Most parents want what is best for their child. If a child breaks their arm parents need no special permission to have it operated on and fixed. However consent to perform surgery on special medical conditions is not so easy. In a recent Family Law case [Sean and Russell (Special Medical Procedures)] the castration of two boys was presented to the Courts for a decision.

With headlines of “Judge Allows Parents to have Boys to be Castrated” Kim Arlington, journalist for the Sydney Morning Herald sensationally reports on a Family Court decision by Justice Murphy delivered 26 October 2010.  The facts of this case are special, sad and serious and belie the sensationalist headlines. 

In respect of 2 applications heard by the Court at the same time 2 young children known by the pseudonyms “Russell” (an 18 month year old boy) and “Sean” (a 3 ½ year old boy) had both been diagnosed as having Denys-Drash syndrome.  It was the specialist medical advice received by parents of both these children that the gonads of the boys be removed for their own health and to prevent some of the effects of the Denys-Drash syndrome.  It is thought that these two children are the only two people in Australia that suffer from this condition.  The medical evidence was that the boys would develop of tumors (cancer) in their kidneys and their testes.

It was acknowledged that the removal of the testes would render both of the children infertile, however the consensus of medical opinion was that by reason of the syndrome each child was almost certainly likely to be infertile even without the proposed surgery.  The parents of the children applied to the Family Court for approval and authorisation in order to instruct the treating doctors to conduct the surgery.

Comment from Mark Streeter Sydney Family Law Lawyer

Justice Murphy, after an extensive review of the previous cases and legislation relating to this area of the law found that the proposed treatment was more consistent with securing the children’s best long term outcomes both physically and psychologically and the authorisation of the proposed treatment was in the children’s best interests. The Judge made orders authorising the treatment.

In order to protect the identity of both the children, parents and treating doctors, the names of these parties were anonymised.  Section 121(9) of the Family Law Act 1975 prohibits publication of information which identifies a party in Family Court proceedings.

 

Protecting people from violence is a significant role of Australian laws. The protection of women and children from domestic violence is a topic often covered in the media. Sexual assault is another. A recent report is hoped to be a step forward in addressing inconsistencies or areas for improvement in our State and Federal laws. Many Family laws intersect or cross over with other laws which can create confusion.

The joint Australian Law Reform and New South Wales Law Reform Commissions delivered their final report to the Attorney General on 10 October 2010. The report was released to the public in November 2010.

This 1,500 page, 2 volume report sought to comprehensively review the various Federal and State Laws. It's objective was reducing violence in the community and particularly in relation to women and children.  

This process is one of the ways in which changes to laws are made in Australia.  This comprehensive review of the existing laws identifies weaknesses and areas of potential improvement and then made 186 recommendations for improvement.

Areas include confidentiality, rape, family dispute resolution, bail, trial process, homicide, breach of protection orders. For the full text of the report click here

Family Court takes the Compliance of Orders seriously

On January 10th, 2006, following their divorce, Mr Rand + Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property.  On June 25th, 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia” .... potentially  for the term of his natural life!

Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and didn’t travel outside Sydney.

Three years later on the 20th of April 2010, Mr Rand’s appeal was presented to the Full Court of the Family Court. Finally, on the 3rd of September 2010, judgement was delivered in favour of Mr Rand ensuring that the convictions for Contempt of Orders were overturned.

Interestingly, the reason that the conviction was overturned was that the Full Court found that the original order given on January 6th, 2006 was not sufficiently clear and was therefore too ambiguous to find a breach by way of contempt of the Order.

Whilst we agree that the current judgement rights a wrong, Mr Rand will not receive any compensation for the limitations placed upon his liberty for the past 3 years and to this extent, the delay has prejudiced his personal and financial interests.

This is a strong reminder the Family Court takes Compliance with Orders in relation to children and property extremely seriously.

Marriage is a contractual arrangement and your rights and responsibilities do change after you walk down the aisle. From taxes to property ownership, from insurances to income, from inheritance to social security, marriage changes a lot.  

Understanding at the start is a vital key to a successful union.  Not understanding money and property can be at the core of what goes wrong in a marriage.  Early discussion of these issues, even before the marriage, can help start couples off on the right foot and a prenuptial agreement is the ideal basis for this discussion.  Creating a prenuptial agreement can be a very positive process to go through.

Strong marriages are built on trust. A prenuptial agreement helps brings things out into the open and can lay a healthier platform for your relationship. The process can help generate discussions and concerns about ageing parents, children from a previous marriage, owned businesses, inheritance expectations, acquired debt, retirement plans and even general  lifestyle.  

A prenuptial agreement clarifies the future and is an legally binding agreement reached when the couple are at their most amiable.  Before considering credit cards, budgets, joint accounts, groundwork can be laid before the marriage to chart the course for the future and protect what is presently in our lives as individuals.  Individual wealth and property are tender subjects, and it is far easier to talk about these issues BEFORE you are married, rather than when you are married or in the event you are contemplating a divorce.

There’s nothing romantic about money and property, but they are two very key issues in every relationship, and there is nothing wrong with being clear about these issues before beginning married life.  Creating a prenuptial agreement is like buying car insurance.  Hopefully you will never need it, but if you do, you will be very grateful that you had it.

For advice on a prenuptial agreement contact Streeterlaw Sydney Lawyers.

See other Prenuptial Blogposts and Information:

Understand what makes a Prenuptial Agreement legal in Australia
Independent legal advice required for Prenuptial Agreements
Case - Court protects Russian Bride
Six types of Prenuptial Agreements
Prenuptial agreements Who, When and Why

Man pays child support for six years before DNA reveals he is not the father

An expensive Child Support case shows it is not always worth recovering funds even if they are overpaid or incorrectly paid.

The facts of Forsythe & Latimer & Anor [2010] FMCAfam 478 (8 June 2010)

A recent decision in the Federal Magistrate’s Court (8 June 2010) concerned an application by the Child Support payer who had made payments over a number of years unaware that he was not the father of the child at the time that he made payments of child support.

The recipient of the funds was in strained financial circumstances.  Although the father was determined not to be the father so for the purposes of this discussion he will be called the “payer”.  

The mother commenced a relationship with the payer in November 1997 which continued to June 1998.  They did not live together but they had a relationship which included sexual intercourse.

On an occasion in December 1997 the mother had a “one night stand” following an event at a pub.  She does not recall this man’s name nor have any of his contact details.  The child was born in late 1998 but the payer’s name was not recorded on his birth certificate until 11 January 2000.

After making private payments of child support, the payer then commenced paying through the Child Support Agency in October 2002.  After suspicions were raised by the payer’s sister as to the paternity of the child, the payer requested the mother permit a DNA test in or about March 2008.  Due to delays from the testing agency a conclusive report was not produced until 22 April 2009 which excluded the payer as being the biological father of the child.  After some delays the payer commenced proceedings in the Federal Magistrate’s Court seeking a declaration under the Child Support (Assessment) Act and seeking a repayment order under that Act.  

The entitlement of a party to “be repaid” is up to the Court who has an unfettered discretion as to whether or not to make the order in accordance with the criteria specified in Section 143(3) of the Child Support (Assessment) Act.  The relevant criteria is as follows:

(a)  whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;
(b)  whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
(c)  whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;
(d)  whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;
(e)  the relationship between the payer and the child;
(f)  the financial circumstances of the payee and the payer.

Comment from Mark Streeter Sydney Lawyer

Having regard to all the personal and particular circumstances of this case and the conduct of the parties, their financial circumstances and applying them to the criteria referred to above, the Federal Magistrate ruled that of the $39,090.57 claimed only $9,743.30 would be ordered to be paid and then made provision for these to paid by instalments over 18 months.

This was an extremely expensive case to run and this case involved 3 hearing days and written submissions. There is no way that costs would not have exceeded the sum recovered and accordingly the commerciality of recovery proceedings in this jurisdiction must be carefully weighed up!

Domestic family violence is a crime. What should you do and what you should take when separating?

Separation can occur by agreement or can occur as a consequence of one party arbitrarily denying the other party access to the primary residence. The law relating to occupation as “joint tenants” of a house can be complex with many unique and particular factual issues to be considered by a judge who is asked to rule on a dispute.

Often in separation there will be accusations of domestic violence, abuse or threats. Often it is violence against women but not always. Domestic family violence  may be considered as criminal conduct. An application by one party against the other for an apprehended domestic violence order (ADVO) can prevent one party from approaching or entering the home.

Separately and in addition to right for a party to make an application for an ADVO a party may make an urgent application to a Court with Family Law jurisdiction for a “sole use and occupation order” which would be a short-term exclusion order that one party have exclusive occupancy of the home until a final property settlement or judgment of the court has been determined.

Family violence and domestic violence help

Family violence is any physical violence, threats, emotional and psychological abuse and includes damaging property.  Violent behaviour is unlawful and in addition to protections and the family law, there may be protections under the criminal regime.

If you are the subject to, or a party to family violence, call the police – 000.

The police have the power to arrest the offender, search for and remove weapons.  If the offender has a gun (or owns a gun) the police may remove it.  The offender may be charged with a criminal offence and the police may apply for an apprehended domestic violence order on your behalf.

If the police do not make an application for a court order you may approach the duty Magistrate or the Registrar at your Local Court to assist you make an application.

As an adult you may apply for an order that protects you and/or your children from family violence. The first instance should be the Domestic Violence Liaison Officer at your Local Police station.

Are you the one leaving your house in separation?

If you are leaving your house, either planned or in circumstances of urgency such as domestic violence victim, be sure that you take the following:

• personal documents - for example bank / cheque books, passports, marriage certificates
• any items of sentimental value
• things that you need for yourself and your children including change of clothing, school uniforms, school bags, books, toys, toiletries

If you are in personal danger from domestic abuse – remove yourself and ensure that you are physically and emotionally safe and those in your care are also removed from threats or risk of family violence.


Common misspellings: domestic voilence, domestic violance

Attempt to reduce Family Business profit backfires

Fraud may occur in any jurisdiction and unfortunately the area of Family Law is no exception.

The Situation

A family company was controlled by one party in a marriage separation.

The company engaged in a complicated arrangement with a foreign company in Asia. The company bought services from this foreign company at inflated prices, with the aim of decreasing the profitability of the domestic company. This consequentially reduced the value for the purposes of the Family Law proceeding and removed 'profits' offshore.

The Solution and Result

Streeterlaw made an application for a freezing order (also called a Mareva Order) which prevented further transactions and obtained orders for an investigative accountant to audit the true value of the company.

Note

The Family Law Act provides stiff penalties to any person who discloses the names or identities of parties in family court proceedings or who publishes sufficient information to allow for the identification of these individuals. Accordingly many of the case studies and profiles are of a very general nature as a number of the distinguishing facts have been removed to preserve the anonymity of the parties.

New wife wins case against forceful husband

Imagine being pregnant, facing deportation and being given a Binding Financial Agreement by your fiance five days before your wedding and told to sign or the wedding is off.

The Situation Blackmore and Webber [2009] FMCA FAM 154

The couple entered into a Binding Financial Agreement (under Section 90G of the Family Law Act 1975) on 11 November 2004 just days before being married on 14 November 2004.

This judgment arose following an application by the wife to set aside a binding financial agreement on the following grounds:

a)    There was a failure to comply with the formal requirements of section 90G
b)    That the agreement was obtained by fraud under 90K (1)(a) including non-disclosure of a material matter
c)    That pursuant section 90K(1)(b) the agreement was voidable or unenforceable in that it was obtained under duress
d)    That pursuant to 90K(1)(e) the husband engaged in conduct that was in all the circumstances unconscionable

The Decision about the Binding Financial Agreement

The Court agreed with the wife that the agreement should be set aside on the basis of the husband’s “fraud” due to the non-disclosure (in circumstances where he had a positive obligation to disclose) of the value of the husband’s pension.  Although not required to determine the ultimate question the court also would have found that there was duress where:

a)     The binding agreement was first produced to the wife 5 days before their wedding
b)    The husband told the wife the wedding would be off if she did not sign the agreement
c)    The wife was four to five months pregnant with the husband’s child
d)    There wife’s visa was due to expire had the wedding not proceeded the Visa would have expired and the wife would have to leave Australia

Comment from Mark Streeter - Sydney Family Law Lawyer

The Court also concluded that it would have been satisfied that the husband engaged in conduct that put the wife at a special disability.

The Court found that at the time of signing the Binding Financial Agreement the wife’s command of the English language was limited, that she was pregnant, that she lacked close family support and faced possible expulsion for the country if she did not marry.
 
Call me for an appointment to discuss any Binding Financial Agreements you may have, or wish to create.

Surveillance reveals more than expected

The Situation

A wife suspected that her husband was having an "affair" online.

The Solution

By use of lawful surveillance methods it was ascertained that it was much worse than this. The husband was viewing child pornography. The matter was reported to the police and urgent action taken in the Family Court to preserve and protect the child of the relationship.

Testimony - Mark Streeter Sydney Lawyer

I recently agreed on a property settlement with my spouse. During the preparation beforehand and negotiation during the mediation, Mark Streeter was practical and results-oriented. He avoided the emotional issues that would have distracted me from evaluating my options clearly, and did not influence me to agree to further unnecessary litigation. Mark was focused on the best outcome for me and my child. Instead of a long emotional argument battled out in family court, we came to an amicable settlement. Many other less ethical lawyers would have encouraged me to continue the unnecessary litigation so they can charge their clients more money. Mark was truly concerned about my interests. 002

Note

The Family Law Act provides stiff penalties to any person who discloses the names or identities of parties in family court proceedings or who publishes sufficient information to allow for the identification of these individuals. Accordingly many of the case studies and profiles are of a very general nature as a number of the distinguishing facts have been removed to preserve the anonymity of the parties.

Handing over financial documents to an ex is hard

The need for full and frank disclosure by the courts often makes divorcing couples nervous. A common question is "Why do I have to give all my financial documents up to my ex-partner?  I’ve been told I’ve got to get my tax returns and my bank account statements and give them to the other side!"

The reason behind this requirement is referred to as Full & Frank Disclosure. Family Law Dispute Resolution seeks to resolve disputes before they get expensive, adversarial and litigious. The Family Law Rules actually require parties to engage in an exchange of information, including finances, before they start proceedings in the Court.

The parties must make a genuine attempt to resolve the dispute before starting a case. Accordingly, in property and financial cases this will require the exchange of financial and taxation records, details of income, liabilities and any businesses, companies or trusts.  The more complex the financial affairs are of the parties the more extensive these procedures will be.

Comment from Mark Streeter - Sydney Lawyer in Family Law

A dispute may escalate if the parties do not trust one another and in the circumstances “assume” the worst.  These worst case assumptions built upon worst case assumptions can make your negotiations very difficult.  That's why the philosophy, and justification, behind the implementation of these rules is to eliminate at an early stage as many of the uncertainties regarding financial matters as possible.

Yes it may seem hard to hand over documents but doing so actually reduces the time spent and therefore your legal costs.
 
Call me to arrange an appointment to work out your options.