Monday, 9 July 2007

Planning your future

My colleague Karen Gough and I recently presented a paper on Planning your Future at the 5th Health in Difference Conference 07 in Brisbane. Here it is:


The Basics
Australia is a Federation comprised of six States and the Commonwealth. There are also two Territories which have limited self-government, the Northern Territory and the Australian Capital Territory.

Except for specific powers given under the Commonwealth Constitution to the Commonwealth Parliament or referred from a State to the Commonwealth, the power to legislate generally is contained at the State level.

Family law is thus a mish mash of Commonwealth and State legislation :-

Topic Commonwealth State/Territories
Property Settlement – married couples Family Law Act
Property Settlement – heterosexual de facto couples and same sex couples Part 19 Property Law Act 1974 (Qld) and equivalents in other States and Territories
Parenting Orders Family Law Act
Spousal Maintenance
- Married Couples
Family Law Act
Applies in some States/Territories only, e.g. NSW. Does not apply in Queensland.
Child Protection Child Protection Act 1999 (Qld) and equivalents
Domestic Violence Domestic and Family Violence Protection Act 1999 (Qld) and equivalents
Adoption Adoption of Children Act 1964 (Qld) and equivalents
Child Support Child Support (Assessment) Act and Child Support (Registration and Collection) Act
Property Entitlements

I’m thankful to Brisbane practitioner, Peter Sheehy, who prepared a recent paper on the comparison between entitlements under the Family Law Act and that under Part 19 of the Property Law Act (Qld) which is set out in the table below.

Concept
Married Couples De facto couples

Availability of agreements before the start of living together/marriage

Binding Financial Agreement under section 90B of the Family Law Act


Must be entered into before the marriage


Strict formalities to make them binding eg independent legal advice certificates



Once binding they may prove difficult to set aside
Cohabitation Agreement under the Property Law Act Part 19


Can be entered into at any time even after relationship commences

Less onerous requirements – need only be witnessed by a solicitor or JP (Qualified) – independent legal advice not required but considered by lawyers as essential

Cohabitation Agreements can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.


After Breakdown/separation
Children’s issues – with whom children live and spend time

Family Law Act governs
Property Law Act governs

After Breakdown/separation
Children’s issues – Child Support

Child Support legislation (Cth)governs
Child Support legislation (Cth)governs

Parties

Heterosexual couples
Heterosexual + same sex couples

After Breakdown/separation
Spousal maintenance


Available under Family Law Act for up to 12 months after Divorce Order

No partner maintenance provisions in Queensland. In other States, such as NSW spousal maintenance can be obtained.

After Breakdown/separation
property settlement



Must be commenced within 1 year of Divorce Order becoming absolute or leave to proceed if out of time.
Must be commenced within 2 years of end of relationship if relying on Property Law Act or extension of time to bring application is needed

Access to Court for relief only if relationship has existed for over 2 years, or earlier access to the Court if substantial contributions or children in the relationship

Ability to seek relief under common law concepts in addition to or in the alternative to Property Law Act statutory regime.


Consideration that the Court has in determining a property settlement

Family Law Act governs




Large body of reported cases for guidance

Property Law Act governs but provisions somewhat mirror Family Law Act provisions

Each of the 8 State and Territories have come up with a different version of inventing the wheel. In NSW, for example, there is much more emphasis on financial contributions than under the Family Law Act. Conflict as to what powers to be transferred to Commonwealth for heterosexual couples, same sex couple not being transferred.

Few reported cases

Self ordering availability to settle matters

Can use Financial Agreements to finalize matters but subject to same strict formalities as for all Financial Agreements.

Can be set aside.







No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty - sometime an inconsistent use of exemption from stamp duty applied by OSR assessors

Separation Agreements available – less onerous formalities



Can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.

No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty relief specifically available under Duties Act (Qld)


Variation or setting aside Court Orders


Court Orders can be set aside – section 79A – fairly difficult
Court Orders can be varied or set aside – similar terms to Family Law Act section 79

Splitting superannuation Split under Family Law Act Cannot be split
Which court hears property settlement? Family Court or Federal Magistrates Court State Courts- in Queensland either Supreme or District Courts
Recognition of both parties as parents on birth certificate Matter of course Matter of course for heterosexual couples. Not possible in all States except WA, ACT, NT (for lesbian couples). Possible to have order under Family Law Act as to parental responsibility


Because there are eight different systems dealing with property settlement Australia wide then there can be disputes about jurisdiction. This can make substantial differences. There are very few reported cases on point. An unreported case is that of BVJ decided by Chief Justice Paul De Jersey in the Queensland Supreme Court in 2005. The de facto couple resided in Papua New Guinea. For one month every year they holidayed in Queensland. Two thirds of their property was held in Queensland, primarily owned by the de facto wife.

If the de facto husband were able to succeed under Part 19 of the Property Law Act (Qld), he would have been entitled to a substantially greater sum than he would have done had he made separate claims in the Papua New Guinea Supreme Court and in the Queensland Supreme Court relying on common law claims.

The Supreme Court held that the issue for jurisdiction was where the parties resided, not where the property was located, upholding the de facto wife’s objection to jurisdiction and dismissing the claim. Disclosure: Stephen acted for the de facto wife.

The Howard Government has proposed that there be national de facto property laws and that this be exercised by the Family Court of Australia (and in Western Australia, the Family Court of Western Australia) and the Federal Magistrates Court of Australia.

No bill has yet come to light that I’m aware of although it is proposed to be put before the parliament this year.

The Commonwealth has declined to include same sex couples in this transfer with the result that States like New South Wales and Queensland have passed legislation allowing the referral, although their preference stated in the legislation is to allow a referral of all powers whereas South Australia and Western Australia have refused to transfer the power at all. Thus, we will not only have the situation of jurisdiction to contend with but also the nature of the relationship so that if parties are in a heterosexual de facto relationship in Queensland or New South Wales, for example, and they wish to deal with property settlement, it will be dealt with under Commonwealth legislation in the Family Court or the Federal Magistrates Court but if they are in a same sex relationship it will be dealt with using State legislation in a State Court with all the existing jurisdictional problems.

Planning Your Future

If you are entering into a relationship, then you ought to consider obtaining independent financial advice from a Financial Planner.

You should:

• Have an up to date Will that reflects your current wishes. Wills are cheap and easy;
• Have an Enduring Power of Attorney;
• Consider that the beneficiaries of any life insurance or superannuation policy reflect your current wishes;
• Consider whether you should enter into a cohabitation agreement or similar

Building Family

As is set out in the table below, if you are in a same sex relationship and you are considering having children – get legal advice. You are walking into a mine field. There are no ifs, buts or maybes about this one.

The law is way behind how people are organising their lives.


Topic Married couples De facto/same sex
Recognition of both parties as parents on birth certificate Matter of course Matter of course for heterosexual couples. Not possible in all States except WA, ACT, NT (for lesbian couples). Possible to have order under Family Law Act as to parental responsibility
IVF Allowed Allowed for heterosexual childless couples, not for lesbians
Intestate claim on estate by spouse Succession Act Qld- no difference if married, not married Succession Act Qld- no difference if married, not married. All other States similar except SA which is more restrictive
Protection Orders for domestic violence Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts. Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts- spousal relationships including same sex relationships. Intimate personal relationships (like enmeshed dating relationships), informal care relationships (such as unpaid HIV carers) and family relationships (covering senior abuse, or abuse from adult children) also included

Case Examples

Re Patrick (2002)

In January 1998, a gay father entered into an agreement with the mother and her lesbian partner to provide sperm so that the mother could be artificially inseminated. After 27 or 35 separate attempts, the mother became pregnant. During the course of the pregnancy, the parties had a falling out as to the father’s role. In considering the father’s application to spend time with Patrick, the question was whether a sperm donor, known or unknown was a “parent” under the Family Law Act. The Court held that the father was not a “parent” but then went on to hold that Patrick should spend time with his father.
The Court held:

“It is time for State laws to be enacted to make available to lesbian women and their known donors a well regulated scheme with all the safeguards, medical and otherwise, available to heterosexual couples. There is no doubt that the parties in this case would have benefited from such services and may not be in the position they are today had they been able to access counselling currently available to heterosexual couples and “given the diversity of gay and lesbian families and the varying roles donors play in the lives of children conceived using their donated sperm, the Commonwealth parliament needs to reassess Section 60H of the Family Law Act and to consider the ramifications of its application in cases such as this. Whilst the legislature may face unique challenges in drafting reform that acknowledges and protects children such as Patrick, and the family units to which they belong, this is not a basis for inaction.”




B v J (1996)

R and J were in a lesbian relationship. In 1987, R contacted B, who was a friend of theirs, and asked whether B would provide sperm with which R would inseminate J. All three agreed that if he did so he would not under any circumstances be liable to provide child support for the children or have any future parenting obligations with respect to them. After two occasions of artificial insemination, J became pregnant.

In 1993, they repeated the process and a second son was born. B had played no substantial role in the lives of either of the children although he was registered as the father of the children on their birth certificates.

J subsequently made application for B to pay child support.

In considering the provisions of the Family Law Act to deal with artificial insemination the court held:
“It seems clear that there is no basis in the relevant legislation for distinguishing between anonymous and known donors of semen or ova. Were it the intention of the legislature that donors of semen or ova who are known to the recipient, or were even in a form of ongoing relationship with the recipient …. were to be treated differently from anonymous and otherwise unrelated donors, that intention could easily have been expressed”

and therefore found that B was not a “parent” within the meaning of the Child Support Assessment Act and was therefore not liable to pay child support.

ND v BM (2003)

In 1998, the mother (BM) told the father (ND) that she wanted to have a child and was looking for a sperm donor. At meetings with BM and her lesbian partner, they both emphasised that they did not want him to have any legal rights to the child and the child would not be advised that he was the biological father. He said that he would not seek any parental role and would not be responsible for the financial support of the child. They entered into an agreement that provided he would have no legal rights to the child and in the event of separation, the lesbian partner would support the child.

There was no artificial insemination but conception was “in the usual and customary manner” by vaginal intercourse. The Court held that ND was the parent, that the right to seek child support cannot be waived and therefore ND had to pay child support.

Re Mark (2003)
Mark was born to a surrogate mother in the USA with the sperm of Mr X and an anonymously donated ova. Mr X and Mr Y were gay partners and they considered that they were the fathers of Mark. They wanted orders from the Family Court that jointly they were responsible for parenting Mark.
The court disagreed with the conclusions of Re Patrick and tentatively found that Mr X may well be Mark’s father within the meaning of the Family Law Act. The court then made orders that Mr X and Mr Y be jointly responsible for parenting Mark.

Kevin and Jennifer (2001)
The Family Court recognised that a marriage between a post-operative female to male transgender (Kevin) and a woman, Jennifer, was valid.

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