Won’t somebody please think of the children

Going through a separation is a pretty awful experience, and it’s not something I can try to sugar-coat. It’s even worse when you have kids; they didn’t ask for any of this, they’re just dragged along for the ride.

So how do you protect your kids from the perils and pitfalls of separation? Here are some basic rules:

THE TO DO’S BEFORE THE I DO’S

Marriage is about more than just the loving union of two people—it’s also about the union of financial assets and liabilities, and families. Or, as some like to say, it’s about halving your rights and doubling your duties.

There are good reasons why you should consider signing a Financial Agreement before you marry or commit yourself to a de-facto relationship. However, not everyone needs a Financial Agreement. Quite apart from the legal issues (which you can discuss with a solicitor), the answer to this question will depend on a number of practical considerations, as follows:

Can you trust your Trust? Is your Trust a SHAM?

Riddle me this:

• Has your Trust been created to evade legal obligations?
• Is there a disparity between actual transactions and your Trust Deed?
• Are you trying to mislead others in respect of your rights and obligations under the Trust Deed?

If you answered yes to any of the above questions, then I am pointing my finger at you, and telling you that your Trust looks like a sham; and your ex could soon be having a bite of that tasty looking cherry of a Trust in the Family Court!

Am I or aren't I?  Part 2

For those who have not read Part I of the blog please do so before reading any further Am I or aren't I Part 1.

For those of you who read the blog last week you’ll remember that I had left off with our client dying in hospital shortly after being cross examined.

The next day in Court we had the unfortunate duty of notifying the Federal Magistrate what had just happened and without missing a beat we made an Oral Application that our client’s nephew, as executor of our client’s estate, carry on the litigation. That was always going to be an uphill battle and it was rejected as there was the need for probate to be obtained on our client’s Will. It was a hurdle of course but one that we did not think would be any issue in overcoming. We were wrong. Our Application was met with a caveat in the Supreme Court put on by the other party’s solicitors as a result of our client having other family that was not in the Will. Notice had to be given to the other family members as to whether they wanted to intervene in the proceedings. That was met with responses of none of the family wanting to have anything to do with our client or the proceedings.

WHY IS MARRIAGE ABOUT SEX?

Mankind, from the earliest of times, has been driven to live within a community and to have the intimacy of a loving and committed relationship with the person of their choice.

By Christian tradition this relationship would only be solemnised by a Christian Church in the form of marriage if the union was between a man and a woman.

In the mid-19^th Century, the Courts defined marriage as “the voluntary union for life of one man and one woman to the exclusion of all others.

S5(1) of the Marriage Act 1961 continues this definition; “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”

Why do we as a society, refuse to consider or allow a conscious vote by our elected representatives to determine whether the fundamental right of an individual to choose with whom they wish to enter into a union to the exclusion of all others for life should or should not be solemnised? The Answer must be fear.

Am I or Aren’t I?

For all our faithful blog readers out there you have no doubt read our absolutely top notch blogs from my colleagues. In case you haven’t noticed we do things a bit different here at Butlers. We like to make the law easy and accessible to everyone, and it should be.

For all of our first time readers you will find that these blogs are informative and they give you guidance if you’re about to get into a relationship, or are in a relationship or if you’ve just got out of a relationship.

I thought I’d change things up a bit and share a personal experience that I had 2 years into practicing. Now before you feel the need to let out a groan, just give me the benefit of the doubt and have a read.

I’m often met with the response of “Oh wow, that must be so tough” or “I don’t know how you do it” when I tell people that I’m a Family Lawyer.

“I’m a sperm donor!” he said. “I’m a parent!” he said. WRONG.

Well, at least for legal purposes, in Western Australia.

When it comes to matters of artificial conception, the Artificial Conception Act 1985 (WA) states the following:

1. if a man provides genetic material to a woman, and that woman uses his genetic material to become pregnant via an artificial fertilisation procedure, then the man “shall be conclusively presumed not to have caused the pregnancy” and “is not the father of any child born as a result of the pregnancy”.
2. if a “woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure in consequence of which she becomes pregnant… then the de facto partner of the pregnant woman, shall be conclusively presumed to be a parent of the unborn child” and “is a parent of any child born as a result of the pregnancy”.

I don’t know about you, but my first reaction is that that first part does not sit in accordance with what I learnt from Maury Povich.

When love hurts...

I’m a glass half full kind of guy. I like to think that we live in a world where for the most part people are decent.

Now, you don’t have to be a sports fan like myself to know the trouble the National Football League is facing in light of the recent Ray Rice domestic violence incident. The video footage released by TMZ showed the Baltimore Raven’s star running back strike his then fiancé, Janay Palmer, with a left hook which led to her head being bounced off an elevator rail. It was enough to make anyone feel absolutely sick to their stomach.

Handing back the Rose:  what The Bachelor has taught us about broken engagements

One minute he was the Bachelor. The next minute, to the disappointment of Barry-White-voice-loving women everywhere, he was suddenly engaged. In South Africa by the way – how exotic. And then, shock horror, it was all off. Poor ol’ Sam - if they can’t make it, what hope do the rest of us mere mortals have? And apparently, Lisa was pregnant. But really, she wasn’t. And now? Louise is the object of his affection. I just can’t keep up. Who would ever have thought that there would be such a dramatic and surprising ending to such a sophisticated and scholarly example of reality television?

Just in case you’re not picking up what I’m putting down, yes, that was an oxymoron, and, yes I’m being facetious. I haven’t had my morning coffee yet. But what lesson can we all take away from this whole fracas? Spare a thought for the engagement ring that was presented to Blake’s beloved betrothed, albeit short lived. That sparkly little number from the most highly named-dropped jeweller in Sydney. Who shall remain unnamed. Unless they agree to pay me a commission. In diamonds. #BUNDAFORROSIE – you are my inspiration.

“Are you not entertained?”- Why family violence is currently front page material for all the wrong reasons

Anyone who knows me knows that I am a bit of a cliché when it comes to being a redhead with a temper. The issue that has recently attracted my ire is that of the deranged chef in Queensland who brutally murdered and then ATE his partner. To say this crime is horrific is an understatement. However, what is more horrific is the front page of Queensland’s own Courier Mail in response to the crime. The front page showed a picture of the victim wearing a bikini and in a provocative pose, with the headline “Monster Chef and the She Male”.

The fact that Ms Prasetyo was a trans-gender female and an escort is irrelevant. That the media has spun the story to put those two facts front and centre reeks of victim-shaming. Honestly, it’s 2014 and we are still perpetuating the “she had it coming” defense?  She was a real person, with a family and a life, and that life was taken away from her by the man that she was married to. By the way, her Mother has told reporters that she worked as an escort to support her family and put her little sisters through school- you don’t see that in any headlines do you?

It’s World Mental Health Day

On 10 October, millions of people around the world will take a moment to observe World Mental Health Day. A day which calls us to recognise and analyse the level of support we give to mental health issues, which, according to The Australian Bureau of Statistics, an estimated 45% of Australians experience in their lifetime.

Separation and divorce are among life’s most devastating and troubling experiences. Before someone has even digested the fact that they are separated from their former partner (let alone the consequences), they can be hurled into a Family Law storm of valuing and dividing assets, making long term decisions for their children, or attending Court hearings and building affidavit material that sets out, in intimate detail, their life with their former partner, which is being scrupulously analysed by lawyers and judges alike.

International child abduction – how to recover your child if you’re not Liam Neeson and don’t have his “special skills”

Recently all the news stations have been reporting about a lady called Dorothy Lee Barnett. Now Dorothy looks like a nice lady, and I’m sure her southern-drawl is quite charming. But here’s the thing – Dorothy has now been extradited to the US facing a number of charges, including international parental kidnapping and passport related offences. Because, as it turns out, Dorothy told her ex that she was taking their baby daughter to a birthday party one day…and never came back.

I think it’s fair to say that in a very limited number of circumstances, you could understand why a parent may flee to another country with their child. For example, in cases of serious family violence, it’s not unreasonable that someone would think that their only option, and their child’s only option, is to escape overseas. However, in most cases, it’s just not on. In Dorothy’s case, her ex had already been awarded sole custody of their daughter. For her to have deprived her daughter of a relationship with her father for the past 20 years is, in my opinion, pretty deplorable.

“[They] got one of your kids, got you for 18 years:  Utilising Child Support Agreements so that everybody wins”

“His baby-momma’s car and crib is bigger than his”…if ever a song generated ample work for family lawyers, it is Kanye West’s 2005 classic “Golddigger”. Sure, there’s an element of misinformation included in the lyrics, and it has lead to many of the population thinking that holler[ing] “we want pre-nup” is a sufficient asset-protection measure, but it was on the right track.

Other than increasing public awareness about Financial Agreements, it also dealt with child support. While the Child Support Agency has mechanisms by which you may object to an administrative assessment, what many people may not realise is that parents can reach their own agreement in relation to child support and, more importantly, document it so that it’s enforceable.   Child Support Agreements now form a valuable part of property settlement negotiations and may reduce acrimony because both parents are involved in the negotiation process. Parents may also want to “lock in” certain payments to third parties, such as health insurance or school fees (and additional educational costs). In these situations, a Child Support Agreement may be the way to go.