The Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into force on 9 December 2017. In practical terms how does the Act affect me?
- The most obvious benefit is that same sex couples can now apply to and get married effective 9 December 2017.
- A 30 days-notice period is required and in some circumstances (e.g. life-threatening issues) the notice period may be waived.
- You can also get married in an Australian Embassy.
- If you were previously validly married overseas prior to 9 December 2017 your marriage will now be recognised under Australian Law.
- Same Sex Marriages previously solemnised in Australia at foreign Embassies and Consulates (e.g. The United Kingdom Consulate in Perth) will also be recognised.
- No significant changes have occurred in relation to the Children of same sex marriages in terms of recognising same sex couples as parents or allocating parental responsibility.
Property, Superannuation and divorce.
- Same sex married couples (married overseas or in Australia), having been separated for 12 months and living in Australia can divorce in Australia.
- Same sex married couples married in Australia will have access to the Family Court to divide their property on separation.
- Same sex married couples in Western Australia can split their superannuation in the event of separation- an option not open to de facto couples in Western Australia.
Equality before the Law
- The recent legislative changes have greatly improved the rights of same sex couples in terms of marriage. However, the rights and recognition of same sex parents and their children are not the same as those of heterosexual married couples and the children of heterosexual marriages and de facto relationships. These issues are further complicated by state surrogacy laws and traditional assumptions in law re marriage and relationships. This is an area of the law that requires discussion, debate, and ultimately policy and legislative reform.
Kavanagh Lawyers is fortunate to have so many same sex clients. Our lawyers are highly experienced in dealing with the particular challenges that same-sex couples face regarding family law. If we can be of assistance, please contact us.
The desire to have a child is very powerful. For some couples surrogacy may be a solution.
However, surrogacy is a complex area of law and in Western Australia is governed by the Surrogacy Act 2008. The act sets out the legal requirements for non-commercial surrogacy arrangements that can be made between suitable persons.
Assessment requirements under the Surrogacy Act 2008 require parties to obtain independent legal help and advice so all parties are fully informed about the legal consequences of a surrogacy.
Kavanagh Family Lawyers can provide the required independent legal advice prior to surrogacy and assist you in making a surrogacy agreement including defining the agreement terms and obtaining the parenting orders.
Commercial surrogacy is illegal in Western Australia and is a criminal offence under the Surrogacy Act 2008.
Call Kavanagh Lawyers on (08) 6557 5888 to speak to one of our lawyers.
Appeal Costs: WA Court of Appeal affirms costs rules – Case turns on own facts – no new principles
In S v D  WASCA 224(S) the WA Court of Appeal dismissed an application that the parties share costs equally in circumstances where the Appellant had been wholly unsuccessful. The court of appeal affirmed the general proposition that in Family Law matters the parties pay their own costs, subject to the discretion of the court to award costs, in this case, where the appellant was wholly unsuccessful.
You can view the full judgement on the Supreme Court of Western Australia’s website here: S v D  WASCA 224(S)
In its decision in Roe v D’Costa  WASCA 118 the WA Supreme Court of Appeal provided clarification on how section 61A of the Restraining Orders Act 1997 (WA) should be interpreted in relation to a VRO in Western Australia. Section 61A states as follows:
61A. Penalty for repeated breach of restraining order
(1) In this section —
(a) includes a finding or admission of guilt despite a conviction not being recorded under the Young Offenders Act 1994 section 55; and
(b) does not include a conviction that has been set aside or quashed.
(2) This section applies if a person —
(a) is convicted of an offence under section 61(1) or (2a) (the relevant offence); and
(b) has committed, and been convicted of, at least 2 offences under section 61(1) or (2a) within the period of 2 years before the person’s conviction of the relevant offence.
(3) This section applies despite the Sentencing Act 1995 and the Young Offenders Act 1994.
(4) Except as provided in subsection (6), if the person is a child a penalty must be imposed on the person for the relevant offence that is or includes —
(a) imprisonment under the Young Offenders Act 1994 section 118(1)(a); or
(b) detention under the Young Offenders Act 1994 section 118(1)(b).
(5) Except as provided in subsection (6), if the person is not a child a penalty must be imposed on the person for the relevant offence that is or includes imprisonment.
(6) A court may decide not to impose a penalty on the person that is or includes imprisonment or detention, as the case requires, if —
(a) imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and
(b) the person is unlikely to be a threat to the safety of a person protected or the community generally.
(7) A court that does not, because of subsection (6), impose a penalty on a person that is or includes imprisonment or detention must give written reasons why imprisonment or detention was not imposed.
(8) In subsection (7) —
written reasons includes reasons that are —
(a) given orally and subsequently transcribed; or
(b) given orally but also recorded electronically in a format that enables them to be subsequently transcribed.
[Section 61A inserted by No. 32 of 2011 s. 15; amended by No. 20 of 2013 s. 118.]
The Appellant had committed breaches of a VRO on 3 July and 11 July 2012. Significantly however, on 13 July 2012 the Appellant was convicted on both breaches. Before the issue of mandatory imprisonment can be considered under what is popularly known as the “three strikes” rule, section 61A(2)(b) requires as a pre-condition that the offender has:
“Committed, and been convicted of, at least two offences…”
Before the Magistrates Court the lawyer for the Appellant argued that as the offences of 3 and 13 July 2012 resulted in a single conviction on 13 July 2012 the requirement of 2 prior convictions had not been made out. The Magistrate rejected that submission and sentenced the Appellant to 8 months immediate imprisonment.
The Court of appeal ultimately ruled in the Appellant’s favour deciding that the conviction for the two breaches on 13 July 2012 was one conviction and therefore the Appellant had not met the pre-condition of 2 previous convictions.
At paragraph 52 Mazza JA (with whom McLure P and Buss JA agreed) concluded:
Section 61A(2) of the ROA should be construed having regard to Coke’s principle. Parliament has not clearly abrogated that principle. In my opinion, s 61A(2) requires that the relevant offence in s 62A(2)(a) be committed after the offender has committed and after he or she has been convicted of the threshold offences referred to in s 61A(2) (b) and that the ‘at least 2 offences’ referred to in s 61A(2)(b) must be, within the two year period prior to the offender’s conviction for the relevant for the relevant offence, committed on separate days and the subject of convictions on separate days. This did not occur in the present case. Accordingly, s 61A(2) was not enlivened and the respondent was not subject to the presumptive penalty of imprisonment. No material error has been demonstrated on Hall J’s part. The ground of appeal has not been made out. It follows that the appeal must be dismissed.
Therefore, the proper interpretation of the phrase ‘at least 2 offences’ referred to in s 61A(20(b) means offences committed on separate days and the subject of convictions on separate days.
At the time of writing Parliament has not amended s 61A(20(b) of the Restraining Orders Act.
“Can I sincerely thankyou for the very professional service that you have provided to me over the past 2 years. I would also like to acknowledge Leo as at times (and I hope it wasn’t too many Leo) that I stressed my frustration on the whole family law procedure. At all times Leo provided sound advice to assure me that he had it all under control. I am thankful it is pretty well all over and I can now start to move on with my life and start all over again.”
Kavanagh Lawyers’ principal, Marty Kavanagh, has just had his 20 annotations on The Restraining Orders Act 1997 (WA) published as part of a significant update to Dickey’s Family Law with Legislation. This new authored content provides concise annotations, and are structured to help practitioners reach the information they need as quickly as possible. Read more about the update here.
Marty Kavanagh and the lawyers at Kavanagh Family Lawyers have vast experience in dealing with restraining orders. We can provide advice and court representation at any stage in the process of obtaining or defending violence restraining orders and can assist in negotiating agreements in an attempt to reduce the stress that litigation can cause.
- Call Kavanagh Lawyers on (08) 6557 5888.
A long running battle over a Grandfather’s Will
This week’s Law Report on ABC’s Radio National highlights a recent decision in a NSW Supreme Court over a Grandfather’s Will, which included some strong words from the Judge in regards to the legal fight over a pastoral holding. Describing it as ‘a sorry case’, the Judge provided his decision on a long running battle between a mother and her son, after the son brought an action against challenging the will of the testator who was his grandfather. Listen to the audio and read the transcript here.
Kavanagh Family Lawyers can assist with drafting consent orders once agreement about property settlement has been reached. We can then help you apply to transfer any land from joint names. Any stamp duty payable on the transfer is assessed at a nominal rate rather than at market value. These Transfers of Land are lodged with the Department of Land Administration and stamp duty is assessed by the Department of State Revenue.
The State Revenue Department will assess the stamp duty at nominal rates on both the transfer and the court order, where the parties have a sealed Family Court order specifying a property transfer from the names of both parties to one party.
Property Settlement after Separation: Next Step
- If we may be of assistance, call Kavanagh Lawyers on (08) 6557 5888.
You can apply for a divorce by yourself (known as a sole application) or together with your spouse (known as a joint application). When making a sole application, the spouse making it is known as the applicant. The other spouse is therefore known as the respondent. When a joint application is being made, the husband and wife are known as joint applicants.
Application for a divorce in Australia can be made if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You also need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
Property and Parenting Arrangements
When separating, you and your spouse need to make important decisions about the future care of any children you may have, and how to divide your property, money and belongings. The granting of a divorce does not decide issues about parenting arrangements for your children or property and maintenance.
Plans to remarry should not be made until the divorce order is finalised (which in most cases is one month and one day after the divorce hearing).
If intending to remarry, the marriage celebrant must be given a Notice of Intended Marriage at least one month before the wedding date, as well as complying with other requirements of the Marriage Act 1961.
As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show a copy of the divorce order to the marriage celebrant before the wedding can take place
Kavanagh Family Lawyers can help
When applying for Divorce, Kavanagh Family Lawyers can help you understand your legal rights and responsibilities, and will explain how the law applies to your case.
- If we may be of assistance, call Kavanagh Lawyers on (08) 6557 5888.