Refusal of Treatment Fact Sheet

on January 5, 2018 by admin

Medical treatment for a current medical condition can be refused by signing a Refusal of Treatment Certificate (the certificate).

The certificate cannot be used to refuse palliative care: that is, reasonable pain relief, and food and water while the patient is still able to eat and drink.

A fair share – Negotiating your property settlement

on January 5, 2018 by admin

This guide gives general information about the law. It does not replace the need to seek appropriate legal or financial advice.

Contacting a legal information service or advice line is not usually considered the same as having obtained independent legal advice from a lawyer.

Even if there is very little dispute, the same lawyer cannot act for both you and your former partner. To avoid a conflict of interest each of you should engage a separate lawyer.

This guide is for all married or de facto heterosexual or same-sex couples who separated on or after 1 March 2009, (or, in the case of South Australia, on or after July 2010) whether children are involved or not.

De facto couples who separated before these dates can choose to settle matters of property division or adult financial support (spousal maintenance) under their own state or territory laws or the federal Family Law Act. A lawyer can advise what path is suitable.

While the Commonwealth Family Law Act, 1975 applies across the majority of Australia, in Western Australia de facto couples remain subject to State law about property division and adult financial support. Affected couples should discuss this with their lawyer.

Thorne v Kennedy – Has the High Court hung financial agreements out to dry?

on January 5, 2018 by admin

There has been a strong reaction, almost panic-stricken, in the media and by lawyers to the first examination of financial agreements by the High Court. Is this reaction justified?

Has the High Court hung financial agreements out to dry, or are they still a viable option?

In Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807 the High Court set aside two financial agreements, casting considerable doubt on the viability of financial agreements which are a bad bargain for one of the parties. Unanimously, the High Court set aside the two agreements for unconscionable conduct. The plurality also set them aside for undue influence, finding it unnecessary to decide whether there was duress. Helpfully, the High Court explained the distinctions between the three concepts, as the concepts are often confused and used interchangeably. The question is, in clarifying the law, did the High Court set such a high bar that it will be impossible for a financial agreement to withstand an application to set it aside?

Financial Agreements in Family Law

on January 5, 2018 by admin

The Family Law Amendment Act 2000 was passed on 27 November 2000. Part VIIIA of this Act provides for Financial Agreements to be made in three different sets of
circumstances:

Between parties who are contemplating marriage
Between married couples; and
Between divorced couples

In most circumstances, Financial Agreements have the potential to allow parties to exercise more control over their property and financial matters as provided they are well drafted, the Family Court is prevented from deciding matters to which the Financial Agreement relates. Financial Agreements do not require approval of, nor registration with, the Family Court. Provided the formal requirements of Part VIIIA of the Family Law Act are complied with, and there is no ground under Section 90K of the Family Law Act to set the agreement aside, Financial Agreements are binding on the parties even if the Agreement is not fair and equitable.

Bullet-proof financial agreements—rare as hens’ teeth? Looking at financial agreements after Thorne v Kennedy

on January 5, 2018 by admin

Not all financial agreements under the Family Law Act 1975 (FLA) are drafted equally. While a completely challenge-proof financial agreement is an urban legend, there are things you can do to increase their effectiveness. Understanding the fundamentals that are required is key. Keeping up-to-date with the latest case law is arguably even more vital than in other aspects of family law. When and why are financial agreements found not to be binding or set aside? The High Court delivered its judgment in Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807 on 8 November 2017, changing the law, yet again. There is probably no other aspect of family law which has been subject to such a barrage of legislative changes, prospective legislative changes and contradictory judgments.

This paper covers:

What needs to go into a financial agreement to make it valid?
Duress, undue influence, unconscionability and Thorne v Kennedy
Disclosure
Power of the court to declare financial agreements binding
Dealing with hybrid agreements
Contract law and financial agreements – how do they interact?
Equitable and common law right to performance of contract
Interpretation of financial agreements – Uncertainty and incompleteness
Material change in circumstances in relation to children
Checklist