April 2, 2019 in Family Law
New laws were introduced on 11 March 2019, changing court procedure in matters involving an element of domestic violence where one party is self-represented. These new laws will have effect from 10 September 2019.
Previously, a litigant who was violent or abusive towards their former partner could cross-examine their former partner during family law proceedings. This would invariably lead many victims of abuse to settle their proceedings on unfavourable terms purely out of fear, or being put in a position where they are asked questions for hours at length from the very person who was violent towards them, which could arguably amount to abuse itself.
This recent amendment to the Family Law Act prohibits the perpetrator from cross-examining the victim, and requires that person to engage a solicitor to perform the cross-examination.
The amendments have attempted to strike a balance between protecting vulnerable family violence victims, and also protecting innocent parties from being unfairly disadvantaged in a procedural sense when unfounded allegations are made against them.
There must be more than just an allegation of abuse, and for this restriction to apply:
- Either party must have been charged with, or convicted of, an offence involving violence (or a threat of violence) to the other person; or
- A domestic violence order must apply to both parties (this must be a final order not a temporary order); or
- The Family Court or Federal Circuit Court has made a personal protection restraint against one party in favour of the other; or
- The court otherwise directs this restriction to apply.
If none of the above 4 factors apply, the court is required to ensure there are protections in place for the alleged victim of domestic violence, which could see for instance the cross-examination being conducted by video or audio link.
Interestingly, this restriction also applies the other way, such that it restricts a victim of abuse from directly cross-examining the perpetrator. Perhaps in most instances the victim would be unwilling or unable to do so, however this restriction could prove disastrous for an abuse victim who is unable to afford a solicitor, which would see them being unable to challenge the evidence of their former partner. The statistics show victims of abuse are usually in a more vulnerable financial position than perpetrators, which would see this restriction disadvantage victims more than perpetrators.
In some instances Legal Aid will assist with providing representation, however not all parties qualify for a grant of aid.
It is important to consider these new laws when deciding whether to challenge an application for a domestic violence order. It is common for Respondents of domestic violence applications to consent to an order to avoid a trial and the potential for a finding of fact being made against them, however doing so will have repercussions if they find themselves in a family law dispute.
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The Queensland government is facing increasing pressure to follow Victoria and pass laws to legalise euthanasia, says leading legal firm Creevey Russell Lawyers.
Creevey Russell’s Wills and Estates lawyer Rachel Greenslade said the passing of the Assisted Dying Bill in Victoria could be replicated in other states and territories in coming years.
Ms Greenslade said while Queensland Premier Annastacia Palaszczuk has said the issue will not be considered in her state this year, she has left the door open to possible euthanasia reform.
“There is some strong support for the legalisation of euthanasia in Queensland including a push by the estate of former Brisbane Lord Mayor Clem Jones,” Ms Greenslade said.
Ms Greenslade said following an 18-month implementation period in Victoria, 2019 will mark the first time in Australia those suffering from terminal illnesses causing intolerable pain will have the right to choose to die with assistance.
“Quite rightfully, assisted dying comes with strict eligibility requirements,” she said.
“To be eligible you must be over 18, be suffering from an incurable illness, not be expected to live more than six months, be deemed capable of making decisions by two doctors and reside in Victoria for at least 12 months prior to applying for assisted dying.
“Patients who meet the eligibility criteria will be able to obtain a lethal drug from their doctor within 10 days of asking to die and after undergoing two independent medical assessments. The patient will also be responsible for administering the drug themselves but a doctor may assist in very rare situations where the patient is physically unable.”
“Although there is concern the new laws will make elderly patients more vulnerable to abuse and coercion, the legislation has a variety of safeguards including robust witnessing requirements and the creation of new criminal offences.”
“This is a very emotive issue, and until you have held the hand of a loved one dying from a terminal illness it is difficult to relate.”
“At the end of the day it is not about how family or the public feels; it is about granting someone the right to put an end to their own suffering.”
Rachel Greenslade (07) 4617 8777
December 18, 2017 in Family Law
If you were in a relationship and you brought into the relationship most of the value of the combined assets at the start of the relationship, the Court would likely find that this was a valuable contribution made by you, which ought to be factored into any final outcome.
In one of the leading cases on this topic, at the start of the relationship, the husband and the wife had assets, liabilities and financial resources of which the husband brought about 95% of the value, comprised mainly of a house. The Court found that during the relationship, the husband and wife made relatively equal contributions. The husband made some ‘extra’ contributions after the relationship ended, which the Court took into account. But the largest factor affecting the outcome was the disparate initial contributions.
In the first Trial, the Judge decided that the pool as at the date of the Trial should be divided 45% to the wife, and 55% to the husband. The husband appealed this decision. The Court of Appeal (who can sometimes re-decide a matter) decided that the overall distribution should be 25% to the wife and 75% to the husband. Both Courts agreed that the husband’s ‘extra’ contributions after the relationship ended was ‘worth’ 5%. So the balance of his distribution accounted for the difference in the parties’ initial contributions.
For further information please contact Leith Sinclair on 07 3009 6555.
A High Court ruling to set aside a prenuptial agreement does not change the importance of financial agreements in asset protection, according to leading legal firm Creevey Russell Lawyers.
Creevey Russell Partner Clare Creevey said the High Court judgment to set aside a pre-nup between the now deceased elderly millionaire property developer and his younger European bride highlights the need to properly finalise financial agreements early.
The High Court last week unanimously set aside the prenuptial agreement, which the wife had signed against her own legal advice, and another financial agreement signed after the wedding.
The decision overturned a Full Court of the Family Court decision which last year ruled the financial agreements were legally binding. The High Court ruling, which said the wife was powerless and had no choice but to sign, will result in another court deciding how the property pool should be divided.
Ms Creevey said: “This decision doesn’t change the importance of financial agreements in asset protection. Agreements between parties who have acted out of their own free will cannot be set aside.
“This judgment simply highlights the importance of finalising and signing the agreement early on, and in circumstances where the other party is not at a special disadvantage or is unable to exercise their own free will.”
The couple in the prenup had met over the internet and about 11 days before their wedding the Australian developer, who had assets between $18 million and $24 million, insisted his fiancée sign a prenup or the wedding would not go ahead. The agreement said if the couple separated within the first three years of marriage the woman would receive nothing.
Ms Creevey said: “A second agreement was signed in the months after they married, presumably because the husband’s lawyers were concerned the first agreement could be vulnerable to being set aside in the future because it was signed so close to the wedding.”
The parties separated four years later and the wife filed a court application to make a declaration that the agreement was not binding. In that application she also sought an order that she receive $1.1 million from the husband plus $104,000 in spousal maintenance. The husband died in 2014 during the first proceedings and the executors of his estate took over the proceedings on his behalf.
The matter will now proceed to the Federal Circuit Court where the wife’s application for property adjustment and spousal maintenance will be determined.
For further details do not hesitate to contact Clare Creevey or Jacinta Norris on (07) 3009 6555
October 19, 2017 in Family Law
Frequently, a parent involved in a dispute about arrangements for their child will ask the question: “Can I change my child’s surname?”
There is no specific provision in the Family Law Act 1975 (Cth) in relation to changing a child’s name. This means the Court does not have the power to make an Order to direct the Registrar of Births, Deaths and Marriages to change the child’s name on the birth register (in each State/Territory). As they are not a party to the family law proceedings, the Registrar of Births, Deaths and Marriages cannot be bound by any Court Order.
However, the Court can make an order requiring a child to be known by a particular name. Or, a Court can order the parties do all things necessary to lodge documents with the Registry to change a child’s name.
In considering whether or not they should make an Order, the Court must first give paramount consideration to what is in the best interests of the child, in the specific circumstances of the individual case. According to S & H  FMCAfam 97, in addition to the factors contained in section 60CC setting out how the Court should determine the best interests of the child, the Court should also consider:
- the short and long term effects of any change in the child’s surname;
- any embarrassment likely to be experienced by the child if its name is different from that or the parent with residence or day to day care of the child;
- any confusion of identity which may arise for the child if his or her name is changed or not changed;
- the effect which any change in surname may have on the relationship between the child and the parent; and
- the effect of frequent or random changes of name.
Please contact Maddison Jago at Creevey Russell Lawyers on (07) 3009 6555 for further information.