Professor Patrick Parkinson in his paper “Relocation Disputes Project” records that internet dating was the cause of ‘some’ of the 40 relocation cases studied by him.
The internet does not respect boundaries leading to the formation of long distance relationships and the consequent desire to move (with the children).
I suspect the massive LNG projects in Western Australia and Queensland will provide further impetus for relocations as these projects draw away from major cities tens of thousands of skilled workers.
For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.
Thursday, September 17, 2009
Tuesday, September 8, 2009
Relocation research
Professor Patrick Parkinson has reported the outcome of an ongoing study of 80 separated parents involved in relocation of children interstate or overseas. He has reported:
1. In 65% of cases the applicant was allowed to leave.
2. 72% of cases where children were permitted to move were decided by consent of the parents.
3. Where a judicial determination was necessary, 58% of the cases permitted a departure.
These outcomes contradict the popular sentiment that the “shared” parenting laws are preventing relocation. However, Professor Parkinson noted that successful relocation applications were more likely out of Melbourne and Perth than in Sydney. This is reported to be due to different legal interpretations by judges in cities. It also might reflect a different settlement culture.
For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.
1. In 65% of cases the applicant was allowed to leave.
2. 72% of cases where children were permitted to move were decided by consent of the parents.
3. Where a judicial determination was necessary, 58% of the cases permitted a departure.
These outcomes contradict the popular sentiment that the “shared” parenting laws are preventing relocation. However, Professor Parkinson noted that successful relocation applications were more likely out of Melbourne and Perth than in Sydney. This is reported to be due to different legal interpretations by judges in cities. It also might reflect a different settlement culture.
For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.
Wednesday, September 2, 2009
Divorce rates falling - less work for family lawyers?
Statistics reported in The Australian today indicate that more people are getting married, and that divorce rates are dropping.
Tuesday, September 1, 2009
When will the court order paternity testing?
There is significant community interest in the capacity of DNA assessment to affect court proceedings. It is suggested that a swathe of wrongly convicted persons might be released because of “DNA evidence.” That is yet to bear fruit. On the other hand, offenders may more easily be convicted with “DNA evidence.”
There would be little controversy in the use of this evidence to inculpate the offender and to exculpate the innocent. Significantly more controversy exists in using DNA evidence to “determine parentage.”
In Re: H & A (Paternity: Blood Test) (2002) 1 FLR 1145, Lord Justice Thorpe held that as science had developed significantly, paternity is a matter to be determined by science and not by legal presumption. That may be so. The difficulty that arises, however, is that whilst science has advanced to precisely determine “paternity,” neither science nor the community has developed so much that it can precisely determine “fatherhood.” And it may be said that the development is so stagnant so as to assume, at least for the time being, that paternity and fatherhood always overlap. But do they?
Further, the debate continues to rage over the extent of “misattributed paternity,” where various groups suggest the issue affects “no more than 3% of tests” to “over 30% of tests.”
This is not intended to be a forum to fully extrapolate the variety of philosophical differences to DNA paternity testing. It is suffice to say that there are differences and it is those differences that have led the courts to develop a careful jurisprudence.
The authority of a court to order a paternity test is found in section 69W of the Family Law Act 1975. Machinery provisions exist at sub-sections (2) to (5). Sub-section (1) states as follows:
“If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order ) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.”
The language suggests an almost unfettered discretion and was held as such by Butler J in F & R (1992) FamLR 533. However, as his Honour continued, an unfettered discretion must be dealt with according to the ordinary rules of justice and fairness between the parties. In addition, one might argue that a proper statutory construction is always based upon the spirit and objects of the Act as a whole. As a consequence, the Court has set a number of factors for determination prior to ordering a paternity test. These were most recently and fully discussed by Kemp FM in Letsos & Vakros [2009] FMCAfam 897.
1. There must be substantive proceedings before the court. The court will not order parenting testing simply to satisfy the interest or knowledge of a person. The results must have implications for broader questions of parenting or child support.
2. Paternity must be an issue in the proceedings; that is, there must be established on the evidence, the onus of which is on the applicant, that there is a doubt in the applicant’s mind as to paternity, and the doubt must be honest, bona fide and reasonable. Importantly, the applicant need not show that any person is the father of the child. The applicant need only show that there is an honest, bona fide and reasonable doubt as to paternity. Often, evidence of such belief is difficult to corroborate and, consequently, the court will accept that evidence unless the court concludes the applicant’s alleged doubt is affected by malice or other extraneous considerations.
3. The court will not dismiss an application simply because the applicant’s evidence is inconsistent. Recollection of such personal and intimate matters is frequently inaccurate.
4. Whether or not testing is in the best interests of the child. Although, plainly, not a substantive parenting order, Coleman J in Tryon & Clutterbuck [2007] FamCA 580 held that an order for paternity testing is still an order with respect to the welfare of the subject child. Applying such definition to section 64B(2)(i) of the Family Law Act 1975, an order for paternity testing is therefore a “parenting order” for the purposes of the Act. It being so, the paramountcy principle applies – section 60CA of the Act refers. It then behoves the court to consider the matters outlined in section 60CC of the Act so far as they are relevant and so far as any evidence is led to draw an inference or make a finding.
A paternity test is, therefore, not for the asking. Very careful legal considerations must be examined before a client is advised to bring an application. Moral considerations, the purview of many other papers and other philosophies, must come next.
For more information, please contact Adam Cooper or visit Barry & Nilsson Lawyers.
There would be little controversy in the use of this evidence to inculpate the offender and to exculpate the innocent. Significantly more controversy exists in using DNA evidence to “determine parentage.”
In Re: H & A (Paternity: Blood Test) (2002) 1 FLR 1145, Lord Justice Thorpe held that as science had developed significantly, paternity is a matter to be determined by science and not by legal presumption. That may be so. The difficulty that arises, however, is that whilst science has advanced to precisely determine “paternity,” neither science nor the community has developed so much that it can precisely determine “fatherhood.” And it may be said that the development is so stagnant so as to assume, at least for the time being, that paternity and fatherhood always overlap. But do they?
Further, the debate continues to rage over the extent of “misattributed paternity,” where various groups suggest the issue affects “no more than 3% of tests” to “over 30% of tests.”
This is not intended to be a forum to fully extrapolate the variety of philosophical differences to DNA paternity testing. It is suffice to say that there are differences and it is those differences that have led the courts to develop a careful jurisprudence.
The authority of a court to order a paternity test is found in section 69W of the Family Law Act 1975. Machinery provisions exist at sub-sections (2) to (5). Sub-section (1) states as follows:
“If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order ) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.”
The language suggests an almost unfettered discretion and was held as such by Butler J in F & R (1992) FamLR 533. However, as his Honour continued, an unfettered discretion must be dealt with according to the ordinary rules of justice and fairness between the parties. In addition, one might argue that a proper statutory construction is always based upon the spirit and objects of the Act as a whole. As a consequence, the Court has set a number of factors for determination prior to ordering a paternity test. These were most recently and fully discussed by Kemp FM in Letsos & Vakros [2009] FMCAfam 897.
1. There must be substantive proceedings before the court. The court will not order parenting testing simply to satisfy the interest or knowledge of a person. The results must have implications for broader questions of parenting or child support.
2. Paternity must be an issue in the proceedings; that is, there must be established on the evidence, the onus of which is on the applicant, that there is a doubt in the applicant’s mind as to paternity, and the doubt must be honest, bona fide and reasonable. Importantly, the applicant need not show that any person is the father of the child. The applicant need only show that there is an honest, bona fide and reasonable doubt as to paternity. Often, evidence of such belief is difficult to corroborate and, consequently, the court will accept that evidence unless the court concludes the applicant’s alleged doubt is affected by malice or other extraneous considerations.
3. The court will not dismiss an application simply because the applicant’s evidence is inconsistent. Recollection of such personal and intimate matters is frequently inaccurate.
4. Whether or not testing is in the best interests of the child. Although, plainly, not a substantive parenting order, Coleman J in Tryon & Clutterbuck [2007] FamCA 580 held that an order for paternity testing is still an order with respect to the welfare of the subject child. Applying such definition to section 64B(2)(i) of the Family Law Act 1975, an order for paternity testing is therefore a “parenting order” for the purposes of the Act. It being so, the paramountcy principle applies – section 60CA of the Act refers. It then behoves the court to consider the matters outlined in section 60CC of the Act so far as they are relevant and so far as any evidence is led to draw an inference or make a finding.
A paternity test is, therefore, not for the asking. Very careful legal considerations must be examined before a client is advised to bring an application. Moral considerations, the purview of many other papers and other philosophies, must come next.
For more information, please contact Adam Cooper or visit Barry & Nilsson Lawyers.
Monday, August 10, 2009
Forced Relocations – What must be included in a Relocation Notice?
A landlord may wish to relocate a tenant for a variety of reasons. With a view to maintaining a harmonious relationship between the parties, a landlord would normally seek to reach agreement with its tenant so that the relocation takes place on a co-operative basis. However, when the parties cannot reach agreement and the relocation clause in the lease must be triggered, the implied provisions in the Retail Shop Leases Act require the landlord to give the tenant certain information before the relocation notice is effective. Specifically, the relocation notice must give the tenant:
1. details of the proposed refurbishment, redevelopment or extension of the Centre (“the proposed works”);
2. details of the “reasonably comparable” alternative premises; and
3. the date by which the tenant must vacate
Simple? Probably not because there is likely to be an element of uncertainty over whether there is a “genuine proposal” to carry out the proposed works or whether the alternative premises are “reasonably comparable”. If the tenant disputes the validity of your relocation notice then you may find yourself in the Tribunal. There are no apparent limits on what the Tribunal may take into account when considering what constitutes a “genuine proposal” or what is “reasonably comparable”.
Some recent decisions under equivalent retail leases legislation in Victoria and NSW have provided useful guidance as to how the Tribunal may interpret the implied provisions in the Retail Shop Leases Act.
1. Details of the proposed works
There must be enough details in the relocation notice so that the affected tenant can come to a conclusion about whether the proposed works:
(a) are a “genuine proposal”;
(b) will be carried out within a reasonably practicable time after the tenant is relocated; and
(c) cannot be carried out without vacant possession.
Consequently, we recommend that you provide as many details of the proposed works as you can when giving a relocation notice.
2. Details of the “reasonably comparable alternative premises”
The relocation notice must give the tenant enough details about the alternative premises so that it can form a view as to whether the alternative premises are “reasonably comparable” to the existing premises. Apart from the obvious details like size, location and any adjusted rent, the Tribunal may also consider the commercial value, exposure to traffic, or general appearance of the alternative premises to determine whether they are “reasonably comparable”.
The minimum information that should be set out in a relocation notice includes:
(a) the size, layout and location of the alternative premises (preferably shown on detailed plans);
(b) the proposed rent (if it is to be adjusted to take account of the different commercial value of the alternative premises);
(c) any unusual or distinguishing features of the alternative premises; and
(d) any information of special relevance to a particular tenant (e.g. a food retailer should be given information about the location and size of any grease trap servicing the alternative premises).
3. The date by which the tenant must vacate
The relocation notice must be given at least 3 months before the tenant is required to relocate. As always, it is best to issue the notice as early as possible. The closer it is to the commencement of the works, the stronger the bargaining position of the tenant if the notice is defective.
Generally, you should also ensure that the relocation notice is given to the tenant in the manner provided for in the lease. When posting, you should allow a minimum of 2 business days for delivery. Service by fax or email is not recommended unless specifically provided for in the lease.
The consequences of a defective relocation notice could be dire. If you are considering forced relocations of tenants then we recommend that you seek legal advice to minimise the risk that your relocation notice is open to challenge. Our experienced team of retail property lawyers are ready to provide you with whatever assistance you need.
1. details of the proposed refurbishment, redevelopment or extension of the Centre (“the proposed works”);
2. details of the “reasonably comparable” alternative premises; and
3. the date by which the tenant must vacate
Simple? Probably not because there is likely to be an element of uncertainty over whether there is a “genuine proposal” to carry out the proposed works or whether the alternative premises are “reasonably comparable”. If the tenant disputes the validity of your relocation notice then you may find yourself in the Tribunal. There are no apparent limits on what the Tribunal may take into account when considering what constitutes a “genuine proposal” or what is “reasonably comparable”.
Some recent decisions under equivalent retail leases legislation in Victoria and NSW have provided useful guidance as to how the Tribunal may interpret the implied provisions in the Retail Shop Leases Act.
1. Details of the proposed works
There must be enough details in the relocation notice so that the affected tenant can come to a conclusion about whether the proposed works:
(a) are a “genuine proposal”;
(b) will be carried out within a reasonably practicable time after the tenant is relocated; and
(c) cannot be carried out without vacant possession.
Consequently, we recommend that you provide as many details of the proposed works as you can when giving a relocation notice.
2. Details of the “reasonably comparable alternative premises”
The relocation notice must give the tenant enough details about the alternative premises so that it can form a view as to whether the alternative premises are “reasonably comparable” to the existing premises. Apart from the obvious details like size, location and any adjusted rent, the Tribunal may also consider the commercial value, exposure to traffic, or general appearance of the alternative premises to determine whether they are “reasonably comparable”.
The minimum information that should be set out in a relocation notice includes:
(a) the size, layout and location of the alternative premises (preferably shown on detailed plans);
(b) the proposed rent (if it is to be adjusted to take account of the different commercial value of the alternative premises);
(c) any unusual or distinguishing features of the alternative premises; and
(d) any information of special relevance to a particular tenant (e.g. a food retailer should be given information about the location and size of any grease trap servicing the alternative premises).
3. The date by which the tenant must vacate
The relocation notice must be given at least 3 months before the tenant is required to relocate. As always, it is best to issue the notice as early as possible. The closer it is to the commencement of the works, the stronger the bargaining position of the tenant if the notice is defective.
Generally, you should also ensure that the relocation notice is given to the tenant in the manner provided for in the lease. When posting, you should allow a minimum of 2 business days for delivery. Service by fax or email is not recommended unless specifically provided for in the lease.
The consequences of a defective relocation notice could be dire. If you are considering forced relocations of tenants then we recommend that you seek legal advice to minimise the risk that your relocation notice is open to challenge. Our experienced team of retail property lawyers are ready to provide you with whatever assistance you need.
Wednesday, July 29, 2009
Review of children’s provisions
The Institute of Family Studies has been requested by the Federal Attorney General to review the 2006 amendments to the Family Law Act, sometimes called the shared care amendments.
[Barry Nilsson] I am confident that the Institute can cut through the self-interested anecdotal based lobbying to reach a sensible conclusion. Anecdotes are typically boring and irrelevant. One outcome should be to recommend simplification of the convoluted provisions in the Act.
Tony Abbott’s reported suggestion to allow couples to opt into a fault based system are not likely to live long in the public mind. [Barry Nilsson]
For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.
[Barry Nilsson] I am confident that the Institute can cut through the self-interested anecdotal based lobbying to reach a sensible conclusion. Anecdotes are typically boring and irrelevant. One outcome should be to recommend simplification of the convoluted provisions in the Act.
Tony Abbott’s reported suggestion to allow couples to opt into a fault based system are not likely to live long in the public mind. [Barry Nilsson]
For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.
Income disparity
The Australian Institute of Studies has released a study confirming the long held view that divorce has lasting impacts on women’s income levels compared with their male partners. [Barry Nilsson] The information collected to reach this conclusion was compiled since 2001. There has, of course, been major legislative change in the form of the `shared care’ amendments during the study time. It is my experience that the `shared care’ regime and greater flexibility by employers has enabled mothers to re-enter the workforce far sooner. [Barry Nilsson] I suspect the reported gap will close somewhat over the near time.
Legal advisers should always be aware of spouse maintenance entitlements. I am sure many women have been `short changed’ by their advisers by not recommending the pursuit of this entitlement.
For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.
Legal advisers should always be aware of spouse maintenance entitlements. I am sure many women have been `short changed’ by their advisers by not recommending the pursuit of this entitlement.
For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.
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