Under the Australian laws, the paramount consideration shall be given to the best interests of the child which means to ensure that children’s interests are preferred over those of any other party, for example, proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties regarding care, welfare and development of their children.

With respect to parenting orders and child relocation the court must consider the following factors when assessing what is in the best interests of a child under section 60CC of the Family Law Act:

• What arrangements would promote the safety of the child and of any person who has the care of the child;
• Any views expressed by the child, especially if the child is older and mature enough to make a considered decision on their own;
• The developmental, social, cultural and psychological needs of the child;
• The capacity of each person who is proposed to have parental responsibility for the child to provide for the child’s needs;
• The benefit to the child of having a relation with their parents and other significant person when it is safe for them to do so;
• Anything else that is relevant to the particular circumstances of the child, for example, the relationship between one parent and the child is more nurturing than the other.

However, the court may deny a request to relocate, if the motive for relocation appears to limit the other parent’s access to the child. The above factors are to be considered alongside any history of family violence, abuse or neglect involving the child or a person caring for the child. Any family violence orders that apply must also be considered.

However, in many instances the competing interests of the disputing parents may eclipse the best interests of the child. Holistically, the best interest of the child is that the separation and divorce proceedings shall be determined peacefully and as expeditiously as possible so as to maintain the parental focus towards the child’s development and growth. Please get in touch in case you are concerned about your child’s best interest with respect to a family law issue.

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

If you're going overseas to get married, then you would not be able to apply for a marriage certificate in Australia until that marriage was attended by an authorised Celebrant. Generally, overseas marriages are recognised in Australia if the marriage is recognised in the country where it took place and it fulfils the requirements of a valid marriage under The Marriage Act, 1961. The requirements for a valid marriage under The Marriage Act, 1961 are as follows:

• not be married;
• not be marrying a parent, grandparent, child, grandchild, brother or sister;
• be at least 18 years old, unless a court has approved a marriage where 1 person is 16-18 years old;
• understand what marriage means and freely agree to marry.

Taking an example, requirements of a valid marriage in India under The Hindu Marriage Act, 1955 are similar to the requirements mentioned above apart from the one that bridegroom must have completed the age of 21 and bride completed the age of 18 years at the time of marriage.

However, requirement under The Hindu Marriage Act, 1955 for solemnization is not based on registration and rather under Section 7 is based on rites and ceremony which includes Saptapadi (taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. Further, Section 8 mentions that the validity of any Hindu marriage shall in no way be affected by the omission to make the entry in a register of marriages.

Hence, in the event where a Hindu Couple validly married in India arrives in Australia without a marriage certificate could have trouble proving their marriage under Section 88G of the Marriage Act 1961, where prima facie evidence required is a document in the form of a certificate, record or entry of marriage issued by an authority of that Country. Having trouble proving your marriage in Australia then please get in touch with us.

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 Binding Financial Agreement is a necessity not a choice - A stark difference between family law in Australia and India with respect to division of property between a couple on separation or divorce

Family law in Australia is in stark contrast to family law in India as a result of law based on personal laws in India and not on common law. For example, in India, a Hindu wife and husband could own their properties separately throughout the marital relationship, including separation or divorce. Particularly, Section 14 of the Hindu Succession Act 1956 clearly codifies that property of a female Hindu is her absolute property, including both movable and immovable property. The only liability which could arise on separation in India, in relation to Hindu couple, is maintenance.

At common law, once married, a husband and a wife become one entity and so do their properties; termed as a property pool/matrimonial asset pool.  Unfortunately, even inheritance and gifts are not protected assets. On separation and divorce, the Courts in Australia, for the division of properties, treat each case differently depending upon the circumstances of the parties such as each party’s financial contributions to the relationship, duties of each party, and the ongoing and future financial needs of each party. Though the proportion in which the division of asset pool would be made depends on many factors such as timing of inheritance/asset received/earned before, during or after the relationship/marriage; whether the asset was being used jointly during the relationship/marriage or it was kept separate; size of inheritance/assets; in case of will or gift, the intention of the testator or benefactor; any contribution of the other partner towards the asset to enhance its value or convert it into something of use, for example, an old apartment renovated using partner’s funds for renting purpose.

Entering into a binding financial agreement with your partner before marriage or even during marriage is the best option to prevent your assets from being considered a part of the matrimonial asset pool. For a binding financial agreement to be legally binding, it is essential to have consent of the other partner and that the partner must have received an independent legal advice from a lawyer. Though a binding financial agreement may or may not stand its test in a Court but it is always better if a professional lawyer has drafted it so as to make sure that each factor is taken care.

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 a Director Penalty Notice?

Directors of a company are responsible for ensuring that the company complies with its tax and superannuation obligations, such as ‘pay as you go’ withholding tax (PAYGW), net Goods and Services Tax (GST) and Superannuation Guarantee Charge liabilities (SGC).

The ATO may choose to recover the unpaid amounts from either the company directly or from the directors personally by issuing a Director Penalty Notice (DPN).

Therefore, as a director, if your company fails to meet the above obligations and lodge its returns accordingly within the due date, you will be held personally liable for your company’s tax debts. If a company has more than one director, the ATO may in its discretion recover the company’s unpaid amounts from each of the directors equally.

When are you likely to receive a DPN?

DPN liability is triggered in two different scenarios:

1. Where your company has lodged its Business Activity Statements (BAS), Instalment Activity Statements (IAS) and/or SGC statements within 3 months of the lodgement due dates and have reported the unpaid amount of PAYGW, net GST and/or SGC; or
2. Where your company has lodged its BAS, IAS and/or SGC statements and reported the unpaid PAYGW, net GST and/or SGC amounts to the ATO after more than 3 months after the lodgement due date, or
3. Where your company has failed to lodge and report the unpaid PAYGW, net GST and/or SGC amounts for more than 3 months after the lodgement due date.

What should you do when you receive a DPN?

In case of the first scenario above, you will have a 21-day window to comply with the Notice by either:

1. paying the specified penalty amount in full,
2. negotiating a payment plan with the ATO to settle your company’s outstanding debts,
3. appointing an administrator or small business restructuring practitioner to the company as per the Corporations Act 2001 provisions, or
4. appointing a liquidator to wind up your company.

In the second and third scenarios above, you will be required to remit payment of the unpaid amounts in full in order to comply with the penalty notice.

New Directors and Resigning Directors are not Exempted

If you are a newly appointed director, you will still be liable for director penalties on your company’s unpaid tax amounts that were due before your appointment, unless you ensure that your company does the following within 30 days of your appointment:

1. pays its debts in full for PAYG withholding, net GST from 1 April 2020 and SGC from 1 April 2012;
2. appoints an administrator or small business restructuring practitioner under the Corporations Act 2001 provisions; or
3. your company commences winding up.

Kindly note that even if you resign as a director within 30 days of your appointment, you will not be absolved of your liabilities as a new director.

Similarly, resigning directors will continue to remain liable for directors penalties in relation to their company’s outstanding tax liabilities that were due and payable before their date of resignation. In case of liabilities that arise after the date of resignation, you, as a resigning director, will continue to remain liable, if the first withholding event (for PAYG withholding and GST) and/or the SGC for the reporting period occurs or becomes payable before the date of your resignation.

How is it enforced?

In the event that you fail to comply with the notice within 21-day period specified above, the ATO will commence recovery actions against you for the company’s unpaid tax debts. This may be done by either:

1. issuing a Garnishee Notice,
2. off-setting any of your personal tax credits against the director penalty amounts, or
3. by initiating legal debt recovery proceedings against you for the unpaid overdue amounts.

Defences

As a director, you will not be personally liable for a DPN if you can establish one of the following defences:

1. Illness: If the director not take part, and it would have been unreasonable to expect the director to take part, in the management of the company during the relevant period due to illness or another acceptable reason; or
2. All reasonable steps: If the director took all reasonable steps to ensure that the Company:

• paid all its outstanding amounts in full;
• appointed an administrator and/or a small business restructuring practitioner; or
• commence winding up proceedings.

1. Reasonably Arguable Position: This defence applies in the case of unpaid SGC liabilities, wherein the company treated the Superannuation Guarantee (Administration) Act 1992 as applying in a way that could be reasonably argued, was in accordance with the law, and took reasonable care in applying that Act.

The courts have held that a defence must cover the entire period that the director was under an obligation to ensure that their company’s liabilities were paid, including the period of the breach, due date, and expiry of the notice. Furthermore, a defence will not be valid if the director relied on others to meet their own obligations, such as other directors or professional advisors, or if they did not participate in the management of the company. Such conduct would constitute a breach of duty regardless of whether the director is aware of this or not.

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

Children born or raised from separated households still have the ability to flourish and be cared for just as well as families without separated parents. The steps to this resolution, however, involve continuous support and attention from both carers and all parties involved in the situation in order to maintain positive relationships with relatives, and crucial individuals present in their lives, where safety is concerned.

Children’s Needs

The needs of a child in an emotionally stressful situation such as the separation of their parents should be heavily considered and met to the best possible standard. This might resemble validating your child’s concerns, reassuring them, allowing them to make their own decisions, where safe, and avoiding expressing your personal issues with your child. Ultimately, prioritising their wellbeing should be your focus.

Parenting Arrangements

Making legal arrangements for your child should be undertaken while discussing their best interests.  Factors to consider when formatting arrangements is:

• Any arrangements which promote your child’s safety, including safety from being subjected to family violence, neglect, or abuse.
• The age of your child, as the routine will differ depending on what your child’s daily life might encompass, while ensuring they stay flexible.
• How their time will be allocated and with who
• Their contentment with the arrangements as well as giving notice of future change.

If arrangements can be agreed on, then a parenting plan can be made or formalities such as a consent order to officiate the arrangement. If an agreement cannot be met, however, the next step might be a dispute resolution or mediation. As a last resort, you can apply to the court for parenting orders.

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

Anyone is able to view proceedings within the majority of NSW Courtrooms through a principle known as ‘open justice’. The principle is said to be essential to the administration of fair and just trials, ensuring awareness of the wider Australian community towards our legal system. Furthermore, media outlets are able to publish accurate and unbiased reports of the proceedings (John Fairfax & Sons v Police Tribunal of NSW (1986)), broadening access to understanding NSW Courts.

If you would like to view the proceedings of a NSW Court, there are a few rules and considerations to remember.

• Whilst most Courts are open to the public, this does not include Family Law or Children’s Courts matters. Furthermore, specific courtrooms may be subject to suppression and non-publication orders, which prohibit or restrict the disclosure of information within the courtroom or are completely closed to the public. Typically, clear signs are used to convey any restrictions which apply.

• It is against the law to record, both video or audio, or take photographs within courtrooms and court premises without permission from a judicial officer. The offence holds a maximum penalty of $22,000 and/or imprisonment for up to 12 months.

• Upon arrival at Court, a security check with similar procedures to an airport will occur. Ensure compliance with all directions by police or security teams.

• It is important to behave in an orderly and respectful manner, including wearing appropriate and tidy clothing.

• As a signal of respect, it is customary to bow your head towards the Coat of Arms (located behind the judicial officer) before entering and exiting courtrooms.

• Do not approach judicial officers or parties involved in a matter unless spoken to first. Always address a judicial officer with ‘Your Honour’ (judges and magistrates) or ‘Registrar’ (registrars).

When in doubt, court staff will be able to assist with any queries or concerns.

Open justice plays a significant role in maintaining the transparency of our legal system, however, it is important to follow appropriate etiquette within courts to ensure proceedings are efficient and fair.

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 Family Law Act of 2023 and Family Law Amendment (Information Sharing) Act 2023 were both passed by the Australian Parliament on 19 October 2023. These include a variety of changes in the court system. These latest changes, to both law acts, will not affect any property proceedings. The Family Law Act of 2023 brings new laws containing new ways in what the court must consider when deciding what may be in a child’s best interest and how separated parents go about making decisions for their children.

What is Family Law Act of 2023?

These recent changes will affect people who are in an ongoing parental matter in court (which has not been finalised before 6 May 2024) and anyone who’s trying to settle on a parenting arrangement for their children. The number of changes to the law about parenting arrangements will include:

• Now being able to provide a concise list of factors for the courts to consider when making parenting arrangements in the best interests of the children.
• Introducing more sections into the process of decision making about long-term issues regarding a child.

Other changes that are not related to parenting arrangements and are still apart of the Family Law act of 2023 are:

• Expanding the meaning of the existing terms ‘member of family’ and ‘relative’ to create a more inclusive environment for Aboriginal and Torre Strait Islander’ and their concept of family.
• Requirements for Independent Children’s lawyers to meet with a children/s who are apart of a court hearing if they are over 5 years old (only if the children themselves wishes to meet with a lawyer or if exceptional circumstances apply)
• Impact applications which now apply alongside court orders such as Contravention Applications (applications made to the court claiming another party is not following a court order)
• New powers granted to the court in attempt at preventing harmful litigation (which also involves making harmful proceedings orders.

What is the Family Law Amendment (Information Sharing) Act 2023?

The Family Law Amendment (Information Sharing) Act was introduced late last year. This was in the effort to raise and enhance more awareness about child abuse, children of neglect and family violence information throughout the Courts, police, and child welfare agencies.

Family Law Amendment (Information Sharing) Act 2023 presents:

• Protects against disclosing information which identifies a notifier of alleged child abuse or family violence (unless given exceptional circumstances)
• Introduces a new requirement where parties must seek the Court’s permission before issuing a subpoena to an information sharing agency which has been ordered to provide documents or information.
• Enforces more safeguards into information sharing about cases of child abuse and family violence.
• Introduces provisions about how relevant information is to a case for admission and whether it should be shared or not.

When will these changes come into effect?

Starting 6 May 2024, all the above changes for both law acts will come into effect and apply to all new and existing cases in the Court. Although it should not apply if a final hearing has begun, some changes could apply depending on the circumstances.

What does this mean for Practitioners?

Parties and Practitioners who are preparing to file an application with the court should consider timing and how the laws maybe affect their application. Practitioners of the Law or any parties currently involved in a proceeding who have hearings after 6 May 2024(based on an assessment of relevant application proceedings), will have the new law applicable to them. Any submissions that have been filed or orders that have been looked for must be in accordance with the new laws.

If you or someone you know wishes to discuss this issue further, please do not hesitate to contact F&G on 02 8999 9809.

What is a Will?

A will refers to a legal document that clearly states how someone would like their assets to be distributed to whomever they please. Various assets that are included in wills are houses, cars, land, various property, money and personal belongings. According to Australian law,  a will must only be prepared by who a person is deemed to have ‘full testamentary capacity’(one legal and mental ability to make a will). After someone passes away, the executor(someone entrusted to fulfil the wishes of the will) appointed in that will apply for probate. Once probate has been granted, they will then transfer or sell the assets according to the gifts within the will and distribute these to the relevant beneficiaries.

What makes a will valid?

In order for a will to become valid in Australia it must:

• Completed in writing, (can be either typed or printed)
• Signed by yourself or another person at your direction( another person may only sign however if physically unable to and still must be in your presence.)
• Witness by two adults in your presence when you sign it.

What if there is no will?

In the event that someone passes and does not leave behind a will, the next of kin is required to suitably deal with the assets in the Supreme Court of NSW. If there is no one available to dispose of another’s assets,  this is also known as intestacy meaning that the deceased failed to deal with their assets. The court that may be granted the permission to give the power of the assets to:

• NSW Trustee and Guardian
• Any other person that the court sees fit.

So why make a will?

A will is a legal document that can give you a voice in your presence once you die. Reasons someone might want to get a will includes but are not limited to:

• Make sure your assets go where you would like them to go.
• Being able to make sure the people you love are cared for after passing.
• You can leave specific instructions for your family and have a firm voice.

Should you wish to discuss any legal issues, please do not hesitate to contact our offices on 02 8999 9837.

Trigger warning for distressing content.

A 10-year-old girl from Boolaroo Newcastle was found on 29 April 2024 with multiple stab wounds in her home. Her sister, who is 17-years old, has been charged with a domestic-violence related murder.

Emergency services rushed to the home Monday afternoon after receiving numerous 000 calls, but the 10-year-old succumbed to her wounds at the scene. Homicide squad commander Danny Doherty has stated the Prosecution intends to allege that the 17-year-old is solely responsible for the death. He also commented that this incident is “unthinkable” and has become a “very sensitive situation”. At this time, the incident has been deemed to be “out of the blue”. Superintendent Tracy Champan advised on 30 April 2024  that there are no records of the police being involved with this family previously for issues such as what occurred.

The 17-year-old cannot be named as she is under 18 and considered a juvenile. However, she did not appear in Broadmeadow Children’s Court. Her defence lawyer advised the Court that she would not be applying for bail and instead would remain in custody on remand. She will be appearing in Court in June.

If you or anyone you know needs help, call 1800 RESPECT (1800 737 732) or Kids Helpline on 1800 551 800.

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