Superannuation is the regular payment made into a fund by an employee towards a future pension. In Australia superannuation is compulsory, meaning that there is a minimum percentage of income which must go into a super fund. There are certain protections around spending the money in a super fund.

For many people, it is one of their most valuable assets, alongside the family home. However, many people do not consider their superannuation fund when separating from their partner or spouse.

In a family law property settlement, super is considered an asset, alongside other assets such as the car, home and bank accounts. It can thus be subject to a splitting Order, wherein each party will receive a part of the super fund. Parties may also agree not to split the super, and decide that the party who does not receive the super fund will receive more of the other assets.

Why is superannuation so important? Why can't the parties just keep the fund in their own name?

In many cases there is a great disparity between the super fund held by a female party and that held by a male party, with women generally holding less super. In 2015-16 the overall gender difference in superannuation balances was 3.8%. The average men's superannuation balance was nearly twice the size of an average woman's.

This disparity can happen for a multitude of reasons, such as:

This is particularly relevant, as life expectancy for women is generally longer and thus retirement savings must stretch over a longer period.

Therefore, while important for both parties, it is particularly important for women to consider super one of the matrimonial assets which should be considered when splitting the asset pool after separation.

If you would like to enquire about any of the issues raised above, please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.

 

 

As Australian school children are heading back to school this week, here are a few things to remember:

1. Children are legally required to be enrolled in school

By their 6th birthday, children must be enrolled in school or registered for home schooling. Children may go to school earlier (if they turn 5 years old on or before July 31 then 4 year olds may start school that year), but the mandatory age is 6 years old.

Children can enjoy free tuition at public schools run by the NSW government, unless they and/or their parents are temporary visa holders, in which case education fees may be charged.

If you are moving interstate or from overseas, it is worthwhile talking to the school principal about which year level they should enter.

2. School Zones

School going back means school zones are back in operation. The limit of 40km/hr around schools help protect children on their way to and from schools at the times and places where children are moving around in high numbers. The Term 1 school zones will be in effect on Monday to Friday, until Thursday 9 April when the school holidays will commence. They operate from 8am to 9.30am, and 2.30pm to 4pm.

3. Parenting Arrangements

If you and your ex-partner share custody of your child and have a parenting arrangement in place, the changeover may occur at school pick-up and drop-off. It is important to follow the parenting arrangement that you have agreed with the other parent, and give plenty of notice to the school and any relevant parties if there will be changes.

If your child is transitioning from pre-school to primary school, or from primary school to high school, your parenting plan may need to be updated. The location and/or times of pick-up and drop-off will likely have changed, and all parties, including the child, need to be appear of the altered arrangements.

If you would like to enquire about any of the issues raised above, please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.

 

 

 

Within our society, we rely on the police to maintain public order and safety, to enforce the law and to prevent, detect and investigate criminal activities. We trust the police to carry out their role in accordance with the law and within the limits of their power.

While it is the role of the police to protect the public, it is the public’s role to keep the police accountable. Whether you are dealing with a noise complaint, or being asked for identification, it is imperative that you know your basic rights when dealing with the police.

What to do when police ask for identification?

If you are over the age of 18, you are required to provide the police with your name and address.

If you are under 18, you only need to provide the police with your age. You have the right to ask for a parent or lawyer to be present, in the process of questioning.

It is important to know that the police cannot ‘arbitrarily’ question people. They must have reasonable suspicion of your engagement in something unlawful before they start questioning.

What to do when police ask to search your car?

Where a police officer pulls you over with reasonable suspicion, for example, to inspect the smoke coming out of the back of your car, they can then use that as a reason to search your car. Subsequent to the search, the police can seize any unlawfully held weapons they find in the search and also seize evidence of other offences found.

Do you have to hand over your phone to the police?

Police do not have an automatic right to search your personal property, such as your mobile phone.

Your property can only be searched if:

The police have the power to stop, detain and search you without a warrant if they reasonably suspect that you are carrying something such as a weapon, illegal drugs or graffiti instruments.

Can I film the police?

You do have the legal right to film police, if it is in a public place, and as long as it does not interfere with the performance of the police officer’s duties.

The police do have the right to stop you from filming if you are obstructing them from carrying out their duties.

If you have been improperly searched or questioned by the police, please do not hesitate to contact the team at Freedman & Gopalan Solicitors on 02 8999 9837, and we will be happy to assist you and answer any queries you may have. 

 

Christmas is a happy time where families and friends can get together and enjoy each other’s company whilst sharing hearty meals and exchanging gifts. However, for families where parents have separated, Christmas can be a stressful time for each other and also for the child involved.

You will want the child to spend with Christmas with you, and in most scenarios, the other parent will also expect the same.

After a family separation, most will negotiate parenting arrangements in order to consider the day to day activities of the child. However, many forget to specifically consider upcoming celebrations relating to Christmas Day and the actual day itself. We would highly recommend for you to start discussions early with your ex-partner in order for you to be at ease before all the busyness that comes with the Christmas period.

We understand that face to face discussions may not be possible in your situation, so perhaps you could try and use email or text to communicate your position. Once an arrangement has been discussed, we would highly recommend that it is written down and both parties have a copy in order to prevent any unnecessary miscommunication, distress and conflict.

If, however you are unable to come to an agreeable arrangement, please do not hesitate to contact the team at Freedman & Gopalan Solicitors on 02 8917 8700, and we’ll be happy to assist you and answer any queries or concerns you may have. 

 

 

The ‘traditional’ or ‘nuclear’ family unit, comprising of mother, father and biological children, is no longer the only way we think and define families.

Rather, the concept of family has developed to take on various forms. Single parents, de-facto couples, same-sex relationships, blended families and adoptive families are among a few of the many familial structures present in our society today.

With an acceptance of a more dynamic family unit, the law has been forced to adapt and respond to accommodate for these changes.

In July of 2019, the High Court of Australia was forced to deal with the question, can a sperm donor be considered as a legal parent of a child?

This question was presented to the High Court after sperm donor, Robert Masson, applied to the Family Court in an attempt to prevent his friend, and the mother of the child, Susan Parson, from relocating to New Zealand with her female partner. A move that would have effectively separated him from his biological daughter.

Mr Masson, who was listed as the father on the girl’s birth certificate, told the court that he agreed to donate his sperm to his friend, on the agreement that the would be involved in the child’s life.

The child was conceived in 2006 and in the intervening years, the child refers to Mr Masson as “daddy”. Since her birth twelve years ago, Mr Masson has also maintained a close relationship with her, introducing her to his extended family, holidaying with her and volunteering at her school canteen.

Upon application to the Family Court, Justice Margaret Cleary wrote that the law recognised parents in different ways. In recognising Mr Masson as a legal parent, Her Honour prohibited Susan and her partner from relocating to New Zealand, ordering that the child is to spend regular time with Robert.

The girl's mother and her wife appealed the decision and won, arguing that Mr Masson was not the legal father, citing NSW Statute in evidence of their proposition. Under NSW state law, a sperm donor is presumed not to be the father of any child conceived using his sperm unless he is the husband or de facto partner of the mother. As a consequence, Mr Masson was presumed not to be the legal parent.

Mr Masson then filed an appeal to the High Court, relying on Commonwealth laws to support his claim of legal parentage. In ruling that Mr Masson was, in fact, a parent of the child, the High Court considered the clash between State and Federal laws. The majority held that Masson had clearly demonstrated, in addition to being a sperm donor, that he had an ongoing involvement and relationship with the child, meeting the definition of “parent” under federal laws. This decision reaffirmed the earlier ruling that the mother and her wife remain in Australia and are to consult Mr Masson on major parenting decisions.

In making this ruling, the High Court has expanded the definition of a “legal parent” to include a sperm donor. However, whilst the effects of this expansion may appear to be far reaching, the implications of this decision is limited.

Only where a sperm donor can demonstrate that they meet the definition of a parent under the federal act, and where the biological mother did not have a spouse at the time of conception, will the Court agree that the donor is a legal parent. Anonymous sperm donors who have not seen or had a relationship with their biological child will not be considered a legal parent in the eyes of the law.

Nonetheless, the complexity of this case highlights several practical issues for both prospective mothers and sperm donors.

Where a sperm donor does not wish to have any parental responsibility over a child, they may now find themselves exposed to the full gamut of responsibility, including child support and inheritance. Likewise, single mothers who do not wish to share parental responsibility with a sperm donor may be faced with parentage orders.

It is therefore in the best interests of all parties involved that a Sperm Donor Agreement be drafted and executed prior to entering into any donor-acceptance arrangements. Although it may not be legally binding, by clearly setting out their intentions in the agreement, both parties will be protected.

If you wish to discuss your options, please do not hesitate in contacting Freedman and Gopalan Solicitors.

 

Pets are an integral part of a family, and increasingly have become a major issue subsequent to a family separation. Not only can a family separation cause emotional stress for either partner, it also affects your children along with the wellbeing of your pet.

Whilst there is no current legislation in Australia that explicitly refers to the living arrangements of pets following a separation, they are, however, considered as part of the general personal property pool and in the same manner as furniture, clothing and other assets.

If you have issues with the custody of your pet like in the scenario where your ex-partner has taken sole custody of your pet without notifying you, you will need to make an application to the court in order to recover your pet.

There are also other things you need to consider: -

  1. The best thing to do in the first instance is to sit down and attempt to negotiate the living arrangements of the family pets together. Consider who the pet has predominantly bonded with and its relationship to each party.
  2. We understand that a family pet also comes with many financial responsibilities, including vet bills, grooming expenses and day to day feeding expenses. For this reason, we would highly recommend for Consent Orders or a Binding Financial Agreement to be entered into between the parties to ensure you would have a legally enforceable agreement to rely upon should any issues in the future arise. This would include considerations in relation to: -
    1. Who the pet would reside with on a day to day basis;
    2. With whom the pet shall be registered; and
    3. Who would be responsible for each financial expense.

If you have exhausted all your efforts with your ex-partner and would like to seek further information or assistance in relation to the custody of your pet, please do not hesitate to contact our helpful team at Freedman & Gopalan Solicitors, and we will be happy to assist you in any manner!

 

If both parties have reached an agreement in relation to parenting and/or property, Consent Orders can be entered into.

Benefits of formalising an agreement by way of Consent Orders are: -

  1. Consent Orders is a legally enforceable agreement that is approved by a Court. It also has the same legal effect if an Order was made by a judicial offer after a Court hearing/ trial. Serious consequences can arise should the Orders not be complied with and are breached.
  2. Once Orders have been made, they are final. It is difficult to vary an Order once it has been made.
  3. In respect of property matters, you may also be exempt from payment of stamp duty if the transfer of property (e.g. your matrimonial home) is transferred to a party or child of the relationship.

Time Limitations

Whilst there are no time limits when applying for an Application for Consent Orders in relation to Parenting Orders, there are time limits when applying for an Application seeking Property Orders.

  1. If your Divorce has been granted, an Application for Consent Orders must be filed within 12 months of that date.
  2. If you and your partner were in a de-facto relationship, then you will have 2 years to file an Application for Consent Orders.

If you are looking to finalise your family law dispute by way of Consent Orders, it is important to obtain independent legal advice to understand your rights and entitlements. If you wish to arrange an appointment, contact our team on 02 8917 8700.  

It is our very great pleasure to announce that Freedman & Gopalan Solicitors has once again been short-listed for the Women in Law Awards 2019!

We are a finalist category of:

The Women in Law Awards is dedicated to recognising and celebrating the outstanding women shaping and influencing the legal industry. The finalist list includes over 200 high-achieving legal professionals across Australia in 31 different categories. The winners will be announced on Friday, 22 November 2019.

The importance of women in law is a cause very close to our heart at Freedman & Gopalan Solicitors. The legal profession is improved and driven forward by the presence and work of women. Women bring the qualities of patience, empathy and positivity to their work and to interactions with clients and can often face very different hurdles to men in the workforce. This is why the Women in Law Awards are an important opportunity to recognise the contribution of women to the legal profession. We are humbled to be recognised on the national stage and proud to be part of the Women in Law Awards.

We take this opportunity to THANK our loyal clientele and most dedicated Staff and team members, without whom we are unable to continue to provide our most efficient and efficient legal services. Our special THANKS and appreciation goes to OUR AMAZING TEAM comprising:

Ms Mittu Gopalan

Mr Nikita Sofronov

Ms Maneesha Zacaharias

Ms Christie Murphy

Ms Jasmin Talj

Ms Nina Ho

Ms Penelope Smith

Ms Angelique Gebrayel

Mr Nitish Joshy

Ms Mrithika Shankarla and

Mr Timothy Mathew

We are mighty thrilled to start the week with this amazing news!!!

 

 

Contrary to popular belief, most Australians actually do not need to go to the Family Court of Australia to make arrangements for children, parenting or property once the relationship/ marriage has dissipated.

Whilst a Divorce Order must be obtained through the Court, there is no necessary requirement for parenting or financial/ property arrangements to be decided by the Court. The process of going to Court to resolve any disputes you may have with your ex-partner is a very expensive, cumbersome and stressful situation. Even so, you may also not get the result you want.

Nevertheless, it is essential that if you have separated from your partner, it is essential that all parties come to an agreement with regards to your children and/ or property.

Did you know there are many different options separating families can take besides going to Court? Here are some of them:

Parenting arrangements without going to Court

In order to ensure the needs and best interests of the child is met, it is essential to come to an agreement with you and your ex- partner. Parenting agreements can come in the form of:

  1. An informal parenting agreement or a written parenting plan

This is a written record of an agreement that is signed and dated between you and your ex-partner with regards to how the care of the children will be undertaken. However, it is important to note this is not a legally enforcement document in Court.

  1. Consent Orders from the Court

If you and your ex-partner continue to disagree about the parenting arrangements, you may want to consider entering into consent orders which is enforceable by a formal Court or the Police (if for example, your child/ children are not returned or kidnapped)

Property arrangements without going to Court

Even if you believe you and your ex-partner can come to an agreement between yourselves to divide your property without going to Court, it is essential that you seek legal advice to ensure that your interests are well protected.

  1. Informal agreement

Whilst an informal parenting agreement can be entered between you and your ex-partner, they are not enforceable by the Court which can be an issue should a disagreement arises in the future. Therefore, it may make more sense to make a financial agreement or have Consent Orders entered into between the parties.

  1. Binding Financial agreement (BFA)

This is a written document which outlines how your property will be split with your ex-partner. Whilst a financial agreement does not need to be approved by the Court, there are strict guidelines. In order to make a financial agreement, you must also obtain legal advice.

  1. Consent Orders

This is a written agreement which is approved and enforceable by the Court. When a Consent Order is made, it also has the same effect as a Court Order made after a hearing. However, it is a much more time and cost-efficient method. We would highly recommend for you to seek legal advice to ensure your best interests are protected.

Please do not hesitate to contact Freedman & Gopalan Solicitors on (02) 8917 8700 or by email to reception@freedmangopalan.com.au to discuss your legal avenues!

 

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