Parenting arrangements

Sydney’s Covid Restrictions and Parenting Arrangements

Sydney’s Current Covid Restrictions and Parenting Arrangements (24 June 2021)

The new Delta strain of Coronavirus in Australia has caused recent alarm and panic.  Sydney has new restrictions in place from 4.00 pm Wednesday, 23 June 2021 that greatly restrict the movements of those who live or work in the city of Sydney, Waverley, Randwick, Canada Bay, inner west, Bayside and Woollahra local government areas.  Please click on this link for list of current restrictions: https://www.health.nsw.gov.au/news/Pages/20210623_01.aspx

If you have a parenting arrangement in place and you live in one of these areas you may be experiencing uncertainty especially as school holidays approach. We write this blog to provide you with some general advice to help you navigate the next week or so.

 

Sydney’s Covid Restrictions and Parenting Arrangements

At present you cannot travel beyond metropolitan Sydney unless you have a reasonable excuse to do so such as:

  • Getting food or services that you cannot obtain in metropolitan Sydney;
  • Travelling to your home/work/education/child care or for shared care arrangements;
  • Obtaining medical care, health supplies or to fulfil caring responsibilities;
  • Moving to a new home, business moving to a new premises, or inspecting a new place of residence;
  • To avoid injury, illness, and harm, or an emergency situation, to undertake legal obligations; and
  • Accessing public services if they cannot be accessed in the metropolitan Sydney area.

A reasonable excuse for non-essential travel includes:

“For children who do not live in the same household as their parents or siblings or one of their parents or siblings—continuing existing arrangements for access to, and contact between, parents and children or siblings” (Paragraph 10 – Schedule 1 of Public Health (COVID-19 Greater Sydney) Order (No 2) 2021 [NSW]).

It is clear from the restrictions that travelling to your home, work, place of education, child care or for shared parenting arrangements is allowed, however if you have been in one of the New South Wales regional hotspots then you need to follow the government guidelines in terms of isolation and getting tested. A list of current hotspots can be found here: https://www.nsw.gov.au/covid-19/latest-news-and-updates

Parenting arrangements

There is always some danger that parents may use restrictions to unnecessarily restrict another parent’s access to a child. The Court is concerned with the best interests of children and if there is a potential risk, that children may be exposed to COVID-19 then the Court may find that the parent had a reasonable excuse for contravening the existing parenting orders.

Current Court cases

At present Courts in the Sydney region, the Family Court and Federal Circuit Court, remain open and are conducting their usual daily lists.

If you have a pending case before the Court your case may be changed to be heard electronically using Microsoft teams or by phone.

As always, parents should have a common sense approach and exercise caution and work co-operatively to ensure the health and safety of their children.

 

Contact Us

Please contact our experienced and friendly family law team at Watts McCray for assistance and advice.

What is a Binding Child Support Agreement?

What is a Binding Child Support Agreement?

A Binding Child Support Agreement is a written document which allows parties to formalise their own arrangements for child support rather than being subject to a Child Support Assessment issued by Services Australia (formerly known as the Child Support Agency).

An Assessment issued by Services Australia is often based on a complicated calculation depending upon the income of the parties, the age of the children and the amount of time the children spend in each parties care. The Assessment can as a result vary dramatically each year.

It allows the parties to, amongst other things:

  1. Agree to pay an amount less than the Assessment;
  2. Agree to pay more than the Assessment;
  3. Pay additional amounts for school fees, medical or extra-curricular expenses or any other expenses that the parties might foreshadow for their children. An assessment incorporates all of the costs of the children and doesn’t provide for additional costs.

The Legal requirements of a Binding Child Support Agreement

Given the power of a Binding Child Support Agreement, there are numerous legal requirements to ensure the Agreement is enforceable against the parties, such as:

  1. the Agreement needs to be in writing;
  2. The Agreement needs to be signed by both parties; and
  3. both parties need to obtain independent legal advice as to the effect of the agreement, and the advantages and disadvantages of entering into the agreement.

Once an agreement satisfies the legal requirements, it can be registered with Services Australia. You can then decide whether you opt for private collection of the periodic amount (that is the weekly or monthly amount you have agreed that the other party will pay) or ask for Services Australia to collect it for you. Services Australia have wide ranging powers to collect periodic amounts, for example, from the pay of the non-paying spouse or from ATO refunds the non-paying spouse is entitled to.

When does a Binding Child Support Agreement end?

Binding Child Support Agreements are, as the name suggests, binding until certain events occur, included but not limited to the following (referred to as “terminating events”):

  1. The child turns 18;
  2. The child becomes a member of a couple;
  3. The child is no longer present in Australia, an Australian citizen, and no longer ordinarily resident in Australia.

In some very limited circumstances it may be possible to set the agreement aside by way of court application.

Benefits and Risks 

One of the real benefits is for the payer and payee to have certainty about how much the child support will be over the course of the Agreement and be able to better plan their financial future. It is possible to specify that the support will increase in line with the consumer price index each year OR keep as a static amount throughout the course of the agreement. For the paying party, it is possible to draft in a fall back provision that if their income were to fall below a certain level that child support would be suspended or revert to a lesser amount.

However it needs to be recognised that parties circumstances do change and it may be more advantageous to rely upon Services Australia to issue assessments for child support based upon the parties circumstances from time to time.

If you require any advice about Binding Child Support Agreement please do not hesitate to contact our experienced family law team  at Watts McCray

buying a property in Australia

What is a cooling off period in Property Law?

What is a cooling off period?

A cooling off period is the period of time given to a purchaser/s in a contract for the sale of residential land. During the cooling off period a purchaser is entitled to serve a notice on the vendor to rescind (or cancel) the contract.

The purchaser does not need to provide a reason to rescind the contract if the notice is given during the cooling off period. The cooling off period is five (5) business days (pursuant to the Conveyancing Act (NSW) 1919), but can be lengthened or shortened by agreement between the purchaser and vendor.

If a notice is served upon the vendor during a cooling off period the vendor might choose to pursue the purchaser/s for 0.25% of the purchase price (commonly referred to as a holding deposit), but will not be able to pursue the purchaser/s for the balance of the purchase price (usually 5 to 10% of the purchase price).

Once a cooling off period has expired, or if the cooling off period has been waived, the contract becomes unconditionally exchanged and the purchaser will be unable to rescind the contract without penalty, and will likely lose their full deposit.

 

The Section 66W Certificate

A section 66W certificate (by reference to section 66W of the Conveyancing Act (NSW) 1919) waives the cooling off period. The following requirements must be met in order to comply with Section 66W and waive the cooling off period:

  1. The certificate must be in writing;
  2. The certificate must be signed by a solicitor or barrister (with some restrictions);
  3. The certificate must state the purpose of the certificate; and
  4. The certificate must provide a statement from the solicitor or barrister to the effect that the nature and effect of the certificate has been explained to the purchaser.

 

 Advantage for the vendor if the cooling off period is waived

a cooling off period The advantage for a vendor in having the purchaser/s waive the cooling off period is that the vendor has immediate certainty that the property has been sold unconditionally on exchange.

This approach is commonly used when the property has been listed for auction. An unconditional exchange of contracts prior to auction allows the vendor to sell the property without fear of the purchaser rescinding the contract during the cooling off period.

This is of major benefit to the vendor, because if a contract for the sale of land is exchanged before an auction without a section 66W certificate, and the purchaser later rescinds the contract during the cooling off period, the vendor misses out on a sale and wastes the costs incurred in advertising for the auction.

Where a purchaser does not proceed to settlement following the unconditional exchange of contracts, the vendor has rights against the purchaser for breach of contract (including the right to pursue the purchaser for the balance of the agreed deposit).

 

Disadvantages for Purchaser waiving their cooling off period

The cooling off period allows a purchaser/s time to conduct searches, and if so required to arrange their finances for the purchase of the property. Having an exchanged contract with the benefit of a cooling off period allows the purchaser/s to undertake their enquiries without the stress of another purchaser outbidding, or even exchanging on the contract before their investigations are finalised.

If however investigations are not undertaken before the unconditional exchange of contracts (without a cooling off period), then the purchaser is at risk of unconditionally exchanging on a contract for the purchase of a property that might have structural or land defects, and or without their financial approval for the loan.

 

Advantages for a purchaser in waiving their cooling off period

Most vendors prefer the certainty provided by an unconditional exchange of contracts. This often gives the purchaser greater bargaining power over a purchaser that is not in a position to exchange contracts without a cooling off period.

Additionally, whilst it is not always the case, some vendors may need the certainty of an unconditional exchange of contracts. This may be to meet financial commitments, or other non disclosed reasons (such as a family law dispute requiring a quick settlement). Vendors in such circumstances may be persuaded to exchange contracts on a reduced purchase price for the certainty of exchanging contracts without a cooling off period.

a cooling off period

 

Should you exchange with or without a section 66W certificate?

Whether you exchange contracts unconditionally with a section 66W certificate (therefore without a cooling off period) will depend entirely upon your circumstances.

For a vendor, it is always preferable to exchange contracts with a section 66W certificate, so as to ensure that the contract is not rescinded during a cooling off period. However a purchaser should strongly consider whether they are in a position to waive their cooling off period (ensuring that their investigations have been completed, and their finances are in order) before considering exchanging on a contract with a cooling off period.

 

Contact Us

Do not hesitate to contact Joshua Randall if you would like any assistance with reviewing, exchanging or preparing a contract for the sale of land, so that you are ready and able to provide a Section 66W certificate if this is advantageous for you.

Family Law Courts COVID-19 List updated

Joint Practice Direction 1 of 2021: Family Law Courts COVID-19 List updated

The Federal Circuit Court of Australia and Family Court of Australia (“the Family Law Courts”) have updated the joint practice direction for the COVID-19 List which fast tracks a wider range of family law disputes that directly relate or have a significant connection to COVID-19. The Family Law Courts had introduced the dedicated COVID-19 List early last year in response to the significant rise of urgent family law applications brought on from parenting and/or financial arrangements being changed from the effects of the pandemic.

 

How do the new COVID-19 List practice directions help me?

Joint Practice Direction 1 of 2021 broadens the criteria for family law applications brought in the COVID-19 List to include issues that may arise from:

  • Decisions on vaccinating their children against COVID-19.
  • Obligations of parties in circumstances of testing for or contracting COVID-19.
  • Risks associated with family violence during the pandemic.
  • Financial hardship or maintenance issues arising from the circumstances of the pandemic.
  • Party compliance with parenting orders or parenting plans in place, including recognition of possible restrictions for parties who are front line health workers or engaged in COVID-19 related employment.
  • Changes in supervised contact arrangements.
  • Restrictions in travel arrangements if the parties live in different states, territories or counties.

In an effort to expedite matters, given the urgency generally associated with COVID-19 related family law applications, the joint practice direction now also allows national registrars, senior registrars as well as judges to hear matters in the COVID-19 List. Applications accepted into the COVID-19 List criteria will generally be heard in Court by an electronic platform within 3-7 business days depending on priority.

Tips for submitting an application in the COVID-19 List

Parties and litigants should keep in mind the filing and material guidelines for submitting an application in the COVID-19 List in accordance with the new joint practice direction. Some tips include:

  • Ensure that the correct supporting forms are filed with your application (for example parenting matters require the Notice of child abuse, family violence or risk form).
  • Affidavit must cover the criteria listed in the practice direction such as why your matter is urgent and details as to your reasonable attempts to resolve the dispute out of Court.
  • Ensure that you regularly check your emails in the event that Court requires material to be filed on short notice.

The recent joint practice direction can be accessed via the following link: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/rules-and-legislation/practice-directions/2021/jpd012021

 

Contact Us

As the Family Law Courts continue to adapt to changes in these uncertain times, Watts McCray Lawyers remain open and are ready to assist parties through the family law system.

If you require any assistance, please contact our friendly team.

 

Who is a parent under the Family Law Act?

Who is a parent under the Family Law Act? You might be surprised to know that ‘parent’ for the purposes of the Family Law Act, takes on its ordinary everyday meaning except when and if an applicable provision is otherwise provided.

There are presumptions of parentage contained within the Family Law Act arising from conception during marriage, cohabitation, registration of a birth, a judicial finding that a person is a parent of a child and signing an acknowledgment of paternity.

A child conceived by artificial conception is covered by Section 60H of the Family Law Act that provides if a woman was either married or a de facto partner of another person at the time the artificial procedure was carried out, and if the procedure was carried out with the consent of the partner, the child is the child of the woman and her partner. This section does not apply if a woman has completed artificial conception on her own.

Similarly if you are in a de facto relationship and you have a child or the child is adopted by you then you are deemed to be a parent.

Who is the parent?

The most recent case to determine ‘who is a parent’ for the purposes of the Family Law Act was the 2019 High Court case of Masson v Parsons. In this case the High Court determined that a man who donated his sperm to a female couple was a father for proposes of the Family Law Act.

In this case the man had been involved in the child’s life and had an agreement with the female couple that he would provide financial support and be involved in the child’s life including having input into decisions regarding education, welfare and health. From birth the child had lived with the female couple and the father continued to be involved in the child’s upbringing. The female couple sought to move to New Zealand and the father opposed the relocation in the Family Court.

The case made its way to the High Court after a series of appeals. The outcome reached by the High Court determined that to characterise the father as merely the child’s sperm donor would in effect ignore all but one of the circumstances of the case. The father was determined to be a parent for the purposes of the Family Law Act.

Similarly to the Family Law Act but more prescriptive the Child Support Act defines a parent as a biological parent, adoptive parent and a person who is determined to be a parent under the Family Law Act with particular reference to artificial conception procedures.

State law determines the parentage of children born out of surrogacy arrangements (altruistic surrogacy as commercial surrogacy is illegal in NSW).

 

Contact Us

If you require any assistance with adoption, parenting applications or other family law matters please contact our friendly team at Watts McCray Lawyers today.

Divorce in Family Law

The role of a divorce in family law, and the steps to obtaining one

There is a common misconception in family law that when a married couple separate and have a dispute about parenting and property matters, the legal remedy is to file an Application for Divorce and obtain a Divorce Order.

The reality is that a Divorce Order only has one role – to terminate a marriage at law. Once a Divorce Order is effective, you can legally re-marry. A Divorce Order does not deal with parenting arrangements or property matters.

 

What happens if my spouse doesn’t agree to the divorce?

An Application for Divorce can be filed as a sole application. The consent of the other party to the marriage is not an element to successfully obtaining a Divorce Order.

 

What does the Court need to consider before granting a Divorce Order?

The Court must be satisfied about a number of elements before granting a Divorce Order:

  1. That they have jurisdiction to deal with the Application.
  • One of the parties must be an Australian citizen or lives in Australia and has done so for the 12 months proceedings the Application or regards Australia as their home and intends to live here indefinitely. Watts McCray can provide you advice if you are unsure as to whether there is jurisdiction in your matter.
  1. That the parties are actually married.
  • This can be proved by providing the Court a copy of your marriage certificate.
  1. That the marriage has broken down irretrievably.
  • This can be proved by separation for at least 12 months. If you and your spouse have been separated under the roof at any point during those 12 months, additional documents may need to be filed. Watts McCray can assist you in preparing those.
  1. If a Sole Application, that the other party is aware of the proceedings.
  • This can be proved in a number of ways including by asking your spouse (or their lawyer) to sign a document acknowledging receipt of the Application for Divorce. In the event your spouse refuses to sign an Acknowledgement then a process server can be engaged to serve your spouse. Watts McCray can assist you in this process.
  1. That there are proper arrangements in place for the care, welfare and development of any child/ren of the marriage.

Divorce in Family Law

Divorce in Family Law

What do I need to do to obtain a Divorce Order?

Step 1: Wait 12 months following separation.

Once you have reached 12 months post separation, you are able to file an Application for Divorce.

Step 2: Prepare and file an Application.

Complete the Application and file that together with any supporting documentation required. A filing fee must also be paid.

Step 3: Obtain a Hearing date.

When you file your Application, you will obtain a Hearing date. This is generally be  6 to 12 weeks away.

Step 4: Serve the documents on your spouse.

You should now attend to serving your spouse with the documents you’ve filed, either via post, email, through a process server or via their lawyer.

If your spouse is located in Australia this must be done at least 28 days before the hearing, or 42 days before the hearing if your spouse is located overseas. The divorce will not be granted at the hearing if service has not been effected properly, or too close to the hearing.

Step 5: The Divorce Hearing.

If you file a sole application and there are no children under 18, you do not need to attend the hearing.

If you file a joint application and there are children under 18, you do not need to attend the hearing.

If you file a sole application and there are children under 18, you are required to attend the hearing.

If the Court is satisfied as to all the elements required to grant a Divorce Order, the Order will be made. The Court may make a requisition for further documents to be filed  in which case your divorce may be listed for a further hearing a few weeks down the track.

Step 6: The Order is granted.

The Divorce Order becomes effective one (1) month and one (1) day after it is granted. For example, if the Divorce Order is granted at the Hearing on 1 January, the Order will become effective, and your marriage will be legally terminated as at 2 February.

 

What happens if we were married overseas?

Most overseas marriages are recognised. In the event your marriage certificate is not in English, a translation certificate is required. Watts McCray can direct you to a translation service if a certificate is required.

 

Do I have to be divorced before I can commence parenting or property court proceedings?

No. You can commence parenting and/or property proceedings immediately upon separation. You can only file an Application for Divorce once you have been separated from the other party for a minimum of 12 months.

Divorce in Family Law

 

What do I need to be aware of after a Divorce Order is granted?

A Divorce Order may revoke or otherwise affect the operation of your Will. Parties should seek legal advice about their position under the law of their State or Territory. Our estate section at Watts McCray can review your Will and advise if a new Will is necessary.

If you have not already done so, parties should remove their former spouse as a beneficiary to their superannuation and/or insurance policies if it is the case that they no longer want their former spouse to be the beneficiary.

If a party to the marriage wishes to make an application to the court for property or maintenance orders, such an application must be made within 12 months from the date which the Divorce Order takes effect. After that time an application cannot be made without first obtaining leave from the court to do so.

 

Contact Us

If you would like assistance in preparing and filing an Application for Divorce, or have any questions in relation to the process, please contact our friendly team at Watts McCray  (02) 9635 4266.

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