Spousal maintenance is an agreement between two former partners where one party will provide financial support to the other as they are unable to support themselves. It applies to both marriages and de facto relationships, however with the latter, there is a certain criterion that is to be met before it can be seen as viable under the court’s eyes. It is outlined under the Family Law Act 1975 that spouses or de facto partners have an equal responsibility to support each other even after the annulment of their relationship.

As financial payout, the Court can order a lump sum, a weekly periodic payment, property transfer, make a Final Order, or any other arrangement which they think is suitable for the case.

Factors that affect Maintenance

The financial payout received via spousal maintenance varies on the court’s decision, and two major factors taken into account are the needs of the applicant and the responder’s ability to support them. Other aspects that need to be considered include age, income, health, financial assets, one’s ability to work and if the relationship has affected one’s ability to earn a proper income. The Court also takes into account with whom the children are living with (however, child support payments are separate to spousal maintenance). Fault is not taken into account in spousal maintenance, and one does not need to go to court for a maintenance arrangement, instead they can opt for consent orders or a binding financial agreement.

Eligibility

To be eligible for spousal requirement one must order for maintenance within the time limit that is decreed for their relationship. For a marriage or a nullity, you must apply within 12 months of the divorce or decree of nullity. De facto relationships however have a two-year period within which one can order maintenance. Once the applicant marries another person however, they are no longer entitled to receive spousal maintenance unless the Court orders otherwise. The same principle is applied to de facto relationships; however, the Court takes into consideration the financial situation in the relationship and whether the applicant is sufficiently supported.

How to Apply

Before applying, it is recommended to seek legal advice from a legal service as some financial orders require independent legal advice before applying for court. To apply for spousal maintenance, one needs to complete an application form for the Federal Circuit and Family Court of Australia (FCFCOA). The FCFCOA conducts maintenance hearings and provides deadlines for tasks that need to be completed before the hearing. The FCFCOA’s process varies on the complexity of the issues and the level of cooperation between the two parties.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

December 9^th, 2017, marks the day Australia finally achieved marriage equality, but it does not represent the winding path that had been taken to get there. Same-sex marriages have been a part of the long debate in the Australian government of the legal recognition of same-sex relationships. In 2008 and 2009, a wide range of reforms were conducted at a federal level to provide equal opportunities for same-sex couples in areas such as employment, taxation, social security and superannuation.

Australia’s history is bestrewed with nearly achieving marriage equality, as seen in the 43^rd Parliament. The Gillard Parliament saw an increased focus on the subject of equal marriage rights and included three Bills to amend the Marriage Act 1969. The Bills were introduced by Labor, Greens and an Independent MP and were to legalise the institution of marriage for both heterosexual and homosexual couples as well as legally recognise same-sex marriages that were conducted over-seas. While the Bills were included in two parliament enquiries, they were not passed.

However, with the legalisation of same-sex marriages in the Unites States in 2016 and sixteen countries with marriage equality, public pressure was placed on the Australian government to amend the Marriage Act 1969, thus the introduction of the Australian Marriage Law Postal Survey. The survey sent out by the Australian Bureau of Statistics (ABS) unlike referendums, was voluntary and asked the question “"Should the law be changed to allow same-sex couples to marry?" Everyone on the federal electoral roll was mailed the form with a reply-paid envelope and the results tuned in with 61.6% in favour of marriage equality. The Postal Survey played a pivotal role in the legalisation of same-sex marriages as prior to the survey the Coalition government had pledged to facilitate a private bill on the topic depending on the results of the inquiry.

However, the issue now settled on whether the Parliament would pass a federal amendment or leave State governments to pass their bills. Constitutionally, any legislation on the topic of ‘marriage’ is to be a federal decision, however, the High Court hadn’t defined what the term meant. The 19th century Constitution outlined it to be a “a union between a man and a woman” but it was unclear if the definition had evolved as time changed. Now, defined as “the union of 2 people to the exclusion of all others, voluntarily entered into for life”, marriage as a legal term embraces marriage equality.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

The term “best interest of the child” plays a crucial role in family law legislations and is a factor that Court takes into account when handling cases in regards to children. To uphold Article 3 of the United Nations Conventions on the Right of the Child which states “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”, the Australian Family Law Act 1975 (Cth) was amended in 1995. The Act requires the court to consider the best interest of the child and also makes it clear that both parents have shared responsibility for the child until they are a legal adult.

In 2006, the factors that go into the Court’s consideration when deciding best interests of the child were broken into two lists – primary considerations and additional considerations. The focus of these lists is on protecting the child from psychological and physical abuse as well as making sure they have proper parenting and support.

Primary Considerations

Primary considerations are the main points that the court adheres to when acting in the child’s best interest. They are:

• Protecting the child from abuse, neglect and family violence, including exposure to such topics (e.g., seeing or hearing abuse)
• Ensuring the child has a meaningful relationship with both their parents

Additional Considerations

Only relevant additional considerations are taken in account in court, these include:

• The child’s views, taking into account their level of understanding and maturity
• The relationship they have with family members, including extended family
• The effect of change of setting for the child and the effect it will have on the child and in the case of separation, will the travel affect them
• Whether the child’s caregivers can provide for their needs and have taken the opportunity to make long-term plans for the child
• The child’s cultural background, lifestyle, sex and maturity and the importance of maintaining their connection to culture
• Anything else the Court deems appropriate

In summary, the best interest of the child is one of the main components the Court considers in Family Law and it must hold their best interest at the utmost of importance, above that of parent’s and caregiver’s. If there is more than one child, then the court considers what is best for each individual and how it would impact their relationship with each other.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

I have recently completed my work experience at Freedman and Gopalan Solicitors. I am extremely grateful for the past few days, and I am definitely pleased that I chose to come to Freedman and Gopalan to complete my work experience. I made the decision to come to this Law firm as I have wanted to study law and become a lawyer one day for as long as I can remember and new that when I was given this opportunity, I would jump at the chance to see what being a lawyer is really like and if it really is what I want to do.

Throughout the past 4 days I have learnt a lot about how things work around law firms and the amount of work that goes into everything that happens. I completed simple tasks such as archiving, creating chronologies, scanning and destroying and writing a long list of law related articles. Despite seeming like a something small, I learnt that each task that needed to be completed was extremely vital in ensuring all cases and the firm ran smoothly. I definitely enjoyed everything that I did and especially enjoyed reading through each of cases as they definitely gave me an insight into the types of things I might encounter when undertaking a career in law. Despite their being a large range of cases that the firm deals with, all of them intrigued me immensely as I was curious as to how and why things happened and felt eager to be a part of the process.

When starting my time at Freedman and Gopalan, I was definitely nervous but excited at the same time as I wasn’t sure what to expect and how I would feel after my last day. Its safe to say that I shouldn’t have been that nervous as immediately after walking in, I felt extremely welcome and comfortable to begin learning and helping out. The entire team are all really open and friendly people who didn’t hesitate to help me when I was unsure of something, and I am most definitely going to miss getting to learn new things from everyone at the firm.

Overall, I am undeniably pleased with the time I have spent with the staff at Freedman and Gopalan and I am immensely grateful that everyone was willing to let me spend the past 4 days here despite having a long list of tasks to complete each day. If ever given the chance again, I would happily come back to Freedman and Gopalan. Although it was only a few days, the limited amount of time that I spent here was eye-opening and helped me decide that I would love to continue studying and one day pursue a career in Law.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

Dispute resolution is how disputes come to an end. There are a variety of types of dispute resolution that can be used for a variety of situations, including Mediation, Arbitration and Litigation.

Mediation involves a third party who will help resolve the issue and help them come to an agreement. An arbitrated outcome is where an arbitrator court will decide how the dispute will be resolved and will enforce a binding decision on the parties. A successful dispute resolution team will ensure that they do whatever is necessary to help the parties come to an end with the disagreement. The team for dispute resolution will need to make sure they are all aware of the details of the situation and that they are willing to help out.

There must also be a well-set plan that can be used throughout the resolution process, this will ensure that the process runs smoothly, and everyone is aware of what is happening throughout the period of the dispute. Everyone needs to be aware of the agreed upon strategies that must be implemented into the practical action plan that will make all components of the process clear and easy to follow. The team must also be confident in what they are doing to avoid the risk of any errors that could occur within the process. Everyone must also be willing to seek common ground and find a middle ground where it will be the most practical for cost and time, as well as keeping the tone of the negotiation focused on resolution rather than fault-finding and complaining to ensure momentum towards a solution. These factors will all ensure that the dispute resolution process runs smoothly and effectively to allow for the outcome to be easy to achieve for all involved.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

Parenting coordination is vital for co-parenting and the mental health impacts family matters can have on children. Parental conflict has extreme impacts on the children of the relationship and because of this, divorcing parents must communicate with each other in a healthy manner concerning parenting issues. Parent coordination is the use of an intervention that helps follow a family dispute in court where a parenting coordinator is appointed to assist the parents to navigate and apply the newly placed parenting orders without further disputes arising.

The family’s progress is managed through education, mediation, and case management which helps ensure that the parents fulfill their obligations to their children and comply with the court orders. Research shows that when parents work with a parenting coordinator, it significantly reduces conflicts and disagreements in the future.

Parenting coordination is useful in high-conflict matters where clients continue to re-litigate non-legal issues related to co-parenting arrangements such as changeovers, overnight stays, and shared-parenting time. The use of parenting coordination can benefit multiple people involved in the dispute as through using parenting coordinator, lawyers are able to focus on matters such as the financial side of the case rather then listening to allegations or ongoing stories that each party will talk about in regards to the children.

After using a parenting coordinator, it is less likely that the parents will bring each other back to court as they will have undergone the appropriate education and management that they will be more aware of the effect the disputes have on the child and themselves.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

The affirmative consent law in Victoria was recently passed to allow the focus of sexual assault matters to shift to trying to get the perpetrators to prove that they gained consent from the victim rather then trying to get the victim to prove they did not provide consent. This reform outlines that the person must have a clear and enthusiastic ‘yes’  which is easily recognisable for the consent to be justified. The ‘yes’ can be anything such as a physical gesture, a verbal yes, or reciprocating a move that makes it obvious the answer is yes.  It states that a person’s belief in consent must be reasonable which will include the steps they took to find out whether their sexual partner consented. Under the reform, the perpetrator must include r demonstrate what steps they too in order to gain consent from the victim which will ensure the attention is focused on their actions to confirm consent rather the what the accuser did, or didn’t do, to deny consent

The new law will ensure that the victim-survivors receive better protection from sexual assault with also making stealthing illegal as well to hep with preventing unwanted pregnancy. Despite the purpose of law being used to help victims of domestic violence, many are saying that the new definition and requirements might make the definition of consent more confusing as the definition is currently open to interpretation as the laws did not say that consent be given continuously through a range of different communication methods of words and actions. It is recommended that the new bill includes some more framework to make it more understandable as well as effective education the allows more people to be aware of the laws and new definitions.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

Content Warning: The following article contains information regarding sexual assault.

Sexual assault is the legal term that encompasses a range of sexual offences committed against a person. Circumstances range from showing indecent images to another person, to kissing or touching them, in addition to penetration of another person’s body with a body part or object.

Offences often used synonymously with sexual assault include:

• Sexual abuse, rape, indecent behaviour, indecent assault, sexual molestation, incest, child sexual abuse, child sexual assault, touching and sexual harassment.

The law on this is outlined in Part 3, Division 10, 10B, 15B and 15C of the Crimes Act 1900 (NSW).

While the terminology is commonly used, the common law offence of rape was scrapped in New South Wales in 1981.

The Women’s Legal Service NSW have compiled the following table which clearly maps out the distinction between offences:

What does ‘sexual intercourse’ mean?

Sexual intercourse involves:

• A person putting their penis, fingers, hand, tongue or an object into your vagina or anus; or
• A person putting their penis or vagina or anus on your mouth; or
• You putting your vagina, anus or mouth on someone else’s penis or vagina

Legally, sexual intercourse tends to involve some form of penetration by genitals, object or body parts into the mouth or genitals of another.

Aggravating circumstances include:

• Being under the age of 16 years old
• Use of a weapon during the sexual assault
• Having a severe disability
• The abuser being a figure of authority – i.e. teacher, carer
• You are physically hurt when they sexually assault you

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

The transition to a new Albanese government has shifted the focus to introducing a plan to deliver 10 days domestic violence leave for workers. If this is passed, the changes to employment law would ensure that any Australian worker, regardless of work type, would be supported when leaving domestic abusive relationships.

Hence, this law to introduce family and domestic violence leave for 10 days would ensure that survivors are being protected, and empowers them within the workspace, tying closely to his mantra of “No one held back, and no one left behind.”

The Labor government’s goals for the family law system seeks to be “accessible, safe, properly resourced, simpler to use, and deliver justice and fairness”, demonstrating the importance of maintaining worker’s safety and also children’s safety.

It has been stated that on average, one woman a week is murdered by her current or former partner. Therefore, this new provision would offer individuals, particularly women in abusive relationships, the chance to protect themselves, and their children without compromising financial losses as they get paid domestic violence leave.

It is stated that to leave a violent relationship, it costs $18,000 on average in a year. Paid domestic violence leave would ease the significant cost burdens that are associated with escaping from a violent relationship. This links closely to domestic social worker Samantha Parker’s comment about the ability for this new employment law would save lives, since it enables more women to feel empowered to leave these abusive relationships.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.