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    Conflation of Best Interests and Reasonable Practicability Considerations 612 408 Dorter

    Conflation of Best Interests and Reasonable Practicability Considerations

    Best Interests of the Child

    When determining a parenting matter, the Court must regard the ‘best interests of the child’ as the paramount consideration, pursuant to Section 60CA of the Family Law Act (“the Act”).

    In determining what constitutes the ‘best interests of the child’, the Court must consider the matters set out in Section 60CC of the Act.

    The primary considerations under Section 60CC(2) of the Act include: –

    1. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. The Court gives greater weight to this consideration; and
    2. the benefit of the child having a meaningful relationship with both of the child’s parents.

    The Court must also consider the secondary consideration under Section 60CC(3) of the Act, depending on the factual circumstances of each case.

    Equal Shared Parental Responsibility

    In matters dealing with parenting orders, the Court is required to apply the presumption, that it is in the best interest of the child for the child’s parents to have ‘equal shared parental responsibility’ for the child, that is, they will both have a role in making decisions about major long-term issues such as schooling, religion and major health issues.

    That presumption does not apply if there are reasonable grounds to believe that either a parent or person living with a parent has engaged in abuse of the child, or in circumstances of family violence.

    Living Arrangements

    Where the Court makes an order for equal shared parental responsibility, then the Court is required to consider what living arrangements are in the best interests of the child.

    The Act requires the Court to first consider providing ‘equal time’ to each parent and thereafter is to consider ‘substantial and significant’ time.

    Reasonably Practicable

    In determining whether an equal shared time or substantial and significant time arrangement is appropriate, the Court must look at whether such an arrangement is in the best interests of the child and consider whether it is ‘reasonably practicable’.

    When considering what is reasonably practicable, the Court will weigh up various factors, including but not limited to: –

    1. The distance between the two parents’ homes – for example, if the Mother lives in New South Wales and the Father lives in Victoria; and
    2. The present and future availability of the parents – for example, if one parent has onerous or comprehensive work commitments.

    Recent case of Miley & Miley

    In the recent case of Miley & Miley (2021) FedCFamC1A 62, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction opined on the ‘best interests of the child’ and the ‘reasonably practicable’ considerations.

    In this case, the Mother and Father commenced cohabitation in 2012 and were married in 2013. There was one child of the relationship, who was six (6) years of age at the time of the decision.

    The Mother and Father initially resided in South Australia before relocating to Western Australia.

    The Mother and Father separated in September 2017 and the child was living with the Mother in Western Australia. The Father spent very little time with the child following separation. The Father contended this was due to the acrimonious relationship between him and the Mother.

    In September 2019, the Father relocated to undertake country service as part of the conditions of his employment. The Father purchased a property in Western Australia at this time, as he intended to return to Western Australia after his two-year service.

    In August 2020, the Father advised the Mother that he intended to return to Western Australia to live and work.

    On 7 January 2021, the Mother relocated with the child to Victoria, without prior notice to the Father. The Mother argued that she relocated in circumstances where she was unable to obtain employment in Western Australia and that she had found employment in Victoria.

    On 22 January 2021, the Mother informed the Father that she had relocated from Western Australia to Victoria with the child.

    Shortly thereafter, the Father commenced proceedings in the Family Court of Western Australia seeking interim and final parenting orders, including that the child be returned to Western Australia.

    The Magistrate ultimately made orders to the effect that: –

    1. The child be returned to Western Australia;
    2. The parties have equal shared parental responsibility for the child; and
    3. The child live with the Mother and spend time with the Father in Western Australia.

    The Mother filed an appeal on the following grounds: –

    1. The Magistrate failed to determine as a question of fact that it was reasonably practicable that substantial and significant time be spent with each parent, in circumstances where a serious economic, personal and emotional burden would be placed on the Mother by refusing her permission to relocate to Victoria and effectively requiring her to live in Western Australia to be available for the Father’s contact with the child;
    2. The Magistrate failed to provide adequate reasoning and thereby failed to accord the Mother procedural fairness; and
    3. The Father did not provide sufficient evidence to support his contention that if he was required to relocate to Victoria his employment and that his financial position would be negatively impacted.

    The appeal was ultimately allowed in part, on the basis that the Magistrate failed to determine as a question of fact that it was reasonably practicable that substantial and significant time be spent with each parent (ground 1). The Court set aside various orders, including the order requiring the Mother and child to return to Western Australia. The Court acknowledged that the issue required urgent rehearing.

    Need Advice?

    To obtain specialist advice about parenting matters, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.

    Brittany Meehan                                                                  Rebekah Dorter

    Solicitor                                                                                 Principal

    Dorter Family Lawyers and Mediators

    Law and justice concept - Themis statue, judge hammer and books. Courtroom.
    Thinking of filing Court Proceedings 612 408 Dorter

    Thinking of filing Court Proceedings

    Thinking of filing Court Proceedings?

    When the Federal Circuit Court of Australia and the Family Court of Australia merged on 1 September 2021, the Federal Circuit Court of Australia Rules 2001 and the Family Law Rules 2004 were amalgamated to form the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (New Rules).

    A major change was to introduce single entry point for filing all proceedings in the the new Court, the Federal Circuit and Family Court of Australia (FCFCOA). Previously, you could file in either the Federal Circuit Court of Australia or the Family Court of Australia, depending on the complexity of your matter and the rules for filing in either Court differed.

    This article briefly sets out what documents now are generally required when you file proceeding for parenting and/or property proceedings.

    Before you consider filing proceedings, have you undertaken the Pre-Action Procedures or is there a reason that you have not? Find out more about Pre-Action Procedures. There are also time restraints on when you can file proceedings. More information can be found here.

    Financial Proceedings

    If you are seeking final orders only in relation to a property settlement, you will need the following documents:

    1. Initiating Application
    2. Financial Statement
    3. Financial Questionnaire
    4. Genuine Steps Certificate
      If you are seeking interim orders, such as an interim property distribution, sale of an asset, spouse maintenance or any other injunctive, interlocutory or procedural relief you will also need to file:
    5. Affidavit in support (of no more than 10 pages and 5 exhibits).
      Before the first Court event, you will also need to be prepared to file an Undertaking as to Disclosure.

    Parenting Proceedings

    If you are seeking only final orders in respect of parenting matters, you will need the following documents:

    1. Initiating Application
    2. Section 60I Certificate or Affidavit for non-filing of dispute resolution certificate
    3. Parenting Questionnaire
    4. Notice of child abuse, family violence or risk
    5. Genuine Steps Certificate
      If you are seeking interim parenting orders such as urgent parenting orders, orders in respect of your personal protection or the children’s protection, or any other injunctive, interlocutory or procedural relief, you will also need to file:
    6. Affidavit in support (of no more than 10 pages and 5 exhibits).
      Before the first Court event, you will also need to be prepared to file an Undertaking as to Disclosure.

    Both parenting and property proceedings

    If you are seeking both parenting and property proceedings, the documents required are consolidation of both:

    1. Initiating Application
    2. Section 60I Certificate or Affidavit for non-filing of dispute resolution certificate
    3. Parenting Questionnaire
    4. Notice of child abuse, family violence or risk
    5. Genuine Steps Certificate
      Similarly, if any interim orders are sought, an affidavit in support will need to be filed of no more than 10 pages and 5 exhibits.

    Can I commence proceedings in Division 1?

    There is one entry point to file proceedings in the Court. Your matter will be triaged and assessed at a compliance or readiness hearing. To be transferred prior to this event, you are required to justify why an immediate transfer is necessary.

    If you have any questions about commencing proceedings, seeking urgent relief or need assistance with completing these documents, please contact us on (02) 9929 8840. Dorter Family Lawyers & Mediators are expert family lawyers who specialise in all areas of family law and can assist.

    Julie Cheung
    Senior Associate

    Rebekah Dorter
    Principal

    Pre-Action Procedures and Family Law 960 640 Dorter

    Pre-Action Procedures and Family Law

    When the Federal Circuit Court of Australia and the Family Court of Australia (FCFCOA) merged on 1 September 2021, the Federal Circuit Court of Australia Rules 2001 and the Family Law Rules 2004 were amalgamated to form the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (New Rules).

    A major change was to focus on Alternative Dispute Resolution (ADR) and ensuring Court proceedings were the last resort. The procedures to ‘action’ prior to commencing Court proceedings are known as ‘Pre-Action Procedures.’

    In the former Rules, the Federal Circuit Court of Australia had no requirement for litigants to undertake any pre-action procedures, save for obtaining a section 60I certificate which stated the parties ‘attempted mediation’.  Under the New Rules the Pre-Action Procedures are mandatory before filing in the FCFCOA.

    Pre-Action Procedures existed prior to the new Rules being implemented, but only in the Rules of the Family Court of Australia. The FCFCOA Rules now require a ‘Genuine Steps Certificate’ to be filed.  

    However, you are only required to undertake the Pre-Action Procedures if it is safe to do so, and if your matter is not urgent. We discuss ‘exemptions’ further below.

    What are the Pre-Action Procedures?

    Schedule 1 of the New Rules require the following to be completed prior to commencing proceedings in the FCFCOA:

    1. In the 12 months prior to commencing parenting proceedings, you need to have made a genuine effort to resolve your family law matter with a Family Dispute Resolution Practitioner (FDRP). The FDRP will issue a Section 60I Certificate.
    2. A copy of the prescribed Pre-Action Procedure Brochure and a copy of Schedule 1 of the New Rules is to be provided to the other party.
    3. In financial proceedings, financial disclosure is required to be exchanged.
    4. In parenting proceedings, disclosure of all relevant matters is to be provided, including medical reports.
    5. Enquiries are to be made about ADR,(including mediation). A FDRP is not required for financial proceedings.
    6. An invitation to participate in ADR is made and the other party must cooperate for the purposes of agreeing to an appropriate family dispute resolution service or mediation.   
    7. If you are unable to resolve the matter by ADR  and are considering filing proceedings, then you must:
      • Provide the other party with 14 days notice that you intend to commence proceedings;
      • Provide a genuine offer of settlement to resolve the matter;
      • Advise the issues in dispute if proceedings are to be commenced; and
      • Set out the orders sought if proceedings are to be commenced.
    8. The other party must respond to this notice within the 14 days or failing which, proceedings can be commenced.
    9. Complete a Genuine Steps Certificate.

    What is a Section 60I Certificate?

    This is a certificate issued by a FDRP to indicate whether there has been a genuine effort to resolve a parenting dispute. This is a mandatory requirement under the Family Law Act 1975 prior to commencing Court proceedings.

    There are five types of section 60I certificates that can be issued:

    1. you did not attend because the other party refused or failed to attend;
    2. you did not attend because the FDRP was of the view that your circumstances were not appropriate for Family Dispute Resolution;
    3. both parties attended but one or both did not make a genuine effort to resolve the issues; or
    4. you did attend and made a genuine effort to resolve the issues, but was not resolved;
    5. You and the other party started the mediation process, but the practitioner considered that it would not be appropriate to continue.

    You are required to file the Section 60I Certificate with the Court when you commence proceedings.

    Not all mediators are qualified Family Dispute Resolution Practitioners. It is prudent to confirm with your nominated mediator.

    Exemptions to providing a Section 60I certificate or undertaking Pre-Action Procedures

    You do not need a Section 60I certificate for financial matters.

    If your matter is urgent and/or there has been, or is a risk of, child abuse or family violence, this may exempt you from the Section 60I certificate and/or the pre-action procedures requirement.

    A Section 60I Certificate is not required for filing Consent Orders.

    What if I just don’t comply:

    If you file proceedings without complying with the Pre-Action Procedures and where there is no exemption, you may be exposed to cost penalties and risk the proceedings of your matter not proceeding until there has been compliance.

    If you would like assistance with the process after separation, mediation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Julie Cheung
    Senior Associate

    Treatment of total and permanent disability insurance in Family law 722 406 Dorter

    Treatment of total and permanent disability insurance in Family law

    What is total and permanent disability insurance?

    Total and permanent disability (“TPD”) insurance is insurance received by an individual in circumstances where permanent illness or injury has rendered that person unable to work in their occupation or any occupation for which they are suited by training, education or experience.

    Following making a claim and being accepted, TPD insurance is received by the individual in a lump sum payment or in reccurring payments, based on the terms of the policy.

    What is Property in Family law?

    Section 4 of the Family Law Act 1975 (Cth) defines property in relation to a marriage or de facto relationship, as “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”.

    Property includes assets, liabilities and superannuation.

    Assets

    In the family law context, an asset is any property of the relationship (whether tangible or intangible) regardless of whose name the assets are held in.

    Examples of assets include cash at bank, shareholdings and cryptocurrencies, real property, motor vehicles and other personal property such as jewellery and furniture.

    Liabiltiies

    It is important to understand that property also consists of liabilities. A liability is a type of debt including unsecured and secured liabilities.

    Examples of liabilities include mortgages, car leases, credit card debts, personal loans and unpaid taxes.

    What is a Financial Resource in Family Law?

    A financial recourse is a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency.

    Financial resources are taken into consideration by the Court pursuant to Section 75(2)(o) of the Family Law Act.

    Examples of a financial resource include overseas superannuation, future pension entitlements, long service leave and retirement benefits, tax losses or an anticipated inheritance.

    Recent Case of Tomaras & Tomaras

    In the recent case of Tomaras & Tomaras (2021) FedCFamC1A 82, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction decided in respect of the treatment of a TPD insurance policy in Family Law.

    In 1997, Mr Tomaras (“the Husband”) took out a TPD insurance policy which included a component for loss of income. The Husband, who was a healthcare provider, ultimately injured his wrist in December 1997 and received some intermittent payments under the TPD insurance policy. From 2002, the Husband received a regular income protection payment under the policy of up to $150,000 per year, based on the consumer price index, provided he was permanently disabled from returning to work as a health care professional. In addition to the regular payments received, the Husband also received a lump sum payment in November 2008 in the sum of $709,201.

    Ms Tomaras (“the Wife”) contended that the Husband’s entitlements under the TPD insurance policy were “property”, and therefore divisible under Section 79 of the Family Law Act and that an order should be made to the effect that the insurer pay to her an amount equal to 80 percent of the TPD payment entitled to be received by the Husband each month.  

    The Husband contended that his entitlements under the TPD insurance policy were not property or a financial resource. The Husband relied upon the decision in Raine & Creed (2013) FamCA 362, where the Judge found that a weekly disability payment was neither property nor a financial resource in circumstances where the benefits under the policy were not transferrable.

    Primary Proceedings

    In the primary proceedings, the Judge rejected the Wife’s contention that the TPD entitlement was “property” on the following basis: –

    1. The Husband had a right to receive the disability income insurance and be assessed for income tax purposes;
    2. The Husband’s right to receive the TPD payments arose only where he met certain obligations. Therefore, if he did not meet these obligations the payments ceased;  and
    3. Pursuant to the terms of the policy, the entitlement was capable of being reduced or terminated at the insurer’s discretion.

    It followed that the primary proceedings were ultimately dismissed because the primary Judge found there was no property or financial resource to be divided.

    Appeal Proceedings

    The Wife filed an Appeal of the decision of the primary judge in August 2020. On the day of the hearing the Wife did not press the Application and accordingly it was dismissed.

    The Wife filed a further Appeal of the decision of the primary judge in April 2021 to adduce a bundle of documents that the Wife argued show the Husband’s lack of disclosure and attempts to mislead the court. As this was filed out of time the Wife was required to seek leave, which was successful.

    The Wife argued that the TPD policy could be commuted and the Husband’s entitlement assigned. To ‘commute’ an insurance policy means the right of a beneficiary of the policy, in this case the Husband, to exchange one type of income for another (for example exchanging the monthly payments to a lump sum payment).

    The Full Court of the Family Court of Australia ultimately dismissed the Wife’s Appeal and did not depart from the relevant authorities on the following basis: –

    1. While the TPD policy is commutable, the Husband and the insurer would need to agree to commute the TPD policy. The Husband’s position was that he would not agree to commuting the TPD Policy; and
    2. The insurer is permitted to alter the benefits provided for in the contract, and the TPD policy is not a continuous disability policy for the purpose of the Life Insurance Act and thus is not assignable.

    Need Advice?

    To obtain specialist advice about what is “property” in your family law matter, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.

    Brittany Meehan

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    What is a Gett? 1024 683 Dorter

    What is a Gett?

    When a couple who practise their Jewish faith separate and wish to “divorce”, there are only two ways to end their status as a married couple – by death or the grant of a Gett.  The issuing of the Gett effects the divorce between the Jewish couple according to Jewish Law.

    Pursuant to Jewish law (“Halakha”), a “divorce” can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of the bill of divorcement (“Gett”) under the supervision of the Rabbinical Court, namely the Beth Din. The parties are divorced and free to marry again once the Gett has been delivered and accepted.

    However, outside of Israel, the Beth Din lacks judicial power, therefore, should one spouse seek a Gett and the other refuse, the Beth Din in Australia is unable to assist them. They may however apply to the Family Court for assistance.  

    What happens if I do not get a Gett?

    Without a Gett, a woman will be unable to remarry under Halakha and for a man it is extremely difficult to do so.

    Without a Gett, a woman is termed “agunah”, literally meaning one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of being illegitimate. It may have consequences that flow through the descendants who forever may be unable to rectify their situation.

    Requirements of a Gett

    Halakha requires the following specific formalities to be complied with in order for a Gett to be considered valid:

    1. A divorce document must be written; this is usually done by a professional religious scribe (“sofer”).
    2. It must have been written on the explicit instruction and with the free-willed approval of the husband, with the specific intention that it is to be used by the man and the wife to that marriage.
    3. It cannot be initially written with “blanks” to be filled in later.
    4. It must be delivered to the wife, whose physical acceptance of the Gett is required to complete and validate the “divorce” process.

    Can the Family Court of Australia order my ex-partner to grant me a Gett?

    The Family Court must consider two factors in determining whether an order should be made.

    Firstly, it must be consonant with the requirements of the Jewish Law or otherwise a Gett may be void (for unlawful duress) and the Court’s actions therefore futile.

    Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.

    Getting a Gett

    Where does this leave us?

    The Family Court of Australia has been hesitant to assist separating Jewish Parties obtain a Gett.

    The Court has entertained applications in relation to Getts in some circumstances but is yet to make a finding that on a final basis that the court has the power to Order parties to attend a Beth Din and do “all acts and things necessary” to obtain a Gett.   

    Gett Assistance

    For many Jewish Couples who separate it is important to obtain a Gett following the breakdown of a marriage. If securing a Gett is important to you, we can assist you by:

    • Negotiating this element or ‘limb’ of your final settlement through mediation or a round table conference outside of court proceedings and document the agreement reached as a consent order; or
    • Seeking Orders from the court, to the effect that you and your ex-partner are to attend “when called upon” and declare that such order “not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Respondent or Applicant in making any application”.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Maeve Cooper
    Solicitor

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Your Pet as Property: The Property Pet Predicament 1024 683 Dorter

    Your Pet as Property: The Property Pet Predicament

    Pets as Property

    With the increase of pet adoption and purchases during times of COVID-19, you may want to know how the Family Court would currently treat our furry friends in a family law dispute, should it eventuate.

    While most pet-lovers easily consider their pets and other furry-friends honorary family members and life-time companions, figuring out who keeps the fur baby can often be distressing as pet “custody” disputes remain unclear in the realm of Family Law. We understand that separating pets from children and their owners can be stressful and difficult, adding another layer of tension during an already difficult time and, as a result, it is important to know how the Court deals with pet custody disputes.

    Pets are Property

    There is currently little to no legislation to assist with navigating pet custody. As a result, the Courts often approach pets in conjunction with personal property or other assets under s 79(1) of the Family Law Act, applying principles that would be applied to other personal assets including furniture or clothing.

    The Court has a duty to finalise all financial relationships between the parties and to ensure that their financial ties are severed with finality. As pets are considered property, this means the Court in the Family Court jurisdiction is unlikely to grant orders for shared ‘pet custody’ so to speak.

    Similar to treating any other asset of a property dispute, the Court will consider a number of factors to determine who will be able to retain their pet companion, including:

    1. Who the pet resided with prior to, during and following separation;
    2. The relationship each of the parties have with the pet;
    3. Who has been responsible for the financial expenses associated with owning the pet;
    4. Who has the most suitable place for the pet to live; and
    5. Who the pet is registered to.

    Every matter differs on a case by case basis and the weight on each factor will also depend on the circumstances of the case.

    This is often unsatisfactory and fails to recognise the emotional relationship built with your companion. As a result, alternative options may be required to determine the care arrangements for your companion. There are a number of different options that may assist you when dealing with separation when it comes to you beloved family pets

    Negotiation

    As with any other parent, it is always best to resolve any differences by negotiating the living arrangements between the parents.  We understand that negotiation can be hard during difficult times, such as separation and as a result, we are here to help. This may be done by assisting you in articulating suitable arrangements through an exchanging of letters or face-to-face, during mediation, to determine what arrangements would be best suited for each party.

    It is important to note however that agreements reached by negotiation are not legally binding and can be subject to change. Although the benefit is flexibility, agreements are not enforceable under the Family Law Act unless they are considered Binding Financial Agreements, or are Orders of the Court.

    A “Pre-Nup” or in this case a “Pet-Nup”

    One alternative to formalise pet custody arrangements is in the form of a Binding Financial Agreements (BFA). A BFA is an enforceable contract and you can include clauses detailing pet care arrangements in the event of separation.  BFAs prior to marriage (otherwise known as pre-nuptial agreements) refer to agreements entered into between the parties which establish how financial affairs and property will be addressed in the event of a relationship breakdown. You can also enter into a BFA after separation.

    BFA’s do need to satisfy a number of legal requirements to be binding. However, it may be an effective way of amicably laying out custody arrangements of your beloved pet without requiring the intervention of the Court.

    Find more about Binding Financial Agreements here.

    Consent Orders

    Much like Negotiations, Consent Orders are made with the consent between the parties. Consent Orders refers to a written agreement that is approved by the Court and may encompass a range of issues including management of your fur-baby.

    The advantage of these Orders are that they usually legally binding and therefore enforceable upon both parties, ensuring that any agreement that is reached will continue in accordance with the Orders of the Court. However, in the context of pet custody, there is much debate whether Orders made for ‘spend time’ arrangements or ‘shared’ care for your pets are enforceable Orders. This is because pets are considered ‘property’ and the Court has a duty to finalise and determine all financial relationships between the parties.

    However, there has been circumstances where the Court was prepared to make Orders for shared ‘custody’ of the pets ordering the pet to remain with children and to travel between residences on the same schedule as the children.

    Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your pet predicament.  Please get in touch with us on (02) 9929 8840 or mail@dorterfamilylawyers.com.

    Julie Cheung

    Associate

    Rebekah Dorter

    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Unsafe at Home 1024 495 Dorter

    Unsafe at Home

    When being at home may not be the safest place …

    As Australia and the world are working tirelessly towards stopping the spread of the Coronavirus by imposing several restrictions on the movements of citizens, those restrictions together with social isolation and economic pressure create a petri dish for an increase in domestic and family violence.

    It has been reported that Google searches on domestic violence have surged by up to 75 percent since the first recorded Coronavirus case. In these difficult times it is important to raise awareness about domestic violence and the support available for victims.

    If you are feeling unsafe at home, there is help available for you – from police, counsellors and lawyers.

    What is domestic violence and family violence?

    Domestic and family violence is an abusive behaviour in which one person seeks to control and coerce another person in a family or domestic relationship.

    It can take many forms and can include:

    • Sexual violence;
    • Psychological violence including intimidation, gaslighting, threatening, verbal abuse;
    • Coercive and controlling behaviour;
    • Social violence such as controlling or limiting social activities, isolating a partner from family or friends;
    • Financial and economic abuse;
    • Abuse based on spiritual views.

    What relationships are considered “domestic”?

    • Intimate relationships: husband and wife, de facto partners, boyfriend and girlfriend, same sex relationships;
    • Family relationships: older parents and their children, other family members including step-parents; and
    • Other relationships: such as person with a disability and their carer.

    How can you be protected – what is an Apprehended Domestic Violence Order?

    An Apprehended Domestic Violence Order (ADVO) is an order made by the Court against a person (referred as defendant) in order to protect you from future abuse. An ADVO can be adapted to your particular circumstances to provide you with the best possible protection from violence and also extends to other persons with whom you have a domestic relationship, such as your children or a new partner. If a defendant disobeys the orders in an ADVO it can lead to criminal charges.

    How can I apply for an ADVO?

    1. Police can apply for an ADVO on your behalf. Many police stations have designated Domestic Violence Liaison Officers who can assist you with the application;
    2. A lawyer can apply for an ADVO on your behalf; and
    3. You can also make an application at your local court.

    What if you need immediate protection?

    If you need immediate protection the police can apply for a provisional or interim ADVO for your protection which will last until it is revoked or until an interim or final order is made.

    Importance of safety planning

    If you are experiencing domestic violence or family violence it is crucial that you have a safety plan in place. It is helpful to seek help from a professional such as a counsellor in preparing your safety plan. Safety planning is about taking control over your life and taking proactive steps towards living life without fearing for your and your children’s safety.

    Some things to consider when preparing your safety plan

    1. Identify a ‘safe room’ in your home where you can wait for the arrival of the police. If the room cannot be locked, consider installing a lock to make it more secure.
    2. The most dangerous rooms at your home are the rooms where the person who is violent has access to weapons such as the kitchen or the bathroom. If you sense that your partner could become violent remove yourself from the ‘dangerous areas’.
    3. Prepare an escape plan and an ‘escape bag’ with a few essential belongings and the most important documents and hide it in a safe place.
    4. Have a second phone (if possible) hidden and fully charged and ensure that your safe room has sufficient phone coverage.
    5. Teach your children how to call the police and how to give their full name and address.
    6. Have a ‘code word’ you can use on the phone without attracting attention and let your friends and family know that the word means that you are feeling unsafe.
    7. Keep your friends and family informed about your circumstances.

    Domestic Violence and Family Violence Services

    For more help and support please visit:

    • Rape & Domestic Violence Services Australia.
    • Domestic Violence Line (Ph 1800 656 463).
    • No to Violence.
    • Relationships Australia.
    • Women’s Legal Services NSW.
    • LawAccess NSW.
    • Legal Aid.

    We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators, family lawyers based in North Sydney and McMahons Point, on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com for a confidential discussion.

    Tim Russell

    Solicitor

    Rebekah Dorter 

    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Surrogacy Agreement 1024 683 Dorter

    Surrogacy Agreement

    If you and your partner want to have a child but are unable to conceive naturally, you may be considering the solution of surrogacy.

    It is important to understand the legal process of surrogacy, and the parental repercussions of surrogacy before making this decision.

    What is surrogacy? 

    Surrogacy is when a woman carries and gives birth to a baby (the surrogate mother) for another person or couple who want to have a child.

    Under section 6 of the Surrogacy Act 2010 (NSW), the surrogate mother is defined as “the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy agreement.

    The surrogate mother becomes pregnant through assisted reproductive technology (“ART”), most commonly, IVF.

    Is surrogacy legal?

    Altruistic surrogacy, which occurs without financial benefit to the surrogate mother, is legal in Australia.  It is usual for a surrogate’s medical bills and out of pocket expenses to be met by the intended parents, and this can be captured in a surrogacy agreement between the parties as ‘reasonable costs’.

    Reasonable costs of the surrogate mother include:

    1. Reasonable medical, travel and accommodation costs;
    2. Health, disability or life insurance premiums that would not have been obtained but for the entering into of a surrogacy agreement;
    3. Any reasonable costs incurred in respect of the child, including medical costs, and
    4. Loss of earnings for a period of not more than 2 months during which the birth happened or was expected to happen and any other period during the pregnancy when the birth mother was unable to work on medical grounds.

    Reasonable costs associated with entering into and giving effect to a surrogacy agreement include:

    1. Receiving counseling in relation to the surrogacy arrangement (mandatory requirement);
    2. Receiving legal advice in relation to the surrogacy arrangement or a parentage order arising out of a surrogacy arrangement, and
    3. Being a party to proceedings in relation to a parenting order, including reasonable travel and accommodation costs.

    Commercial surrogacy, where payment is made to the surrogate mother for carrying the unborn child, is illegal in Australia.

    What happens once the child is born?

    Once born, the child will be registered as the child of the surrogate mother, even though she is not genetically related to the child.

    The intended parents must establish the child’s ‘legal parentage’ to become the intended legal parents of the child. The intended parents will need to apply to the Supreme Court for a Parentage Order in the state where they live.  This application must be made not less than 28 days and not more than 6 months after the birth of the child. The Parentage Order transfers parentage from the surrogate mother to the intended parents.  Once a Parentage Order is made, the birth certificate is reissued with the new parents listed, replacing the surrogate mother.

    How is a parentage order made?

    To be eligible for a parentage order, the following preconditions must be met (however some preconditions are mandatory and others can be waived in exceptional circumstances):

    1. The order must be in the best interests of the child;
    2. The surrogacy arrangement must have been altruistic (not commercial);
    3. The surrogacy arrangement must be made pre-conception;
    4. The intended parent must be a single person or, if there are two intended parents, they must be a couple at the time of entering the arrangements;
    5. The child must be under 18 years at the time the order is made;
    6. The surrogate mother must be at least 25 years old when entering into the arrangement;
    7. The intended parents must be at least 18 years of age when entering into the arrangement;
    8. There must be a medical or social need for a surrogacy arrangement such as that the intended parent is unable to conceive a child, unlikely to be able to carry a pregnancy for medical reasons, unlikely to survive a pregnancy, that conceiving a child would likely result in a child with a genetic disorder;
    9. All affected parties must consent to the making of the order;
    10. The intended parents must be living in NSW at the time the application is heard;
    11. The child must be living with the intended parents at the time the application is heard;
    12. Surrogacy arrangement must be in writing and signed by the surrogate mother, her partner (if any) and the intended parents;
    13. All of the parties must have received counselling prior to signing the Surrogacy Agreement;
    14. Specified information must be provided for inclusion to the Director-General of the Department of Health, for entry in the central register (with information kept under Division 3 of Part 3 of the Assisted Reproductive Technology Act (2007);
    15. The birth of the child must be registered;
    16. All parties involved in the surrogacy arrangements must have obtained independent legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the Surrogacy Agreement, with the surrogate mother (and her partner if any) having received advice independent of that of the intended parents.

    If you are considering being involved in a surrogacy pregnancy, or need advice following the birth of a child via surrogacy, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or hello@inst1045122-8984.ozhosting.com.  Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.

    Bronwyn O’Loan
    Senior Associate

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.