On 27 January 2012, Attorney General Nicola Roxon delivered a media release which stated that as of 1 February 2012 there were to be certificates of no known impediment to marriage issued for same sex couples.

“The important change will allow same sex couples to take part in overseas marriage ceremonies, and be considered married according to the laws of that country” said Attorney General Nicola Roxon.

Some countries require that a certificate of no known impediment be presented before they will legally marry a couple. These certificates confirm that there is no reason why the person taking part in the marriage ceremony overseas cannot get married. In particular, this means the person is over 18 years and not already married and the couple are not close relatives. Previously such certificates were only available to heterosexual couples.

However, this does not change the fact that in Australia, same sex couples cannot be legally married. This means that currently same sex couples can only be legally regarded as in a de facto relationship. Though, it does allow Australian same sex couples to more easily marry overseas.

Also the value of this change is arguable given that while same sex marriages may be more easily conducted overseas, they would still not be recognised within Australia. However an overseas marriage certificate may be evidence that there was a de facto relationship for the purposes of Commonwealth, State and Territory laws.

If you are looking for information regarding same sex marriages overseas and applying for a certificate of no known impediment, please see www.smarttravel.gov.au.

If you have further questions regarding your same sex de facto relationship, please do not hesitate to contact us at Armstrong Legal on (02) 9261 4555.

ZP

Many people have heard prenups talked about on American legal television shows. Binding Financial Agreements (which many know as prenups) are commonly used in family law matters in Australia to deal with a number of situation. People choose to use Binding Financial Agreements if:
• They are planning to enter a de facto relationship or to get married;
• They are already in a de facto relationship or are already married; or
• They have separated and their de facto relationship or their marriage has broken down/ended.

In each of the above situations, many choose to have their lawyer draft a Binding Financial Agreement to state how their property will be divided in the event that they separate from their de facto partner or spouse, or if they have already separated, to state how they will divide the property with their estranged de facto partner or spouse.

There are several key things to note about Binding Financial Agreements. Both parties must have an independent lawyer to provide them with legal advice about the terms and effect of the Binding Financial Agreement. Further, they both need their own lawyers to sign a Statement of Independent Legal Advice which must be attached to the original Binding Financial Agreement.

For legal advice tailored to your circumstances, such as whether a Binding Financial Agreement is suitable for you, please call our team to speak to a competent family lawyer with expertise in this area.

In a recent Family Court decision, her Honour Justice Rees has taken what at first blush might seem the extraordinary step of banning a mother from attending at her child’s school. With a closer understanding of the facts of the case, the Judge’s decision is, perhaps, not quite so surprising.

The case, known by the Court as Materanzi v Suskain (although they are not the parties’ real names), involved an eight year old child, in relation to whom parenting Orders had previously been made by the Family Court in April 2011. The April 2011 Orders provided for the child to live with the father and spend time with the mother each alternate weekend from after school Friday until before school Monday and from after school Thursday to before school Friday in the other week.

Since those Orders were made, the mother:

• Persistently failed to take the child to school on Friday after she had spent Thursday night with her mother, with the child only attending on one of the relevant Fridays in a seven month period;
• Failed to ever take the child to school on a Monday after the child had spent the weekend with her mother;
• Routinely attended at the child’s school and removed the child from school before the school day had ended, including as early as 10am;
• Frequently attended at the child’s school and interrupted the child’s lessons;
• On numerous occasions, attended at the child’s school to replace the lunch provided by the father with one provided by the mother; and
• Took the child to a different school in a different school uniform.

Despite requests and correspondence from both the father and the school, the mother persisted in such activities, stating that she would continue to attend at the child’s school whenever she wished. She told the Court that she kept the child home from school and/ or picked her up early on other days because she wanted to spend more time with the child.

Both the father and the school were concerned that it was not in the child’s best interest for her to continue to miss approximately 1 day of school each week, nor to have her school days interrupted by her mother. If the mother’s actions were, indeed, prompted by her own desire to spend more time with her daughter, those actions suggest a lack of insight by the mother into the child’s best interests and an inability on the mother’s part to place the child’s best interests ahead of her own wishes.

In making a parenting Order, the Court’s primary consideration must be a child’s best interests. In this case, the Court shared the concerns of the father and the school about the impact of the mother’s behaviour on the child and her schooling. In order to redress that negative impact, Justice Rees amended the April 2011 parenting Orders such that the child would not spend overnight time with the mother immediately before a school day. That is, the mother’s time with the child was reduced to every second weekend from after school Friday until 7pm Sunday and every alternate Thursday from after school until 7pm. In addition, the Court issued an injunction restraining the mother from approaching, attending at and/ or removing the child from her school.

While that facts of this case are possibly extreme, it is nevertheless a useful reminder to separated parents that the Court’s primary consideration is the child’s best interests, not a parent’s wishes, and sometimes the child’s best interests can result in the child spending less time with one of his or her parents. It is important for parents’ post-separation actions to be as child -, not self-, focused as possible.

Elizabeth Rusiti

Arguably relocation matters are the most difficult cases for a Court to decide the children’s best interest.  The Court has a wide discretion in determining parenting matters, referring to the factors listed in Section 60CC of the Family Law Act.

Considerations that may weaken an application to relocate include the following:

• The children may spend significant time with both parents and it is not in their interest for the time with the “left behind” parent to be reduced;

• Relocating to another suburb, state or country is likely to have a negative impact on the children. They may not cope with changes associated with relocating including attending a new school, living in a new home, experiencing different cultures and anxiety that may be experienced due to their time with the other parent decreasing;

• When relocating a child’s relationship with the left behind parent can be effected as that parent may no longer be able to be involved in the children’s daily tasks or attend at extracurricular activities;

• There may be practical difficulty due to substantial time and expense for the parent to visit the child or children; difficulties may also arise if the children are of a young age and not able to travel alone;

• If the children are young, it may be difficult for  a parent to maintain a relationship over electronic means such as Skype, telephone or email.

Grounds that the Court may consider sufficient to permit relocation:

• If the left behind parent has not previously exercised their responsibility  in parenting and despite the relocation the Court is satisfied that the child’s relationship with the left behind parent can be maintained;

• If there is a risk to the child or the children’s safety due to them being exposed to physical harm, abuse, neglect or family violence;

• If there are support networks in place that would promote the child or children’s best interest if relocation was permitted;

• The use of technology, including Skype means that the children’s relationships with the other parent could be maintained due to regular communication at minimum cost and;

• Finally, the Court may consider impact on the parent seeking to relocate and if they are not permitted to relocate with the children, if it may affect their capacity to parent.

These are not the only considerations that may be considered when a party makes an application to the Court requesting an Order for relocation.

If you are considering relocating or you wish to seek advice about restraining another party from relocating with your child/children, please telephone our office to make an appointment to attend on a solicitor for further advice.

In a recent article, “Women now happy to walk”, Jacquie Hayes makes the argument that women are now more willing to leave relationships due to what has been a general improvement in their financial position.

In the article, published on 11 February 2012 in The Australian Financial Review, Hayes states that, “determining if women are making the break more often than men is hard to prove – formal statistics look at who eventually files for divorce, not who initiates the split”.

However, Hayes goes on to argue that there is anecdotal evidence that women go on to leave relationships more often than men and are more likely to initiate separation. The article states that some lawyers have noted that there is less of the “dependent wife operating on a fear basis” than in the past.

I personally find, again just anecdotally and based on the clients that I see, that when couples do separate, often the woman is further down the track in accepting that the relationship is over this than her male partner. I would also agree that more women than men initiate the separation.

One reason women may be ending relationships more than men, may be their improved financial independence. However, the reality is that women on average still earn less than men. Accepting that this is so, why is it that women end relationships more than men?

For various reasons, whether it is nature or nurture, women may question relationships more and perhaps discuss the difficulties they are having in relationships and confront these more than men. However, this is of course, mere speculation.

In the end though, the reality is that either partner, whether male or female, can end a relationship. While there are overall trends which may relate to culture, gender and various other sociological factors, in the end, the decision to leave one’s partner is a personal decision specific to the individual circumstances.

Traditionally, Courts have been perceived by some feminists as very un-female friendly. One reason why women may be willing to end relationships regardless of their financial position, is that it is possible to run legal proceedings in relation to the separation of a relationship, even if you are the party that has less financial resources. For example, Orders can be sought that the other party pay your legal costs on an interim basis. Also women (or men) can seek an Order for urgent interim spouse maintenance.

Also in terms of how property is finally divided, the Court is required to consider not just who contributed to the relationship financially, but also who contributed to the homemaker and parenting aspects of the relationship. Lastly, the Court considers the future needs of the parties. For women in more traditional families where the husband has acted as the breadwinner and the wife as the homemaker, this may be a great equaliser as their greater financial need relative to their male spouse will be recognised by the Court.

The above reasons may be why women are not as reluctant as might be expected to initiate separation from their partner.

That being said, I do not disagree with Hayes’ view that women leave relationships more than men because they are more financially independent than in the past. However, I do find it curious that although women are more financially independent than in the past, they still on average earn less than their male counterparts, yet are also more willing to leave relationships. This suggests there are other factors at play as to why women leave relationships more than men. Some of these may be sociological, others may also have to do with the options discussed above available to the “homemaker” party (often, but not always the female party) in Court proceedings.

The Sydney Morning Herald on 4th February 2012 published an article by Adele Horin entitled “Revenge and despair place children at risk”   which refers to Debbie Kirkwood’s study “Just Say Goodbye.”  Dr Kirkwood ,who is the research officer at the Domestic Violence Resource Centre, Victoria, asks the question: why are some children intentionally murdered by their parents at the time of parental separation?  Dr Kirkwood argues that men and women are equally capable of killing children, but the motives for killing are very different. Men are more likely to kill their children in order to take revenge on ex-partners and make them suffer, whereas women are more likely to kill because they intend to kill themselves and can’t imagine leaving their children without a mother. The statistics are alarming- between 1997 and 2008 there were 110 child murders committed by fathers or stepfathers and 106 by mothers (none by stepmothers).

What I think is really interesting is that in Dr Kirkwood’s opinion as reported by Adele Horin,  blame is not to be found in the  Family Court system’s approach to the apportionment of time between parents, even though the Farquharson and  Freeman children were murdered whilst  spending time with their  Father, as permitted by Court Orders.  Farquharson was found guilty of murdering his sons, Jai, Tyler and Bailey, when he plunged his car into a dam on Father’s Day in 2005, and Freeman murdered his daughter Darcey on the way to what was meant to be her first day of school. Darcey died at the bottom of Melbourne’s West Gate bridge.

Dr Kirkwood: “There is no logic to thinking that if fathers feel they don’t spend enough time with their children, they would kill them.” But Dr Kirkwood does suggest that prior contact with police, the courts, mental health services or men’s behaviour change programs may be relevant.

If you are separating and have concerns regarding the mental stability, history or the propensity for violence  of the other parent, then you must seriously consider raising your concerns, even if they seem trivial or unwarranted to you,  because often to a qualified expert they will be given a different interpretation. The law is there and it exists to protect you and your children; it is just a question of engaging the law.

Separation and its aftermath are times of great stress for everyone involved, and we think that there is a case to be put to the Minister for Health for greater funding for research into these most tragic crimes. Please feel free to show your support for that idea by posting your argument in response to this blog.

Many people are not clear about the meaning of separation for the purposes of family law. What does it mean to be separated for the purposes of family law? It is important to know and understand that there are different types of separation. Firstly, there is separation under one roof. This occurs where spouses or de facto partners are separated and are no longer in a relationship together but still remain living under the same roof. There is also separation where the spouses or the de facto partners are no longer living together in the same residence.

The date of separation is very important in a client’s family law matter, particularly in property settlements. Have you kept a written record of the date of separation? Have you communicated clearly to your estranged spouse/de facto partner that you are separated? These are all things that you should know and be aware of if your relationship breaks down and you then need to finalise your property settlement and to also finalise your divorce if you are married.

For detailed legal advice about separation, your property settlement or any other family law issue, please call our team to speak to a family lawyer with expertise. We offer a no-obligation first conference, which you may find to be a useful starting point.

In an article by Caroline Overington, published in the Weekend Australian on 11 February 2012, “The Wedding Vow”, the issue of forced marriage in relation to children is discussed.

A large portion of the article focuses on an interview Overington had with Dr Emran Sharobeen, who herself was promised to her cousin from the age of 14 years.

Among other things, the article discusses the fact that there is no actual law punishing those who try to arrange a wedding between children or to force a child into marriage. Currently, the law in Australia says that the legal age for marriage is 18, although if one party is at least 18, the other party may be as young as 16, as long as a Court Order is obtained from a Judge or Magistrate and there has been consent from both parents.

However, although marriage cannot be legally performed in Australia for those under 18 years apart from the above circumstances, some children are flown out of Australia overseas to marry.

Currently the Federal Government is considering draft legislation, released for public discussion last December, which calls for forced marriage to be an offence, as it is for example, in England. The draft legislation proposes that there be an aggravated offence carrying the maximum sentence of 15 years in prison for the forced marriage of a child.

However, there have been some cases where the Australian Family Law Act has been used to indirectly prevent the forced marriage of a child. For example, the article discusses a case, where a girl told her teacher at a Melbourne High School that “she wouldn’t be attending class any more, as she was due to travel overseas to be married”. The girl was aged 13 at the time and the teacher contacted the Victorian Department of Human Services. The Department used the Family Law Act to make an Application in the Federal Magistrates Court that the child’s name be placed on an Airport Watch List so that her parents would not be able to remove her from Australia.

Frequently, Applications are made in Family Law matters that a child’s name be placed on the Airport Watch List when there is a risk that the other parent may remove them to another country. However, Airport Watch List Applications are also being used by the Department of Human Services to prevent children being removed overseas for marriage.

While this may arguably be one way in which the situation can be addressed, it is a round about, rather than direct remedy to the problem. Also it is not a deterrent to being involved in organising child marriages.

However, the issue is arguably not entirely clear cut. Sydney University Academic, Dr Ghena Krayen points out that criminalising forced marriages may “break the relationship between the girl and her parents” and proposes that if the forced marriage issue does arise, the “best approach is a holistic one involving the girl, parents and respected community leaders”.

Krayen also makes the important point that in becoming concerned with the issue of forced marriage, forced marriage should not be confused with arranged marriage. She rightly points out that “in many cultures people are recommended to each other”. However, Krayen also says that obviously consent needs to be given by both parties. The Muslim Legal Network has said that they would prefer the issue be dealt with by way of civil rather than criminal provisions.

My view is that obviously this is not simply a legal issue. I agree that there should be more education, in particular for girls in schools as they approach the age where they may be forced into a marriage. I also think there should be more options available to girls where they are being forced into an arranged marriage, such as a hotline for girls who need advice and other education programs, as Dr Sharobeen suggests.

However, arguably this is needed alongside some harsher criminal sanctions which will provide the message that forcing a child to take part in an underage marriage against their will is simply not acceptable. The difficulty is not just that a child is being married, but also the other related issues such as for example, the fact that this may often be tied to family violence and pregnancy of young teenage girls.

The article outlined several other cases, including where a child herself called the Australian Federal Police saying that she was being taken against her will to be married in Lebanon. In most of the other cases mentioned in this article, it has been the child that has somehow alerted a teacher or other person that they are being forced into the marriage. This shows that the child was only able to be helped when they had the courage to speak out against what was happening to them. This suggests that part of the solution may be in educating children about these issues and their rights, as well as amending laws which allow the Judiciary to more effectively deal with the problem.

If you believe you may be forced into a marriage against your will, you can get help by calling the Australian Federal Police on 000,  Lifeline on 13 11 14 or  the Child Protection Helpline on 13 21 11.

Have you ever wondered in what way superannuation is relevant to your property settlement? You are not alone. Many people contemplating separating from their spouse or de facto partner (or who have recently separated) ask this question: “Is my super taken into account in my property settlement? Is my spouse/ de facto partner entitled to some of my super? “ If you are contemplating starting your property settlement, these are important questions to ask your lawyer.

In short, yes, your superannuation is relevant to your property settlement: it is taken into account in dividing the property of you and your spouse or de facto partner. Some people claim that they decided not to separate because they didn’t want their spouse/ de facto partner to keep any of their hard-earned super. However, on the other side of the coin, one person has commented that they hired competent and experienced family lawyers who advocated for them and reached a fair outcome and division of property including super.

For legal advice from our experienced team of family lawyers about how superannuation is treated in your property settlement or any other family law issue, please call our team  to arrange a without-obligation first conference.

Dear Ms Roxon,

I am a lawyer with over 18 years litigation experience, and a Senior Family Lawyer at Armstrong Legal, one of Australia’s largest private family law firms.

My colleagues and I are understandably concerned about what you described as “A small administrative error”, the result of which may call into questions steps taken and Orders made in de facto property matters in the last three years. Affected clients are no doubt, also concerned.

What is of greater concern to me, however, is the naivety and lack of knowledge shown by you about an area of law for which you are responsible. I refer in particular to your interview with Marius Benson on 22 February and your media release of 29 February. For example:

• You informed Mr Benson that it had previously been “a long, very expensive process” when de facto property disputes were dealt with in the State Courts, “at often vast expense”, “with fairly long delays”. It seems that those comments were made to justify your Government’s transfer of de facto property jurisdiction from the State Courts to the federal Family Law Courts.

Unfortunately, the facts are very different. When de facto property matters were dealt with in the State Courts, it typically took about 9 months for parties to reach a final hearing. Delays in obtaining a final hearing date in the federal Family Law Courts are now between 18 months to 2 years. The extra time involved almost always involves extra cost.

That is, de facto property matters now take twice as long, if not longer, to get to a final hearing and the costs can be higher. The delays in the federal Family Law Courts system seem to me to stem from your Government adding de facto property matters to that jurisdiction, without increasing funding available to it.

• You told Marius Benson and stated in your media release of 29 February that you encourage people to stick to agreements they had made, notwithstanding that your Government’s oversight may mean that such agreements are invalid. You encouraged people to “take a sensible approach”. Perhaps you have never had experience of a separating couple. Certainly, those comments suggest that you have no understanding of the way many separating couples behave when in dispute following the breakdown of their relationships.

Sadly, but perhaps understandably, at such times people can feel enormous pain and anger, which can turn into bitterness and hate. Despite the best efforts of most lawyers who practise in the family law area, some parties can want to use every advantage that may be available to them through the legal system in order to inflict pain on the other party, because of the bitterness and hate that they feel. If I may be so blunt as to say so, it is grossly naive to assume that there will not be some people wanting their lawyers to take advantage of the opportunity caused by your Government’s oversight to inflict further financial damage, as well as emotional pain, on their former de facto partner.

If you are to remain as Attorney General responsible for the family law jurisdiction, I would urge you to take some time to learn what it is really like to deal with the federal Family Law Courts and to work in our field.

Elizabeth Rusiti