Interim Hearings

This workbook provides an overview of the Family Court and the Federal Circuit Court process and procedures.

Interim Hearings are held when the parties cannot agree on arrangements for their children or property, and the Court needs to make a temporary order, or an order that certain steps take place before a final decision is made. The orders made at an interim hearing will remain in place until there is another Court order, or some other agreement between the parties. An interim hearing may take place on the very first Court date that is allocated when your documents are filed with the Court, or may occur after an adjournment or other procedure. If you are not sure whether your legal matter is going to have an interim hearing, you should speak to one of our solicitors.

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Refusal of Treatment Fact Sheet

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.

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A fair share – Negotiating your property settlement

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.

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

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?

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Financial Agreements in Family Law

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.

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

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:

  1. What needs to go into a financial agreement to make it valid?
  2. Duress, undue influence, unconscionability and Thorne v Kennedy
  3. Disclosure
  4. Power of the court to declare financial agreements binding
  5. Dealing with hybrid agreements
  6. Contract law and financial agreements – how do they interact?
  7. Equitable and common law right to performance of contract
  8. Interpretation of financial agreements – Uncertainty and incompleteness
  9. Material change in circumstances in relation to children
  10. Checklist
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Family Law Guide

Whilst at first glance, the area of Family Law would appear to be relatively simple, a closer examination reveals a very different situation. It is one of the most complex areas of law, involving as it does the blunt intrusion of the law into personal, family and financial relationships.

More often than not, Family Law issues arise at times of personal upheaval when stress and emotions run high. The aim of this publication is to provide you with an overview of Family Law that may be applicable to your current situation or those around you.

Every Family Law matter is unique. Each relationship/family dispute has its own unique facts and circumstances that need to be considered and advice appropriate to that situation provided. However, there are general areas that are applicable to most matters.

Our goal in providing this publication is to give a guide to the interplay of Family Law and other areas of law that relate to family relationships.

Family Law is not simply property settlement, parenting and divorce. Family Law matters also invade other areas of both family and financial life including:

  • » taxation;
  • » bankruptcy and insolvency;
  • » trusts and corporate structures;
  • » estate planning and structuring;
  • » property law; and
  • » the often more complex psychological issues of child development and need.

As a central theme, the work we do is related to personal and financial relationships including:

the structuring of property interests to minimise risk consequent upon the breakdown of a marital or de facto relationship (sometimes called “Preventative Family Law”);

  • » pre-nuptial or pre-cohabitation financial and superannuation agreements;
  • » surrogacy agreements and transfer of parental responsibility;
  • » adoption;
  • » the ratification of parental rights in relation to children of same-sex relationships;
  • » questions of paternity;
  • » financial matters arising from the breakdown of personal relationships (marital or de facto) including divorce, property settlement, spousal maintenance, and child support;
  • » the resolution and determination of parenting disputes both immediately following separation and thereafter;
  • » the investigation and litigation of allegations of domestic or family violence including abuse, neglect and associated risk to children in the context of parenting disputes;
  • » domestic and family violence protection issues including making application for or defending protection orders; and » the recovery of monies or property by third parties following the breakdown of a marital or de facto relationship.

 

 

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Drafting of Affidavits in Family Law Matters

What is an Affidavit?

An Affidavit is nothing more or less than the means by which your client’s case is put to the Court. It is the sworn document by which your client has an opportunity to “…..paint a picture” in a manner which is persuasive, credible and complies with the Rules of evidence and of Court.

 

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Family Care Agreements

Love and the law, so it is said, do not make good bedfellows.

Documenting, in a written agreement, a loving, caring or supportive personal relationship, for example, is probably anathema to many Australians.

Australian Family Law however, is now challenging this cultural aversion by its recent acknowledgement of, and legislative support for, Financial Agreements between spouses in the form of Prenuptial agreements and, more particularly, Cohabitation Agreements, namely, arrangements regulating the financial relationships between perfectly happy spouses. Even in the area of defacto relationships, Queensland has also created a mirror regime of financial agreements.

This article is not about Family Law, however, but rather, the Law of Families.
It relates to the age old social duty of families caring for older or infirmed members within the family unit and:

♦ Whether we, as members of a family and as a community, can afford to continue to assign this issue to the subterranean ethos of uncompensated love and duty; and
♦ Whether it deserves to be recognised in the form of a formalised agreement that both addresses the contingencies of such care and adequately compensates those who provide the care; and
♦ Whether, in light of our demographic destiny, we really have any choice.

Brian Herd
Carne Reidy Herd Lawyers

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How to Employ a Personal Home Carer (WA)

Living independently in your own home is the wish of most people. Some people may reach a point in their lives where they need some help to do this. This can either be through an accident, an illness, a disability or increasing age.

The assistance a person requires to live independently can take many forms. Help can include assistance with meal preparation, personal hygiene, dressing, going to appointments, companionship, gardening, housework, visiting family or friends, or just supervision in completing tasks.

This assistance can be provided by many of the private care agencies in WA. Alternatively, you can choose to employ someone yourself. This method has some advantages, but it also comes with added responsibility on your part. Advantages include the opportunity to interview and select the best person for the job, to show them exactly what you would like them to do, to develop a relationship and to manage your own money.

This package has been developed to assist you to employ a Care Worker, and also manage the Care Worker you employ.

This package has been designed as a guide only, and we encourage you to clarify any issues you have with a legal representative.

This package is not, and is not intended to be relied on as legal advice. The package summarises what the writers understand to be the position at the date of writing on August, 2007. The law on these issues is subject to frequent change.

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