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June 27, 2012

Australia has introduced new measures to help victims of family violence on provisional partner visas. Australia’s Minister for Immigration and Citizenship, Chris Bowen MP, and the Minister for the Status of Women, Julie Collins MP, said the changes would lead to an improvement in the assessment of family violence cases under migration law and provide for a wider range of evidence to support such claims.

“Under the new arrangements, in order to improve the accessibility and operation of family violence provisions, we will streamline the evidence requirements claims for a visa on the basis of family violence,” Bowen said. “The current process of obtaining statutory declarations, with a set of technical requirements, can be quite difficult for some victims.”

The department plans to implement the changes from 24 November 2012. In the interim, the Australia Department of Immigration and Citizenship (DIAC) will update policy guidelines to confirm that applicants on partner visas that provide evidence in addition to the required statutory declarations should be considered.

Under Australia’s Family Violence Provisions, certain people applying for permanent residence in Australia can continue with their application after the breakdown of their marriage, if they can provide acceptable evidence that they or a member of their family unit have experienced family violence from their partner. This covers partners and spouses in a number of family and business class visa clases.

“Domestic and family violence are unacceptable. It’s important women do not face obstacles in leaving violent relationships and that they receive the support and assistance they need,” Collins said. “These measures will make a real difference to the lives of women on temporary visas who have experienced the trauma of family violence.”

However, to ensure the integrity of assessments, applicants on partner visas will still need to provide a minimum standard of evidence.

“DIAC will consult with a range of organisations who work with victims of family violence to develop an appropriate list of acceptable evidence,” Bowen said.

Partners or fiancés of Australian citizens, Australian permanent residents or eligible New Zealand citizens can apply to enter and/or remain permanently in Australia. Partner category migration may apply to:
•people intending to get married (fiancés)
•married partners
•domestic partners and those in a same-sex relationship

BY: DEBBIE GUEST, The Australian
June 08, 2012

LONG delays in Western Australia’s Family Court cannot be blamed on the separation from other states, but is instead due to a lack of resources, lawyers say.

Family law specialists in the west say the system of a separately run court is the envy of other states and has many advantages.

The delays, which force warring couples to wait almost two years for a trial, have come under scrutiny and left the court’s chief judge, Stephen Thackray, calling for extra permanent judicial officers.

Chief Judge Thackray warned last week in The Australian that funding issues needed to be addressed to avoid his court falling into the red.

The federal Attorney-General, Nicola Roxon, has said the government is committed to a national family law system.

But the president of the Family Law Practitioners Association of WA, Rod Hooper, said that the separate model was the best in the country.

“The model we have in WA, absent the resourcing issue, is the envy of everybody else,” he told The Australian.

Mr Hooper said the Family Court of WA had developed some of the most innovative practices of any other state.

“It’s not that this is some little parochial, out-of-date court that needs to be patted on the head and shoved in a corner; it’s a court that’s been at the innovation forefront forever and still is,” he said.

Mr Hooper said all the commissioned reports and research had indicated that WA’s system was an appropriate and good model.

“The simple reason is this: in all of the other states, when you want information from state authorities, it’s a bit complicated to get it because you’ve got problems between state and federal departments. In the Family Court of WA, we’ve got an officer of the Department for Child Protection who works in the court, so if you want information and files it’s immediately shared. It is the same with state police.”

He said resourcing problems began in 2002 when the Labor government introduced legislation allowing de facto couples, including same-sex couples, to argue property disputes before the court.

“Since then the Family Court of WA has been starved of funds,” he said.

Chief Judge Thackray declined to comment on whether WA should continue to have a separate Family Court model, and said it was a matter for government.

He did tell The Australian that the court “greatly valued” the close and collaborative arrangements with Child Protection and family law providers, most of which were state-based.

“I think it is fair to say that the way we work with the local agencies is widely regarded as a good model,” Chief Judge Thackray said.

“In my experience it is important that those close working links are nurtured at the local level.”

Law Council of Australia family law section deputy chairman Rick O’Brien said that, structurally, the WA system was better.

“The only downside of WA maintaining a separate Family Court is the opportunity it affords governments to argue about who should fund it,” he said.

“The court, in my personal opinion, needs a permanent judicial roster of at least six judges and nine magistrates,” Mr O’Brien said.

The court at present has five judges and eight magistrates, one part-time. This does not include recent announcements by state and federal governments that have seen funding for a temporary magistrate, an acting magistrate and support staff.

WA Attorney-General Christian Porter said the delay in the Family Court was not due to how it operated and could be blamed on three judges becoming ill and the failure of the federal government to replace them quickly.

“If the state withdrew completely from the family court jurisdiction in WA, no state money of any type would flow to the family court and then the question arises: would West Australians be better off relying solely on the commonwealth government? And I would of thought on recent experience the answer is no,” Mr Porter said.

San Francisco lawyer Erik Newton gives his insight on the precedent-setting case currently being heard by Maryland’s highest court that will decide whether the state, which doesn’t permit same-sex marriage, will grant a divorce to a same-sex couple who married in another state.

San Francisco, CA (PRWEB) April 13, 2012

Same-sex couples are not allowed to get married under Maryland law, but does that also mean they are not allowed to get divorced there? The Court of Appeals of Maryland in Annapolis is currently considering this in case No. 69, Jessica Port v. Virginia Anne Cowan. Erik Newton, a partner at San Francisco family law firm Heath-Newton, explains the implications.

Newton says that a case like this was bound to surface, as gay couples living in one state where same-sex marriage is not allowed will often travel to another more progressive state in order to get married. Although this creates certain tax and financial complexities for the couple, it is a small price for many couples who view marriage as the ultimate symbol of their love and devotion, Newton believes.

“The real problems manifest if that couple later needs to divorce,” says Newton. “Maryland currently does not allow same-sex couples to marry-that is clear. The question is whether the state can then extend that prohibition to keep same-sex couples from divorcing as well.”

According to ABC News, after two women who wed in California were subsequently denied a divorce in Maryland when the marriage failed, they took the case to the Maryland Court of Appeals [No. 69, Jessica Port v. Virginia Anne Cowan]. The lawyers involved in the case said that some Maryland judges have granted divorces to about six gay couples, but others have denied divorces-citing different aspects of the law to justify their decisions.

“In a state such as Maryland, where the rules are inconsistent, one judge may grant a divorce while another may not,” explains Newton. “Whether or not a divorce is granted should not be decided on which judge is hearing the case.”

According to Erik Newton, couples who have been denied divorce have a few options that are a far cry from the ideal situation. One possible scenario is that they stay married. Newton suggests this could potentially be a problem because it means they can’t marry anyone else and are still financially responsible for one another.

Another option they have is to move to a state that allows same-sex divorce long enough to get jurisdiction in that state, which usually takes six months. Both these approaches, Newton says, can be expensive and put the couple in painful limbo.

Newton believes that whether or not the state recognizes same-sex marriage, they should allow same-sex couples to divorce. “The negative consequences are too great otherwise,” says Newton. “Besides, doesn’t it seem just a little too ironic that a state which says it doesn’t believe in same-sex marriage is forcing same-sex couples to stay married?”

Newton points out that California and the District of Columbia have recently enacted laws to alleviate this problem, at least for couples married in their jurisdictions. California enacted the Domestic Partnership Equality Act in January 2012, which allows same-sex couples married in California but living elsewhere to get divorced in California without having to be residents. DC passed a similar bill in March of 2012.

For more information about same-sex divorce cases, or any other family law matter, please contact San Francisco divorce attorneys Heath-Newton, LLP by calling (415) 992-5038, visit www.heathnewton.com, or stop by their office located at 240 Stockton Street, Suite 300 in San Francisco, California.

About Heath-Newton, LLP Heath-Newton, LLP is a San Francisco family law practice focused on families. These San Francisco divorce attorneys pride themselves on working with clients from all backgrounds and lifestyles. Heath-Newton, LLP specializes in premarital agreements (prenups), same-sex marriages and domestic partnerships, divorce, child support, spousal support, adoption, and child custody in San Francisco and the Bay Area.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2012/04/13/prweb9395486.DTL#ixzz1s0XzYkwp

It’s not all fun and games when it comes to tweeting and pinning. Using social media has legal implications – especially if you’re going through a messy divorce.

Family law attorneys have found social media to offer a wealth of information on adulterous spouses and lying exes. Here’s how social media evidence can make or break a divorce case. This infographic comes to us from Southern California law firm Dishon & Block, and explores the many legal precedents already set when it comes to social media.

Divorce lawyers have access to your tweets, your status updates and your pins, and your social actions speak louder than you know. Each of your profiles could reveal:

• Your state of mind
• Proof of communication
• Proof of time and place
• Evidence of actions

And there have been several divorce cases when someone’s been burned because of their need to share.

For instance, a woman claimed that she needed $850 a month alimony from her ex, because she suffered a debilitating accident during their marriage. However, evidence pulled from her MySpace and Facebook profiles showed her to be a regular belly dancer – and the alimony was denied.

The infographic explores how certain cases like the one above have led to legal definitions of what one can expect on Facebook or other social networks. On Facebook, for example, one cannot reasonably expect privacy, so you’d better not post anything you might want to keep hidden from your soon-to-be-ex if you’re in the middle of a divorce.

You can check out the full infographic below for the legal implications of using social media during a divorce:

An increasing number of wealthy couples are turning to new arbitration schemes to settle divorce disputes rather than squabbling in public through the courts, reports suggest.

It is claimed that arbitration – frequently used in commercial and civil disputes – is being increasingly used to handle financial disputes arising from divorce.

by Adam Bak

Concepts in the law regarding children – article by Adam Bak, solicitor at Farrar Gesini & Dunn

In 2006, the Federal Government changed the Family Law Act to introduce a change in the way children’s cases were determined. The changes move away from traditional concepts of “custody” and “access” towards a more modern and co-operative system of “live with”, “spend time with”, “communicate with”, and importantly, “parental responsibility”.

The underlying principle of the parenting provisions in the Act remains that the Court must do what is in the best interests of the child. There are a number of factors the Court must take into account, most notably, the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm, abuse, neglect and violence. Under Australian law, there are no presumptions about how much time a child should spend with each parent. There are, however, a number of considerations that the Court must take into account. While many cases still result in child living with each parent equally, such as a week-about arrangement, the majority of cases do not. In circumstances where the parents cannot communicate, or when the parents are geographically apart, the Court can still provide for the parents to share parental responsibility, whereas the child clearly lives with one parent and spends time with the other. Parents still commonly confuse the various terms, which, despite seeming simple, may have a legal meaning that extends beyond their ordinary connotation. The way that a Court must now determine a parenting dispute is as follows:
1. The Court must begin with the presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility. This means general parenting duties, powers and responsibilities, including decisions about education, health, religion, etc. In most cases parents agree that they will continue to have joint parental responsibility. However the presumption is rebuttable in cases where there is evidence of violence, or a risk of harm, or where a court decides that for other reasons it would not be in a child’s best interests.
2. If the Court has decided that equal shared parental responsibility should continue, the Court must then consider the possibility of the child spending equal time with each parent, and whether or not this is reasonably practicable.
3. If the Court has determined that it is not reasonably practicable for the child to have equal time with each parent, the Court must consider the possibility of the child spending substantial and significant time with each parent, and whether that is reasonably practicable. “Substantial and significant time” is a vague term, but includes weekdays and weekends and might be an arrangement between 3 and 5 nights per fortnight with the parent the child does not live with. The intention is that both parents should have the child on school nights, weekends and holidays.

by the FindLaw Team

It’s not unusual to hear of the rich and famous before a marriage, enter into a prenuptial agreement with their spouse. If a person has substantial assets to protect, it’s probably not a bad idea to have a prenuptial agreement in place in the event of a relationship breakdown. In Australia, prenuptial agreements are more commonly referred to as, binding financial agreements, and a valid agreement, can oust the jurisdiction of the courts. When producing a binding financial agreement, there are a number of requirements that must be met in order for the agreement to be legally valid, and an agreement can be produced, before a marriage or cohabitation, during marriage or cohabitation, and after a divorce or the breakdown of a de facto relationship.

What can binding financial agreements cover?

Binding financial agreements deal with how property and finances are dealt with in the event of a relationship coming to an end, and can also cover maintenance issues. However, a binding financial agreement cannot relate to parenting matters.

What is the legal effect of a binding financial agreement?

A valid binding financial agreement, can remove the court’s ability to issue orders in regards to the distribution of assets or resources, which can usually be made under the provisions in the Family Law Act (the Act).

What are the requirements for creating an enforceable financial agreement?

In order for a financial agreement to become binding and enforceable the following formal requirements that must be met:

• be in writing and signed by all parties
• before signing the agreement, all parties were provided with independent legal advice from a legal practitioner in regards to the effect the agreement on the rights of the party, and the advantages and disadvantages of a binding financial agreement
• either before or after the signing of the agreement, a signed statement by the legal practitioner is attached to the agreement, stating that independent advice was provided to the parties
• the agreement is not terminated or set aside
• all parties must have a copy of the agreement.

When can a binding financial agreement be set aside?

Although, binding financial agreements can ouster the authority of the court, it can be set aside by an order under the following circumstances:

• the agreement was obtained by fraud
• the agreement was produced to defeating or defrauding a creditor, or with reckless disregard of the interests of a creditor
• the agreement was entered into for the purposes of defrauding another person, who is a party to the de facto relationship with a spouse party
• the agreement is void, voidable, or unenforceable
• changes in the circumstances has rendered the agreement impractical
• a material change has occurred relating to a child, and it would result in hardship for the child or the other party if the agreement is not set aside
• in making the financial agreement, the conduct of one of the parties was unconscionable
• there are certain conditions relating to superannuation.

In the event that a court sets aside the financial agreement, it can make an order which transfers property in a manner that it considers to be fair.

by the FindLaw Team

The actions which can be subject to protection orders caused by domestic or family violence cover a broad range of behaviours and vary between the States. However, generally speaking, conduct that can form a basis for a protection order may include:

• physical injuries;
• sexual abuse;
• threatening behaviour;
• harassing or offensive behaviour;
• deprivation of liberty;
• property damage;
• stalking;
• injury to animals;
• threats to carry out any of the above behaviours.

Is psychological abuse also covered in domestic violence and family violence laws?

Legislation across all jurisdictions has recognised the effect psychological and emotional abuse, and coercive or controlling conduct can have on a victim and has now been reflected in statute law. The types of emotional and psychologically abusive behaviour that the Act deems as abusive are:

• repeated derogatory taunts that can include racial taunts;
• threats to disclose a person’s sexual orientation to family and friends against the person’s wishes;
• threats to withhold a person’s medication;
• preventing a person from making or keeping connections with their family, friends or culture – which can include preventing a person from expressing or practicing cultural or spiritual ceremonies;
• threats to commit suicide or self-harm with the intention of intimidating or tormenting a family member, or threatening death or injury of another person.

What are the requirements for the issuing of a protection order?

The courts apply an objective test on whether the fear from a person is objectively warranted and that it is satisfied on the balance of probabilities.

by the FindLaw Team

Separation and divorce is an emotional process. Some parties find it easier to use a lawyer to deal with the practical, legal elements but this can be expensive. Some parties find it feasible to use a DIY divorce kit but this can be time-consuming if you do not understand. How do you balance your needs and weigh up the choices? Which is better when applying for a divorce or separation – DIY kit or lawyer?

The DIY Application for Divorce Kit is available from the Family Law Court, and includes instructions and explanations for filing for divorce with an Application for Divorce Form.

What to consider when choosing a DIY kit or a lawyer

• It is relatively cheaper than using a lawyer but what is the value of having peace of mind with qualified legal advice?

• Meetings with lawyers to inform them of the separation details is difficult to communicate. DIY kits ensure you can schedule your separation issues at times best suited to you.
• Having face-to-face interaction with a lawyer can be comforting during a difficult separation, especially to explain complex legal matters. DIY kits can be frustrating to take responsibility for on top of your separation, especially if you find the process too complex.

People have different experiences with DIY kits and lawyers. Has anyone personally recommended a lawyer? Has anyone found DIY kits convenient and the information contained within helpful? Word of mouth encouragement and recommendations may be very helpful in assessing which option is best.

by the Alan Wright

It is often the case that in a marriage (or in a defacto relationship) one person makes a significant financial contribution by bringing substantial assets into the relationship or receiving assets during the relationship (eg an inheritance).

If the parties separate what effect does this financial contribution have on the division of the property?

The first thing to say is that an asset owned at the commencement of the relationship or inherited during a relationship is not exempt from being divided in the property settlement.

In working out the appropriate division of assets the main focus is on two things: assessing the contributions (financial and non financial) made by each party and assessing the future needs of each party.

An asset brought into the relationship is a financial contribution by the party who owns the asset. Such contributions are generally referred to as “initial contributions”. What has the Family Court said about “initial contributions”?

The first thing it has said is that there is no formula which prescribes how a court should deal with initial contributions.

The second thing it has said is that initial contributions cannot be considered in isolation from all the other contributions made during the relationship. In the case of Pierce the court said that it is “a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife”. One factor in the ‘weighing’ process will be length of the relationship. In most cases it would be reasonable to assume that an initial contribution would have a greater effect on the division of assets in a relationship of short duration than it would in a relationship of long duration.

Clearly a lump sum financial contribution will be an important consideration when assessing the contributions made by each party. The precise effect will depend on the facts of each case.