What is a De facto Relationship?

You have been seeing the same person for an extended period of time, though you are not married and you do not have an intention to marry.  You may be living together, own a house together, and may even have children together.  So, what does this mean? If you are not married, what type of relationship are you in?

In this scenario, it is likely that you and your partner will be in a de facto relationship.  But what is a de facto relationship?  

The Family Law Act 1975 defines a de facto relationship as two persons who:

1. Are not legally married to each other; and

2. Are not related by family; and

3. That in having regard to the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.

A de facto relationship can exist between a couple in a heterosexual relationship, or in a same sex relationship.

The Court has discretion under the Family Law Act 1975 to make findings about whether two people are living together as a couple on a genuine domestic basis.  The matters they will consider are as follows:

· The length of the relationship;

· The nature and extent of any common residence (i.e. were you living together on a genuine domestic basis);

· Whether a sexual relationship existed;

· The degree of financial dependence or interdependence the two people had;

· The degree of a mutual commitment to life;

· Whether the relationship was registered;

· Whether there are children of the relationship;

· Whether the people own property together, and how that property was used;

· The reputation and public aspects of the relationship; and

· Any other matters that the Court considers relevant.

If your de facto relationship breaks down, subject to meeting a criteria, you will be entitled to apply for a family law property settlement under the Family Law Act 1975.

There are time limits that apply following the breakdown of a de facto relationship to apply to the Court for a property settlement. People who were in a de facto relationship have 2 years from the date of separation to apply to the Court (either by consent or to commence family law proceedings).  If you miss this time limit, you will need leave of the Court to apply for a property settlement.  If you are out of time, you should see a family law solicitor immediately.

If you are not sure if you were in a de facto relationship, or you would like to know more about your rights and entitlements under the Family Law Act 1975 in relation to parenting and property matters, you should seek advice from a family law solicitor.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Peta Sutton

When is a grant of probate needed?

Many of us know what a Will is.  We know that it is the document that tells people who the deceased chose as their executors, trustees and the beneficiaries of their estate.  But how does an executor use the Will to transfer the deceased assets to the beneficiaries?

If the deceased held assets in their sole name, including bank accounts and real estate, an executor will need to apply for a Grant of Probate from the Supreme Court of the state or Territory in which the deceased held the majority of their assets. A Grant of Probate is a Court Order that provides for an executor to call in, deal with and distribute the assets of the deceased estate in accordance with the terms of the deceased’s Will.

Without a Grant of Probate an executor is unable to deal with the deceased’s real property (including the sale of real estate), distribute funds held in the deceased’s bank accounts or sell / transfer any shares held by the deceased.

To apply for a Grant of Probate, the executor must first publish a Notice of Intention to Apply for Probate.  If you are applying for a Grant of Probate in the ACT, this notice is usually published in the Canberra Times.  An executor can then apply for a Grant of Probate 2 weeks after the notice is published, and no later than three months after it was published.

There are a number of documents that need to be prepared on behalf of the executor when applying for a Grant of Probate, including the Grant, an Application and an Affidavit.  It is important that these documents are prepared correctly.  If they are not, it is possible that the Court will requisition the documents and ask you to amend them.

When is a Grant of Probate not required?

There are some circumstances where a Grant of Probate may not be required.  These include:

- If the deceased jointly owned real estate, bank accounts or other real property with another person.  If this is the case, the right of survivorship will apply, and the assets can be transferred to the surviving person once the death certificate has issued;

- If the deceased held relatively small amounts of money with a financial institution.  All financial institutions have different rules, however many will allow the executor to call in and distribute funds of $50,000 or less without a grant of probate; and

- If the majority of the deceased’s assets were held in superannuation.  Superannuation is not automatically an estate asset and therefore a grant of probate is often not required in order for it to be dealt with.  

Most people will not have held the role of executor before. If you have been appointed as an executor you might be feeling overwhelmed and unsure where to start.   

Robinson + McGuinness Family Law is able to assist you in applying for a Grant of Probate and subsequently administering the estate.  Robinson + McGuinness Family Law offers fixed fees to prepare and file an Application for Probate.  

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Peta Sutton

Who can apply to the Court for parenting orders?

Someone other than a parent of a child may bring an application seeking parenting orders in relation to a child. It is not uncommon for a child to be cared for by a person other than one of their parents, such as a grandparent, sibling, relative, or family friend. The Family Law Act recognizes that children can be raised outside of traditional familial relationships.

Under 65C of the Family Law Act, any of the following people can bring an application to the Court seeking parenting orders:

1. Parents;

2. The child;

3. Grandparents; or

4. A person concerned with the care welfare and development of a child.

The first three categories are self-explanatory, however, the third requires the Court to make a decision about whether the person bringing the application meets a particular threshold, being whether they are a person concerned with the care, welfare, and development of a child.

There are no set criteria that the Court uses to determine who is a person concerned with the care, welfare, and development of a child. In one case, a step-parent or an aunt or uncle may be declared to have leave to bring an application, in other cases, a great-grandparent’s application to bring proceedings has been refused. Each case will depend on the set of facts before the Court at the time, and the strength of the persons’ concern with the care and welfare of the child. For example, the Court is more likely to declare that a person is concerned with the care, welfare, and development of a child if they have been the primary carer of the child, or spent significant time with them throughout their lives, or if they have brought the application due to concerns about the risk of harm to a child.

Although parents and grandparents already have standing to bring an application for a parenting order, the case law confirms that there is no “hierarchy of applicant”. This means that an application brought by a parent or grandparent, will not be considered with any greater weight or priority than an application brought by someone concerned with the care, welfare, and development of a child. The Court must consider each application with regard to the legislative framework, in particular, with the best interests of the child as the paramount consideration. Any person seeking that the Court make parenting orders must have a proper basis to bring the application, irrespective of what their relationship is to the child the subject of the proceedings.

It is important to seek specialized advice from a family law solicitor about whether you have the standing to bring an application seeking parenting orders, and to obtain general advice in relation to your family law matter.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Margot McCabe

What do I do if the other party won’t engage?

Following a separation, parties usually work together to negotiate and resolve their family law property and parenting disputes. What do you do, however, if the other party puts their head in the sand and won’t respond to your attempts to negotiate?

 Family law solicitor

Engaging a family law solicitor to write to the other party on your behalf can be a good way to get the other party’s attention and let them know you’re serious about progressing the matter. It can also help to place them on notice about the consequences of failing to properly engage, including the matter ending up in Court.

If there are aspects of your dispute that need immediate action, such as a child being at risk or a property that is about to be repossessed by the bank, you may need to make an urgent Application to the Court, rather than trying to engage with the other party through correspondence. If this applies to you, it is important that you get family law advice as soon as possible.

Application to the Court

If the other party continues to refuse to engage with you, you can then make an Application to the family law courts setting out the Orders you seek to resolve the matter, and seeking the matter proceed on an ‘undefended’ basis if the other party doesn’t engage. This means that you are asking the Court to make a final decision without the other party’s evidence or input.

You will need to satisfy the Court that the other party has been served with your Application and is on notice about the proceedings. You will also need to give evidence to the Court about your attempts to engage the other party, and their refusal to engage with you.

The Court will not want to make Orders without hearing both parties’ side of the story, and (depending on the dispute) will make sure the other party is given ample opportunity to respond and file documents setting out the Orders they seek, and why.

Final Undefended Orders

If the Court is satisfied that the other party is on notice about your Application, and that they are refusing to engage with the process, the Court will still need to be satisfied that the Final Orders you seek are in the best interests of the children (parenting matters) or just and equitable (property matters). You can’t win ‘by default’ because the other party isn’t engaging.

Failing to put all of the relevant evidence before the Court may mean the Judge is unable to be satisfied that the outcome you are seeking is fair and appropriate, and may result in further delays in reaching a final outcome. Sometimes, the Judge will require you to give oral evidence in Court as part of their consideration of the matter.

Getting detailed family law advice and assistance in filing your Application will help ensure that all of the relevant evidence, such as expert evidence about property values or about the history of the children’s care arrangements, is put before the Court and explained to the Judge.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Allegations of Risk to Children in Family Law Matters

Family law cases that involve allegations of risk to children can be difficult for everyone involved, particularly because of the broad range of issues which can arise. Children can be at risk of sexual or physical abuse, or at risk because a parent’s mental health, alcohol or substance abuse impacts on their parenting capacity. They can be at risk of harm by neglect, or a ‘flight risk’ if one parent is seeking to relocate overseas without the other parent’s consent. They can be at risk of emotional harm by being exposed to family violence, or of emotional harm arising in some other way.

When an allegation of risk is made, the Court must carefully consider what Orders are necessary (if any) to protect that child from that risk. The Court must consider the level of risk and the type of harm, and then look at those factors along with all of the other considerations that must be taken into account when determining what outcome will be in a particular child’s best interests. The Court might make Orders requiring that one parent be supervised when spending time with a child, or that they undergo drug or psychological testing. What is appropriate will vary depending on the specific circumstances of each case, and every case is different.  

Sometimes allegations of risk in family law matters turn out to be nothing but mere allegations, but it can take time for a Court to sort through whether or not a child really is at risk or not. This can be incredibly frustrating for the parent against whom the allegation is made, particularly if their time with the children is stopped or curtailed while the allegations are being examined. In other cases, the risk of harm ultimately proves to be real and Orders will be made either trying to manage that risk, or to prevent the risk entirely by stopping a child from spending any time with that parent.  

In the recent case of Syms & Syms (2021) FLC 94-010, the Mother made allegations that the Father was sexually abusing their three children. She refused to allow him to spend any time with them, and so the Father commenced Court proceedings in the Family Court. The matter went on for several years and the trial Judge ultimately formed the view that Father was not a risk to the children, but that they were at risk – from the Mother’s unshakeable view that they were being abused. The Judge was concerned that if the children stayed living with the Mother, they would not only lose their relationship with their Father, but they would also come to accept their Mother’s belief that they were being sexually abused. This represented an unacceptable risk of emotional harm, and accordingly Orders were made of the children to live with their Father. They were prevented from spending any time at all with the Mother for four months, and were then permitted to spend supervised time with the Mother until the Father decided the supervision requirement was no longer necessary. The Mother appealed the decision and was ultimately unsuccessful. This case serves as a reminder that risk and harm can exist in many different forms, and that sometimes where a family law matter starts out can be very different from where it ends.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

What if we can’t agree on vaccinating our child?

Now that Australians are starting to dip their toes into the brave new world of COVID-19 vaccinations, family lawyers are expecting to see a particular issue in parenting matters raise its head– vaccinating children, and what happens when parents cannot agree.

Whether or not a child is vaccinated is a major, long term parenting decision and falls within the scope of ‘parental responsibility’ under the Family Law Act. If you and the other parent really cannot agree on what, if any, vaccinations you are going to give your children, you can ask the Court to step in to make that decision for both of you.

In the recent case of Covington & Covington (2021) FLC 94-014, the Mother had consented to an order allowing their daughter to be vaccinated but tried to withdraw her consent a few days later. She filed an appeal, arguing that the Australian Constitution prohibited the Family Court from making Orders for a child to be vaccinated and that any doctor administering the vaccination would be committing an assault against their child. In dismissing her appeal, the Court held that it is well settled that the Family Court does in fact have the power to make Orders about vaccinations, both by consent and without the consent of one parent. Each matter turns on its own facts, and in this particular case, the fact that the mother changed her mind later was not a proper basis for the Court to change the original Order.

If you do find yourself in this situation, you should seek specialist family law advice before taking any steps. There is no ‘one size fits all solution when parents disagree about vaccinations. It is a complex area, and any application to the Court seeking orders about vaccinations must properly address the advantages and disadvantages of vaccinating or not vaccinating your child, not just children generally. Evidence about your child’s personal medical history and circumstances must be put forward along with expert evidence from medical specialists who are appropriately qualified to give that evidence.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

5 Things You Need To Know About Surrogacy

1. Commercial surrogacy is not permitted in Australia.

Although each state has different laws relating to surrogacy arrangements, there is one consistent theme throughout Australia. Commercial surrogacy is not permitted in Australia, and any surrogacy arrangement must be altruistic. This means that one party cannot bargain with another party in order to persuade them to become a birth parent.

In some states, a birth parent may be entitled to be reimbursed certain expenses which they incur as a result of the pregnancy, such as medical expenses.

2. Surrogacy laws vary from state to state.

There is no uniform national legislation in relation to surrogacy arrangements in Australia. This means that the laws relating to surrogacy vary state to state. Accordingly, it is necessary for you to receive specialist advice which is tailored to where the child of a surrogacy arrangement will be born.

3. It is necessary for a person entering a surrogacy agreement to obtain legal advice and also independent counselling.

To ensure that each party entering into a surrogacy agreement is emotionally equipped to do so counselling is required.

Thereafter, and prior to entering into a surrogacy arrangement, each party must obtain independent legal advice regarding the surrogacy arrangement to understand the associated risks and processes.

4. Surrogacy arrangements are not enforceable.

Surrogacy arrangements are not enforceable in Australia. They are however evidence of each party’s intention that a biological parent may not ultimately be the legal parent of a child born of a surrogacy arrangement. In some states, surrogacy arrangements may be able to be enforced in relation to the reimbursement of any expenses, such as medical expenses, which a birth parent has incurred as a result of the pregnancy/birth.

5. After a child of a surrogacy arrangement is born, you may not be the legal parent.

There are complex presumptions which apply in relation to parentage in Australia. A birth mother is considered to be a legal parent until the making of a Parentage Order by a Court, as envisaged by a surrogacy arrangement.

There is also a presumption that any person who is married to, or in a de facto relationship with, the birth parent is also a legal parent of a child born of a surrogacy arrangement.

If you are considering a surrogate, or have been asked to be a birth parent, it is important to obtain independent legal advice to fully understand your options and position at law. Please contact one of our family law specialists in Canberra on (02) 6225 7040 to make an appointment.

ROBINSON + McGUINNESS FAMILY LAW – ‘FIRST TIER’ IN DOYLE’S GUIDE FOR 2021

The Doyle’s Guide celebrates leading law firms and lawyers who have been acknowledged by peers and by the legal profession for their expertise within their field.

We are proud to announce that Robinson + McGuinness has once again been recognised as one of Canberra’s First Tier Leading Family & Divorce Law Firms.

Members of the Robinson + McGuinness team have also been recognised for their excellence in the family law field. Our directors, Kevin Robinson and Sally McGuinness, have been recognised as Preeminent Leading Family & Divorce Lawyers. Kevin has also been recognised as a Preeminent Leading Parenting, Custody and Children’s Matter Lawyer for the fifth year in a row. Our Senior Associate, Anna-Kate Visser, was recognised as a Recommended Leading Family & Divorce Lawyer and a Recommended Leading Parenting, Custody and Children’s Matter Lawyer. Our Associate, Ellen Russell and our Lawyer, Peta Sutton, were both listed as Family Law Rising Stars.

We are extremely grateful for the recognition and we congratulate our team on their achievements!

You can find the full listing here.