Family Law & Divorce: AVOs (Apprehended Violence Order), don’t take them lightly.

The highly publicised separation of former television presenter and model Kelly Landry and Sydney to Hobart winner and accountant Anthony Bell, has highlighted that there is a benefit in defending applications for Apprehended Violence Orders.

Ms Landry alleged that throughout the marriage she was subjected to verbal abuse and family violence at the hands of Mr Bell. Ms Landry alleged that Mr Bell would make comments to her such as “you are an amazing mum, but you are a shit wife”, Ms Landry also alleged that Mr Bell controlled her financially and physically assaulted her.

In January 2017 the Police applied for an Apprehended Violence Order against Mr Bell in protection of Ms Landry, and an interim AVO was granted. Mr Bell denied the allegations and the matter was heard in the Downing Centre Local Court, Sydney.

On 18 May 2017 after a one hour judgement, the application for the AVO was dismissed. Magistrate Robert Williams said that there was no need for a permanent order in circumstances where “There appears to be little if no opportunity of future incidents”.

Although an AVO is not a criminal offence it will be recorded on your criminal record and may become an issue in regards to future employment. Also AVOs may have an impact on any court proceedings that may be conducted relating to the care of children.

In the event you wish to apply for an AVO due to abuse or family violence you are experiencing, then you should contact the Police immediately.

In the event the Police have made an application for an AVO against you, we strongly recommend that you obtain legal advice regarding the application.

Koffels have a dedicated Family Law practice and can guide clients on a considered approach to events impacting on them as a result of family breakup.

Who gets the Dog? Pets and Family Law

To some people pets are an extension of their family, so in the event of a separation issues may rise as to who gets the much loved pet.

In the recent case of Downey & Beale [2017] FCCA 316 the parties had agreed on their property settlement, but could not decide who would keep the family dog.

Dogs are considered property in accordance with the Family Law Act 1975 and in deciding where the dog should live the court is required to ascertain what a just and equitable outcome is in the circumstances.

The husband argued that he purchased the dog and the wife argued that the dog was given to her as a gift. Since separation, the dog had remained living with the wife and was therefore in her possession. The wife also asserted that she had financially supported the dog by paying for vaccinations, operations, food, vet bills and accessories for the dog.

The Judge referred to the Companion Animals Act 1998 to seek guidance as to who was the owner of the dog.  The Act stated that the owner of the dog is the person who the dog is kept with, or the person whose name the dog is registered in.  In this case the dog was registered in the name of the husband but ordinarily lived with the wife.  Ultimately the Court decided that the dog live with the wife.

Issues revolving around property settlement after a divorce are often complicated and antagonistic in nature. Koffels Solicitors & Barristers can assist you to know your rights, and seek optimum division of assets in the event of a disputed property settlement.

 

Cross-Border Surrogacy and Family Law – the complications are limitless

With more and more couples opting to use international services for paid surrogates, many issues can arise for which couples are not prepared. The case of Farnell & Anor and Chanbua [2016] FCWA17 is a representation of the complex issues that can arise when entering into a surrogacy agreement.

Mr and Mrs Farnell engaged a paid surrogate mother in Thailand, Mrs Chanbua, who was inseminated with Mr Farnell’s sperm. On 23 December 2013 Mrs Chanbua gave birth to twins, Pipah and Gammy, Gammy had Down syndrome.  In accordance with the Surrogacy Agreement, the Farnells returned to Australia with Pipah and Gammy stayed in Thailand with Mr and Mrs Chanbua.

The Farnells were having difficulties trying to regularise Pipah’s status, which was difficult given that Mr Farnell was not shown on the birth certificate as Pipah’s father, and Pipah did not have the Farnell’s surname.  The Farnell’s consequently made an application to the Family Court in Western Australia to obtain an order for joint parental responsibility for Pipah, and permission to change her surname.

In making the application is was revealed that Mr Farnell was a convicted sex offender.

In April 2015 Mrs Chanbua made an Application to the Court for Pipah to be returned to Thailand to live with her on the basis that she was at risk of abuse in the care of the Farnells, and that she should be reunited with her brother Gammy. The Farnell’s argued that Pipah was now attached to them and she would be traumatised if removed from them.

The Court decided that Mrs Chanbua was the mother of Pipah and Mr Chanbua was Pipah’s father. The Farnells however, were given parental responsibility of Pipah at the exclusion of the Mr and Mrs Chanbua. It was ordered that Pipah live with the Farnells.

Thackeray CJ warned; “The outcome might have been very different had the dispute come before me much earlier in Pipah’s life. At that point, it may have been decided it was in her best interests to return to live with her birth mother and her twin brother”.

“What about me”?! Family Law: Do Children have a say in which parent they wish to live with after their parents separate? The answer may surprise you.

When deciding the living arrangements for children of separated parents, one of the factors that the Court is required to take into consideration is what the child says about where they would like to live.

In doing so, the Court must also have regard to the age and maturity of the child and how much weight they will attribute to the child’s view, in all of the circumstances. In other words, generally the older and more mature the child, the more the Court will take into consideration the child’s view, but will also factor in all other relevant aspects of the case.

There can, however, be exceptions to this. in the recent Family Court case of Bondelmonte & Bondelmonte [2016] FamCAFC 48, the full Court Ordered for the return of two boys aged 15 and 17 from New York.   The parents were both living in Australia with the children and it was agreed that the children could choose which parents they wanted to live with.

The father took the 15 and 17 year old boys on a trip to New York and decided to stay and live there and the boys decided to stay with him. The mother then applied to the Court in Australia for the boys to be returned. The boys expressed the view that they wished to stay with their father in New York.

The Court Ordered that the boys be returned to Australia pending final determination as to whether they would permanently relocate to the United States. The father appealed that decision on the basis that the Court had failed to take into consideration the views expressed by the boys to remain in New York.

The Court dismissed the father’s appeal on the basis that the Court is required to give consideration to the views expressed by the child, but in the context of the overall best interests of the child being met. In this case the Court had concerns that the boys had been ‘bedazzled’ by the opportunity to live in New York, and did not have regard to the possible loss of their relationship with their mother and their sister.

Complexities of Artificial Conception – Always complicated, and needs to be considered on a legal basis as well as an emotional one. Here’s but one example!

In the recent case of Clarence & Crisp [2016] Fam CAFC, the parties had been in a same sex relationship from which a daughter was born through an artificial conception method, one party provided the egg and the other party was the birth mother.

The birth mother alleged that the parties were separated at the time the birth mother underwent the conception procedure on 11 July 2011. The donor mother argued that the parties were in a de facto relationship at the time and therefore had parental rights.

Both parties conceded that they commenced the relationship in 2004 however the birth mother argued that the parties separated on 21 March 2011 when the donor mother vacated the home where the parties had been residing. The donor mother argued that although she vacated the home, the parties continued to spend 4 or 5 nights a week with each other and during the period of 6 May 2011 and 26 July 2011 approximately 850 text messages had been exchanged between the parties, the contents of some of those text messages contained loving sentiments between the parties.

The initial trial Judge found that the parties were in a de facto relationship and therefore the donor mother had parental rights. The birth mother appealed that decision and the Full Court held that the trial Judge had not erred in concluding that “the de facto relationship endured and continued beyond the date of conception” and the appeal was dismissed with an order for costs against the birth mother.

This case highlights the ambiguity of whether or not parties are in a de facto relationship and the legal rights of parents who participate in artificial conception procedures.

As with all things, it is easier to set parameters’ in place in a considered fashion. Seek advice first.

Alison Brown

Family Law Solicitor

Koffels Solicitors & Barristers, Sydney

Human Resource Manager? You can be held PERSONALLY LIABLE! Read on…

Fair Work Australia are setting their sights on cracking down on non-compliance with federal work place laws as it appears to have become a ‘cultural norm’.

Recently the Fair Work Ombudsman, Natalie James, gave a speech to Human Resource Managers, informing them that it has come to the attention of Fair Work Australia that “in some parts of our labour market non-compliance with workplace laws has become a cultural norm. The common characteristics are:

-low-skilled,

-price driven procurement,

-a proliferation of entities in the supply chain or network,

-tight profit margins, and

-vulnerable, often migrant workers.

Fair Work is putting employers and Human Resource Managers on notice that “it doesn’t matter whether workers, are engaged via franchising, out sourcing, or labour-hire arrangements. The community expects business to take responsibility for its labour, regardless of where strict legal liability begins and ends.”

The Fair Work Act 2009 (Cth) (“Act”) section 550 provides that a person, such as an HR Manager can still be found to have been involved in a contravention of the Act, regardless of whether they were aware that their actions would constitute a contravention, and action can be taken against them personally.

In some cases which have involved action taken against employers for breach of the Act, it has been decided that HR Managers employed in those businesses, should have been aware of the employers obligations under the Act, and should have attempted to advise their employer accordingly.

To date the ramifications of HR managers in breach of section 550 of the Act have not required the payment of compensation, but have required the payment of penalties for breaching the Act. This is not to say however, that it is not a possibility.

It appears that Natalie James wants to make it clear to HR Managers that; “Those involved in decision making around the strategy for, and compliance with work place laws are on notice.”!

If you are a Human Resources manager, you can find yourselves personally liable for the actions, or inactions, you help your company take.”

Alison Brown

Associate

Koffels Solicitors & Barristers,

Sydney, Australia

DOES AUSTRALIA RECOGNISE YOUR MARITAL STATUS? WHAT ABOUT POLYGAMY?

Recognition of overseas marriages in Australia

Australia is an ever evolving multicultural society with many marriages occurring in offshore locations. What happens then, in the event that the relationship does not work out as planned? If you are married overseas, can you get divorced in Australia? In what jurisdictions is the divorce recognised?

The simple answer is that if you were legally married, wherever the marriage was conducted, you can apply for a Divorce in Australia. Difficulties however, may arise in circumstances where; the country in which you were married allows you to be married to more than one person, or married to someone of the same sex.

In the case of Ghazel and Anor [2016] FamCAFC 31 (4 March 2016) Mr Ghazel was born in Iran, and Mrs Ghazel was born in England. The parties married in Iran in 1981 and subsequently moved to England where they participated in a marriage ceremony in an English Registry Office. They also registered their Iranian marriage at the Iranian Embassy in the United Kingdom.

The party’s and their children then moved to Australia, and in 2007 the four members of the family became Australian citizens. On 22 February 2008, Mr and Mrs Ghazel made a joint application for divorce, but only referred to the marriage in the United Kingdom. On 18 March 2008 the divorce order was made.

In 2011 Mr Ghazel married another woman in Iran and then married yet another woman in Australia in 2012. Mr Ghazel’s first wife, who he had divorced, became aware that her marriage that occurred in Iran was still valid and that no divorce had been registered there.

On 19 November 2014 Mrs Ghazel instructed solicitors to make an application in the Family Court in Australia, seeking that the marriage between her and Mr Ghazel conducted in 1981 in Iran, be declared valid in accordance with section 88D of the Marriage Act 1981 (‘Act’). Mr Ghazel filed a response opposing the declaration sought by Mrs Ghazel.

On 27 March 2015, the matter was heard and Judge Hogan held that the definition of a marriage is “the union of a man and woman to the exclusion of all others voluntarily to the exclusion of all others” and therefore polygamous marriages are not recognised in Australia.

On 24 April 2016 Mrs Ghazel filed an appeal, and in her submissions asserted that hers was a test case. She asserted that if Judge Hogan’s judgement stood, then people legally married in countries where polygamous marriages were allowed, would have their marriages considered to be void should they subsequently reside in Australia. The Court decided that this raised a matter affecting public interest and therefore requested that the Attorney General intervene in the proceedings to assist.

Upon the attorney-general intervening in the proceedings they asserted that potentially polygamous marriages should be recognised and remain valid under Australian law unless one of the exceptions apply. The Court decided that if a marriage is legal within the country in which it was conducted then it will be recognised in Australia, which includes polygamous marriages. This however, does not mean that you can legally enter into a polygamous marriage in Australia.

The Act also provides that certain unions are not marriages, and include unions solemnised between a man and another man, or a woman and another woman, in any country.

Australia is likely to hold a Plebiscite in the near future, in order to determine the majority public opinion, and legislate on whether or not Australia will recognise same sex marriages.

Alison Brown

Associate

Koffels Solicitors & Barristers

Non-Competition Clauses in Employment Contracts – Read, Consider, Get Advice – Before Signing

The prospect of a new job can be an exciting and positive experience but often when signing a new employment contract, people are not mindful of the restraint of trade or non-competition clauses that are often contained in the contract. Employers often include these types of clauses in an attempt to protect their business interests and client relations.

Restraint clauses usually require that once the employee has left their employment that they do not take up employment with a competitor for a certain period of time and/or within a certain radius. Further, there may be clauses in the contract which restrict you from soliciting your former employee’s customers, clients or staff.

In the event you breach a non-competition clause, the employer may apply to the Court seeking an injunction against you, or an order for damages for income that may have been lost due to the breach.

What you should be aware of is, that it is unlikely that a Court will uphold a restraint clause if the clause limits your ability to work in competition with your former employer.

Clauses that relate to specific restrictions such as trade secrets or contact with clients however, may be enforced. These clauses will usually only be upheld if they are necessary to protect a legitimate business interest, but an employer cannot seek to restrain ‘mere competition’.

The Court may uphold a restraint clause if the duration of the restraint is reasonable, say for 3 to 12 months, and is required to protect the legitimate business interest of the employer. In the case of Pearson v HRX Holdings Pty Ltd [2012] FCAFC 111 the Court upheld a restraint clause for a period of 2 years. The Court upheld the clause for the following reasons:

The former employee had access to almost all of the employer’s confidential business information, such as sales and client retention strategies;
The former employee was a key figure within the employers human resources consultancy;
The former employer’s legitimate interest in protecting its client relationships;
The former employee received shares in the business and payment for 21 months of the two-year restraint period, which the court considered a ‘reasonable commercial arrangement between the parties’.

It is also interesting to note that when drafting restrictive clauses in an employment contract, the effect of the restriction should not be too broad. In the event the court is asked to decide whether or not the clause should be enforced and the clause is too broad, the whole clause is deemed unenforceable and therefore not effective. If the clauses are drafted step by step or also known as ‘cascading’ clauses however, if the contract is contested, the Court can remove clauses that are too broad or unenforceable, and leave the relevant clauses still effective.

In the case of Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24, the Court stated “…the impugned part [of the clause] must be capable of simply being removed – as if simply crossed out with a blue pen; a Court can remove words from the restraint clause but not rewrite it…”

If you are unsure about the impact of restraint clauses in your employment/employee contract, it is a good idea to obtain legal advice prior to signing.

Failure to be careful in the first instance can be a very costly mistake later.

GETTING A DIVORCE? POST AT YOUR PERIL! – BE WARNED, THE FAMILY COURT IMPOSES SEVERE PENALITES FOR VENTING ON SOCIAL MEDIA

In today’s society everyone is posting their personal lives on social media such as Facebook, Instagram, Twitter and the like, but when it comes to Family Law matters making inappropriate posts can not only come back to haunt you, but can land you in jail!!

Many people have taken to using social media as a way of venting their grievances about an array of things in life, from an annoying work colleague to road rage. The breakdown of a relationship can cause emotions to run high and many people choose social media as a means to attack or voice their dislike for their former partner or spouse.

At a time when logic and rationality may not be at the forefront of your mind, you should ask yourself, would I feel comfortable if a Judge was to read the comments I am making? Often Facebook posts are later attached to Affidavits* particularly in court matters relating to children.

Further, parents can become frustrated with the court process and voice their frustration on the internet. In circumstances such as these you should be aware that you may end up in jail for unleashing your fury.

Most people who are involved in court proceedings are not aware that Section 121 of the Family Law Act 1975 (“Act”) provides that a person who publishes in a newspaper, radio broadcast, television or by other electronic means, any account of any court proceedings under the Act, which identifies a party to the proceedings; a person related or associated with the proceedings; or a witness in the proceedings will be guilty of an offence and if convicted may be imprisoned for up to one year.

In a case conducted in the Family Court of Australia, a father participating in the court proceedings became unhappy and disillusioned with the Court process.

To express this dissatisfaction he created a website on which he identified the names of the parties in the proceedings, and posted photographs of various lawyers and single expert witnesses which were published under the heading “List of corrupt legal professionals”.

The father then wrote to the Independent Children’s Lawyer, (ICL), drawing her attention to the website. In response the ICL requested that the father remove the website due to the “objectionable content”. The father stated that he would “NOT remove the content from his website”.

The Court then ordered that the father immediately remove from the website all references to the proceedings and the parties involved. It was directed that the Marshall of the Court take all the necessary steps to ensure that any breach of Section 121 was investigated, and if appropriate, the father be prosecuted. Further, it was respectfully requested that the Australia Federal Police investigate as to whether an indictable offence ** had been committed by the father.

Think before you post, then don’t!!

* Affidavit – a written statement used by a witness as evidence in court

* Indictable Offence – is a serious offence which requires a trail by judge and jury

DIVORCE: CHILD CUSTODY: International Child Abduction

On Tuesday 12 April 2016 Sally Faulkner, along with the Australian “60 Minutes” television crew, including reporter Tara Brown, were arrested in Lebanon for allegedly trying to take Ms Faulkner’s children Noah aged four years, and Lahela aged six years, from their father Ali el-Amien.

The TV crew were in Beirut to film and interview Brisbane mother Ms Faulkner, who was trying to be reunited with her children. Ms Faulkner had been involved with negotiations with the father through their respective lawyers in a bid to gain access to their children.

CCTV footage appeared to show the children being snatched from their paternal grandmother in the street by a group of masked men and bundled into a car. The children were then handed over to Ms Faulkner, however a short time later Ms Faulkner and the television crew were arrested. The children were returned to their father.

A private child recovery agency is believed to be involved and had intended to smuggle the children out of Lebanon on a boat.

Ms Faulkner and the other detainees face charges of kidnapping, physical assault, hiding information and criminal conspiracy. Judge Rami Abdullah has said “There was a violation of the Lebanese authority by all these people, it’s a crime.”

The children were allegedly taken to Lebanon by their father in early 2015. The lawyer for Ms Faulkner will ask the Beirut Court to enforce an Australian Family Court ruling made in December 2015, that Ms Faulkner have sole parental responsibility and sole care of the children. The father is said to have sole care of the children under Lebanese law.

A case such as this highlights the importance of ensuring that in the event you and the mother or father your children have separated, and the other parent is proposing to take the children overseas, you should ensure that the country they are travelling to is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

Countries that are signatories to the Hague Convention have agreed that in the event a child is removed from the country that is their habitual place of residence, the country to which the child has been taken, will order that the child be returned to the country they were residing. If a country is not a signatory to the Hague Convention then, unless the other parent voluntarily returns with the child, you have no avenue in which to have the child returned to you and many parents resort to the actions of Ms Faulkner.

For the list of countries that are signatories to the Hague Convention see:

https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionontheCivilAspectsofInternationalChildAbduction.aspx

For further information regarding children and international travel see my article “Children Travelling Overseas… what you need to know” at:

http://www.koffels.com.au/ourarticles/2015/12/01/children-travelling-overseaswhat-you-need-to-know/