Court Delays

November 26th, 2014

The delays in the Family Law Courts remain too long.  I have previously written in this blog about a way to reduce them.  Let’s stop Case Management.  Leave the management of cases to the litigants and only call upon court assistance where that fails.  Granted, that will fail in a number of matter, however, there will be a number of other matters which can proceed based on compliance with the Rules without court directions.  Time and cost saved.

Family Court Appointment

November 18th, 2014

The rumour mill is churning gossip about a new judicial appointment to the Family Court.   Names have been mentioned but I won’t repeat them here.

It’s not clear if there has been any consultation with interested parties.  I can only hope there is before any appointment.

Domestic violence: what is it, what do I do and can the Courts help?

July 30th, 2014

What is it?

Many people think that domestic violence has to involve serious physical violence, but the definition is in fact much broader. The definition of domestic violence is set out in the Domestic and Family Violence Prevention Act 2012 (Qld), and includes:

  1.  Physical or sexual abuse;
  2.  Emotional or psychological abuse;
  3.  Financial abuse;
  4.  Threats or coercion;
  5.  Any other controlling or dominating behaviours which cause a person to fear for their safety or wellbeing or that of another person.

This means that anything from yelling or swearing at someone to unreasonably withholding access to finances, monitoring text messages or emails or even injuring or the family pet can all constitute domestic violence.

What do I do?

Your first priority must always be your safety and the safety of any children in your care. If you are experiencing domestic violence, you should:

  1. Contact the police. If you feel unsafe, you should always call 000 immediately. The police can intervene and, if necessary issue a Police Protection Notice on the spot to require a person to leave a property. The police can also bring an application for a Protection Order on your behalf if they consider it appropriate.
  2. Seek a Protection Order. This is also known as a Domestic Violence Order (or, in other Australian States, an Apprehended Violence Order or Intervention Order). You can seek a Protection Order by attending any Magistrates Court during its opening hours and filling in an Application for a Protection Order. If you ask and the Court considers it appropriate, they can issue a Temporary Protection Order on the spot without notifying the perpetrator of the domestic violence and which takes effect immediately. This is usually reviewed at a Court “mention” within a week or two of the Temporary Protection Order being made.
  3. Seek legal advice. We can assist you with preparing your application for a Protection Order and represent you at Court to ensure that the Orders made protect you as completely as possible.

Can the Court help?

The Court can issue a Protection Order only if the domestic violence occurred between persons in a “relevant relationship”, which includes married, de facto and separated couples, or between one of those parties and an a child, relative or associate of the aggrieved.

The person who has experienced domestic violence is known as the “aggrieved”, and the person who has committed domestic violence is known as the “respondent”.

The Court has a range of options open to it. It can either make the standard Order (that the respondent be of good behaviour towards and not commit domestic violence upon the applicant) or add any number of conditions, including:

  1. That the respondent cease living at a property;
  2. That the respondent hand over any weapons in their possession;
  3. That the respondent not come within a certain distance of the aggrieved;
  4. That the respondent not contact the aggrieved; and
  5. That the respondent not locate the aggrieved.

These Orders are generally made subject to any Order of the Federal Circuit Court or Family Court relating to parenting matters, although not always.

For further advice as to whether a Protection Order is appropriate in your particular circumstances, please contact our family law team.

An article by Elizabeth Mathews of our family law team.

Arbitration

July 24th, 2014

Arbitration came to the family law arena as a boom idea that went almost nowhere.

Last week I was contacted by a solicitor asking me if I would be prepared to arbitrate a property matter. It seems the arbitration idea is once again going to be promoted.

As appointments to the family law courts dry up, waiting lists throughout the country will expand.  In some places the wait is now 3 1/2 years for a trial.

Arbitration remains a great idea and like all great ideas they have their time. I suggest it is nearing.

James Steel – Partner

July 9th, 2014

I am delighted to report that James Steel has been appointed a Partner in the Barry.Nilsson. Lawyers family law team.

Lots of hard work, inspired advice and contented clients made this promotion inevitable.

Major Change?

July 4th, 2014

In a recent hearing of an application to set aside a Binding Financial Agreement, Justice Tree raised the question as to whether Queensland’s Limitation of Actions Act 1974 (Qld) ought be applied to Binding Financial Agreements, such that applications to set aside such Agreements, even if brought within the timeframe set out in the Family Law Act 1975 (Cth), may nonetheless be out of time, requiring parties to seek an extension of time from the Court or potentially barring a party from challenging such an Agreement.

Justice Tree also raised the issue of whether a party could be taken to have affirmed a Binding Financial Agreement by their conduct pursuant to ordinary common law principles and whether this could negate an application to set aside an Agreement.

Justice Tree acknowledged that these issues had not yet been ventilated in the case law dealing with Binding Financial Agreements.

The ramifications of these observations are potentially vast.  A lot more will be heard on this issue.

Childbirth Costs

March 27th, 2014

My colleague, Elizabeth Mathews, has writtten an interesting note on a recent case:

Sharing the pain of childbirth – father ordered to pay $14,000 to mother for costs of pregnancy

 A recent decision of the Federal Circuit Court of Australia implemented a rarely used principle that a father’s financial responsibility for a child extends to the costs incurred by a mother in having that child.

 In Abrahams v Simm [2014] FCCA 67, the father of the subject child was ordered to pay $14,000 towards the mother’s reasonable medical expenses and to support her for a period of two months prior to and three months following the birth.

 The relevant provisions are sections 67B and 67C of the Family Law Act 1975 (Cth), which state that a father of a child who is not married to the child’s mother is responsible for the following expenses:

  • The maintenance of the mother for the childbirth maintenance period (usually two months prior to and three months following the birth of the child) ;
  • The mother’s reasonable medical expenses in relation to the pregnancy and birth; and
  • Funeral expenses for either the mother or the child if either passes away during or as a result of the pregnancy or childbirth.

 This was in a situation where the parties were in a de facto relationship for only eighteen months prior to the birth of the child.

 Notably, the Court did not agree with the mother’s assertions that she ought be paid $27,061, $15,610 of which was for her maintenance before and after the birth of the child, and $11,451 of which was for her medical expenses. The Court rejected that the father should have to pay for costs including a “doula” birthing partner, a settling swing and the costs of the mother’s private health insurance. The Court also noted that the father should not have to bear the full cost of the mother’s lost income and outgoings (which included a substantial mortgage) during the childbirth maintenance period, but should rather pay one-half of such expenses. The Court subsequently limited the mother’s reasonable medical expenses to $7,000, and allowed for $7,000 in spousal maintenance for the period two months prior to and three months following the birth of the child.

 In accordance with the Court’s treatment of government benefits in ordinary spousal maintenance cases, the fact that the mother was to receive Family Tax Benefits A and B and a “Baby Bonus” of $5,000 was not taken into account in assessing her reasonable needs.

More change

February 20th, 2014

Long overdue, we have introduced an estate planning practice to Barry.Nilsson.  Accredited Succession Law Specialist and Special Counsel, Jarrad Mobbs, heads up this division.

This is a neat fit with our family law practice.

Sydney

February 17th, 2014

Barry.Nilsson. have just announced the opening of our Sydney office commencing today (17th February 2014).

Nick Andrew will head up the office.  Initially our focus will be insurance law, complementing our strong Queensland based insurance practice.

It is our intention to grow our Sydney presence to ensure the recognition of Barry.Nilsson. as the leading national insurance law firm.

Recognition

February 14th, 2014

The New Year has introduced a number of changes to Barry.Nilsson.

Our new offices have created a strong impetus for 2014.

Enforcing that impetus was recognition from Doyle’s Guide that Barry.Nilsson. lies in the “First Tier” (of 2) Family Law firms in Queensland.