Family Law Act

Legal Complexities and Problems of Part VII of the Family Law Act

by Family Law

Part VII of the Family Law Act provides that it is impossible for a child to have more than two parents. Both the Commonwealth and State laws do not contain specific clarifications on the issue in question. To that end, it is essential to explore how the judges approach this problem. Specifically speaking, the court in Groth & Banks ascertained that the fact that a child has two parents who are his or her biological progenitors permeates the language of the Act.[1]

The primacy of biology in the ascertainment of who is a child’s parents has been displaced for many years by reason of various State and Commonwealth laws reacting to the challenges of artificial reproductive technology. However, it is also pointed out that the language of Part VII provides an insufficient recognition of the realities of certain modern families. Possible complexities and questionable matters may arise in cases where children are born from an assisted conception procedure. The issue of whether it is in the best interests of the child to spend time with a person is separate from the legal recognition of that individual as a parent.

Criminal Offence

2 Elements of Criminal Offence

by Criminal Law

The advice of criminal lawyers should be sought in any case where a serious offence has been committed. Even if the crime was not a serious one, having a lawyer to advise you will ensure the best result can be obtained. Most lawyers will tell you there are two elements to any criminal offence.

  • Prohibited conduct. This includes such things as robbing a bank, murder, assault and so on. Most people understand that there are certain types of conduct that will cause harm to others and that are against the law. Anyone who performs such conduct must be punished. However, that brings us to the second element.
    • The mental element of a guilty mind or intention to commit the offence. The same offence can be committed by a person without the intention and they can get off without punishment. For instance, if you struck someone accidentally, you would not be guilty of assault because the element of intention to strike was not there. Furthermore, if you acted in self defence, that would give you a lawful excuse for the action so you may not be charged, or punished, even if you did hit them.
Surrogacy-Law

Surrogacy and Parentage Under the Family Law Act

by Family Law

Surrogacy and parentage constitute two facets of Australia’s Family Law Act that require additional clarification, interpretation or possible reconsideration. To start with, specific sections of the Family Law Act are proposed to regulate various matters related to surrogacy and recognition, such as the recognition of parental status stemming from the use of surrogacy, etc. However, the wording of the statutory provisions does not always make it clear whether a certain part of the Act has application to a particular surrogacy related matter. In this connection, it is often vital to have recourse to case law.

The conventional definition of surrogacy under Australian case law is that it is an arrangement whereby a woman, the surrogate mother, consents to bear a child for another individual or couple. There is a wide range of legal forms of surrogacy under Australian law. Thus, ‘genetic’ or ‘partial’ surrogacy pertains to the engagement of the surrogate mother’s egg and the intended father’s sperm. On the other hand, ‘gestational’ or ‘full’ surrogacy means agreements whereby the surrogate mother does not provide her own genetic material for the purpose of conception.

Starting A Business

Starting a Business? Protect Yourself!

by Commercial Law

So, you’ve decided to start your own business, congratulations!  You’re on your way to a fantastic experience as you build a successful enterprise.  Here are a few key tips, documents, and warnings from commercial lawyers and someone who started their own $10 million dollar software company.

  • Protect Yourself. Business is a risky proposition, and starting your own enterprise can put you at tremendous financial risk.  Fortunately, the law provides a way to protect your hard work and safeguard your personal property and other assets should anything go dramatically wrong in your business.  The entity I’m describing is a corporation, or limited liability company.  Both of these constructs allow you to run a business but shield yourself from liability.  It’s important to do several key things:
  • Corporate ‘formalities’: You can’t start a corporation and then pretend it doesn’t exist, you have to run your business and maintain what commercial lawyers call “corporate formalities” – meaning you have to hold regular managers or shareholder’s meetings, and in all ways act as if it’s the company doing business, not you.
Estate Plan

Getting Your First Estate Plan Set Up

by Estate Planning

Estate plans are often used in place of wills, as they provide a more flexible and comprehensive arrangement when it comes to dealing with your assets after your death. Many people don’t realise how important and beneficial estate plans can be, and therefore simply ignore them. However, setting up an estate plan could be a good idea for you and your family. Speak to an estate planning lawyer today to find out how you can set up your first estate plan.

Step 1: Find Help

The first thing to do when it comes to estate planning is to find help from an estate planning lawyer. This will allow you to easily navigate all of the complexities and intricacies of drafting your first estate plan. A good legal professional will make sure that you don’t leave out important information, and will help you develop a plan which benefits your family as much as possible.

Protective Order

Two Ugly Words: Protective Order

by Family Law

One of the most common requests among family lawyers is the demand a protective order.  The reasons are as diverse and colorful as you can imagine.  Often a spouse wants to retaliate against the other after being served with papers.  Sometimes, papers aren’t even filed yet and a spouse discovers infidelity, or financial problems, etc.  The important thing to remember is that just because you want one doesn’t mean a court will grant a protective order.

Some Housekeeping Items:

There are many different flavors of ‘restraining’ or ‘protective’ order and it’s important to distinguish between them because each has different requirements and consequence and you don’t want to argue for something you don’t want or need.

Let’s focus on the most common type of order in divorces: Emergency Protective Orders.  This is a legal document that protects a victim of abuse who is also in a close relationship to the abuser.  Who can get a protective order?  Jurisdictions vary but in general you must satisfy the following requirements:

Shareholder Agreements

Why Are Shareholder Agreements Important?

by Commercial Law

Shareholder agreements are a vital part of a company’s structure. They outline the agreement between the shareholders – the people who invest their money in a company – and the company directors – the people who decide how to spend this money.

While shareholder agreements can be complex and somewhat difficult to set up, it is important to realise that they are extremely important. They need to be drafted with the help of high-quality commercial lawyers to make sure that they are error free and that they encompass the necessary information, and they need to be treated like the important legal document that they are.

Some of the main reasons why shareholder agreements are important include:

Broken the Law

Have You Broken the Law?

by Criminal Law

Some people are criminals because they break the law wilfully and deliberately, however, there are many people who would not dream of breaking the law, but in fact have done so without realising it. In some cases they’ve even done it on purpose, but because it is considered ‘minor’ and they didn’t get caught, they think of themselves as law abiding citizens. Criminal lawyers would tell them that they are actually law-breakers.

Have you broken the law? Here are some laws you may not have heard of.

  • When you move into a new rental, your letterbox is jammed with the previous tenants mail. You may take it back to the Post Office at first, then you get sick of doing that and throw it away. You may even open some of it. Opening or destroying other people’s mail is against the law.
  • When you beep the horn and wave to your neighbour, you are breaking the law, which states that it is an illegal use of a warning device. Fine? $250 and 3 demerit points off your licence.
  • Did you stick your arm out of the car or even rest your elbow against the window? That too, is an office, punishable by the same as the above crime.
Shared Property

How To Deal With A Shared Property During A Divorce

by Family Law

Divorces are messy things, no matter how carefully they are planned. Even in couples who agree to go carefully so that they don’t hurt their children and so they can move on with their lives, property disagreements are common. Often, family lawyers need to be called in to mediate problems and to help the couple split their belongings fairly in court if needed.

Think about things ahead of time:

The easiest thing to do is undoubtedly to have paper agreements put into place during your marriage. For example, if one partner in the relationship puts the majority of the money into buying a house, then this should be written down and signed by both parties (under the watchful eye of a family lawyer of course). This document could then be used in a divorce court to make sure that and property divisions are done fairly and without bias.

Domestic Violence

What To Do If You Are A Victim Of Domestic Violence

by Family Law

Domestic violence is a problem which, unfortunately, affects thousands of Australians every single year. Many cases of domestic violence go unreported and unpunished, as victims feel that they were somehow at fault, or that the perpetrator made a mistake and won’t do it again.

Unfortunately, this can be a long, slippery slope. Many people get stuck in a cycle where domestic violence becomes a part of their daily life. Although they could escape with the assistance of good family lawyers, a lot of victims don’t realise just how much help is out there for them.

The First Steps

The first, and most important thing when it comes to dealing with domestic violence is talking to someone. Find someone that you trust – a family member or a best friend – and tell them what is happening. If you don’t have anyone who you feel comfortable talking to, find a reputable family lawyer. You will be able to confide in them with confidence, and they will be able to direct you and explain what you need to do next.

Commercial Property

What Are Your Legal Requirements When Leasing A Commercial Property?

by Property Law

Businesses across the world lease commercial premises to operate in every single day. Unfortunately, many of these lessees don’t understand the legal requirements that come with leasing a property. Before entering into a commercial property lease agreement, you should consult a property lawyer to make sure that you fully understand your obligations and the requirements of your lease.

With that in mind, what are some of the most common legal requirements when leasing a commercial property?

You must complete the relevant paperwork:

Both the landlord and the lessee must complete a range of paperwork when entering into a commercial lease to make sure that the lease is valid (and that it remains valid). Obviously, a written lease has to be drafted in accordance with the lease terms that both parties have agreed on, and it is important that you read a lease carefully before signing it. If you are unsure about your legal requirements in terms of paperwork before and during a lease, consult a property lawyer.

Property and Financial Issues

Property and Financial Issues After Separation

by Family Law

Legal effects of separation on proprietary and financial relationships between the spouses

As a matter of fact, separation necessitates dealing with a wide spectrum of proprietary and financial issues that stem from and are related to marriage. Specifically speaking, it is usually incumbent on the spouses to handle division of their property (assets) and debts. Australian law prescribes various means by which spouses can accomplish such division. First and foremost, spouses, to the same extent as de facto partners, are entitled to come to an agreement on how the property should be divided without having any recourse to court. Second, if the spouses arrived at a mutually acceptable conclusion, they can formalise their arrangement by filing an application for a consent order in the Family Court. Third, as an alternative, if the spouses are unable to reach a consensual arrangement, they may apply to a court for a financial order, such as the order pertaining to the division of property and payment of spouses or de facto partner maintenance.

children’s matters

Children Related Issues Under Australian Family Law

by Family Law

The regulation of children’s matters under Australian law has become a topic of vigorous debates and legal analyses. Thus, legal experts in Australia deem it wise to focus on a federal Status of Children Act in order to improve the regulation of various issues regarding the parentage of children. Per legal experts, it has become crystal clear that Part VII of Family Law Act does not perfectly fit to providing a definition of legal parentage for the purposes of Commonwealth laws in general.

The major objective of Part VII of Family law Act is the parenting arrangements for children when there is a dispute. Though the question of who is or who are a child’s legal parents is of huge importance, in terms of the Family Law Act, the considerations involved in determining what is in a child’s best interest in parenting disputes go beyond the determination of legal parentage. In this connection, the proposed federal Status of Children Act is aimed at providing a clear, consistent and accessible statement of the legal parentage of children for the purposes of all Commonwealth laws and for all courts that exercise federal jurisdiction. It is also expected that the Act will include all the existing parentage provisions in Part VII of Family Law Act. The last but not least, the Act is expected to provide a mechanism for the family courts to transfer parentage in surrogacy agreements.