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News

The proposed overhaul of the Australian Family Law System – What is on the table?

October 30th, 2018

When it comes to family law in Australia, much change is on the horizon.  On 2 October 2018, the Australian Law Reform Commission (“ALRC”) released its discussion paper (DP 86) which raises some significant changes being contemplated to the Australian family law system.  The discussion paper is a result of an extensive review by the ALRC which commenced on 1 October 2017.

124 proposals for change are made, and 33 questions are asked about the Australian family law system.  Some of the proposed changes remedy what many agree are obvious deficiencies in the current system.  Other proposals will no doubt draw extensive comment from the community and the professionals who work in this sphere.

For example, the rollout of a national education and awareness campaign regarding the family law system (Proposal 2-1) and the establishment of Families Hubs where people can access advice and support services (Proposal 4-3) should greatly assist the masses of people navigating the system each year.  This in turn will hopefully alleviate some of the current pressures on the Family Law Courts.

Substantial redrafting of the Family Law Act 1975 (Cth) and other legislation is proposed to simplify that legislation and increase readability (Proposal 3-1).  In an area of law with a significant number of self‑represented litigants, such a proposal may be seen as worthy of further consideration.

The current “best interests test” in parenting matters is proposed to be reframed as “safety and best interests” which is in line with the primary considerations set out in the current legislation (Proposal 3-3).  Changes are also proposed to the way in which Judges assess what orders or parenting arrangements are in a child’s best interests (Proposal 3-5).

The current requirement to attempt family dispute resolution prior to commencing court proceedings regarding children’s matters is proposed to extend to property and financial matters, with specific exceptions (Proposal 5-3).  This is consistent with current best practise guidelines and, in the writer’s experience, the reality of most property matters.

“Specialist court pathways” are proposed including a simplified small property claims process, a specialist family violence list and the Indigenous List (Proposal 6-3).  A “post-order parenting support service” is also contemplated (Proposal 6-9).

The creation of a “children’s advocate” (Proposal 7-8) and the requirement to give a child the subject of Court proceedings the opportunity to express their views (Proposal 7-3) are two proposals which could reasonably be expected to draw support from a large sector of the community, particularly those who have experienced such litigation firsthand.  A children’s advocate would be a social science professional with expertise working with children who would, amongst other things, assist the child in expressing their views (should they wish to do so), keep the child informed about the proceedings and explain any decisions made (Proposal 7-8).

Following the discussion paper, the ALRC will prepare a final report recommending reform of the Australian Family Law System by 31 March 2019.  Read the discussion paper here.  To make a submission email info@alrc.gov.au.

For more information about the family law reforms or any other family law issues, please contact a member of our family law team.

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Is superannuation included in your family law property settlement?

October 24th, 2018

The simple answer to this question is – yes.

Since 2002, parties’ superannuation interests have been treated as property that is available for distribution in family law property settlements.  In some relationships, superannuation will be the most significant asset in the property pool.

Superannuation is treated slightly different to other property in a property settlement as it generally cannot be accessed by the parties to the relationship unless they meet certain eligibility criteria (for example they reach the age of retirement).

Whilst superannuation cannot be accessed by the parties until they meet certain eligibility criteria, there are specific rules that permit the superannuation fund of one party to a relationship to allocate or transfer a lump sum or percentage of that party’s superannuation to the superannuation fund of the other party as part of the property settlement.

There are strategic considerations that we take into account when advising our clients on whether or not to include a superannuation split in their property settlement.

If you would like advice on your family law property settlement contact our Cairns family lawyers today.

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A gift for consumers in time for Christmas

October 23rd, 2018

In a win for consumers, the Commonwealth government passed legislation on Thursday providing for greater consumer protections in relation to gift cards.  It is expected this legislation will come into force on 1 November 2019.

The new laws provide that gift cards will now be required to have a minimum expiry period of three years and also ban most ‘post-supply’ fees for gift cards and vouchers.

What is a gift card?

While many of us would expect that laws on gift cards will only impact big business, the definition used in the legislation potentially creates a much broader application.

A gift card is defined to mean ‘an article that is commonly known to be a gift card or gift voucher, whether in physical or electronic form and is redeemable for goods or services.’

While this definition is quite broad and uncertain, future clarification is expected to be provided through regulations.* In the meantime, parliament has provided the following comments in relation to interpreting gift card:

“Gift cards may be redeemable in a single store or across multiple different businesses. They are generally defined with reference to a dollar amount or as being redeemable for a specific good or service and cannot have additional value added to them after they have been supplied. Gift cards are also generally not redeemable for cash beyond a minimal amount in change.”

As these provisions have a broad application, you should consider carefully whether they apply to you or your business.  It is not necessary for a card to be purchased and given to someone else – a card used by the purchaser can still be a gift card.   It is possible that ‘gift card or voucher’ will apply to most pre-paid services such as pre‑purchased passes for entry to a venue, or provision of services such as classes at a gym.

The new laws

The most significant change is that gift cards must now have a minimum expiry period of three years.

The expiry information must be prominently displayed on the card itself.  This can be either the expiry date itself, or the supply date and a statement about the period of validity.  Even where a gift card has no expiry date, this must be displayed on the card or voucher.

The new laws additionally prohibit charging of certain fees after the card is supplied.  Again this provision is drafted broadly and currently forbids all post-supply fees except those prescribed by the regulations.

The draft regulations currently allow the following fees or charges:

  1. for making a booking;
  2. for disputing a transaction;
  3. for exchanging currencies;
  4. for replacing a stolen, lost or damaged card; and
  5. payment surcharges.

While this is only a draft list, it seems parliament only intends to allow administrative fees. Monthly fees or other fees that are deducted automatically without explicit communication of the request or demand are prohibited.

Final thoughts

Business owners will not know exactly what they need to do to prepare for these new laws until the regulations are finalised and registered, which should be prior to 1 November 2019.  However, it will be worthwhile considering how this requirement might potentially change you business and what administrative changes might be required, so that you are ready to comply once the laws come into force.  In many instances the changes required for businesses may be minor.  The new laws will apply to all gift cards issues on or after 1 November 2019.

A failure to comply with these new laws carries significant financial penalties.  In the case of a corporation it could be up to $30,000, while individuals face penalties of up to $6,000.

If you have any doubt about your compliance obligations, or whether these new laws will apply to you, please do not hesitate to contact our commercial team on 07 4036 9700.

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Changes to binding child support agreements

October 12th, 2018

On 1 July 2018, a number of changes came into effect in relation to binding child support agreements.  Before highlighting the important elements of these changes and their significance, it is useful to look at what exactly a binding child support agreement is.

What is a child support agreement?

A child support agreement is an agreement made between the parents of a child or children as to the way child support will be paid, and in some cases, how much child support will be provided.

Child support agreements in Australia fall into one of two categories:

  1. limited child support agreements (limited agreement); or
  2. binding child support agreements (binding agreement).

A limited agreement is registered with the Department of Human Services.  There must be a child support assessment in place and the amount of child support paid annually under the agreement must be at least equal to the child support assessment.  The limited agreement can only remain in place for a maximum of three years.

A binding agreement can be entered into without a child support assessment in place.  The parents are responsible for determining all aspects of the agreement.  Both parents must obtain independent legal advice before entering into a binding agreement. The binding agreement will remain in place until it is either terminated by agreement of the parties or court order or, under the new changes, the care arrangements change, as set out below.

The changes

The new changes provide for the termination of binding agreements when the care arrangements for the child/children have significantly changed since the agreement was entered into.

Where the person receiving child support stops having at least 35 per cent of all overnight care of the child/children, the agreement will be suspended.  In this event the person becomes a ‘former carer’, and unless they return to having at least 35 percent care of the child/children within 28 days, or in some circumstances 26 weeks, the binding agreement will be terminated.

The circumstances where the suspension period will be 26 weeks are:

  1. where agreement specifically allows suspension for longer than 28 days;
  2. all parties to the agreement request a longer suspension; or
  3. the registrar finds that there are special circumstances warranting the extension of the suspension period.

Once the suspension period is over, if the Department of Human Services has not been notified that care arrangements have returned to normal, they will contact the parties to inform them that the agreement is terminated from the date the person receiving child support stopped having at least 35 per cent care.

Parties will then need to either enter into a new child support agreement or apply for an assessment of child support through the Department of Human Services.

Key takeaways

So what is the importance of these changes and why should you be concerned?  These changes apply retrospectively which means that if you already have an agreement in place these changes will apply to your agreement.

In light of these changes we recommend that anyone who already has agreements in place seek legal advice to ensure that their agreements and arrangements still comply after the changes to the law.  For those considering entering into an agreement, any agreement made should be made in light of these changes.  Our Cairns family lawyers can review your current agreement and provide you with strategic advice.

Our Cairns family lawyers have extensive experience in dealing with child support agreements and child support. Should you have any questions about this article, child care arrangements or any aspect of family law, please do not hesitate to contact us.

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