The obligations and rights of parties are outlined in formal agreements through contract terms. Terms can either be express or implied.

Express Terms refer to terms which are explicitly outlined in the contract. Generally, written or oral express terms are incorporated into a contract through signature, notice referring to another document containing terms, or a regular course of dealing, whereby terms in previous agreements may be assumed as incorporated.

Implied Terms refer to terms which are not explicitly outlined in the contract. Generally, these terms arise in situations where parties do not consider or turn their minds to particular events. Implied terms may be:

• Implied by fact – a term which “goes without saying” e.g: if you order food at a restaurant, that the restaurant will serve the food, and the customer will pay for it.
• Implied by law – a term part of specific categories of contracts under legislation or precedent e.g: lease, employment, or service contracts.
• Implied by custom – a term which can be reasonably presumed to align with other contracts in the same industry or context.

Parol Evidence Rule

For contracts that are wholly in writing, the Parol Evidence Rule (‘PER’) generally prevents extrinsic evidence from admissibility to the Court. Extrinsic evidence may include statements made and correspondence between parties during negotiations, prior to the contract’s formalisation in writing.

However, exceptions to the PER may arise in the following circumstances:

• When there is ambiguity in determining the meaning of a term – in this case, extrinsic evidence including context and history may be considered by the Court to ascertain a term’s meaning as intended by the parties;
• When the Court finds existence of an extrinsic agreement, known as a collateral contract, determined through the satisfaction of the following conditions:

1. 1. The agreement is both connected, but independent, to the main contract;

1. 2. The agreement must be consistent with the terms of the main contract.

The general example of a collateral contract is inducing a party to enter into the main formal agreement by providing further consideration e.g: a car salesperson promises an additional warranty period if purchase a car and agree to its main contract terms.

• When there is fraud, duress, illegality, misrepresentation, or other misconduct – in this case, extrinsic evidence in relation to the misconduct may be considered by the Court to invalidate the contract.

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

Domestic violence victims can often feel unheard and not helped, both throughout and after their experiences, and often feel like they don’t know where to look to seek assistance. But help is out there, and there are several different programs and organisations that can provide both financial and non-financial assistance to help victims escape their circumstances and begin to rebuild their lives.

Victim Services NSW

The NSW Government branch Victims Services currently runs the Victims Support Scheme for all victims of crime, including domestic violence. This includes not only those who have been directly affected, but also those who are affected by witnessing the crime, such as family members. The type of support is primarily focused on financial assistance, providing money to cover any immediate needs as well as covering more long-term economic loss. This service is particularly useful for providing victims with a lump sum Recognition Payment, as well as ongoing financial assistance as and when needed, determined by the individual’s circumstances.

It is important that if you are experiencing domestic violence, you contact the NSW Police Force as soon as you can. Besides helping to stop the violence and ensure your safety, this is one of the requirements to be eligible for Victims Services.

Timeframes for Victim Services NSW

It is also crucial to keep in mind the timeframes for applying to Victims Services. For their counselling services, there are no time limits, and you can call at any time after the incident for a private and confidential chat. However, for financial support, you will generally need to contact Victims Services within two years of the incident occurring, or two years after turning 18 if it occurred when you were a child. The exception to this is the Recognition Payment, which you can obtain up to ten years after a domestic violence incident. If you apply after two years, however, besides this one-off payment, you will likely be very limited or unable to receive any other kind of financial support regardless of your need.

Other Assistance Programs

There are also a range of programs and organisations that provide other kinds of assistance to those who have experienced domestic violence. White Ribbon Australia works tirelessly to promote several different services, including:

• 24-hour hotlines such as 1800 RESPECT for anyone experiencing, or at risk of, family/domestic violence or sexual assault;
• A Men’s Referral Service to provide men with assistance, information and counselling in relation to domestic violence;
• A Kids Help Line to provide private and confidential counselling for children and young people aged 5 to 25;
• 13 Yarn to help Aboriginal and Torres Strait Islanders experiencing a crisis;
• And an Elder Abuse Line for people who experience, or witness, elder abuse.

Mental  Health Crisis Hotlines

Organisations such as Beyond Blue and Lifeline are more targeted towards assisting people with both diagnosed and undiagnosed mental health disorders. These organisations have 24-hour hotlines, and can help provide over-the-phone advice and assistance to those who are experiencing mental health problems, particularly those suffering from depression, anxiety or suicidal thoughts, and help you take that first step in reaching out and getting the help you may need.

Emergency Accommodation – Link2Home

Finally, for those who need emergency accommodation to leave a dangerous or violent environment, there is Link2Home, an NSW Government organisation that provides another 24-hour hotline that can help those in need find urgent accommodation. They specialize in helping victims of domestic violence find shelters or services they may need, as well as anyone experiencing homelessness for any reason.

Important Numbers

Some of the hotlines discussed in this article include:

• Victims Services (Victims Access Line) - 1800 633 063
• 1800 RESPECT - 1800 737 732
• Men’s Referral Service - 1300 766 491
• Kids Help Line - 1800 55 1800
• Elder Abuse Line - 1300 651 192
• 13 Yarn - 13 92 76
• Beyond Blue - 1300 224 636
• Lifeline - 13 11 14
• Link2Home (Domestic Violence Line) - 1800 656 463
• Link2Home (Homelessness Line) - 1800 152 152

Remember – in an emergency, always call 000 for urgent help.

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

After a divorce or separation, parties may come to an agreement regarding their property and/or parenting matter, and they can seek the advice and help of family lawyers to aid them in doing so. Subsequently, the parties can have this agreement formalised by way of Consent Orders, which are legally binding documents that have been approved by the court.

Consent Orders can cover a range of matters, including how matrimonial property is to be divided between the parties. Parties may also come to an agreement as to how parenting arrangements will operate, such as by allowing the children to live with the Mother and spend time with the Father every weekend.

Why Are Consent Orders Important?

Individuals must be wary of relying on handshake deals or informal agreements regarding their parenting and property matters because these are not enforceable in court. This means that Party A may unilaterally change the terms of the agreement or refuse to uphold the entire agreement. Unfortunately, Party B would have little means of recourse.

Therefore, Consent Orders are important in formalising the agreement which both parties have arrived at.

What Are Some Advantages of Consent Orders?

1. Cost Effective - Consent Orders are significantly cheaper compared to litigation. Statistics show that the costs of obtaining Consent Orders are 60%-70% lower than that of litigation.
2. Efficiency - Courts deal with a significant number of cases, resulting in substantial delays before a final verdict is delivered. Consent Orders allow the parties to prepare an agreed plan between themselves, which they can present to the court for approval.
3. Flexibility - Consent Orders are flexible, allowing parties to negotiate the terms directly between each other and arrive at an agreement which specifically addresses their concerns or interests.

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

A Power of Attorney is a legal document that allows an individual (the principal) to appoint another person (the attorney) to make decisions relating to financial matters, property and healthcare if the principal becomes incapable of doing so.

However, this power can be abused, resulting in the attorney acting in ways contrary to the principal’s best interest. Here are 3 key signs that may suggest an attorney is abusing their power:

1. Unexplained Transactions: if there are a number of transactions which do not align with the principal’s normal spending habits, this may suggest that the attorney is mismanaging the principal’s funds and using it for their own benefit
2. Unfulfilled Responsibilities: if the attorney neglects the needs of the principal, such as by failing to provide necessities like food or medication, it may suggest that the principal is being neglected and the attorney's attention is focused elsewhere
3. Limited Communication: if the attorney limits their communication with the principal and their family members, it may suggest that they are concealing information and instead, are choosing to undertake their own course of action

So, how can Power of Attorney abuse be prevented?

1. Choose a Trusted Individual: it is valuable to choose an individual with integrity and transparency so they have the principal’s best interests at heart and will not abuse the power granted to them
2. Impose Appropriate Limits on Their Power: principals can choose to impose limits on the decisions which their attorney can make, such as only allowing them to make decisions relating to the principal's healthcare
3. Seek Legal Advice: seeking professional legal advice can be crucial in ensuring that the Power of Attorney document reflects the principal’s best interests, and legal professionals can identify areas where issues may arise in the future and accordingly, provide solutions

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

“Being on the same financial page with your partner isn’t just about avoiding fights over who forgot to pay the Netflix bill. It’s a window into a shared vision of your future: how you value experiences, how you prioritise your family, and how you define success.” Jeff Guenther, a therapist from Portland, Oregon, highlights an uncomfortable yet crucial topic which couples should discuss before marriage: money.

Before tying the knot, it’s important to discuss questions on the topic of money to avoid complications or disagreements further down the road, such as mismatched approaches to budgeting, or conflicting views towards spending. Some discussion points could include:

1. “What are your financial goals?”

Individuals in a couple may often be saving for different goals, whether it be for a car, property or dream holiday. It's important to ensure that your goals as a couple are compatible to avoid complexities arising in the future.

2. “How are your spending patterns and habits?”

Spending patterns can give rise to arguments if one partner is a frugal saver, and the other is an avid spender. Planning how to reconcile these differences, if they exist, is important in helping couples avoid disagreements and tension.

3. “How should we manage our finances?”

How will the income earnt by each partner be managed? Will you choose to keep finances separate, combined, or have a mix of both? Clarifying these questions early on ensures that couples are on the same page and to avoid issues arising when the bills arrive.

4. “What are your thoughts on prenups?”

One of the last things couples may want to talk about is divorce. But it's important to be aware of the financial implications which arise from divorce and hence, sharing thoughts on prenups helps each partner take steps towards protecting their accumulated assets if they wish to do so.

5. “Let’s keep on talking about this.”

A one-off conversation about money is unlikely to yield valuable insights about how your partner thinks money should be managed. It's important to continuously bring up the topic of managing money as a couple especially when circumstances change, such as when one partner receives a substantial pay rise at work, or you are both thinking of raising children.

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

Considering Superannuation

In family law disputes, superannuation would be considered a property and an asset that can be divided between both parties. The Family Law Act 1975 allows the Family Court to consider superannuation when a relationship breakdown occurs. Usually, superannuation can be split through the parties reaching an Agreement or if an agreement cannot be made, then a Court Order can be sought for the superannuation split. The information of the other parties superannuation can be obtained using the Superannuation Information Request Form.

Within the Agreement or Orders, the parties can choose to either split the super balances or place a super payment flag. A superannuation split will involve transferring the agreed or said amount from one party to the other. The transfer can be either a fixed dollar amount or a percentage of the super balance. Usually, the funds will stay in the super environment until either party meets a condition of release which allows them to access their superannuation funds as cash.

A super payment flag can be placed on the account of either party. This would mean that transactions will not be possible on the accounts until the flag is lifted. This allows the parties to defer their decision to a further point in time such as retirement or prevent either party from transferring funds out of the account till the matter is settled especially if they meet a condition of release.

Procedural Fairness and Process

Prior to a court order for a superannuation split, ‘procedural fairness’ must take place. This process involves a letter being provided to the Trustee of the Superannuation Fund which includes details of the proposed Order. The trustee then must be given time to assess the proposed Orders, and this is a legal requirement in the process of the superannuation split. The court cannot make an order for a superannuation split without procedural fairness taking place.

In the letter sent to the trustee for procedural fairness sent by your solicitor, there are a few important details that must be included for the trustee to be in a position to accept the proposed orders. The parties to the family law proceeding should both be outlined clearly on the letter as well as the member number of the account which is being considered for the split. The name of the super fund in question and account details such as the USI and the ABN of the super fund should also be outlined. The base amount or percentage being sought should be included and the trustee would be able to provide a response to the letter. The letter and response from the trustee along with evidence of the value of the account will be sufficient to show that procedural fairness has taken place.

Once the order has been provided, a sealed copy of the Order needs to be provided to the super fund trustee. The transfer will then be made via the super fund by either rolling the funds out from the account or creating a new account within that super fund in the name of the recipient of the funds. If the Court Order includes a super payment flag, it will be placed onto the account that is being restricted.

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

What is Contribution Splitting?

Contribution splitting refers to the process where an individual’s superannuation contributions can be transferred to a spouse or spouse equivalent’s superannuation fund. The contributions that can be split under this process are known as concessional contributions. Concessional contributions refer to funds in super that are the result of pre-taxed income. These funds are then taxed at 15% by the fund which go the Australian Taxation Office (ATO).

Types of concessional contributions include:

• Super Guarantee Contributions – These contributions are mandatory superannuation payments made by an employer.
• Voluntary Employer Contributions – These contributions are voluntarily made by an employer.
• Salary Sacrifice – These contributions are usually made based on an arrangement made by an individual member and their employer to pay a portion of their salary as superannuation on top of mandatory contributions.

Rules Surrounding Contribution Splitting

The maximum amount that can be split under contribution splitting is 85% of an individual’s concession contributions for the financial year or the concession contribution cap for the financial year whichever is lesser. (The cap for the 2024/2025 FY is $30,000)

A spouse for the purposes of contribution splitting refers to the qualifying spouse being either legally married to, in a registered relationship or in a de facto relationship with the person who is making the contribution split. The spouse receiving the contribution split must be under the age of 65 and be an Australian resident.

To apply for a contribution split, an individual must submit the request after the financial year for which they would like to split contributions for e.g. Application must be submitted in 2024/2025 for contributions made in 2023/2024. Most super funds will have a contribution splitting form available or the ATO has their own contribution splitting form which can be used.

Reasons Why You May Decide to Split Contributions

There are various reasons as to why someone would decide to submit a contribution split:

• Potential to boost the super savings of your spouse where they may not be working and would not be receiving superannuation payments from an employer. The funds can be used to grow their investment or to cover insurance premiums attached to super.
• Balancing the amount of super that both you and your spouse would have when retiring. This can be beneficial where if one person has a higher amount of super, they would be entitled to a lower amount for their Age Pension.
• Potential to access benefits earlier. If one member in a relationship is closer to retirement age they will be able to access the funds earlier. Lump sum funds withdrawn after the age of 60 are tax free.

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

After the unprecedented occurrence of four domestic-violence related deaths in the span of a single week, a Royal Commission into South Australia’s domestic violence ‘epidemic’ was commenced on the 1st of July 2024. It has inquired into 5 aspects aligned with the ‘National Plan to End Violence against Women and Children 2022-2032’- prevention, early intervention, response, recovery & healing and Coordination.

Prevention: 

The Commission intends to investigate how South Australia can prompt preventative change in social drivers of domestic, family and sexual violence.

Early Intervention: 

The Commission aims to find solutions to improve effective early intervention by identifying and supporting high-risk individuals.

Response: 

The Commission expects to investigate how South Australia can ensure best practice responses by providing services and support for affected families.

Recovery and Healing 

The Commission aims to provide an answer on how South Australia can take a more positive approach with recovery and healing that will reduce the risk of re-traumatisation and can better support survivors.

Coordination 

Lastly, the commission intends to recommend solutions for how communities and different organisations, whether government or not and can coordinate efforts across all the above aspects so as to design and provide a capable domestic, family and sexual violence system that meets the needs and wants of all affected individuals.

What Does the Future of This Commission Look Like?

The Royal Commission is planning to conclude its investigations by the 1st of July 2025. Before then, the commission is working on uncovering initial responses from South Australian residents especially by engaging with diverse groups (including First nations people, culturally diverse communities, members of the LGBTQIA+ community, people with disabilities, people of all ages, regional residents and experts in related fields) and focusing on systemic development to better suit a wide range of people.

How Might This Commission Influence NSW? 

The South Australian Royal Commission into Domestic, Family and Sexual Violence has the potential to foster stronger cross-state collaboration by setting new benchmarks in addressing Domestic Violence and providing effective solutions to also help those in NSW.

If you are an Australian citizen experiencing domestic, family or sexual violence, please call 1800RESPECT (1800 737 732). 

If you or someone you know wish to discuss this issue further, or seek legal advice on matters concerning domestic, family, or sexual violence, please do not hesitate to contact us on 02 8999 9809.

What is a Section 60I Certificate?

Under the Family Law Act 1975 (Cth) (‘FLA’), separating couples who wish to apply to the Court for a ‘parenting order,’ must first demonstrate that they have made a genuine effort to resolve the dispute, through Family Dispute Resolution (‘FDR’).

A Section 60I Certificate (‘s60IC’) effectively documents this genuine attempt, as it may only be issued by registered FDR Practitioners. A copy of the s60IC must subsequently be filed with the Court Application for a Part VII order (which concerns the care and welfare of children).

Significantly, where a party fails to attend FDR, or does not make a genuine effort to resolve the dispute, the Court may order them to pay costs.

Types of s 60IC:

There are 5 types of s60ICs that can be issued under FLA ss 60I(8), covering different real-life circumstances:

• The ‘person did not attend FDR… due to the refusal, or the failure, of the other party …to attend’ (per FLA ss 60I(8)(a));
• The ‘person did not attend FDR… because the [FDR] practitioner consider[ed]… that it would not be appropriate to conduct the proposed FDR’ (per FLA ss 60I(8)(aa));
• The ‘person attended FDR… and… all attendees made a genuine effort to resolve the issue[/s]’ (per FLA ss 60I(8)(b));
• The ‘person attended FDR… but [they, or] the other party… did not make a genuine effort to resolve the issue[/s]’ (per FLA ss 60I(8)(c)); or
• The ‘person began attending FDR… but… the FDR practitioner consider[ed]… that it would not be appropriate to continue the FDR’ (per FLA ss 60I(8)(d)).

Applicable Timeframe:

A s60IC must be filed within 12 months of the last FDR session attended, or attempted, per Regulation 26(1) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth).

Key Exceptions:

The s60IC requirement does not apply in certain circumstances (per FLA ss60I(9)), including, but not limited to:

• When the order being applied for is to be made with the ‘consent of all the parties.’
• Where there are ‘reasonable grounds to believe that there has been… [or]… would be a risk of [child] abuse… if there [was]… a delay in [making the order].’
• If ‘there has been [a history of, or] … risk of family violence… by one of the parties.’
• If the ‘application is made in circumstances of urgency.’
• When ‘one or more of the parties… is unable to [effectively] participate… in FDR… [due to] incapacity… physical remoteness… or… other reason[s].’

Please note: Western Australia has a separate template (form) for a s60IC that only applies under specific circumstances.

If you or someone you know wish to discuss this issue further, or seek legal advice on family matters, please do not hesitate to contact us on 02 8999 9809.