ARE YOU IN A DE FACTO RELATIONSHIP?

  

Recognizing The De Facto Relationship Status

In November 2008 the Family Law Amendment (De Facto Financial Matters and Other Measures) Act came into being.  This meant that any couple living in a de facto relationship would have their relationship recognized under the Family Law Act. 

This gave rights to people to persons in de facto relationships to have the same legal obligations and rights as those in a marriage.

RECENT DECISIONS

There is a recent decision where a woman sought to have her de facto relationships recognized in proceedings in the Family Court.  There was one child of her relationship with what she alleged was her partner.

Although the couple did have a child the Court ruled that there were not de facto relationships and therefore the Applicant did not receive the benefits which would arise if a relationship had been found to exist.

Therefore, what is the meaning of a de facto relationship?

The relevant section of the Family Law Act defines a de facto relationship as having the following meaning:

• A person is in a de facto relationships with another person if:

1. The persons are not legally married to each other;
2. The persons are not related by family;
3. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Guidelines for De Facto Relationship Recognition

The legislation provides some guidelines but these are guidelines only to determine if de facto relationships exist.  These circumstances may include any or all of the following:

     The duration of the relationship;

• The nature and extent of their common residence;
• Whether a sexual relationship exists;
• Degree of financial dependence or independence, and any arrangements for substantial support, between them;
• The ownership, use, and acquisition of their property;

• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• The care and support of children;
• The reputation and public aspects of the relationship.

No particular finding in relation to any of these circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship.  The Court can have regard to such circumstances.

For the purposes of the legislation a de facto relationships can exist between two persons of different sexes and between two persons of the same sex.

A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

It can be seen therefore that de facto relationships may be hard to establish.  There is no marriage certificate as in a marriage that clearly defines that marriage exists.ARE

Article Source: ARE YOU IN A DE FACTO RELATIONSHIP?

DE FACTO SEPARATION – DID YOU KNOW?

  

De Facto Separation – Did You Know?

Did you know that after separation in a de facto separation relationship that a separating party must bring an application in relation to financial issues arising from the breakdown in the relationship within a period of 2 years from the date of separation?  For instance, if de facto couples separate say on the 1st January in any one year the application must be filed on or before the 1st January in the following 2 year period.

One might conclude that if the de facto separation between parties happens on 1st January that an application to the Court must be before 1st January in the following 2 year period.  However, the application must be brought “within” a period of 2 years.  That means that the period of de facto separation commences not on the 1st of January but on the 2nd January and an application filed on the 1st January within a 2 year period is filed within the prescribed time.

Financial Matters and De Facto Separation

Of course in the case of a marriage, an application in relation to financial matters must be filed in the Court within one year of the date of dissolution of the marriage.  That is the application must be brought within a period of one year after the divorce order becomes absolute.  A divorce order becomes absolute one month after the divorce order is granted by the Court.

If applications are brought outside these time limitations then the parties will require leave of the Court to bring their application.  Unless a satisfactory explanation can be made for filing the application “out of time” the Court will not grant leave and the parties are therefore barred from bringing property proceedings in the Court.  This could create extreme financial hardship for either or both of the parties.  The time limitations must be strictly observed.

Article Source: DE FACTO SEPARATION – DID YOU KNOW?

REAL ESTATE CONVEYANCING BRISBANE

 

BRISBANE CONVEYANCING

Real Estate Property Conveyancing in Brisbane by Aylward Game Solicitors
Aylward Game Solicitors‘ focus is in providing our customers with the best possible services of property transaction.
Each of our in-house conveyancers are licensed and well experienced to perform any case whether it is complex or easy in nature.

In a legal sense, the process of Conveyancing is the tasks undertaken through which the rights, title and interests on the property of the owners are transferred to the new owners / buyers who is ready, willing and able to fund the property at the asking price.

The full Conveyancing Brisbane process involves the preparation of documents and endorsements so as to enact a contract deal between two parties as a catalyst and finalisation of the transaction.

One requires a Conveyancing Brisbane team like us to handle it. Providing the customers with the best possible services of property transaction and focusing on buying, selling or transferring real estate we at Aylward Game Solicitors Brisbane can professionally manage all your Brisbane conveyancing and real estate settlement needs.

There are various matters that will affect the transaction process of the real estate which may include government led legislation or notice on the property either counterparty related sides. It is important and experienced Conveyancer is engaged to deal with these issues since he or she may be best equipped to handle these trivial yet very important details. In many cases a purchaser will seek advice and counsel before commencing into the transaction stage.

Our clients can discuss these issues and seek any kind of answers from our team to ensure the integrity of the deal via Conveyancing. There are a number of searches that are necessary for us to complete and these comprise a total Conveyancing solution.

We strive to perform at the highest level for all our clients, across all sectors, whilst maintaining a low price point.

For the most part, Conveyancing is a mandatory process of transferring ownership title from seller to buyer and it assures future legal security to the buyer. The Conveyancer streamlines the searching process, and takes care of the details so you don’t have to.

Our staff consists of highly experienced and qualified experts with many years of experience in Conveyancing Brisbane. We have provided a wide range of conveyancing services to many thousands of clients since 1996.

Let our knowledge improve your experience and keep you ahead of the game.

Article Source: REAL ESTATE CONVEYANCING BRISBANE

GRANDPARENTS AND EXTENDED FAMILY

  

Grandparents under the Family Law Act have a right to be involved in their grandchildren’s lives.

With over 30 years experience in family law, Aylward Game Solicitors Incorporating James Noble Family Law Brisbane will guide you through to the other side of divorce and family disputes relating to grandparents or other close family members.

Family law recognises your rights to spend time with and care for your grandchildren. This extends to other significant family members.

Grandparents (as well as significant family members) under the Family Law Act in Australia have a right to be involved in their grandchildren’s lives. This is a secondary right to the rights of the biological parents of the children.

The grandparents must be significant grandparents in the lives of their grandchildren. They must have a strong relationship and bond with their grandchildren to allow them to bring this application.

Grandparents normally have an involvement with their grandchildren during the times that the mother or father or both have the children in their care. However, where one parent for reasons that have little or no foundation prevents the grandparents from seeing their grandchildren then the grandparents can apply under their own right to have time with their grandchildren.

The Court looks at the potential benefit to the grandchildren having a meaningful relationship and continuing relationship with the grandparents. The Court would look at the nature of the relationship of the grandparents with their grandchildren.

The welfare of the children is of course, as in all relationships, the paramount consideration to be given by the Court if an application is made. The Court would look at the likely effect on the grandchildren of a continuing relationship with their grandparents. The Court would look at the practical difficulties and expenses relating to the grandchildren spending time and communicating with their grandparents. If there are substantial impediments to this then the Courts would not allow that relationship to continue.

If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act.

Please reference Section 60CC.

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Normally the time spent by the grandparents with their grandchildren would be a time that is not inconvenient to the children and to the children’s parents. The Courts would also look at the disruption to any of the activities of the children including sporting, educational and extracurricular activities to determine if the time spent with the grandparents is feasible.\

The wishes of the children especially the wishes of teenage children will be taken into account.

The grandparents have a right to apply for the parenting of the grandchildren where the parents of such children are unsuitable for medical or other reasons to care for them. The Courts can make orders for the grandparents to take on the parenting role of the children in such circumstances.

Other significant family members do not have the same rights as grandparents in seeking time with their nieces, nephews and other children of the family. Again if the significant family members have had a large involvement in the upbringing of the children and if the parents, grandparents or other family members are not suitable to parent the children where the children’s own parents are incapable of doing so then those family members may apply to the Court for the parenting of the children. Again the welfare of the children is paramount.

Article Source: GRANDPARENTS AND EXTENDED FAMILY

Surrogacy Laws QLD | Family Law Court Brisbane

  

SURROGACY LAWS IN QUEENSLAND

The Surrogacy Act 2010 (Qld) became operative on 1 June 2010. This Act regulates surrogacy agreements in Queensland and permits surrogacy arrangements provided they are not for a commercial purpose.

What are the Surrogacy Laws?

A surrogacy arrangement is an arrangement between a woman (the ‘birth mother’) and another person or persons (the ‘intended parent or parents), whereby the woman agrees to become pregnant with the intention that the child born is to be treated as the child of the other person or persons.

This means the birth mother will relinquish to the intended parent or parents’ custody and guardianship of the child and the intended parent or parents agree to become permanently responsible for the custody and guardianship of the child.

Commercial Surrogacy laws Arrangements

A commercial surrogacy arrangement occurs if the birth mother receives any type of payment, reward or other material benefit or advantage as a result of the surrogacy arrangement.

Commercial surrogacy arrangements of this kind are not legal in Queensland. However, if the intended parents pay for the birth mother’s reasonable medical, legal and counselling expenses arising from the surrogacy arrangement, these payments do not render the surrogacy arrangement a commercial one.

Parentage Order

A Parentage Order is an Order made by the Children’s Court for the transfer of the parentage of a child born pursuant to a surrogacy arrangement. A Parentage Order effectively transfers legal parentage of a child from the birth mother to the intended parents.

Medical or Social Need for a Surrogacy Arrangement and Eligible Women

Women applicants who are intended parents must be unable to conceive or carry a child themselves due to medical reasons. This means that women applicants who are able to conceive or carry a child are prevented from obtaining a Parentage Order.

In the case of female same-sex couples, both intended parents must be able to show that both women are unable to carry or conceive a child on medical grounds.

Surrogacy laws Agreement

The surrogacy agreement (contract) must be a written agreement that sets out the main features of the surrogacy arrangement that is signed by the birth mother and the intended parents and must be made before the child was conceived.

Surrogacy Arrangements and Unenforceable

The problem with surrogacy arrangements in Queensland is that they remain unenforceable.

This means you cannot apply to the Children’s Court to enforce the surrogacy arrangement if things go wrong.

So, despite having a written surrogacy agreement, if the birth mother refuses to give the child to the intended parents, or if the intended parents refuse to take the child, neither party can rely on the written agreement to enforce the surrogacy arrangement in the Children’s Court

In this circumstance, the parties will have to make an application under the Family Law Act 1975 (Cth) for Orders pertaining to whom the child should live with and who the child should spend time with. The Court will then engage in an assessment of the child’s best interests.

Application for a Parentage Order

An application for a Parentage Order for a child can be made 28 days after the child is born and before the child is 6 months old. Applications after this time may be allowed with leave from the Children’s Court.

The intended parents of a child may apply to the Children’s Court for a Parentage Order, provided certain requirements are met. These requirements include:

• That the Order is in the best interests of the  child
• That the child must have lived with the  applicants for at least 28 days prior to the application
• Living with the applicants at  the time the application is made and at the time of the hearing
• That there is evidence of a medical or social need for the surrogacy arrangement
• The surrogacy arrangement was made after the birth mother and intended parents obtained  independent legal advice and counselling
• That the surrogacy arrangement was made before the child was conceived and that the  arrangement is in writing and signed by the birth parents and the intended parents
• That the birth mother and the intended parents were at least 25 years of age when the  surrogacy arrangement was made
• That the birth mother ordinarily resides in Queensland
• That the birth mother and the applicant’s consent to the making of the Parentage Order

Discharge Order

After a Parentage Order has been made, an interested person may apply to the Court for a Discharge Order which effectively discharges a Parentage Order regarding a child. The grounds on which an interested person can apply for a Discharge Order are as follows:

• That it was obtained by fraud, duress or other improper means
• That the consent required was not given or was given for payment, reward or other material  benefit or advantage
• There is an exceptional reason why the Parenting Order should be discharged

If a Discharge Order is granted by the Children’s Court the rights, duties and relationships of the child and all other persons are the same as if the Parentage Order being discharged had not been made in the first place.

The requirement to obtain Independent Legal Advice and Counselling

The Act requires the birth mother, the birth mother’s spouse (if any) and the intended parents to obtain independent legal advice and counselling before entering into the surrogacy arrangement.

All parties involved must obtain independent legal advice prior to entering into the surrogacy agreement so that their rights and obligations under the surrogacy arrangement, as well as the legal implications of entering into a surrogacy arrangement, can be fully explained.

Independent counselling must also be obtained prior to entering into the surrogacy agreement, as it is important that all parties involved are made aware of the social and psychological implications of entering into surrogacy arrangements.

Article Source: Surrogacy Laws QLD

The Rule in Jones v Dunkel - Aylward Game Solicitors Brisbane

   

The tenet of this case is very handy and useful to both courts and legal practitioners. Basically, when there is an unexplained failure by either a plaintiff or defendant in civil proceedings to tender a document as evidence or call a witness, the court may draw an inference that the uncalled evidence would not have assisted the party.

The case concerned a civil negligence action. The High Court held that the jury should have been told that any reference favorable to the plaintiff from the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant, and the evidence provides no sufficient explanation for his absence.

Against the above background and since this case was decided, the courts have held that the mere absence of a witness does not necessarily support an inference that the witness would not have helped the impugned party’s case. That said, in RPS v R (2000) 168 ALR 729, the majority of the High Court expressed caution about the principle and said that:

“…it is essential to note its limits. It relates to the drawing of inferences or conclusions from other facts…the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so.”

In RPS, the trial judge directed the jury about the accused’s election not to give evidence and how – in the absence of his explanation, contradiction, or denial – they might weigh the strength of the prosecution evidence. The jury found him guilty of four counts of sexual intercourse.

The particular difficulty with cases in line with RPS’s outcome is that— they mislead on the term and meaning of silence. When silence becomes impossible or when it becomes irresistible, how one should draw an inference, and whether that inference is the correct answer. That said, one thing is certain and that is— silence must be able to justify itself in a way that it would not invite speculation as to its meaning.

Article Source: The Rule in Jones v Dunkel

Traveling to Australia? It Pays To Read This!!

  

The COVID-19 pandemic has changed everything and affected every immigration process and the way things we used to be. Anyone who is thinking of traveling to Australia for whatever purposes, must read and absorb the following:

Is traveling to Australia “business as usual”?

Unfortunately not. As of 20 March 2020 you can only travel to Australia if you are either;

(a) An Australian citizen;

(b) An Australian permanent resident;

(c) A New Zealand citizen usually residing in Australia; and

(d) An immediate family member of an Australian citizen or permanent resident or a New Zealand citizen usually resident in Australia

 

Who can be considered immediate family members of Australian citizens and permanent residents?

For this category, an immediate family member only refers to: Spouses, dependent children, and legal guardians.

Am I required to go through a quarantine process when arrived in Australia?

The Australian Government has directed that from 28 March 2020, all travelers entering Australia are required to undertake their mandatory 14-day self-isolation at designated facilities. These facilities will be determined by each state and territory and maybe hotels.

Can I interact with my family in Australia after I arrived?

No. As long as the above restriction is in place, when you set your foot in Australia you must not attempt to join your family or friends who may be coming to receive you. You need to do your 14-day self-isolation process first and if during the 14-day self-isolation you come to contact with any family or friend, that individual will also have to complete 14 days of quarantine.

Am I able to travel from Australia to overseas?

If you are Australian citizens and Australian permanent resident you are restricted from traveling to Australia overseas from 25 March 2020, unless you fall within the exemption categories as follows: The list is not exhaustive:

(a) You are ordinarily a resident of another country other than Australia;

(b) You work with an airline, or you are a maritime crew, or you are associated with safety workers;

(c) You are a New Zealand citizen holding a Special Category (Subclass 444) Visa. However, if you are a New Zealand citizen who is a permanent resident in Australia you may apply for a Commissioner’s discretion.

(d) You are someone who is engaged in the day to day conduct of outbound or inbound freight;

(e) You are someone whose travel is associated with essential work at offshore facilities; and

(f) You are traveling on official government business, including members of the Australian Defence Force.

How do I apply for the exemption to travel from Australia?

You can apply online to the Commissioner of the ABF preferably at least 12 hours before your intended departure time. If you are granted an exemption, you must take evidence of that
exemption to the airport.

What are the subclasses visa holders who can come to Australia and are they still required to undertake a mandatory 14-day quarantine?

Partner (subclasses 100, 309, 801, 820) and Child (subclasses 101, 102, 445) visa holders can come to Australia without having to request an exemption., however, they will be required to undertake a mandatory 14-day quarantine at designated facilities such as a hotel in their port of arrival.

What subclass visa holders can’t come to Australia at the moment?

Prospective Marriage (subclass 300) visa holders.

Article Source: Traveling to Australia? It Pays To Read This!!