Re-marrying after the death or divorce of your former spouse should be a stress-free occasion as you and your new partner enter the next stage of your lives together. While marriage the first time around has its own legal complexities, if you intend to re-marry, there are certain requirements you must meet before a civil marriage can be performed.

Generally, in Australia, when two parties are to marry, the marriage celebrant needs to be given:

• A notice of intention to marry, signed by both parties in the presence of an authorised celebrant, Justice of the Peace or solicitor;
• Passports or birth certificates of both parties; and
• Statutory declarations stating the parties’ current marital status

This is the case whether it is your first or a subsequent marriage. However, in the case of re-marriage, further documentation is required. If either party has been married previously, they must provide to the marriage celebrant either:

• A final divorce order (previously called a decree absolute); or
• the former spouse’s death certificate (s 42(10)).

Specifically, Section 42(10) of the Marriage Act states:

“where the declaration made by a party… states that that party is a divorced person or a widow or widower, an authorised celebrant shall not solemnise the marriage unless there is produced to him or her evidence of that party's divorce, or of the death of that party's spouse, as the case requires.”

Thus, in Australia, the law (Marriage Act 1961 (Cth)) indicates that a final divorce order, decree nisi or decree absolute is not necessary to be shown upon re-marrying where the former partner has died and proof of this, such as a death certificate, is given. This may reduce some stress in cases where one party may not have access to one of these documents – only one is necessary to show to the marriage celebrant.

The difference between a Decree Nisi, Decree Absolute and a Divorce Order

The old terms ‘decree nisi’, ‘decree absolute’ and currently-used term ‘divorce order’ are often used interchangeably despite their different meanings.

A decree nisi does not end the marriage – a decree nisi just means that the court is satisfied that the person who issued the divorce petition has proved the contents of the petition and is entitled to a divorce.

The divorce takes effect 1 month from the issuing of the decree nisi, becoming a ‘decree absolute’ – an older term for what we call a ‘divorce order’ today.

If you have any questions about the legal processes involved in your marriage, re-marriage or divorce, or for any other family law inquiries, give us a call on 02 8917 8700.

This week Australian media has widely reported that journalists and crew members from the 60 Minutes television program have been detained in Beirut, Lebanon, after covering a story regarding one parent who took his children overseas without the mother’s permission. Unfortunately this is an all too common problem, whether it be in relation to parents, usually ex-partners, taking children overseas, interstate or locally without the other’s permission. This would undoubtedly be a traumatic and stressful situation for any parent so it is important to seek urgent legal advice should this ever happen to you.

What happens if an ex-partner takes your children from you without your permission?

The first and most important thing you can do when you realise your former partner has taken your children without permission is to attempt to contact them and try and reach an agreement to have the children returned. If attempts at contact and reaching an agreement fail, it is imperative you seek urgent legal advice. It is likely that your family lawyer will advise that you apply to the court urgently for a Parenting Order and Recovery Order that will determine parents’ responsibilities in relation to making decisions for and about their children, and allow the police to return your children to you.

Where you already have a Court Order

In situations where you and your partner have separated and you have a Court Order that states the children live with you, if the ex-partner does not return the children to you, it is imperative that should attempts at contacting them fail, you seek urgent legal advice. This will usually result in your family lawyer applying to the Court for a Recovery Order which allows the police to return the children.

What about when you think your ex-partner will take the children overseas?

Your family lawyer can advise that you contact the Family Court to have the children’s names added to the Airport Watch List and advise the Australian Federal Police of any Orders made in relation to this. This will mean the Australian Federal Police are aware of the situation and can prevent the children from going overseas without your permission.

It is also important to note that under sections 65Y and 65Z of the Family Law Act, it is illegal for a parent to take a child overseas where there are court proceedings in relation to Parenting Orders or relating to the children generally.

If the children have already been taken overseas

 In this situation it is important to look at the Hague Convention on Civil Aspects of International Child Abduction 1980. If the country the children have been taken to is a party to The Hague Convention, then Australia and the country in question can more easily negotiate to ensure the return of the children. If the country the children have been taken to is not a party to the Convention, your family lawyer can utilise several legal options within the Attorney-General’s Department.

Freedman & Gopalan has expertise in this area, and has recently been engaged where a father had abducted his son and taken him to India without the mother's consent. The mother engaged Freedman & Gopalan, and we were successful in obtaining Orders from the Family Court of Australia. We then used our services and contacts in order to obtain Orders in India, a non-Hague Convention Member, and took appropriate steps to recover the child.

If your children have been taken from you without your permission or if you have any questions in relation to Parenting, Recovery or Court Orders for your family law matter, contact our solicitors on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

As it currently stands, it is within an employer’s legal rights to include ‘gag clauses’ in common law contracts of employment to ensure discussion of pay is kept confidential. Some have argued that these clauses, which often forbid an employee to speak of certain information, remain important due to their relevance in keeping salaries confidential and preserving relationships in the workplace. However, others have argued that these restrictions on discussing salary have the potential to leave women at a disadvantage.

Earlier this month, ANZ via WhybinTBWA Melbourne Group launched a campaign addressing the issue of the pay gap inequality in Australia through the actions of young children carrying out chores. In each case, the girl was paid less than the boy and then asked about how that made them feel. On behalf of their new advertisements, ANZ have stated that they believe in seeing people paid on their merits as opposed to their gender. However, is this the current standing in the Australian workforce?

According to the Workplace Gender Equality Agency (WGEA), there is a 19.1% gap between female and male pay in terms of full-time base salary. This becomes a larger 24% when total remuneration is taken into account. The gender pay gap issue can often go unnoticed as those working in the public sector will understand that the gap is much smaller (12.2%) as pay is often set through collective agreements. In contrast, the private sector has a greater tendency towards individual deals which is reflected in the 21.3% pay gap statistic.

In response, Larissa Waters has spear-headed the Greens-initiated bill that is currently before a Senate Inquiry to rectify this inequality. The bill sets out to amend the Fair Work Act to allow employees to freely discuss their salaries without fear of punishment.

What’s being done? Minister for Employment and Minister for Women Michaelia Cash has stated that the Government does not support the bill, but will instead attempt to reduce the gender pay gaps through the paid parental leave policy.

Perhaps it is time that the law be changed to reflect the changes being made in the workforce. Whether you are in agreeance that ‘gag clauses’ keep women from earning the same as their male counterparts, the fact remains that the inability to discuss salary is becoming a controversial issue that needs closer attention.

If ANZ is committed to sharing their views and challenging the status quo, perhaps we have reached a point in time where members of society alike should not be afraid to engage with this issue and question the laws currently surrounding who gets paid what.

If you have any questions relating to any clauses in your employment contract or for any advice on your employment contract matter, contact our solicitors on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

There have been several events making the news recently about a person entering another’s home and that person being assaulted or even killed by the home-owner, with the home-owner claiming they were acting in self-defence – that is, in defence of their loved ones and their home. While on an emotional level it is perhaps understandable that someone could act in a manner that causes harm to another in defence of themselves, their family or their property. But it is vital to understand the legal consequences of such an act, and the issue of how far is too far when it comes to raising self-defence as a defence. Should you be charged with an offence relating to use of force on another such as assault or murder?

What is self-defence?

The Crimes Act NSW (1900) states that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. So this leads to the question – what is self-defence? Section 418 Crimes Act defines carrying out conduct in self-defence

“if and only if the person believes the conduct is necessary:

1. to defend himself or herself or another person, or
2. to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
3. to protect property from unlawful taking, destruction, damage or interference, or
4. to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
5. and the conduct is a reasonable response in the circumstances as he or she perceives them.”

Essentially there are two questions the court will need to consider are:

1. Whether you thought that the act was necessary to protect yourself, property or another person; and
2. Whether the conduct was actually a reasonable response to the threat as you perceived it to be.

Raising self-defence

If you are charged with a relevant offence such as assault, you only need to raise the issue of self-defence. The other side will need to prove beyond a reasonable doubt either that you did not genuinely believe the act was necessary in self-defence; or that what you did was not a reasonable response to the danger as you perceived it to be.

When can self-defence not be used as a defence?

Section 420 of the Crimes Act states that self-defence will not be available in cases where a person “uses force that involves the intentional or reckless infliction of death” in defence of property or to prevent a party from defending their property. Thus, it is evident there are definitely limitations on the use of self-defence and that it is always best to seek legal advice for information on these kinds of matters rather than news and other media, which may often provide inaccurate assumptions about when self-defence and other defences may be used.

If you have any questions relating to the use of self-defence or for any advice on your criminal law matter, call our solicitors on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Ordinary Costs v Indemnity Costs - Know the Difference

If you ever commence legal proceedings, particularly in relation to a commercial matter, you may begin to hear the phrases ‘ordinary costs’ and ‘indemnity costs’ more and more as your case progresses, especially if the matter goes to Court. There is an important distinction between these two phrases and thus, it is important that you know the difference. An order of either ‘ordinary’ or ‘indemnity’ costs  is an order of which party pays costs when the matter is heard and finalised in Court.

Meaning of Ordinary Costs and Indemnity Costs

‘Ordinary Costs’ means that where there is doubt as to the reasonableness of costs (costs are defined as fees, disbursements and other expenses related to the court proceedings), the matter is to be resolved in favour of the successful party. In contrast, indemnity costs means any doubt as to the reasonableness of the costs incurred will be resolved in favour of the paying party.

Why do two ‘types’ of costs exist?

Ordinary costs arise in standard proceedings to ensure costs remain proportionate to the matter and the costs to the paying party are not unduly high or unreasonable. However where there is something sufficiently unusual about the case, such as in cases of fraud, or where one party has unnecessarily prolonged proceedings, indemnity costs exist to ensure the more innocent party is compensated for any costs that are deemed ‘unreasonable’.

When can Indemnity Costs be ordered?

There is no absolute rule or test to determine when indemnity costs can be ordered. In any case, the courts have established several instances where indemnity costs are generally ordered. These include:

• Hopeless cases (cases that continue despite no reasonable chances of success)
• Cases where there has been an abuse of process
• Cases where there is unreasonable conduct such as fraud or perjury
• Cases involving parties who unreasonably fail to accept offers of settlement

The court’s discretion to order either ordinary or indemnity costs where appropriate is an important way of ensuring costs in court proceedings remain fair and proportionate, and that in situations where one party detriments the other such as in the above instances, they must compensate the more innocent party.

For more information on indemnity and ordinary costs, the types of costs associated with litigation or to discuss your commercial law matter, give us a call on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

New laws are coming that will affect home owners and sellers - make sure your swimming pool or spa is compliant

From 29 April 2016, new laws will be implemented that seek to improve the safety of pools in residential areas and to increase spa and pool owners’ compliance with current laws about the safety and accessibility of pools. These laws will be particularly important for home owners with spas and/or swimming pools and parties looking to purchase homes with pools, as the laws will require that contracts for sale exchanged from 29 April 2016 have various valid compliance certificates.

It is important to seek legal advice from your solicitor or conveyancer regarding the law’s requirements regarding swimming pools if you are buying or selling a home with a pool or are considering building a pool, in order to prevent any future legal or safety issues.

If you are the current owner of a home with a spa and/or pool, the following compliance certificates must be acquired by 29 April:

• A valid "Certificate of Compliance" issued under the Swimming Pool Act 1992, or
• A valid "Occupation Certificate", or
• A valid "Certificate of Non-Compliance" issued under the Swimming Pool Regulation 2008.

What is a Certificate of Compliance?

A Certificate of Compliance is an accreditation that can be given by your local council or an accredited certifier. This will involve an inspection of the swimming pool’s barriers and other safety requirements. Home owners should speak with their lawyer or conveyancer to obtain further advice about these legal requirements or to discuss arranging an inspection with a certifier registered with the Building Professionals Board. Importantly, a Certificate of Compliance will be valid for three years from the date of issue.

What is an ‘Occupation Certificate’?

An Occupation Certificate can be used as an alternative to a Certificate of Compliance where the Occupation Certificate authorises the swimming pool in question and is less than three years old. To attach an Occupation Certificate to the contract for sale, you must also provide proof that the swimming pool is registered.

What is a ‘Non-Compliance Certificate’?

A Non-Compliance Certificate is issued where a home owner fails the inspection by the local council or accredited certifier. Where a Non-Compliance Certificate is issued, you must attach this to the contract for sale. You will have ninety days from the date of the settlement to rectify all of the issues listed as reasons for non-compliance and subsequently obtain a Certificate of Compliance.

What are the consequences of not acquiring and attaching these Certificates?

Significantly, failure to attach the certificate/s to the contract for sale may result in the purchaser being able to rescind the contract within 14 days of the exchange, unless the settlement has already occurred.

More generally, failure to comply with pool safety regulations can result in orders and directions from your local council to enforce compliance and fines ranging from $550 to $5,500.

As such, it is important to ensure your swimming pool and spa is compliant with current legislation. If in doubt, it is always best to speak with a solicitor or conveyancer who can advise you of the current and future legal requirements for swimming pools.

If you are planning on buying or selling a home with a spa or swimming pool, or wish to discuss the legal requirements relating to pool safety and other home ownership issues, call our solicitors and conveyancers on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

Without Prejudice – the often used and misunderstood legal terminology explained

 What does ‘without prejudice’ mean?

At law, the phrase ‘without prejudice’ in correspondence between parties means that the contents of the letter is meant to be received without detriment to any existing rights or claims. This is called ‘without prejudice privilege’.

The privilege associated with the phrase ‘without prejudice’ in correspondence serves an important purpose in assisting in dispute resolution by allowing parties to compromise, make concessions and other offers without the risk that these offers of compromise or concessions will negatively affect them, or be used against them, if later down the track such negotiations fail. Importantly, statements with ‘without prejudice privilege’ will generally be inadmissible in Court.^[1]

When does ‘without prejudice privilege’ apply?

 Section 131(1) of the Evidence Act 1995 (Cth) states that the Court cannot adduce evidence from any ‘communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or … a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute’.

Common law and legislation have intertwined to create several further rules about the situations where without prejudice privilege can and cannot be used. Without prejudice privilege will only apply to statements (written or verbal) that are made in relation to settling a dispute when legal proceedings have commenced^[2]. Some examples of where the privilege will not apply include:

• in negotiations of any kind that are not related to dispute resolution;
• in letters of demand where there is no concession or attempt at conceding to resolve the dispute;
• in correspondence where there is a general willingness to settle but no specific compromise or concession^[3];
• and in contractual matters where though negotiation may occur, there is no ‘dispute’ to be resolved, and thus without prejudice privilege is not suitable.

It is therefore imperative that ‘without prejudice’ not be used in correspondence where it does not fit the nature of without prejudice privilege – that is, where there is no genuine attempt at settling or offering compromises that would assist in the dispute resolution process. It is the intention of the parties, rather than the phrase ‘without prejudice’ alone, that will determine whether without prejudice privilege applies.

^[1] Section 131(1) of the Evidence Act 1995 (Cth).

^[2] Exclusion of Evidence of Settlement Negotiations

^[3] GPI Leisure Corporation v Yuill (1997) 42 NSWLR 225.

Contracts are binding agreements that govern the relationship between two or more parties, defining what each party must and must not do in particular situations. Considered this way, it is evident contracts are commonplace in all aspects of our lives – whether this be buying a vehicle from a car dealer, signing a private or commercial lease or signing a mortgage agreement with your bank. Ensuring you are aware of your rights and responsibilities when it comes to contracts becomes particularly important in employment, business and other complex commercial transactions, when breaking a contract can have significant financial consequences and unwanted stress. In these situations, it is highly recommended you obtain legal advice so that your contract can be reviewed and approved to ensure the contract is fair and understood.

Contracts: What Are They?

Generally, contracts can be written or oral, or a mixture of both, except in the sale of a home, credit arrangement and several other situations, where the contract must be in writing The contract must contain an agreement, in which a party must offer something, and the other party must accept that offer. Next, there must be consideration – that is, the contract must stipulate that something of value is being given away. This can mean money, goods for sale or someone’s time or skill.

Contracts: How do you get out of them?

Generally, you are bound to the terms of the contract you are a party to. However, if a contract term is deemed unfair by the court, then the court can vary or make void that unfair term. When determining what constitutes an ‘unfair term’, the court will take into account several factors such as the scope of bargaining power between the parties. The Australian Consumer Law provides additional protections in contracts involving the sale of goods. In these instances, contract terms will be deemed ‘unfair’ where a party has acted ‘unconscionably’ or the term/s significantly favours or disadvantages one party. It is best to discuss any options you have in regards to getting out of a contract with a solicitor.

Breaking a contract

Breaching the terms stipulated in the contract leaves the court with several options to remedy the situation. For the party who has reneged on the contract, the court can order an injunction to stop the person from terminating the contract; order the person to carry out their contractual obligations; or have the contract declared void and order the person at fault to ensure the innocent party is in the same situation as they were in before the contract. For the ‘innocent’ party, the court can award monetary compensation for their loss, as well as the orders listed above that can ensure the contract is adhered to.

If you would like to have your contract reviewed by a solicitor, or are having problems with a contract you have already entered into, give us a call on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

When a couple separates, the issue of dividing assets – whether this be monetary, property or goods – is likely to cause stress for both parties at an already tumultuous time. As you and your partner’s relationship breaks down, it is possible there will be some suspicion at each other’s disclosure of assets, with the fear that the other party may be ‘hiding’ assets that are available to be distributed between the pair. Because of these concerns, it is vital that you are aware of the obligations you and your former partner will face in disclosing assets available for distribution to each other and the Courts. The law surrounding the duty of disclosure is complex; for this reason, it is highly recommended you seek the advice of a Family Lawyer to guide you through this important area of law.

The Duty of Disclosure

The ‘duty of disclosure’ in relation to asset distribution means that at law, you have an obligation to provide information about your finances, financial position and copies of all associated documents, to your former partner and the Court. The Family Court Rules 2004 state that you must give ‘full and frank’ disclosure of all sources of income, earnings, interest, property and any other relevant information, whether these be in both your names or just yours. You must also disclose any and all information about any disposal of property that has occurred in the 12 months prior to the separation.

How to Disclose

Your Family Lawyer will discuss the ways in which the Family Court accepts documents pertaining to the disclosure of assets.

Consequences of Not Disclosing Assets

If you do fail to disclose financial or property information in a manner the Court views as ‘full and frank’, they may use their discretion to order Costs against you and find you in contempt of Court, resulting in possible fines or imprisonment; among many other consequences.

Due to the serious consequences of not appropriately disclosing financial and property information, it is imperative that you seek legal advice if you are separated from your partner or thinking about separating.

If you have any questions about your disclosure obligations, separating from your partner or any other family law issue, give us a call on 02 8917 8700 or alternatively fill out the enquiry box detailing your issue and we will get back to you ASAP.