Family Law Blog

Solicitors are often faced with the dilemma of being approached by a potential new client, but because the solicitor or firm has acted for a previous client whose interest may be affected, the solicitor may be unable to act.  There are, however, circumstances where a former client may waive, whether expressly or impliedly, their right to object to the solicitor acting.

Ex parte proceedings refer to proceedings where one of the parties may not be present.  The matter of Drew & Jensen [2017] FCCA 656 concerned a recovery application made by the father of two children, aged five and nearly two.

Since being handed down on 27 February 2017, in the Full Court of the Family Court, the decision of Britt & Britt has had the potential to significantly impact the way that evidence in property matters, relating to family violence, is treated and therefore, how it’s admitted in evidence.

Penrith LGA is currently one of the hardest-hit areas in the state with regard to reports of domestic violence.  Unfortunately, Penrith is not alone in these numbers – with the neighbouring Blacktown area showing the highest number of domestic violence incidents in NSW: with 2083 in the year up until March 2017.

Rumours have circulated concerning whether the prenuptial agreement surrounding the separation of Tom Cruise and Katie Holmes contained a clause that prohibited Katie from ‘dating publicly’ for five years. Whilst including clauses that are novel and unusual may seem appealing in Hollywood, it’s simply not appropriate in most jurisdictions.

It is important when entering into negotiations for a division of property, and prior to any proceedings being commenced, to obtain independent legal advice about the documents you need to provide to the Court.

It was pleasing to hear in last week’s Federal Budget announcement that there are two significant plans to address the current issues plaguing the family law system.

An Australian same-sex couple is currently facing legal issues in their attempts to bring their baby son into the country from Canada where they have been living. The Australian Foreign Minister is unable to grant the child a passport without the consent of his biological mother.

The changing landscape of technology is proving to be a large factor in family disputes, with a recent study by Victorian based research centre ‘SmartSafe’ finding that 80% of domestic violence workers reported that smart phones and related technology are being used to track, stalk and harass partners.

Adopting a child is an exciting time in a person’s life but excitement can turn to frustration and disappointment when you encounter delays and difficulties. This article outlines the processes and pitfalls you may come across in your adoption journey.

It is common place, particularly in acrimonious property proceedings, that one party will seek to dispose of assets or otherwise arrange their financial affairs with a view to preventing the other person from receiving a share of an asset, or all of the assets, of a relationship. Should this be the case, a person has the ability to apply to the Court for certain behaviour to be restrained, or, if a transaction has already taken place, to reverse that transaction in certain circumstances.

Upon the breakdown of a relationship, it is usual for parties to need to come to considered agreement about how it is that the children in the relationship will be looked after. Often those arrangements are recorded in a set of Court Orders, which are binding upon the parties and can be enforced should they not be complied with. Court Orders however, are not for everyone.

The way in which families arrange their affairs stereotypically result in one party earning a higher income than the other. Upon separation, when the party who does not earn a significant income no longer has the use of the other party’s income to meet expenses, often those expenses will go unpaid unless the other party provides financial assistance.

On ABC News last month, an article was published regarding Facebook being used as a weapon in Family Law matters and the increasing use of Binding Financial Agreements to deal with this issue.

There are a lot of misconceptions about what parents are “entitled” to when it comes to custody arrangements for children. Some have the approach that the father should spend time with the child every alternate weekend and some have the perspective that it should be 50/50.

As the recent case of a father being arrested in Grafton after "kidnapping" his child demonstrates, matters relating to children after the breakdown of a relationship can escalate, and sometimes become terrifying, very quickly.

When Binding Financial Agreements (or, to use the vernacular, "pre-nups”) were introduced in the Family Law Act some time ago, they became a very popular tool at the commencement of a relationship to avoid the uncertainty of what would happen should a couple separate.

Unfortunately, family violence often plays a part in the breakdown of a relationship. That violence can cause irreparable damage to the victims, which often include, either directly or indirectly, the children of a relationship.

There have been two cases in the media recently where family matters, with separated parents and custody issues of the children, have ended tragically. After the case of the missing father and his four year old daughter in Northern NSW, we have seen a similar story unfold in Melbourne last week with the death of an 11 year old boy and his father. Unfortunately, matters whereby people harm themselves or others as a consequence of marital breakdown are far too prevalent.

The Universal Declaration of Human Rights recognises the right to ‘free and full’ consent to a marriage, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) prohibits child marriage. However, every year, it is estimated that 14 million girls under the age of 18 are forced into marriage with little or no say in the union.

The role of a step-parent can be a tough one. Whether it is achieving the acceptance of their step-children or at times bearing the brunt of the conflict between their spouse and his or her former partner, it is definitely not a role that is straight forward. Building trust and deciding what role they will play in each other’s lives are often common problems when establishing a relationship between step-parent and step-child.

A friend of mine recently told me about an article he read on the growing number of separated mothers leaving New Zealand and relocating to Australia with their children. As a single father he was concerned about this trend and specifically, that it was happening without the father’s consent or a Court order. The article stated that 70% of New Zealand children involved in international custody disputes last year were found to have been taken to Australia.

Celebrity relationships, marriages and divorces are splashed across the news on what seems like a daily basis. It is almost no longer surprising (for those that care!) at the news of each new relationship, marriage and sadly, separation in the celebrity world.

Family Law Matters are stressful and upsetting for all parties involved, as such, there are certain laws in place to help protect the identity of those involved in family law proceedings in the public domain. The Family Law Act prohibits the publication in a newspaper, on the radio or television, or by any electronic means, or otherwise in the public domain, the identification of a party to family law proceedings, a witness in the proceedings or any other person concerned with the proceedings. A consequence of breaching this law is a maximum of a one-year jail term. The Act includes a broad definition of what it means by identifying a person, including but not limited to the publication of their address, physical description or employment.

Last month we saw the troubling headlines that a young man, Stephen Hume, had allegedly assaulted his 16 year-old girlfriend and ‘abducted’ their eight month old son. The search continued for a couple of days for the father, while baby Zhaiden was delivered to Campbelltown Police station by a member of Mr Hume’s family and ultimately reunited with his mother.

A client recently said to me, "My partner was an abusive, lying, cheating *&@#! Shouldn't I get more money from our property settlement for everything x has put me through???" I truly felt for my client after everything she had been through, but unfortunately the answer is generally “no.”

Kate Middleton has had the world’s eyes on her from the moment the Duchess announced her pregnancy. With the birth of the new Prince, the speculation over the gender of the new Royal finally ended in the early hours of yesterday morning. However, there is still one more question on everyone’s mind: “What will they call him?” The “Royal Baby” is not the only baby in recent times to cause a media frenzy. Media speculation and controversy ensued following the recent birth of Kim Kardashian and Kanye West's child. Initial reports suggested that the child was named "Kaidence", spelt with a "K" following the Kardashian trend. It has, however, since been confirmed by inside sources that the child has, in fact, been named "North."

Gay marriage is such a hot topic right now. Just recently I had a family dinner and OMG, the discussion about gay marriage was fierier than mum’s chilli chicken! With all the recent news about gay marriage it was a topic that was inevitably going to come up but I honestly did not expect such a great divide at the dinner table on this issue. So in the news recently, France and New Zealand passed legislation to support gay marriage. Now, Brazil has become the third and largest Latin American country to give a green light to gay marriage, the ruling drawing praise from gay marriage rights activists in Rio. Turning to Australia, Kevin Rudd has recently expressed that he now supports gay marriage. Experts say these latest developments will affect the future of Australia's popular and political stance on the issue – the question now is will Australia follow suit and legalise gay marriage?

Sesame Street now teaching kids about divorce? When I was a child, I remembered Sesame Street teaching me my ABC, 1,2,3 and my colours. These days, apart from teaching kids these basics, the show has expanded to embrace more affective topics such as relationships, ethics, and emotions. One such topic (sadly, but probably necessary in this day and age I believe) is the issue of divorce.

Controversy surrounding Binding Financial Agreements – or pre-nups, as they are more commonly known – has again been enlivened by publicity surrounding the recent 'pole dancer case.' This case, as reported by The Sydney Morning Herald on 24 February 2013, is about a Mr Wallace seeking to set aside a pre-nup between himself and his former wife, whom he met at a pole-dancing club in Sydney. The agreement, signed by the couple prior to their marriage, required amongst other terms that Mr Wallace pay his wife $3,250,000 should their marriage break down within four years. The couple separated two years following their marriage and Mrs Wallace sought to enforce the agreement. However, Mr Wallace claimed it was invalid because he says Mrs Wallace lied when she told him prior to their marriage that she loved him and wanted to spend the rest of her life with him.

A very wealthy London man has recently been sentenced by the High Court in England to six months’ imprisonment as a result of failing to disclose his financial circumstances to the Court in his family law dispute with his former wife, and also for falling behind in his child support payments and has subsequently been jailed. Clearly, this is an extreme case and not all disputes as to financial disclosure will result in a jail sentence. But what does happen if tax returns are botched to show a lower income to reduce child support payments? What action will a Court take to a litigant who is not being entirely frank as to his or her financial circumstances to avoid paying more to their former spouse by way of property settlement?

The media has recently reported on a Norwegian study which suggests that the more a man does in the home, the higher the divorce rate (“Divorce risk for couples sharing chores”, The Australian 28 September 2012). In fact, the study found that the divorce rate for couples who share housework equally was about fifty percent higher than for households in which women do most of the chores!

            Long gone are the days when it was considered the man’s sole job to 'bring home the bacon' for their family. The Diversity Council of Australia has recently reported that having the flexibility to manage family and personal life was one of the five most highly valued job characteristics for men, ranking third on the list for young fathers. The key findings report that demographics have changed and more men in the workforce are now experiencing higher levels of demand in terms of balancing their work and family/personal commitments; with the statistics revealing that 64% of fathers had a partner in the paid workforce, and 31% had elder care responsibilities. But does changing nappies, rushing the kids to school, ironing, washing, cooking dinner, collecting the kids from school and taking them to their soccer and dancing classes pay off when the bacon is divided 10 years down the track should ‘happily ever after’ become a mere fairytale? The reality is that Courts do take these tasks into consideration when determining a party’s entitlement in property settlement proceedings in what are commonly known as ‘contributions to the welfare of the family’; that is, tasks performed as a homemaker or parent. In addition, Courts look at the financial contributions that each party brought into the relationship. This may include property, inheritances, income from employment, redundancy payments or prize winnings. Non-financial contributions are also relevant in property settlement. These involve any act which contributes to the acquisition, conservation or improvement of property, such as building a playroom for the children or being the primary carer and homemaker for the children such that the other party is able to pursue income-producing activities. The weight of the various contributions however depends on a multitude of factors,including the length of the relationship, the size of the contribution and when the con

A recent Family Court decision has highlighted the hard, and sometimes unusual, decisions a Court has to take. In the July 2012 case, a man was given 14 days to recover his parents' ashes from a memorial garden he had created on his family farm. The ashes were buried in two large urns, with commemorative headstones marking their location, next to a bronze bust of the man's father who had died first. Unfortunately, the farm had been awarded to his former wife in a property settlement and he was therefore required to find another 'resting place' for his parents. Describing the decision as a 'kick in the guts' the man was not only upset about having to move the headstones and urns, but also the fact that the farm had been his parents home when they were alive. This decision seems very harsh. How could this happen, I hear you ask?

Marriage or Defacto - what's the difference? To propose or not to propose? This is the question facing many Australians today.

The speed in which Tom Cruise and Katie Holmes reached a divorce settlement would surely have won "gold" in any family law Olympiad! Leaving the world, and more to the point, the world's media, stunned by the outcome, Tom and Katie have recently proven that not all divorces need end up in the Court system. With the rate of divorce in Australia trending upwards and as many as two in every three marriages ending in divorce, a large portion of our population are now struggling with the impact of the breakdown of a relationship.

Dutch entrepreneur Jim Halfens has launched the "Divorce Hotel", a service that enables couples to check into a five-star hotel for a weekend and negotiate the terms of their divorce over the course of the weekend. So far, the service is proving successful for couples in the Netherlands and Mr Halfens has plans to expand into other countries including the US.

Everyone and their uncle has been putting in their 2 cents worth regarding the changes to family law violence legalisation; the women’s rights groups, the men’s rights groups, the children’s rights advocators, the media and a few others have joined the bandwagon. So I am not going to go over the whole changes again but I like to think that I am taking a commentators position, if you will, as the band wagon rumbles past.

Or your Father for that matter… Often when recounting how parties met, people tend to remember things like the time, the date, maybe even what they were wearing. One of my aunts recalls distinctly that she was having a “bad case of bad hair day”. You may (or may not) be interested to know that the Court is also concerned, in a way, as to how the parties met at the commencement of cohabitation and that is really not so much ‘how it was’ but more ‘how much they were worth’ at the time.

I am not alone when thinking of things in twos - Gillard v Rudd, Holden v Ford, Pepsi v Coke, Optus v Telstra... Two teams in a match, two birds with one stone, two peas in a pod. Two parties in a court case. Except - this last phrase is not always the case. There are two ways a person can become a third party to a traditional two party case – either as an Independent Children’s Lawyer or an Intervener.

Have you ever loved your partner so much you wanted to adopt them? Polo magnate, John Goodman who is facing a civil trial in the US over the death of a 23-year-old in a hit and run accident, did just that. A judge previously ruled that a trust Mr Goodman had set up for his two children could not be considered part of his financial worth if a jury awarded damages to the victim’s family. In an attempt to provide for his girlfriend, Mr Goodman has since adopted said girlfriend as his legal daughter, in turn allowing her to be entitled to a third of the family trust. An American Court has described the action as a new "twilight zone" for the legal system. It is very unlikely that we get such a twilight rezoning case as the Adoption Act of NSW and it’s mirroring counterparts from other states state that adoption applies to a child under the age of 18 or for a person over the age of 18 that was cared for as a ward or stepchild of the adoptive parent when they were underage.

“My mother-in-law is an angel” One man said to his friend. “You are lucky” his friend replied “mine is still alive.” We have all heard the jokes, whether they were said with tears of laughter or tears of frustration. On an interesting side note, a survey conducted a couple of years ago found that women in general tend not to like mother-in-law jokes as they were either mothers-in-law themselves or knew they would one day become one. However no matter which side you are on, I think it is safe to say that plenty more than a fair few people in relationships have an issue or 10 with their in-laws.

Earlier this month, NSW Police found themselves embroiled in a 12-hour stand-off with a 52 year old man who barricaded himself in a legal office in Parramatta with his 12 year old daughter, claiming he had an explosive device in his backpack. Initial reports indicated that the daughter was being held hostage during this time and everyone’s thoughts immediately turned to the terrible possibility that it was a family law dispute which had turned ‘sour’ and the father had snapped over custody issues.

It seems that we still can’t get enough of all the ‘post baby bodies’. I’m into fashion and beauty as much as the next person but in the last couple of weeks it seemed that no matter which channel I tuned into, there was Miranda Kerr showing her post baby non-existent bump. Which in turn lead to images or footage of Doutzen Kroes, Eva Herzigova and Heidi Klum also parading to prove the possibility of strutting the catwalks only 2 months after giving birth. During this maternity media frenzy I came across an article in the Sydney Morning Herald which discussed not only the reasons behind these new catwalk mums being able to regain their pre-baby bodies (it is their established pre-natal exercise routines if you are wondering) but how motherhood has become beautiful and glamorous now after a period of appalling avoidance.

Regardless of how wealthy, important or famous a couple is, when they decide to separate or divorce the health and well-being of any children should remain at the top of their list of priorities. The recent separation of Jennifer Lopez and Marc Anthony has caused the celebrity websites and tabloid magazines to go into overdrive trying to cover (or more realistically, guess) the reasons for the split, who is at fault and what will happen next. It was therefore only a matter of time before the hot-potato issue of child 'custody' raised its head!

One of my favourite TV shows is QI, it’s fantastic. Add Stephen Fry to a mix of 4 comedians, one of whom is a core ingredient, Alan Davies, along with a batch of general questions and watch for 25 minutes. The result is guaranteed to be delightful and mentally challenging. For those familiar with the show, it is a well known fact that one of the reasons the show is so stimulating is because it addresses many misconceptions and misunderstandings that have hazily hovered in the recesses of our minds until they took the form of influential illusions. In the labyrinth of Law there exist familiar phrases of the kind the French like to call ‘faux amis’ or false friends. Those illusive terms that seem to give legal lingo its fluency. In Family Law there exist quite a few but I will only cover three of the most common.

I recently read a travel article about an Asian country where it is considered very offensive to ruffle a child’s hair in public, however it was perfectly normal to grab a young child’s private parts in a show of affection. In Australia seeing this action would most likely spring one word to mind – abuse. Now, take five seconds to ask yourself, what you would consider to be child abuse? I would say chances are you mentioned the words physical, sexual and assault in your definition. If those were the only words featuring in your definition, then consider yourself on par with the legislative minds of yesteryear.

The Australian lobby group called Get-Up paid $31,000 for a dinner with Julia Gillard at the Canberra Press Gallery’s annual ball this week. The dinner formed part of the Press Gallery’s annual fundraising auction and Get-Up is giving the prize to three same-sex couples who will now have unprecedented access to the Prime Minister at the small event. Same-sex marriage is certainly attracting a lot of attention at the moment. A new television advertising campaign is garnering attention and Shelly Argent (OAM), the mum who fronts the campaign, has also been doing the rounds of the morning television shows.

As Sydney ground to a halt in peak hour on Friday 13 May, everyone wondered why someone would go to such dangerous lengths as to stage a protest on top of the Sydney Harbour Bridge. It quickly became clear that the protestor, ‘Michael’, was a father raising his concerns over the systems we have in place to resolve family law issues and children’s services. Obviously in this situation, the father involved is feeling helpless and frustrated by his perceived lack of access to his children and the ways in which he feels the ‘system’ is letting him down. But can a protest on top of the Harbour Bridge make a difference?

The Sunday Telegraph (10 April 2011) reports that a mother who allegedly kidnapped her child back in 2008, prompting a two year world-wide hunt by her husband, is set to face trial in Sydney.