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Exclusive use areas in community titles schemes

December 13th, 2018

We have seen a few examples recently of buyers not being aware of the truth about garden areas, balconies and the like which are exclusive use areas associated with their unit or townhouse.  Areas such as these are often overlooked in the negotiation of the sale, or worse still, the buyer assumes that they are included or is given incorrect information by the real estate agent.  They can have a big impact on the use and enjoyment of the property, and its value.

What is an exclusive use area?

An exclusive use area is a part of the common property of the community titles scheme which has been designated for the exclusive use of the owners and occupiers of a particular lot, through the by-laws of the scheme.  The by-laws will usually specify which lot has the benefit of the area, for what purpose, and any conditions or other requirements which apply to the use.  Examples of areas which are often the subject of exclusive use by-laws are:

  • car parks;
  • courtyards;
  • gardens;
  • balconies or patios; and
  • roof top areas.

Such areas are not always exclusive use areas – often they will be “on title”, and form part of the legal, freehold title to the lot.

How do I know whether an area is an exclusive use area, part of the lot, or neither?

You cannot tell, either from a title search of the property or from a physical inspection of the property what areas are included on the title, what areas are exclusive use, and what are just general common property.  It is not uncommon for an area of yard to be fenced off for a particular unit, or even for a deck to be built over it, but with the owner having no legal title or exclusive use of the area.

The only way to know what areas are included in the title to the lot, and what areas are exclusive use for the lot, is to obtain a copy of the registered survey plan and community management statement.  The survey plan will show where the boundaries of the lot are.  The plan may show that the lot is made up of several areas in different parts of the building – such as the residential unit on one level and a car park on another.  The community management statement contains the by-laws for the scheme.  If there are any exclusive use areas, they will be recorded here, in a by-law and on a plan showing the location and boundaries of the area.

Is exclusive use as good as the area being part of the lot?

No, not quite.  An owner of a lot with an exclusive use area does have the right to stop others from using the area, and the exclusive use right cannot be taken off them without their written consent, so it is quite secure, but it is not the same as owning the area.  Here are some of the advantages and disadvantages of exclusive use compared to legal title:

Advantages: 

  • Flexibility – provided the body corporate is co-operative, it is relatively easy to change the size or shape of an exclusive use area, or to transfer it to another owner or swap areas with another owner in the complex (particularly handy in the case of underground car parks).
  • Easy to create – new exclusive use areas can be created and allocated without having to mess around with the title to the lot or pay stamp duty.

Disadvantages: 

  • You do not own it – The area is still common property and still owned by the body corporate, so you will normally need permission from the body corporate to make any substantial changes or improvements – such as installing a storage shed or swimming pool in a yard.
  • You can only use it for the purpose for which it was granted – car parks can only be used as car parks and not for storage or building a shed. Private yards can only be used as yard, and not for adding another room to the villa.
  • You still have to maintain it – ultimately your rights will depend on what the relevant by-law says, but in most cases the person who has the exclusive use of an area is also obliged to maintain it. That will include an obligation to maintain gardens, trees, walls, decks and pergolas etc in the area.

What can go wrong?

As mentioned above, exclusive use rights are quite secure, so the main area where things can go wrong is where the reality of them does not match up with a buyer’s (or owner’s) intentions and expectations.  For example:

  • Is a fenced off yard around a unit or townhouse actually exclusive use for that unit or townhouse?
  • Is the car park being used by the seller the correct car park allocated to the unit? Sometimes car park numbers do not correctly correlate to the exclusive use allocations in the by-laws.
  • Is that nice, big garden around the unit exclusive use for the unit, or can anyone use it? If it is exclusive use, are you prepared to maintain it (including any large trees), or do you expect the body corporate to do so?
  • If you want to put a pool, shed or garage in the yard, can you do this, or will you need body corporate permission?

Not having exclusive use of an area which you thought would be included can adversely impact on your ability to use and enjoy the area, as well as the privacy of your lot, and ultimately its value.  On the other hand, being saddled with the care and maintenance of an exclusive use area which you do not really need can be an unwanted burden.

There is nothing in the standard contract used for community title lots which identifies whether there are any exclusive use areas allocated to the lot, or the extent of them.  At Miller Harris, we always do a search of the survey plan and community management statement to identify exclusive use areas.  Some other lawyers do not.  However, even if the searches are done, a lawyer is not going to know what you expect to be included unless you tell them, and it can be difficult to terminate a contract due to an unmet expectation with regard to exclusive use areas, except in very clear cases.  It is better to check them out and get it right before the contract is signed.

What should buyers do?

The old principle of “buyer beware” applies, so:

  • ask questions of the selling agent about what is included in the lot, and any exclusive use areas, when you inspect the property;
  • be aware that agents do not always get it right, so ask to see the plan and community management statement, or better still, get your solicitor to check these out before you sign;
  • if you have specific plans for the property, such as making extensions or additions to it, discuss these with your solicitor before you sign; and
  • even if you have already signed a contract, tell your solicitor if you expect any exclusive use areas to be included with the lot, especially if they were important to your decision to buy the property.

If you are looking at purchasing a unit or townhouse and need advice about exclusive use areas please contact Nigel Hales, Accredited Property Law Specialist and partner at Miller Harris Lawyers on 4036 9700.

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Self managed super funds – not just another trust

December 4th, 2018

Self managed superannuation funds (“SMSF”) have become quite popular investment vehicles in recent years.  It is, however, important to remember that they are not a “set and forget” investment, nor are they like other investments or even other trusts such as family discretionary trusts. The superannuation legislation imposes stringent restrictions on what a SMSF can and cannot do, and also requires a much higher degree of record keeping, auditing and reporting than other forms of trusts.  It is important that trustees of SMSFs keep on top of these obligations and seek professional support to ensure compliance with them.

A recent example of SMSFs trustees not paying any regard to his obligations, essentially treating the SMSFs as his own (or at least as being a financial resource for his family), and coming spectacularly undone as a result is the case of Hart v Commissioner of Taxation.  That case involved a review of a decision by the Commissioner to disqualify Mr Hart from acting as a trustee, investment manager, custodian or officer of a trustee of a superannuation entity. The Commissioner was alerted to the issues by the fund’s auditor issuing a contravention report to the Commission in relation to one aspect of the SMSFs conduct.  The list of the contraventions of the superannuation legislation which were alleged by the Commissioner, and upheld by the Administrative Appeals Tribunal, were extensive and included:

  • failure to lodge annual tax returns for four years;
  • mixing super assets with personal assets;
  • transferring a property from related parties in circumstances where it was not permitted;
  • transferring the property at less than market value;
  • failing to register the property in the name of the trustee;
  • transferring the property subject to an existing mortgage;
  • making several cash payments to super fund members;
  • granting a rent free lease over the property to a related entity;
  • a dodgy investment in an overseas company, related to the tax payer;
  • providing money to allow a related entity to build a shed on the property;
  • the fund ceasing to be a SMSF because it at one stage had five members, when only four are permitted;
  • failing to ensure that the SMSF had the sole purpose of providing retirement benefits to members.

The tribunal found that the breaches were established, and the Commissioner’s decision to disqualify Mr Hart was correct.  We shudder to think what the tax implications of all this might have been, but it no doubt involved reassessments of tax payable by the fund and by the beneficiaries of it, with significant additional tax, and probably penalties payable.

The lesson to heed from this is that if you have a SMSF, do not treat it like your own money, or even like any other trust, ensure that your accountants are on top of the reporting requirements, and seek advice before you enter into any significant transactions, even if (or perhaps especially if) they are only “in house” transactions with related parties.

For more information, speak with our SMSF legal expert Nigel Hales.

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3 tips for separated parents to make the most out of the Christmas holidays

November 30th, 2018

  1. Communicate and plan ahead

After separation many parents will put in place a routine for their children.  This routine may not initially include arrangements for school holidays and special occasions such as Christmas Day.

Christmas is often a challenging time for separated families.  The key to reducing stress and the impact of separation on your children is early and respectful communication.  Aim to discuss and agree on arrangements for the time the children will spend with each of you and other family members over the holidays and Christmas Day.

If you are considering taking time off work and travelling or camping with your children, these plans should be discussed with the other parent beforehand.  You should also make sure the other parent is aware of any festivities that your children may be involved in, for example school concerts and plays.

Planning ahead will enable your children to have the best day possible and will reduce the risk that your children will feel ‘caught in the middle’ this festive season.

If the other parent is being difficult and you feel that this may be sensed by your children and make them unhappy, you may consider inviting the other parent to a mediation so that you can discuss and focus on putting in place arrangements for the holidays to reduce the impact on your children.

  1. Gift giving

Consider coordinating your gift giving with the other parent.  It is not uncommon that during the relationship one parent will take responsibility for Christmas shopping.  Now that you have separated it is likely that you are both out hunting for the perfect present for your children.  Consider discussing with the other parent what you are thinking of buying before hitting the stores, to avoid duplication.

If your child brings along with them a gift that they have received from the other parent, be positive and encouraging.  Remember Christmas is about the children. It is also a good idea to ensure that your child returns with the gift the next time they see the other parent.

Remember what the Christmas spirit is all about.  Whilst you may envisage gifting your former spouse a lump of coal this year, consider how assisting your children to pick out a small present for the other parent, may help and support them to adjust and feel more comfortable with the changing family dynamic.

  1. Celebrate Christmas Day

After separation, Christmas Day will not feel the same for anyone in your family.  That doesn’t mean that you cannot enjoy Christmas (you may just need to adjust your expectations and make some changes).

For many separated parents, Christmas Day can feel very lonely.  Especially if you find yourself waking up alone Christmas morning or you are not putting the kids to bed Christmas night.  This can be particularly hard where you are used to certain family traditions.

Surrounding yourself with loved ones and family can reduce some of the feelings of emptiness.  Consider making arrangements to stay with loved ones and continue to celebrate and enjoy your traditions.  You may also consider creating new traditions!

If you would like to discuss your parenting arrangements with one of our Cairns family lawyers, contact us today on 4036 9700.

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Australian Federal Police uncover child stealing ring in Australia

November 29th, 2018

Child abduction has recently been in the spotlight after the Australian Federal Police made a number of arrests in relation to the involvement by individuals in a child stealing ring that has been operating in Australia.

The individuals involved have been charged with criminal offences of conspiracy to defeat justice and child stealing, for their assistance in continually moving mothers and their children within Australia to avoid detection by authorities and prevent the return of the children to their extended family, in breach of court orders.

A recent decision of the Federal Circuit Court of Australia where a mother who went on the run in Australia with her children was imprisoned, as was the grandmother who assisted, shows that the courts are also cracking down on parental child abduction.

The Federal Government have recently amended the Family Law Act in relation to international parental abduction.

In light of the recent media attention, court decisions and upcoming legislative changes, it is timely to reflect upon how the law restricts travel with children after separation.

So what is child abduction? 

Child abduction occurs, broadly speaking, when one parent travels or relocates with their child:

  1. domestically in breach of court orders, or outside of their time with the child; or
  2. internationally in breach of court orders, or without the prior written consent of the other parent.

There are a variety of potentially serious consequences for making a mistake when travelling with your child after separation, including:

  1. If orders have been breached, the non-breaching parent may commence contravention proceedings seeking that the child be returned to them and then also seek an amendment to the orders in relation to the care arrangements for your child. The party in breach may also be found to be in contempt of court.  The court has a variety of powers to punish a person found in contempt, including order the payment of a fine or imprisonment.
  2. If there are no orders in place, court proceedings may be commenced for the return of the child and also seeking orders about the care arrangements for the child in favour of the non‑abducting parent.
  3. The Family Law Act makes it a criminal offence to travel with a child overseas in breach of a court order, or while there are current proceedings in relation to the child before the court or an appeal. If found guilty, a person faces up to three years imprisonment.  The new amendments to the Family Law Act that will come into effect from a date proclaimed or 26 April 2019 will also make it a criminal offence where a parent travels overseas with a child with the consent of the other parent, but fails to return the child to Australia as agreed or in accordance with orders.  These amendments also introduce a defence, where a parent abducts a child because they believe it to be necessary to escape family or domestic violence.
  4. There are also different state based criminal offences for ‘stealing’ and ‘abducting’ a child which not only the abducting parent faces, but also any other person who knowingly assists that parent.

The key lesson to be learnt is that the law on travelling with children after separation is complex and there are very serious consequences for getting it wrong.  You should obtain legal advice from an experienced family lawyer about your situation.  As a golden rule, written consent (by statutory declaration) from the other parent should be sought, unless there is a court order which allows the travel.

To understand what you should do if your child is not returned to you, ways in which you can prevent your child from being abducted and what to do if the other parent will not consent to travel, we have provided further information below.

What should you do if your child is not returned?

If your child is not returned to you, you should seek immediate legal advice about filing an urgent application in the court for the recovery of your child.

A recovery order permits the Australian Federal Police to recover your child and return them to you.

If the location of your child is not known, then there are other orders such as a location order, a Commonwealth information order and a publication order which can assist with locating your child.

If your child has been relocated outside of Australia, then you should contact a lawyer immediately.  Australia is a party to an agreement called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), which permits the Attorney-General’s department to commence proceedings on your behalf in other countries who are also a party to the agreement to seek an order for the recovery of your child.  Such applications can be time sensitive.

Ways you can prevent your child from being abducted

If your child does not have a passport, then it is a requirement for the issue of an Australian passport that any person with parental responsibility consent to the issue of the passport.  However, an additional measure that can be taken is to lodge an alert with the Department of Foreign Affairs and Trade if you consider there is a risk that your child may be issued with a passport without your consent.

If your child does have a passport and the passport is not secure, or you are concerned that a passport may be issued by another country, an urgent application can be made to the court to secure the passport and also to place the child on the Family Law Watch List which will authorise the Australian Federal Police to prevent your child from being removed from Australia via air or sea at all departure points.

What if the other parent does not consent to international travel?

You cannot travel internationally with your child without the other parent’s written consent.  If the other parent does not consent to your child travelling with you, then you can make an application to the court seeking an order that your child be permitted to travel with you.

For more information about this issue and all other family law matters please contact our family law solicitor Rochelle Ryan on 07 4036 9700.

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Get a grant to boost your small business

November 21st, 2018

A new round of the Small Business Entrepreneur Grants Program has just opened on 15 November.  The program offers grants of up to $5,000.00 to relatively new small businesses to obtain training, advice and services in the following categories:

  • mentoring/coaching;
  • business and strategic planning;
  • professional business advice (information technology (IT), legal or financial); and
  • marketing strategy development (branding strategies, social media/digital strategies, market research).

The grant is for “matched funding” on a reimbursement basis, so business owners are required to pay for the full cost of the project, and then will be reimbursed for 50% of those costs.  You are not required to commit to the project before you know the outcome of your grant application.  The minimum grant is $1,000.00 and maximum $5,000.00, so it follows that the project cost needs to be between $2,000.00 and $10,000.00.  The project must be finished within three months of approval of the grant.

Eligibility criteria

To be eligible, the business must:

  • have a business name registered within the last four years;
  • have fewer than 20 employees at the time of applying for the grant;
  • have an active Australian Business Number (ABN);
  • have a Queensland headquarters (main place of business in Queensland, as registered on its ABN); and
  • not be insolvent or have owners/directors that are an undischarged bankrupt.

Applications are open from now until 13 December 2018.  More information is available here.

How the grant can help

Starting out in business can be difficult.  Most people start out with a great idea, a bucket load of enthusiasm, but not a lot of business knowledge.  There is a lot to do, a lot of bills coming in and often not much revenue in the early stages.  Unfortunately seeking professional advice and assistance is often a low priority and unnecessary expense, but this advice can make the difference between success and failure.  The small business entrepreneur grant offers the opportunity to address some of the things which you probably have not had the time or money to do, and to put your business on a solid footing to be successful in the longer term.  It allows the opportunity to put together a package of services from multiple disciplines to further develop and enhance your business.

How we can help

Here are a few ways in which we can help:

  • business structuring advice, including partnership agreements and shareholder agreements;
  • preparation of trading terms and credit applications;
  • preparation of employment agreements and associated policies;
  • reviewing your employment arrangements to ensure that your employees are correctly categorised, the correct award is being applied and you are paying correct wages;
  • confidentiality agreements and protection of intellectual property;
  • preparation of privacy policies;
  • advice about leases, to secure your business premises; and
  • advice about finance documents and guarantees.

We can also put you in touch with advisors in other fields, such as accountants and marketing consultants so that a comprehensive business development proposal can be put together and used as a basis for a grant application.

Contact us

If you would like assistance with a grant application, have any questions, or would like a quick business legal health check, please contact one of our commercial law partners:

Sean Walsh, Partner, Accredited Specialist Business Law
Ph: 4036 9719  seanwalsh@millerharris.com.au

Nigel Hales, Partner, Partner, Accredited Specialist Property Law
Ph: 4036 9731  nigelhales@millerharris.com.au

Melissa Nielsen, Partner, Property and Commercial
Ph: 4036 9752  melissanielsen@millerharris.com.au

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Is your ex entitled to property that you acquire after separation?

November 16th, 2018

The simple answer to this question is – yes.

Generally any property that is acquired after separation and before a final property settlement will be included as an asset in the property pool available for distribution even if the asset is held in only one party’s name.

A recent case examined this question in the context of an inheritance by the husband of $715,000.00 from his late brother’s estate after separation.

Whilst the parties had separated almost five years prior to the husband receiving the inheritance they had not applied for a divorce nor finalised their property settlement at the time the inheritance was received.

The court included the inheritance in the property pool that was available to be distributed to the parties in their property settlement.  This case serves as a warning that just because assets are acquired after separation does not mean that they are immune from the property settlement process.

It is not uncommon for clients who see us to have acquired significant assets after separation, such as purchasing a new house.

We recommend that parties seek legal advice and formalise their property settlement early after separation to prevent situations like the above from arising.  Contact our Cairns family lawyers today to obtain strategic legal advice on your family law property settlement.

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Accountants and engineers: a professional opinion

November 12th, 2018

Two recent decisions from Courts of Appeal provide an important reminder that it is a professional’s responsibility to do more than blindly follow the instructions of his or her clients.

With the pace of business today, and demanding regulations and competition, it can be easy to forget that professionals are asked to provide more than just a service or product, they are asked to exercise their professional opinion using skill and expertise.

While there are numerous cases involving lawyers who fail to be anything more than a mouthpiece for their clients, there are considerably less that deal with the professional responsibility of accountants and engineers.

Despite this, we should not forget that accountants and engineers are also required to do more than mindlessly follow client instructions.  The two recent decisions discussed below remind us of the significant consequences that may result from failing to exercise and act upon a professional opinion, and the court’s reluctance to accept ‘following instructions’ as an excuse.

The customer is not always right

Actron Investments (“Actron”) v DEQ Consulting (“DEQ”) involved a dispute between a warehouse purchaser and the engineer and firm that signed off on the design and construction of the warehouse.[1]

Actron purchased the warehouse from a property developer in 2007.  When the concrete slab of the warehouse subsequently sank by an amount that made it unusable for its purpose, Actron was forced to spend more than $1 million dollars in rectification works.  As such, Actron sought recourse against, among others, DEQ and its director Mr Henry, an engineer.

The case centred upon whether or not Mr Henry had discharged his professional responsibility.  Mr Henry was asked to sign a form certifying the design of the warehouse and declaring its suitability for use and adherence to regulations.

The form required that the slab not be subject to undue settlement.  Mr Henry argued that what was undue was to be determined by the intended use and expectations for the slab.  As the client had chosen the cheaper option, those standards were to be adopted and the likely settlement was not undue, it was in accordance with expectations.  The court disagreed.

The court found that as the person signing the form “potentially affects not only the interests of a client… but all persons exposed to risks of personal or financial injury as a result of approval of a non-conforming design… it is the appropriately qualified person… who is obliged to make any judgments necessary” for whether the form should be signed.  To leave that up to a client’s decision would be to ignore their professional responsibility.

It is evident from the decision that Mr Henry had formed the professional opinion that the slab would subside substantially.  However, by giving in to client expectation and signing the form in the face of a differing professional opinion, Mr Henry was found to have engaged in misleading conduct because he made a declaration different to his actual opinion.

The payroll problem

On appeal to the Federal Court of Australia, EZY Accounting (“EZY”) denied that they were liable for contraventions of the Fair Work Act which were committed by their client.[2]

EZY was initially engaged by their client to help rectify contraventions that had been identified by a Fair Work audit in 2014.  Despite EZY’s efforts, the contraventions continued.

The Fair Work Ombudsman claimed that because EZY was in charge of the payroll for their client throughout this time, by failing to stop the contraventions they were also involved in the client’s contraventions of the Fair Work Act.

EZY conceded that they provided payroll services but claimed their limited retainer removed any possible liability because it involved them simply entering data into a payroll system, not managing the rates of pay or ensuring legal compliance.  They were, simply put, only following instructions, and were not aware the contraventions continued to occur.

The court rejected this argument, finding that EZY had actual knowledge of the contraventions in 2014.  It also became apparent that EZY had formed the opinion that if data in MYOB was not changed, then contraventions were likely to continue to occur.  As such, EZY either knew of the contraventions, or was wilfully blind to them.

EZY was found liable on the basis that they knew about the contraventions and did nothing to prevent them.  EZY proposed at trial that they were never asked to adjust the payroll figures and so never did, it was not their role to question their instructions.  The court of course rejected this and asked why they never addressed the suspicious behaviour with their client.

They, similar to the engineers above, had a responsibility to the public interest, and to follow the law where they were in a position to do so.

The court considered that where they formed a professional opinion, EZY had an obligation to make enquiries about the contraventions. Indeed, the evidence suggested that stopping these contraventions was the reason they were originally engaged.

Ultimately, by failing to raise the matter with their client, EZY was fined in the region of $50,000.00 for being knowingly involved in the contraventions.  A steep price to pay for client retention.

Key takeaways

These cases are a reminder that professionals are required to use their knowledge and expertise to provide a professional opinion, not just do what the client wants.  While the subject matter of these decisions is quite different, the key takeaway is the same, in both cases, the argument of ‘just following instructions,’ or that liability was dictated by the scope of their retainer, was not accepted by the court.

While it is easy to vilify these professionals in hindsight, it is important to remember that these situations can present to anyone.  The fact is, many professionals find themselves in situations where their professional opinion conflicts with the commercial interests of a client. At times like these the support of an experienced legal team behind you is invaluable to ensure not only the best outcome for you, but also, within the confines of the law, the most favourable outcome for your client.

For more information about this article or other related legal matters, please contact partner and accredited property law specialist, Nigel Hales on 07 4036 9700.

[1] Actron Investments Queensland Pty Ltd v DEQ Consulting Pty Ltd [2018] QCA 147.

[2] EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134.

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What rights do grandparents have with respect to their grandchildren?

November 9th, 2018

Parenting matters under the Family Law Act focus on the principal consideration of ‘what is in the best interests of the child’.  The Act facilitates children having a meaningful relationship with both parents and other significant persons in their lives, such as grandparents.

The relationship between a grandparent and a grandchild is precious.  It is not uncommon for grandparents to experience difficulty in spending time with their grandchildren after parents separate.  This can be made more painful where the grandparents have spent significant time with the child prior to separation.

Grandparents are able institute court proceedings to seek orders that their grandchild spend time with them.  The court will focus on whether making orders for the child to spend time with their grandparents is in the best interests of the child.  In making this decision the court will consider a variety of factors including:

  1. the time the child has previously spent with their grandparents;
  2. the relationship between the child and their grandparents;
  3. the practicality of the child spending time with the grandparents;
  4. whether the parents are opposed to the child spending time with the grandparents; and
  5. whether the relationship between the parents and grandparents is such that it is likely to have a negative impact on the child if contact is ordered.

If you would like more information on your right as a grandparent to spend time with your grandchild, contact our expert Cairns family lawyers to find out how we can help you.

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New decision sheds light on international child abduction/ relocation

November 2nd, 2018

A recent decision of the Full Court of the Family Court of Australia has examined the application of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), in the context of a child being abducted or unilaterally relocated from another country to Australia.

By way of background, the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is the mechanism by which Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction are enforced.

The case concerned a young boy who was born in the Ukraine in April 2009.  The child’s mother was a Ukraine Citizen and the father was an Australian Citizen.  The child grew up in the Ukraine with both parents until they separated in late 2015/early 2016.  The child then lived with his father in the Ukraine until September 2016 when the father relocated the child to Australia, without the mother’s consent.

There were various unsuccessful attempts by the mother, including with the assistance of police, to recover the child from the father while the child was living in the Ukraine. When the mother realised that the child had been relocated/abducted to Australia, she approached local agencies within the Ukraine seeking assistance to have the child returned.  Eventually in September 2017, the Ukraine Central Authority applied to the Commonwealth Central Authority in Australia seeking a return order be made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).  An application for the child’s return was subsequently filed by the Commonwealth Central Authority in Australia in December 2017.

The case focused centrally around the application of Regulation 16 which provides that,  if the application for the return of the child is made more than one year after the child was relocated, the court must make the relocation order, provided that the court is satisfied that the child has not settled into his or her new environment, and no other exception applies.

In these proceedings, the application was filed more than one year after the child’s abduction/relocation.  The father established that the child had settled into his environment in Australia and this was not challenged on appeal.  The Full Court of the Family Court of Australia held that in circumstances where the application is filed more than one year after the relocation/abduction and it is established that the child has settled into their new environment, the court must refuse to make the return order and that there is no discretion for the court to order the return of the child in those circumstances.

Importantly, the law is different with respect to applications filed within one year of the abduction/relocation, and the court is not required to satisfy itself that the child has not settled into his or her environment.  The outcome of this decision may have been different, had the application been filed within one year of the abduction/relocation.  This case serves as a timely reminder of the importance of filing an application with the court urgently after the unilateral relocation or abduction of a child.

If you require legal assistance with your family law matter, please do not hesitate to contact me to discuss your situation.

 

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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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