Volume 11, Issue 2 October/November 2008

We are moving!

After moving into Kay House at 35-39 Scarborough Street on the 1st May 1984, I am moving my practice to Level 4, 64 Marine Parade, Southport. This building is on the corner of Marine Parade and Cloyne Road just up from the Central Queensland Uni – the old Star of the Sea High School. Plenty of parking is available in Marine Parade and surrounding streets as well as across the road at the Olympic Pool carpark.

Whilst the building is about 20 years old, having been built by the same builder who built Kay House – Noel Gordon – it is a modern and spacious building. We look forward to seeing you there. We anticipate the move will occur on the weekend of the 22nd and 23rd November.
The telephone and facsimile numbers, e mail address and PO Box will all remain the same.

For more information, visit: www.charlescooperlawyers.com/moving

New De Facto Laws

As foreshadowed in my numerous newsletters for some time, the Family Law Amendment (De Facto Financial Matters & Other Measures) Bill 2008 (“the Bill”) has passed through the Senate of the Federal Parliament on the 16th October 2008. The legislation, which I have dealt with in my previous newsletters – see the last one Volume 11, Issue 1 July/August, 2008 – will return to the House of Representatives for approval and will then come into effect soon thereafter.

Once that legislation comes into effect, Part 19 of the Property Law Act 1974 will no longer apply to the division of property between parties in de facto relationships who separate after the day the legislation is proclaimed.
For those couples who separate prior to the legislation being proclaimed, the Property Law Act 1974 will still apply.

In Queensland the major differences will be that:

• De facto partners will now be able to litigate their children’s matters and their financial matters in the same Court ie., the Federal Magistrates Court or the Family Court, and will not be forced to litigate in the State Courts and Federal Courts which should mean a substantial saving in legal fees; and
• De facto spouses will now be able to seek spousal maintenance against their former de facto partner whereas they could never claim that under Part 19 of the Property Law Act 1974.

In other States it will make a much more significant difference because the new legislation is so much more generous than the de facto legislation in every other State of Australia except for Queensland. As I have repeatedly pointed out, Queensland has had the most generous de facto legislation since Part 19 of the Property Law Act was introduced on the 21st December 1999. As a result of the de facto legislation now being contained in the Family Law Act 1975 as amended, the relatively simple and informal recognised agreements for pre-cohabitation and separation divisions will not be available to parties who commence residing together in de facto relationships after the legislation comes into effect.

They will have to enter into the same sort of agreements as married couples do ie., pre-nuptial agreements, cohabitation agreements and separation agreements under the provisions of the Family Law Act. Those agreements – Binding Financial Agreements (BFAs) have much more onerous formal requirements than the recognised agreements, although most lawyers have taken steps to ensure that they have complied with the more onerous requirements of BFAs when settling recognised agreements over the last few years to avoid the risk of the recognised agreements being set aside as I was able to do for one of my clients in a Supreme Court case in 2005.

As you will have seen from earlier newsletters this year, there has been an outcry in respect of the BFAs and their validity in light of the Full Court decision in Black v Black which was handed down at the beginning of this year where a pre-nuptial agreement was set aside because the drafter of the agreement had not completely followed the legislation in the wording of the certificates and in the wording of the advice that the parties to the agreement received prior to the agreement being entered into.

Currently the Family Law Section of the Law Council of Australia is still lobbying the federal government to change the legislation to make the requirements less onerous in respect of BFAs which are currently being used for the purpose of speedy and effective finalisation of financial matters between married parties.

The Federal Magistrates Court

The Federal Magistrates Court continues to be overrun with Family Law work. On the recent circuit to the Gold Coast on Friday the 24th October, Federal Magistrate Burnett sitting in the Magistrates Court at Southport had some 29 Family Law matters which means 58 people and probably 58 lawyers(!) to deal with, and he only had until 1:00pm as he had another Court commitment.

The facilities in the Southport Magistrates Court are not conducive to negotiation on the Federal Magistrates Court circuit because there are very few interview rooms, a large number of people and a Courthouse that in any event is busy dealing with State issues. I do not normally use the Federal Magistrates circuit at Southport for anything, I only get taken there by other people who issue their applications and make them returnable at Southport. The Federal Magistrates Court in Brisbane is a far preferable venue for litigants and lawyers.

The Child Support Agency

The Child Support Agency is busy taking action to recover arrears of child support and is proclaiming that it is having a great deal of success in recovering money from liable parents who try to leave Australia with child support debts outstanding.

If you have a substantial child support debt in Australia and intend leaving to go overseas, don’t be surprised if you end up with a departure prohibition order placed against you leaving the country.

This can be embarrassing if you do not know it happens, and most people do know it has happened, if you turn up at the exit point at the airport and are told you cannot leave the country.

More importantly for people who work outside Australia and who have blissfully ignored their child support obligations, when they return to Australia to visit family and friends they can find themselves, as one of my client’s recently did, served with a departure prohibition order thereby preventing them from leaving the country until they have sorted out their matters with the Child Support Agency.
If you come here for a short visit and you have got a job, family and commitments overseas, you do not have much room to negotiate with the Child Support Agency if they put a departure prohibition order on you – you are going to have to pay before you go.

So if you are intending on coming back to Australia and you have a substantial child support debt, do not be surprised if you are not allowed to leave the country. You should make sure you have got sufficient funds available to you to be able to deal immediately with the Child Support Agency if you are going to come back here otherwise you may not be leaving the country.

Jurisdiction of the Family Courts

Many people do not understand that whilst the Courts in Australia do not have jurisdiction over property and people outside Australia, they have jurisdiction over people within Australia.

Thus, if you are within Australia and you are litigating before a Court here and the Court makes a decision or is considering making a decision affecting your property overseas, the Court can do that because you personally are within Australia. The Court can also stop you leaving Australia so that you are effectively forced to comply with the order.

Religious Issues

Religion is becoming an issue in respect of children’s cases and it has been argued in a matter in which I am involved that the responsibility for the Court to make orders which are in the best interests of the welfare of the child impacts on the church or churches the children can be taken to where both parties do not necessarily agree to the particular religion being adopted for the child.

It is more likely that mainstream type religions are not going to be affected by this sort of litigation, but anything a bit out of the ordinary is likely to attract the attention of a dissatisfied ex spouse and a litigious solicitor.

In particular belonging to churches which have been exposed on television or in the newspapers can be disadvantageous to you if you are involved in children’s disputes.

The likely ramification is that you may be stopped from taking your child to that particular church until the matter is finalised, or perhaps after the finalisation depending on the evidence at the final hearing. It all depends on the level of dispute between the parties and of course the nature of the faith of the church.

Family Law Matters Generally

We continue to see a wide range of new matters coming in through the door every day. I often think that the Federal Magistrates Court, which was started in 2000, is like the baseball ground in the film “Field of Dreams” where the hero, who was played by Kevin Costner, said of the baseball ground: “If you build it they will come”.

I never cease to be amazed at the huge lists we are seeing in the Federal Magistrates Court every day. The Family Court lists have dropped right off but they are dealing with the more complex and difficult matters. There is currently a parliamentary enquiry into the Family Court system and it is likely there are going to be substantial changes in the near future with an amalgamation of the two Courts and Federal Magistrates becoming Judges of the Family Court. This will address numerous issues, including:

• the unwieldy dual system that is operating at the present time; and
• the need to replace numerous Family Court judges who have retired or are retiring.

There have been some very high profile retirements of late in the Family Court and particularly in the Melbourne Registry. The retirement of Family Court judges is also affecting the number of judges available to sit on the Full Court ie., the Appeal Court, which is causing more delays in that jurisdiction.

A recent survey showed that the Family Court is not meeting any of its benchmarks in terms of performance and time limits. That can be very worrying if you are a litigant in the Family Court. We are hearing every day of substantial delays on judgments being delivered in the Family Court and in particular the Federal Magistrates Court.

Some of the Federal Magistrates have overwhelmingly large dockets ie. Court Lists, litigants who are appearing before them are having to wait inordinate periods of time to receive their judgments. This is totally unacceptable. That is another reason why you should always try and settle your matter and not leave it to a third party ie., a Federal Magistrate or a Family Court Judge to decide how you are going to settle your children’s issues or your financial matters.

CHARLES COOPER LAWYERS

Including:

Charles Cooper (Principal & Accredited Family Law Specialist), Sally Southwood (Accredited Family Law Specialist), Damira Hidic, Anish Rebello and Morgan O’Brien-Powell (Solicitors), and Hayley Condon (Trainee Solicitor).

The material contained in this CCL Family Law Newsletter is of the nature of general comment only. No reader should rely on it without seeking legal advice.

If you do not wish to receive further newsletters from our firm, please email: admin@charlescooperlawyers.com.au