News
‘We want prenup’: Binding financial agreements in Australia
Popular culture is rife with references to the infamous prenup agreement. But is a prenup a good idea, and are they available in Australia?
Prenups in Australia
The equivalent of a prenuptial agreement in Australia is a Binding Financial Agreement (BFA). You can enter a BFA before, during or after a marriage or de facto relationship. It generally governs how the assets and liabilities of a relationship will be distributed upon separation.
A BFA is essentially allows you to contract out of the family law process.
Should enter a BFA?
A BFA may sound like a good idea on the face of it. However, the formalities associated with entering into such an agreement are quite detailed. In order to be binding both parties must have been advised independently of the advantages and disadvantages of the proposed BFA.
One of the advantages of a BFA is that it avoids the need for long and costly court proceedings. BFAs also remain private. A BFA also takes money out of your relationship, so you can focus on developing your connection without the need to worry about what happens if you separate.
What are my other options?
BFAs aren’t for everyone. Much will depend on the length of your relationship and what you would be likely to be awarded in the Family Court.
If you are considering a BFA or would like to know more about your options, please contact Kavanagh Lawyers on 08 6557 5888 to arrange an initial appointment.
New Irish laws to allow same-sex parents register both names on child’s birth certificate
Irish Courts could be given the power to change parentage in surrogacy cases.
Please click here for the full Irish Times article by Paul Cullen.
Family Violence: Case Updates
Costs – Frivolous or Vexatious: s 69 Restraining Orders Act 1997 (WA)
Section 69 of the Restraining Orders Act 1997 (WA) prevents a costs order being made against an Applicant, unless the application is “Frivolous or vexatious”.
In Lovelady v Griffiths [2018] WADC 180, Staude DCJ [pars 40-45] discussed some of the leading cases on the issue of “frivolous and vexatious” cases as follows:
- Whether a VRO application had ‘no reasonable prospect of success’ is not the test for whether an application for costs should be awarded in a VRO/FVRO/MRO. The correct test is whether the application was frivolous or vexatious.
- The terms ‘frivolous’ or ‘vexatious’ should be given their ordinary meaning
- Something more than a lack of success had to be shown before proceedings could be said to be frivolous or vexatious
- A claim could be described as frivolous or vexatious when it was groundless and had been an abuse of process in that the court’s time and resources had been employed in exposing a groundless basis.
Little Progress on WA Surrogacy Legislation
Whilst the WA bill has a 3rd reading on the Legislative Assembly this week, the legislation is bogged down in the Legislative Council and progress is unlikely until 2020.
Please click here to see the bill and its progress.
Legal system struggling under a surge of reports in family violence
Kavanagh Lawyers’ Pricipal, Mr Marty Kavanagh, weighs in on violence restraining orders and the challenges facing our Court system, in this ABC news article by Briana Shepherd.
High Court of Australia rules in favour of biological Father
On 19 June 2019, in the decision in Masson v Parsons [2019] HCA 21 the High Court of Australia upheld a decision of the Judge at first instance that a man who was actively involved in a child’s life and who was also her biological father was her “parent”.
- The case involved much constitutional law but ultimately the HCA concluded that the issue of who is a “parent” can be determined within the meaning of the Family Law Act.
- NSW state law and the Family Law Act did not mean that the biological father was irrefutably not a parent.
- Who is a parent is a question of fact and degree to be determined according to the normal contemporary understanding of the word and the relevant facts and circumstances at hand.
- Biology is but one fact, sometimes a very important fact – but it is not the only fact.
- In submissions from counsel for the father, it was asserted, and the HCA did not disagree, that a ‘parent’ signifies “a social relationship to another person” and includes factors like commitment to the child, biology, and conduct before and after birth.
- The decision opens up the real possibility of applications to the Family Court for declarations/orders from many parents previously thought to not be parents to their children are in law their parents.
- It’s possible that the federal or state parliament could change the definition of parents and presumptions could apply and such parents would not be required to bring applications to the Court.
- Alternatively, the state and federal governments may decide to leave the issue of parentage to the discretion of the Family Court which will necessitate case by case applications to the Court.
- Masson was argued in the context of NSW and Federal Law in circumstances where federal law determined de facto relationships and parental declarations. The situation in WA is different in that there is a state act- The Family Court Act. This may not be a significant matter- time will tell.
The High Court rules in favour of sperm donor in landmark case
In a landmark case regarding parenting rights, the judgment in Masson v. Parsons & Ors (S6/2019) was handed down on 19 June 2019 ruling in favour of the biological father who had donated his sperm. The High Court decision was made following the mother’s decision to move to New Zealand with their biological child.
ABC news reports that the decision overturns an appeal the girl’s mother and her wife won and reaffirms an earlier ruling ordering they remain in Australia as well as consult him on major parenting decisions.
Contempt of court jailing overturned by Family Court
A family law case has been sharply criticised by Family Court appeal judges after a Brisbane judge sentenced a father of two to jail for contempt of court.
ABC News reports that last December, a Brisbane-based Judge sentenced a man involved in a property dispute with his ex-wife to a maximum 12 months in jail for failing to disclose financial documents on time. However a ruling handed down earlier in February by the Full Court of the Family Court overruled the Judge’s decision, declaring they were comfortably satisfied that “what occurred here in the making of the declaration and order for the husband’s imprisonment constituted a gross miscarriage of justice”.
High Court to decide whether ‘biological father’ is a “legal parent”.
The High Court of Australia will hear the matter of Parsons and Anor & Masson mid-2019. Interest in the case has focused on whether a biological father (sometimes referred to as a ‘sperm donor’) is a “legal parent”. Hopes that the High Court may decide in favour of the biological father (and by extension many other biological fathers) may be misplaced. The issue before the High Court is framed within the context of the Family Law act 1975 which many legal experts suggest would not permit a such a conclusion. However, anything is possible from the High Court, but most commentators are cautious. However, it is open to the High Court to suggest that legislative change is required. Then it is a matter for parliament to decide.
High Court rules that tax debts may be shifted between spouses
In the 13 December 2018 decision in Commissioner of Taxation v Tomaras [2018] HCA 62 the High Court of Australia held that the Family Court has the power to order the Commissioner for Taxation to substitute one party to a marriage for the other in relation to a debt owed to Commonwealth for income tax.
However, this is not an order the Family court is likely to make frequently.
A few things worth knowing about the decision
- Whilst the Family Court has the power to make a substitution order pursuant to s 90AE(1) of the Family Law Act 1975 (Cth) the power should not be exercised unless specific conditions are met.
- To exercise the power the Family Court must be satisfied that:
- The making of the order is reasonably appropriate and adapted, to effect a division of property between the parties to the marriage;
- It is not foreseeable at the time the order is made that to make the order would result in the result in the debt not being paid in full; and
- In all the circumstances it is just and equitable (fair) to make the order.
- Whilst this represents a significant shift, the conditions outlined in the decision are onerous.
- The decision is not likely to be a mechanism for non-payment of taxation debt.