Making Babies - Politics in the Pub Brisbane Powerhouse

Politics in the Pub

On Wednesday 17 September 2014 at 6pm a free event has been organised in the Turbine Platform at the Brisbane Powerhouse, Newfarm by New Farm Neighbourhood Centre.

It is a regular event but the title of the discussion  on 17 September is MAKING BABIES the business of birth.  The panel of experts includes an IV Expert, an Adoptions Qld representative, a representative from Jigsaw and Accredited Family Law Specialists and surrogacy lawyers Randal Binnie (Family Lawyers & Mediation Services) and his colleague in collaborative surrogacy, Ian Field.

All are welcome to attend this free event.

Commercial Surrogacy - Under the spotlight

SURROGACY LAWS

The debate about surrogacy laws, commercial and altruistic continues with the latest development being the Chief Justices of the Family Court and Federal Circuit Court calling for legislative action by the Federal Government.

The link to the article in the Australian is here

It would be a sensible approach to have the Commonwealth legislate comprehensive surrogacy laws to ensure the same law applied Australia wide.  The adhoc approach of the States and the failure to consider commercial surrogacy has forced prospective parents to overseas jurisdictions where there is little control over the process, placing all involved at risk.  Whilst it is a controversial issue it should not be ignored.  The unusual public call by the Chief Justices evidences a real need for reform.  Lets hope someone is listening.

Need surrogacy advice and representation - call Randal Binnie - +61 7 38043244

Contact Centre Services for Children.

Contact Centre Services for Children.

In court proceedings relating to arrangements for children, the Court may make a court order that requires the place where the children changeover from spending time with one parent to the other parent or where a child is to spend supervised time with a parent, to take place at a Children’s Contact Center. This is often the case where there has been domestic violence or one or either parent are unable to conduct themselves appropriately in the changeover when the children are present. In some cases the Court considers that it is in the children’s best interests that the parents do not come into contact with each other or there is concern as to the safety of the children. 

The Children’s Contact Centre staff make records of their observations of the contact between the children and each parent and of any incidents which may occur and conversations between the staff and the children or any notable comments that the children may make. These records may be produced to the Court in evidence under a subpoena, by either party involved in the court proceedings. Often the records made by the Children’s Contact Centre staff are the only significant evidence that the Judge has to consider what parenting arrangements are in the best interests of the children.

Not all Children’s Contact Centres are the same.  There are presently 65 Children’s Contact Centres in Australia funded by the Federal Government which are required to meet 15 government funding approval standards. There are also a number of privately operated Children’s Contact Centres, some of which are a members of the Australia Children Contact Service Association. The privately operated Children’s Contact Services are not required to comply with regulations and are not answerable to a statutory authority or jurisdiction of ombudsman and there is no authority that oversees the operation. In Queensland the government funded Children’s Contact Centres provide a subsidy for parents who are either in receipt of government benefits or low income earners however most of these centres have long waiting times for commencement of services. 

When considering which Children’s Contact Centre is right for you (and your children) you should consider:

a) Safety – government funded Children’s Contact Centres conduct an assessment of each parent as to the suitability of the Children’s Contact Centre to provide the services necessary for the parenting arrangements. For example if there is a documented history of domestic violence then the Children’s Contact Centre can provide appropriate safety measures to ensure that the parties do no come into contact with each other or a party is not a risk of harm during the changeover. 

b) Cost- Private Children’s Contact Centres will take into account the cost of staff working week days or week end shifts and the running costs of the centers when deciding the cost for the service. 

c) Control – Private Children’s Contact Centres are not required to comply with operating procedures or regulations and there is no method of making a complaint if you have a problem with the way a service is being run. 

d) A record made by either a private or government operated Children’s Contact Centre can be subpoenaed and relied upon as evidence to the Court and as a result the protocols and competency of the Children’s Contact Centre to make accurate and unbiased records should be considered. 

Rules for the Family Courts - too complicated.

A recent decision of the Full Court of the Family Court (Thompson & Berg [2014] FamCAFC 73 (2 May 2014), (the link to the case is here ) demonstrates the complexities of the two courts exercising federal jurisdiction under the Family Law Act.  The husband sought an injunction against the wife proceeding with her application on the grounds that the rules of the Family Court should be adhered to in the absence of their being the same rule in the Federal Circuit Court Rules.

The Family Court Rules provide for certain pre-action procedures where the expectation is that parties will try to resolve issues through dispute resolution (negotiation, mediation etc) prior to commencing proceedings. The Federal Circuit Court Rules do not require those strict pre-action procedures.  The outcome is that property settlement proceedings are commenced in the Federal Circuit Court without the requirement of the parties or their lawyers to attempt to resolve matters without the courts intervention.  Compulsory mediation is a requirement under the Family Law Act in relation to parenting issues so it applies to both Courts.

The answer to the question would be to have one set of rules governing both courts administration of the Family Law Act.  That would simply procedures for both the public and the legal profession.  Secondly, the Federal Government (now and previously) have a general policy to promote the resolution of disputes without resort to the courts as it provides self determination and a cost saving to the public purse.  There is need for review and change.

Contact us on 07 38043244 for help with Family Law matters and Mediation.

ABC Law Report on Social Science and Parenting Arrangements for young chlidren

A very interesting discussion was held on ABC concerning young children spending overnight with the non resident parent.

My only comment would be that where parents are able to work together, without conflict and in the absence of family violence, then it is more likely than not that overnight time will not be so difficult for the children to manage.  It really is a matter of a case by case analysis of the dynamics of particular family involved.  You can also go to the ABC webpage to read more by clicking here

Notary Public Services - When do you need a Notary?

What is a Notary?  Find an answer to that question either at Notary Services Qld or on our firm website Family Lawyers and Mediation Services.

Our notarial services include:  Attestation of documents and certification of their due execution for use in Australia and internationally for both companies and private individuals:  Witnessing affidavits, statutory declarations, powers of attorney, contracts, international Wills and other documents for use in Australia and internationally

• Certification of copy documents for use in Australia and internationally
• Certification of original documents for production overseas 
• Preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use internationally
• Preparation of Life Certificates
• Acknowledgements for use in the USA
• Administering of oaths for use in Australia and internationally
• Exemplification of official documents for use internationally
• Preparation of ships' protests
• Noting and protesting of bills of exchange

So if you need documents to be witnessed or certified for use overseas you need a Notary Public.  Justices of the Peace, Commissioners for Declarations or solicitors cannot fulfill the function of a Notary Public.  Notary Publics in Queensland are Senior Solicitors and charge fees for their services.

Another Successful Court result at FLMS

We appeared in the Federal Circuit Court recently on our client's application to set aside orders that were made in 2005.  The Respondent to the proceedings was insisting that the particular order which the Court was asked to set aside should continue to remain in force for her whole lifetime and that of the Applicant. This would have meant that the Applicant would continue to pay certain expenses of the wife which over time amounted to thousands of dollars. This was despite the parties having divorced some years ago and in circumstances where all of their children are now adults.

At the time the order was made our client was not represented and the orders drafted by the other parties solicitor were made by the court in circumstances where clearly they should not have been made for various reasons, not the least of which is that Section 81 of the Family Law Act provides that the Court should, as far as practicable, make orders finalising the financial relationship of parties and to avoid further proceedings between them.  If advice had been sought from us at the time we would have advised the client that the particular order was poorly drafted and should have been amended before he signed it.

You should ensure that you obtain legal advice before signing documents, particularly consent orders or other documents purporting to deal with property settlement, spouse maintenance or child maintenance issues.

We have a range of appointment options to allow you to get the advice you need within your budget.  At your initial appointment you will be advised of the options available to deal with your matter and the likely cost of pursuing those options.  There is no obligation to engage us to act further for you unless you wish to do so.

“Do grandparents have special entitlements to see or communicate with grandchildren?

Do grandparents have special entitlements to see or communicate with grandchildren?

We recently grandparents wanting to spend time with their grandchild but who were having difficulties in doing so because of the conflict caused by the breakdown of the relationship between the child’s parents.  In that case our client grandparents had an established relationship with their grandchild prior to the difficulties arising and it was clear that the grandparents were important people in the child’s life.  Ultimately, there was a happy result for the grandparents and the child as we were able to successfully obtain court orders for the grandparents to spend regular time with their grandchild. 

In year 2006 the Family Law Act 1975 recognised the importance of the role that grandparents often play in a grandchild’s life and the right of a grandchild to spend time on a regular basis with grandparents who are significant to their care, welfare and development.  These principles are set out in s.60B(2) of the Family Law Act 1975 and unless it would be contrary to a child’s best interests, a child has the right to regularly spend time and communicate with “other persons significant to their care, welfare and development such as grandparents and other relatives…”.

However, the Court does not always make court orders for grandparents to spend time with grandchildren.  Recently the Court refused to make a court order for a paternal grandmother to spend time with a grandchild in circumstances where both of the child’s parents had refused the grandparent to do so.  In that case the Court needed to consider if it was contrary to a child’s best interests if the grandchild was required by court order to spend time with the grandparent in circumstances when both parents had exercised their parental responsibilities in deciding that the child would not spend time with the grandparent.  The Court considered that because the grandchild was of a very young age and did not have any prior relationship with the grandparent and both the child’s parents had made the decision in exercising their parental responsibility for the upbringing of the child by the child not spending time with the grandparent to commence a relationship, that the Court should not interfere with the child’s parents exercising their responsibility as parents of the child.

If you need help with parenting arrangements, whether as a parent, grandparent or other person contact us to arrange mediation or if necessary help you apply to the Courts.  Call us now on 07 38043244

Experience & Expertise in Family Law

Financial Agreements can be set aside

Gregory & Gregory is a case decided in January this year in Brisbane.  The lesson to be learned from the case is that where parties enter into a financial agreement under the Family Law Act which determines how their property should be dealt with in the future in the event of the end of the relationship, its existence and terms need to be carefully considered during the relationship and after it ends.

In essence the agreement was set aside on the basis that the agreement could not be carried out because it was “impracticable” to do so (Section 90K(1)(c) Family Law Act).  This arose because the wife had dealt with the “separate property” of the husband (i.e. property which was defined in the agreement to remain his in the event of separation) and that her "separate property" was to remain hers.  The wife’s use of money which was from the separate property of the husband (a significant superannuation payment she intercepted and put to her own use) meant that the husband (or his estate as he died after proceedings were commenced) could not be repaid unless the agreement was set aside as the wife was entitled to retain her real estate as it was “separate property” under the financial agreement.  The Judge also commented that the agreement could also have been set aside given the unconscionable actions of the wife in taking the husband's superannuation monies.

Financial agreements (including prenuptial agreements) are valuable tools in protecting property from claims following the breakdown of relationships, particularly in second relationships.  Significant care needs to be taken when drafting the documents but this case also shows how important it is not to forget that the agreement exists and that the parties to the agreement need to understand their own actions may lead the to the agreement being set aside upon grounds found in Section 90K of the Family Law Act.

CALL US ON 07 38043244 FOR ADVICE ON FINANCIAL AGREEMENTS

Australian reports "Family Courts reach Crisis Point"

Child welfare at risk as family courts reach ‘crisis point’

This is the headline in the Australian today (12 May 2014).   The article starts with the following:  "Desperate barristers took the extraordinary step of writing to Federal Circuit Court Chief Judge John Pascoe last month about the backlog of cases at Parramatta in western Sydney, when they learned a respected judge was to be moved to Melbourne. Senior solicitors and barristers say urgent matters involving child abuse and domestic violence are regularly being delayed for up to three months for interim hearings at Parramatta, and it is taking about 18 months to get final hearing dates."

Fears are expressed by family lawyers that these delays could lead to family violence or death.

There would not be a family lawyer who would not agree with all of the statements made in the article.  The situation in the southern Federal Circuit Courts is worse than the Queensland registry but it too is under stress and in some cases is not addressing nor determining cases involving children in a timely manner.  It is not that the Judges do not address the matters before them as best they can, it is a systemic failure of the system itself.  The Family Law Act and Courts were established in 1975.  Society has changed dramatically since then and whilst here have been constant changes to the Act and the methods utilised by the Courts, they have not been changes that have kept up with the demands and needs of those who access the Family Courts system.

It may be time that the Family Law Act and the family courts are reviewed and a system addressing issues in a more timely manner is implemented.  There are sometimes long delays between parties appearing in court and that time is not utilised to educate and investigate in appropriate time frames.  Of course any answer will involve additional funding which is unlikely in the current economic climate.

Grandparent denied time with grandchildren

 
Recently a Brisbane  Federal Circuit Judge (sitting in Toowoomba) decided that an application by a grandmother to spend time with her grandchildren, in circumstances where both the children's parents strenuously opposed the grandmother spending any time with the children, was summarily dismissed.  In other words the Judge decided to end the application without allowing it to proceed to a final hearing. The particular facts of the case lead to the decision but the Judge's reasoning was partly that:

34. When I weigh up: the fact that the children do not have a relationship with their grandmother; the extent of the parents’ opposition to starting such a relationship; their joint exercise of parental responsibility in not wanting the children to have that relationship; and the potential for ongoing conflict; with: the potential benefit to the children of developing a relationship with the grandmother and extended paternal family; and the benefit to them of having a fuller understanding of their identity, I am satisfied that the former significantly outweighs the latter.
35. For these reasons I am not satisfied the grandmother has any reasonable prospect of successfully prosecuting her application and I would summarily dismiss her application.

The decision may read read in its entirety here

Parenting Court Cases - its about the children

Family Courts at Brisbane

PARENTING COURT CASES

There have been many occasions where the Family Courts have changed living arrangements from one parent (who has had the children in their primary care) in circumstances where false allegations have been made by one parent against the other and in many other circumstances - one such recent case is Halliday & Keese - This case also involved mental health issues as well.  The Family Courts primary consideration under the Family Law Act is the best interests of the children and the protection of the children from family violence and abuse - something which parents often overlook when applying to the Courts for orders which they believe should be made.

The Age article -Parenting

29 April 2014 - an article published about overnight time with children under 3 years. 

http://m.theage.com.au/national/empty-days-lonely-nights-20140428-37e3e.html

SMALL BUSINESS AND FAMILY LAW

Words of Warning - Family Law conflict and running a small business don't mix.  There have been countless times when we have seen the family income suffer as a result of the relationship breakdown.  Quite often the business has been the only income and employment of both parties. When separation occurs the results can have an extreme negative impact on the family's income and the potential complete failure of the small business.

Avoid court proceedings.  Where ever possible avoiding court proceedings can minimise the escalation of conflict. The best way to resolve conflict involving small business is to engage with lawyers who practice collaboratively or in the more formal sense of collaborative law.  The alternative is to engage in mediation with  or without the involvement of lawyers in the mediation process.

Commencing high conflict rigorous negotiations and/or court proceedings may put the family run business at risk of failure or financial loss and damage the relationship between the parties.

We understand these issues - contact us now Ph 07 3804 3244.

Free Advice - Why we don't provide it.

Many legal firms (particularly family law firms) offer a brief free consultation.  Most of our client's are looking for concise and considered advice, focusing on methods of resolution and consideration of their individual personal circumstances.  You can't achieve that in 10 or 20 minutes.  We offer a one hour consultation during which we can listen to your particular unique circumstances, give an initial advice about possible court based outcomes, and more importantly educate you about how to resolve issues without the necessity of going to court.

You won't get that in a free advice session.  What you are likely to get is a sales pitch and/or promises of outcomes that might sound attractive but ultimately won't be achieved at the end of the day.

So now you know why we don't offer free advice.  If it's free it usually has no value.  Get professional considered family law advice.  Call us now on
07 38043244 and visit our website at FLMS.

"Special Contributions - What's so Special.?"

New Family Court Case mentioned by Sydney Morning Herald

Read the story here -  The Family Law Act requires a consideration of the contributions of the parties to a relationship to be assessed in terms of financial, non-financial and homemaker and parents terms together with other facts affecting the parties and relevant to their particular cirucmstances.  The decision in this case is significant in that it has dismissed the application of the "special contribution" by the husband which is often raised in "big money" cases involving assets in the millions of dollars.  The matter reported on has been remitted back to the Family Courts for rehearing.

Assessing court based outcomes can be difficult to predict with certainty in some circumstances which makes it important to get early advice in relation to property settlement better still make your own decision and Mediate! - Call us to make an appointment.

The "Pole Dancer" case

Follow this link to a report about this case in which a man is attempting to set aside a prenuptial agreement.  Read the article

We will give a further overview of the case in the future and report on the appeal.   We continue to draft financial agreements and as this case has so far demonstrated,  a properly drafted agreement will be binding in the absence of appropriate grounds for setting it aside.  Contact us to discuss your financial agreement needs.