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Unhappy with your current Parenting Arrangement? How to Change your Family Court Orders

In 2016, the Federal Circuit Court of Australia made Orders with the consent of both parents. In summary, they were that the child live with the mother and spend time with the father and the time with the father was to increase as the child increased in age. The parents lived, and continue to live in different towns. In 2018, the father’s divorce lawyer brought fresh proceedings based on two possible scenarios:

  1. If the mother relocates near the father, the child to spend equal time with the parents, or
  2. If the mother does not relocate, he sought Orders in the reverse so that the child lives with him.

In order to revise family law court Orders, the case of Rice & Asplund [1978] FamCA 84 requires the existence of a material change of circumstances. The father’s divorce lawyer argued that since the time of making the consent Orders, his circumstances had changed in three ways:

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The Basics of a Divorce

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group

Our Family Law Group consists of 7 family law lawyers. We have 4 Accredited Specialists in the area.

We have been recognised as one of the leaders in the Family Law market through Doyles rankings.

We specialise in all aspects of family law such as divorce.

A lot of clients come to our family law lawyers for assistance with a divorce.  Despite the common misconception, a divorce actually does not involve sorting out your parenting or property matters. A divorce simply means dissolving your marriage because you want to remarry or you just would like to formalise what is happening in your life.

You can’t apply to the Court for a divorce until you have been separated for at least 12 months.  There are special rules where you can be separated under the one roof which requires extra documentation. However, unless you have been separated for 12 months you can’t commence the process.
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Divorce Lawyer in Focus: Andrew Banna

banna-website-bw2-340x374By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group

Since his admission as a Solicitor in 2006, Andrew has practised exclusively in Family Law having represented married and de facto clients in property matters, parenting matters, spousal maintenance matters and child support matters.

Andrew enjoys appearing at the Family Court of Australia and the Federal Circuit Court of Australia, where he appears on a regular basis. He also appears at the Local Court to assist his clients with Police matters that arise following breakdown of their relationship.

Andrew approaches his matters in a client focused way with the view of reaching a resolution in the most efficient manner without the need of incurring substantial costs.

Andrew has attained Specialist Accreditation in Family Law through the Law Society of New South Wales.

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Not a Parent of the Child? What you need to do to Challenge Your Child Support Assessment

When making an application for child support with the Department of Human Services (DHS), your Child Support Lawyers need to satisfy the Registrar that the person being assessed to pay the costs of the child is a parent of the child. This is often called “proof of parentage”. While parents may be biological parents, the term parent also includes adoptive parents, where the child has been born as a result of artificial conception procedures, or if the child was born as a result of a surrogacy.

The Registrar can presume paternity in the following situations:

  • The child was born during the course of a marriage
  • The person is recorded on the child’s birth certificate
  • The person has signed a statutory declaration
  • The person has adopted the child
  • The person cohabitated with the child’s mother at any time during the period 44 weeks and 20 weeks before the child’s birth
  • Where a Court order has determined parentage
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Can You DIY Your Prenup?

In an effort to save money on their property settlement, some couples have sought to DIY their prenup. But is it a good idea?

The Family Law Act states that for a prenup to be valid and enforceable, one requirement is that both parties need to obtain independent legal advice. This legal advice has three components:

  1. Firstly, the legal advice must be given before signing the agreement and must cover the effect of the agreement on the rights of that spouse and about the advantages and disadvantages of the agreement.
  2. Secondly, either before or after signing the agreement, each spouse must be provided with a signed statement by the legal practitioner stating that the advice was provided to that party.
  3. Thirdly, a copy of the statement must be provided to the other spouse or legal practitioner for the other party.

Take for instance the scenario of Mark and Sally. Mark and Sally would both like a prenup before they marry next year to protect their respective financial interests. According to Australian law, both Mark and Sally must seek separate legal advice. That is, two separate lawyers that are independent of each other need to be engaged in the process. Prior to signing the agreement, Lawyer A gives their advice to Mark, while Lawyer B gives their advice to Sally. Before or after signing the prenup, Mark’s lawyer needs to provide a signed statement that declares the said legal advice was given to Mark. Then, a copy of that statement needs to be given to Sally or her lawyer. Sally also needs to do the same.

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Reminder – The Whistleblower Policy Deadline is 1 Jan 2020

Recap

By way of refresher from our article earlier this year:

  • new whistleblower legislation commenced on 1 July 2019
  • it modified laws relating to corporations, the banking industry and insurance companies in order to:
  • provide significantly stronger protections to whistleblowers who make disclosures about matters such as corporate misconduct (e.g. fraud), criminal activity, or any other conduct that represents a danger to the public or financial system
  • expand the scope of persons who may make protected whistleblower disclosures and the circumstances in which these disclosures may be made
  • permit and protect anonymous disclosures
  • impose substantial civil and criminal penalties on any breaches of whistleblower protections (such as disclosing the whistleblower’s identity and/or causing the whistleblower detriment through victimisation)
  • the protection obligations apply to all disclosures made on or after 1 July 2019 even if the disclosure relates to suspected conduct occurring prior to that date

Mandatory Policy

Critically, the legislation requires that all public companies and large proprietary companies MUST have in place a compliant whistleblower policy by 1 January 2020 with a “large proprietary company” being a proprietary company that satisfies 2 of the following 3 criteria:
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End-of-Year Work Functions – ‘The Nightmare before Christmas’

Year end work functions provide employers and employees with the opportunity to reflect on the year that was and are a great way to reward staff for their efforts and enthusiasm.

 

However, the ‘silly season’ can often be a cause of headaches for employers as employees can be prone to engaging in inappropriate conduct which may necessitate taking disciplinary action and/or give rise to an assortment of legal claims.

 

Employer’s Duty of Care

Employers need to remember that such functions are work events (even if held away from the workplace) meaning they owe a duty of care to their employees during these events.

 

What Does the Duty of Care Require?

This duty requires employers to take all reasonable steps to ensure the health and safety of employees during these functions. Reasonable steps may include:

  • limiting employees’ consumption of alcohol if it is available, including by limiting alcohol options to beer and wine and/or implementing a ‘last drinks’ cut-off time
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One Year Bankruptcies – Dead in the Water?

By Jeff Brown, a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

 

Legislation introduced to Federal Parliament prior to the 2019 election would have seen the introduction of a 12 month term for bankruptcy, replacing the current three year term.

 

The move prompted some interesting debate, and a fair degree of controversy.  Most people in the industry that we have spoken to were against it, for all sorts of different reasons.

 

In any event, the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 has lapsed.  It cannot be revived or reinstated.  Should there be any renewed interest in Canberra  to introduce one-year bankruptcy, a brand new bill will need to be introduced and moved through the various stages to become law.

 

We think this is most unlikely in the short to medium term.  Dealing with the arguments previously raised against one year bankruptcies, when there are few if any calls for the Bill to be re-introduced, is a task that I’m sure the Federal Government can do without.
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