risk of transmitting a genetic abnormality or genetic disease to the child.
2. If a couple in a male same-sex relationship wish to have a child using their sperm.
3. If a man wishes to have a child but has no partner.
4. If a woman, who has embryos in storage with her male partner, dies and the male partner wishes to use the embryos to have a child.
A donor egg (but not the surrogate’s), donor sperm or a donor embryo may be used for the surrogacy arrangement.
A surrogate is a woman who has agreed with another person to become or try to become pregnant, with the intention of giving that child to another person(s). To be a surrogate:
1. You need to have previously carried a pregnancy and given birth to a live child.
2. You need to be at least 25 years of age.
The commissioning parent(s) is the person or couple for whom the child is carried and who will ultimately be the “parents”. To qualify as a commissioning parent:
1. You must reside in Victoria and the procedure must take place here.
2. A doctor must certify that:
a. It is unlikely you (or your partner) will become pregnant or be able to carry pregnancy or give birth; or
b. If you are a woman, that you are likely to place your life or health, or that of the baby, at risk if you become pregnant.
Prior to implantation taking place, both the surrogate (and her partner) and the commissioning parent(s) will need to receive counseling and obtain independent legal advice in relation to the surrogacy arrangement.
When the child is born the surrogate (and if the surrogate is married or in a de facto relationship, the surrogate’s partner) will be named as the child’s legal parent(s) on the child’s birth certificate.
Until a Substitute Parentage Order has been made, the surrogate will remain the child’s legal parent, however, by agreement the commissioning parent(s) can have the full time care of the child immediately after the child’s birth.
After 28 days from the birth, the commissioning parent(s) can apply to the County Court for a “Substitute Parentage Order” to become the legal parent(s) of the child and to be registered as the child’s parent(s) on the birth certificate. The surrogate and her partner will need to consent to the order being made.
What if the surrogate refuses to relinquish the child after the birth?
As Surrogacy Agreements are not legally binding, if the surrogate refuses to relinquish the child to the commissioning parent(s) or does not consent to a Substitute Parentage Order being made the commissioning parent (s) will need to apply to the Family Court for Parenting Orders. There is no guarantee however that such an application would be successful or entirely satisfactory.
A written Surrogacy Agreement may be used in the Court as evidence as to what was intended by the commissioning parents and the surrogate, but it would not override the power of the Court to make decisions based on what it considers to be a child’s best interest.
What if the commissioning parents refuse to take the child or apply for a Substitute Parentage Order?
The surrogate cannot legally force the commissioning parent(s) to take possession of the child or to apply for a Substitute Parentage Order and if they refuse to do so the surrogate mother (and her partner) will remain the child’s parent(s).
Substitute Parentage Orders
The commissioning parent(s) must wait 28 days after the birth of the child before an Application for a Substitute Parentage Order can be made and the Application must be made within 6 months of the birth of the child (unless leave of the Court is obtained). In order for a Substitute Parentage Order to be granted:
1. The child must have been conceived as a result of a procedure carried out in Victoria;
2. The commissioning parent(s) must live in Victoria;
3. It must be in the best interests of the child to make the Order;
4. The Surrogacy Arrangement must have been approved by the Patient Review Panel before it was entered into;
5. The child is living with the commissioning parent(s) at the time the application is made;
6. The surrogate mother and/or her partner have not been paid by the commissioning parents; and
7. The surrogate mother freely consents to the making of the Order.
The outcome of a Substitute Parentage Order is that the commissioning parent(s) will become the child’s legal parents and the child’s birth certificate will be altered to reflect this.
Please note surrogacy legislation will vary from State to State.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.
If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555
I have just been reading about the changes to the law in Victoria which allow people who are unable to conceive a child naturally, to now legally have a child using a surrogate.
The January 2010 Assisted Reproductive Treatment Act (“ART”) gives Victorians the option of having a child using a surrogate, however, even with this new legislation, there are still a significant number of issues and a registered ART provider can only carry out a procedure if the surrogacy arrangement has been approved by a Patient Review Panel.
Unlike the USA, in Victoria a woman can not be paid to act as a surrogate, and she can only seek reimbursement for the costs associated with having the child and entering into the surrogacy arrangement. Examples of when a surrogate may be used are:-
1. If a woman is unable to physically become pregnant and/or carry a child a term, if she has a health condition which would make pregnancy dangerous, or if she is at risk of transmitting a genetic abnormality or genetic disease to the child.
2. If a couple in a male same-sex relationship wish to have a child using their sperm.
3. If a man wishes to have a child but has no partner.
4. If a woman, who has embryos in storage with her male partner, dies and the male partner wishes to use the embryos to have a child.
A donor egg (but not the surrogate’s), donor sperm or a donor embryo may be used for the surrogacy arrangement.
A surrogate is a woman who has agreed with another person to become or try to become pregnant, with the intention of giving that child to another person(s). To be a surrogate:
1. You need to have previously carried a pregnancy and given birth to a live child.
2. You need to be at least 25 years of age.
The commissioning parent(s) is the person or couple for whom the child is carried and who will ultimately be the “parents”. To qualify as a commissioning parent:
1. You must reside in Victoria and the procedure must take place here.
2. A doctor must certify that:
a. It is unlikely you (or your partner) will become pregnant or be able to carry pregnancy or give birth; or
b. If you are a woman, that you are likely to place your life or health, or that of the baby, at risk if you become pregnant.
Prior to implantation taking place, both the surrogate (and her partner) and the commissioning parent(s) will need to receive counseling and obtain independent legal advice in relation to the surrogacy arrangement.
When the child is born the surrogate (and if the surrogate is married or in a de facto relationship, the surrogate’s partner) will be named as the child’s legal parent(s) on the child’s birth certificate.
Until a Substitute Parentage Order has been made, the surrogate will remain the child’s legal parent, however, by agreement the commissioning parent(s) can have the full time care of the child immediately after the child’s birth.
After 28 days from the birth, the commissioning parent(s) can apply to the County Court for a “Substitute Parentage Order” to become the legal parent(s) of the child and to be registered as the child’s parent(s) on the birth certificate. The surrogate and her partner will need to consent to the order being made.
What if the surrogate refuses to relinquish the child after the birth?
As Surrogacy Agreements are not legally binding, if the surrogate refuses to relinquish the child to the commissioning parent(s) or does not consent to a Substitute Parentage Order being made the commissioning parent (s) will need to apply to the Family Court for Parenting Orders. There is no guarantee however that such an application would be successful or entirely satisfactory.
A written Surrogacy Agreement may be used in the Court as evidence as to what was intended by the commissioning parents and the surrogate, but it would not override the power of the Court to make decisions based on what it considers to be a child’s best interest.
What if the commissioning parents refuse to take the child or apply for a Substitute Parentage Order?
The surrogate cannot legally force the commissioning parent(s) to take possession of the child or to apply for a Substitute Parentage Order and if they refuse to do so the surrogate mother (and her partner) will remain the child’s parent(s).
Substitute Parentage Orders
The commissioning parent(s) must wait 28 days after the birth of the child before an Application for a Substitute Parentage Order can be made and the Application must be made within 6 months of the birth of the child (unless leave of the Court is obtained). In order for a Substitute Parentage Order to be granted:
1. The child must have been conceived as a result of a procedure carried out in Victoria;
2. The commissioning parent(s) must live in Victoria;
3. It must be in the best interests of the child to make the Order;
4. The Surrogacy Arrangement must have been approved by the Patient Review Panel before it was entered into;
5. The child is living with the commissioning parent(s) at the time the application is made;
6. The surrogate mother and/or her partner have not been paid by the commissioning parents; and
7. The surrogate mother freely consents to the making of the Order.
The outcome of a Substitute Parentage Order is that the commissioning parent(s) will become the child’s legal parents and the child’s birth certificate will be altered to reflect this.
Please note surrogacy legislation will vary from State to State.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.
If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555
Tuesday, May 10, 2011
“We just living together so my assets are safe”
Hello everyone,
Two years ago the law changed in most states of Australia and now de facto couples (both opposite sex and same sex) who separate are subject to the same laws as married couples.
As statistics show that de facto relationships tend to be shorter than marriages this change in law will impact a significant number of people.
A person is in a de facto relationship with another person if they are not married or related, and they have a relationship as a couple, living together in a genuine domestic relationship.
When working out if people have a “relationship as a couple” the court will look at a number of factors including:-
1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence;
5. any arrangements for financial support between parties;
6. the ownership, use and acquisition of property;
7. the degree of mutual commitment to a shared life; and/or
8. the reputation and public aspects of the relationship.
If a de facto relationship breaks down a claim for property settlement can be made:-
1. if the period(s) of the de facto relationship is greater than two years OR
2. there is a child of the relationship OR
3. one party has made such a substantial contribution to the assets of the
other that a failure to make an order would result in serious injustice OR
4. the relationship was registered by the parties.
Thus if you live with someone, then provided one of the above conditions exist you are vulnerable to a claim for property settlement and/or maintenance. The only way to protect assets is to sign a Binding Financial Agreement which will set out what will happen if you separate.
If you go on to marry the Binding Financial Agreement is automatically invalidated and a new agreement will have to be drawn up to protect assets from your husband or wife.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Two years ago the law changed in most states of Australia and now de facto couples (both opposite sex and same sex) who separate are subject to the same laws as married couples.
As statistics show that de facto relationships tend to be shorter than marriages this change in law will impact a significant number of people.
A person is in a de facto relationship with another person if they are not married or related, and they have a relationship as a couple, living together in a genuine domestic relationship.
When working out if people have a “relationship as a couple” the court will look at a number of factors including:-
1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence;
5. any arrangements for financial support between parties;
6. the ownership, use and acquisition of property;
7. the degree of mutual commitment to a shared life; and/or
8. the reputation and public aspects of the relationship.
If a de facto relationship breaks down a claim for property settlement can be made:-
1. if the period(s) of the de facto relationship is greater than two years OR
2. there is a child of the relationship OR
3. one party has made such a substantial contribution to the assets of the
other that a failure to make an order would result in serious injustice OR
4. the relationship was registered by the parties.
Thus if you live with someone, then provided one of the above conditions exist you are vulnerable to a claim for property settlement and/or maintenance. The only way to protect assets is to sign a Binding Financial Agreement which will set out what will happen if you separate.
If you go on to marry the Binding Financial Agreement is automatically invalidated and a new agreement will have to be drawn up to protect assets from your husband or wife.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Friday, April 8, 2011
Should there be exceptions to privilege in family law?
Hello everyone,
Given the tragic circumstances surrounding the recent and much publicised Darcey Freeman case, the Victorian Child Safety Commissioner is calling for new protocols compelling lawyers to alert child protection workers when they fear for the safety of children in family law disputes.
In Victoria, and I assume other states, certain professions are already mandated to report possible child abuse to the Department of Human Services (DHS). These include doctors, nurses, psychologists, teachers and child care workers.
Lawyers have no such existing mandate and in fact are bound by professional privilege.
A lawyer’s first duty is to the court. We can not knowingly allow our client to mislead the court. A lawyer also has a duty to their client.
The relationship between lawyer and client is a fiduciary one, and as such imposes obligations of trust, integrity and confidence. Thus in simple terms we have a duty to keep information confidential unless instructed to do otherwise.
In family law clients emotions are perennially running high (I had two clients cry in my office yesterday) and people are often frustrated, upset and angry. In the heat of the moment people say things they do not mean, and experienced practitioners know they need to view these comments in a measured way.
This does not mean that I have not made reports to DHS before, when I have thought children may have been at risk. At times I have also had to notify the police when I have thought that I might be at risk. Fortunately, I have not had to deal with anything like the Freeman case.
After many years in the family law jurisdiction I am opposed to any protocol that requires me to report everything my clients might say, even when I do not believe the threat is a serious one but rather resulting from the frustration and circumstances being created by these types of intense situations. In my experience that would result in a report for almost each file.
Furthermore the DHS does not have the resources to deal with the notifications they have made now. They certainly would not have the resources to deal with notifications made from lawyers that even the lawyers do not take seriously.
The Freeman case is unmistakably tragic and senseless. That cannot be denied.
But in my opinion a protocol which threatens the fiduciary relationship between lawyer and client, whilst not taking into account the raw emotions displayed by all family law clients, is not a progressive step and demonstrates a fundamental lack of insight into the dynamics of people venting their emotions through such a difficult process.
As always please feel free to comment on this or any other of my blogs. I would also be pleased to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Given the tragic circumstances surrounding the recent and much publicised Darcey Freeman case, the Victorian Child Safety Commissioner is calling for new protocols compelling lawyers to alert child protection workers when they fear for the safety of children in family law disputes.
In Victoria, and I assume other states, certain professions are already mandated to report possible child abuse to the Department of Human Services (DHS). These include doctors, nurses, psychologists, teachers and child care workers.
Lawyers have no such existing mandate and in fact are bound by professional privilege.
A lawyer’s first duty is to the court. We can not knowingly allow our client to mislead the court. A lawyer also has a duty to their client.
The relationship between lawyer and client is a fiduciary one, and as such imposes obligations of trust, integrity and confidence. Thus in simple terms we have a duty to keep information confidential unless instructed to do otherwise.
In family law clients emotions are perennially running high (I had two clients cry in my office yesterday) and people are often frustrated, upset and angry. In the heat of the moment people say things they do not mean, and experienced practitioners know they need to view these comments in a measured way.
This does not mean that I have not made reports to DHS before, when I have thought children may have been at risk. At times I have also had to notify the police when I have thought that I might be at risk. Fortunately, I have not had to deal with anything like the Freeman case.
After many years in the family law jurisdiction I am opposed to any protocol that requires me to report everything my clients might say, even when I do not believe the threat is a serious one but rather resulting from the frustration and circumstances being created by these types of intense situations. In my experience that would result in a report for almost each file.
Furthermore the DHS does not have the resources to deal with the notifications they have made now. They certainly would not have the resources to deal with notifications made from lawyers that even the lawyers do not take seriously.
The Freeman case is unmistakably tragic and senseless. That cannot be denied.
But in my opinion a protocol which threatens the fiduciary relationship between lawyer and client, whilst not taking into account the raw emotions displayed by all family law clients, is not a progressive step and demonstrates a fundamental lack of insight into the dynamics of people venting their emotions through such a difficult process.
As always please feel free to comment on this or any other of my blogs. I would also be pleased to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Monday, March 21, 2011
Surviving Intervention Orders
Hello everyone,
Today I want to talk about Intervention Orders.
Intervention Orders are made more often than not when relationships break down. In theory, Intervention Orders are designed to protect people from domestic violence, stalking and/or harassment.
Unfortunately, however, many people who are angry with their ex-spouse apply for Intervention Orders simply to keep their spouse away from them and/or their children.
It is very easy to obtain an Intervention Order. You need to go to a local Magistrates Court and you can apply on an ex-parte basis (that is in the absence of the other party). Resulting in the other party having no idea that an application has even been made against them, until they are served with a Order by the police.
Often orders are then made which prevent the other party from seeing their children.
This is fine when there has been genuine violence, but in many cases this is simply untrue.
The Orders are fundamentally easy to get but very hard to remove, they are also very serious, as a breach of an Order is a criminal offence which in extreme cases can result in a term of imprisonment.
If you are served with an Intervention order you have three choices.
1) Accept it and then an order will usually be made against you for 12 months.
2) Agree to the order but on a limited basis and with a denial for the necessity for same.
3) Defend it.
Obviouly any ‘innocent’ person will want to defend the order and have it removed form their record.
However, defending it can be costly and given the court backlog may take several months before you get your day in court.
As a result often people accept such orders and then go to the Family Court to get Orders to see their children.
The problem is that the party with the Intervention Order can then bring it up as “evidence” of violence, fortunately however, judges realise that such orders are in many cases obtained without a proper hearing and on only one party’s version of events, and consequently such Order do not usually prevent parents from seeing their children for long.
It is perhaps ironic that such Orders which are designed to protect victims of violence are instead used as weapons in matrimonial disputes.
If you are served with an Intervention Order you must ensure the last think you do is breach it, no matter how unjust you believe it to be.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Today I want to talk about Intervention Orders.
Intervention Orders are made more often than not when relationships break down. In theory, Intervention Orders are designed to protect people from domestic violence, stalking and/or harassment.
Unfortunately, however, many people who are angry with their ex-spouse apply for Intervention Orders simply to keep their spouse away from them and/or their children.
It is very easy to obtain an Intervention Order. You need to go to a local Magistrates Court and you can apply on an ex-parte basis (that is in the absence of the other party). Resulting in the other party having no idea that an application has even been made against them, until they are served with a Order by the police.
Often orders are then made which prevent the other party from seeing their children.
This is fine when there has been genuine violence, but in many cases this is simply untrue.
The Orders are fundamentally easy to get but very hard to remove, they are also very serious, as a breach of an Order is a criminal offence which in extreme cases can result in a term of imprisonment.
If you are served with an Intervention order you have three choices.
1) Accept it and then an order will usually be made against you for 12 months.
2) Agree to the order but on a limited basis and with a denial for the necessity for same.
3) Defend it.
Obviouly any ‘innocent’ person will want to defend the order and have it removed form their record.
However, defending it can be costly and given the court backlog may take several months before you get your day in court.
As a result often people accept such orders and then go to the Family Court to get Orders to see their children.
The problem is that the party with the Intervention Order can then bring it up as “evidence” of violence, fortunately however, judges realise that such orders are in many cases obtained without a proper hearing and on only one party’s version of events, and consequently such Order do not usually prevent parents from seeing their children for long.
It is perhaps ironic that such Orders which are designed to protect victims of violence are instead used as weapons in matrimonial disputes.
If you are served with an Intervention Order you must ensure the last think you do is breach it, no matter how unjust you believe it to be.
As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555
Friday, February 11, 2011
Time Limits in Family Law
Hello Everyone
I have been asked by a few people recently about the relevant time limits that apply at the end of a relationship and when applications to the court with respect to family law property matters need to be made.
There is a common misconception that you have to be separated for 12 months before you can “divide everything up”. This is not true, you can apply any time after you separate.
There are only three relevant time limits in family law proceedings. All time limits run from the date of separation.
There is no need to formally advise any institution that you have separated.
The day of separation will be deemed to be when one or both parties decide the relationship is at an end. Thus you can be separated notwithstanding that your relationship was brought to an end by the action or conduct of one only of you, and without the agreement of the other.
Further if you have the intent to separate you can be held to have separated and to have lived separately and apart notwithstanding that you have continued to live in the one house.
When you have been separated for 12 continuous months you can apply for a divorce. A Divorce ends your marriage - it does not divide your property.
Married couples can apply to the court at any time before they divorce or within one year after divorce for a property settlement if they can not agree on how to divide their assets.
Couples in de facto relationships must apply to the court within two years of the date of separation for the court to divide their property interests if they cannot agree.
Property matters do not have to be finalised within the time periods the applications just need to be filed.
Of course this means if you are married and you don’t file for divorce your former partner can make an application against you for property settlement many years after you separate. As a result it is always best and less complicated if you sever your financial relationship as soon as possible.
If you have any further queries please feel free to contact Nicola Watts directly at Septimus Jones & Lee on +61 3 9613 6555
I have been asked by a few people recently about the relevant time limits that apply at the end of a relationship and when applications to the court with respect to family law property matters need to be made.
There is a common misconception that you have to be separated for 12 months before you can “divide everything up”. This is not true, you can apply any time after you separate.
There are only three relevant time limits in family law proceedings. All time limits run from the date of separation.
There is no need to formally advise any institution that you have separated.
The day of separation will be deemed to be when one or both parties decide the relationship is at an end. Thus you can be separated notwithstanding that your relationship was brought to an end by the action or conduct of one only of you, and without the agreement of the other.
Further if you have the intent to separate you can be held to have separated and to have lived separately and apart notwithstanding that you have continued to live in the one house.
When you have been separated for 12 continuous months you can apply for a divorce. A Divorce ends your marriage - it does not divide your property.
Married couples can apply to the court at any time before they divorce or within one year after divorce for a property settlement if they can not agree on how to divide their assets.
Couples in de facto relationships must apply to the court within two years of the date of separation for the court to divide their property interests if they cannot agree.
Property matters do not have to be finalised within the time periods the applications just need to be filed.
Of course this means if you are married and you don’t file for divorce your former partner can make an application against you for property settlement many years after you separate. As a result it is always best and less complicated if you sever your financial relationship as soon as possible.
If you have any further queries please feel free to contact Nicola Watts directly at Septimus Jones & Lee on +61 3 9613 6555
Thursday, January 27, 2011
Overcoming the burden of a lack of funding
Hello again everyone,
Happy New Year to you all and let me say it is with a renewed sense of enthusiasm and zeal that I undertake to provide you with what I hope will be valuable, practical and user friendly information that you can all apply in your dealings with family law.
With that said let's get straight into it for my post of 2011.
Many people don't see lawyers because they are concerned about costs and in particular their ability to pay.
There are two key options if you leave your spouse and don’t have an income to pay your lawyer.
Firstly there are organisations which provide specific litigation funding for example Quantum Litigation Funding. Such companies pay your bills and get repaid in the end.
Secondly you can apply to the court for a "Barro" order. A "Barro" order allows the spouse without funds to obtain a lump sum from the other spouse to pay legal and accounting expenses.
Both of these options are widely used and provide litigants who are financially disadvantaged with the ability to fund their litigation and use the lawyer that they want to use, rather than relying on the one they can afford.
As this information may be new to most of you I would ask you to forward it to your respective networks to ensure that everyone can benefit from this information.
As always please feel free to share your comments as it is appreciated and beneficial to know how people are relating to what we are writing. As well if you have any further queries please feel free to contact Nicola Watts directly at Septimus Jones & Lee on +61 3 9613 6555
Happy New Year to you all and let me say it is with a renewed sense of enthusiasm and zeal that I undertake to provide you with what I hope will be valuable, practical and user friendly information that you can all apply in your dealings with family law.
With that said let's get straight into it for my post of 2011.
Many people don't see lawyers because they are concerned about costs and in particular their ability to pay.
There are two key options if you leave your spouse and don’t have an income to pay your lawyer.
Firstly there are organisations which provide specific litigation funding for example Quantum Litigation Funding. Such companies pay your bills and get repaid in the end.
Secondly you can apply to the court for a "Barro" order. A "Barro" order allows the spouse without funds to obtain a lump sum from the other spouse to pay legal and accounting expenses.
Both of these options are widely used and provide litigants who are financially disadvantaged with the ability to fund their litigation and use the lawyer that they want to use, rather than relying on the one they can afford.
As this information may be new to most of you I would ask you to forward it to your respective networks to ensure that everyone can benefit from this information.
As always please feel free to share your comments as it is appreciated and beneficial to know how people are relating to what we are writing. As well if you have any further queries please feel free to contact Nicola Watts directly at Septimus Jones & Lee on +61 3 9613 6555
Subscribe to:
Posts (Atom)