Published in Animal Law on 15th Feb 2015

Council Prosecution Nuisance caused by a barking dog can be a public hazard, and your local Council is empowered by the Domestic Animals Act 1994 ("the DAA") and the Public Health and Wellbeing Act 2008 ("the PHWA") to investigate complaints of barking dogs and, in cases where there is a nuisance, fine the offending neighbour or bring criminal charges that can carry heavy penalties. After conducting their investigation into a complaint, the Council will determine if there is a nuisance and decide if it is appropriate to issue an infringement notice under section 85 of the DAA. In more serious cases, the Council may bring criminal charges in the Magistrates Court against the owner of the...

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Published in Family Law on 5th Feb 2015

Under the National Energy Retail Law Act, which establishes the National Energy Customer Framework, energy companies are required to have “hardship policies” to assist customers if they fall into arrears, as they may be experiencing hardship such as loss of income, family crises, separation, and family violence. Read the Age’s recent article here.    ...

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Published in Family Law on 30th Jul 2014

Other than the fact that Monica and Chandler’s relationship was very brief, and less than the 2 year period prescribed by the Family Law Act 1975 (“the Act”), what is particularly interesting about this scenario is that Monica and Chandler never had sex. This set of facts was very similar to the facts of the recent case, Spencer & Speight [2014] FamCA (“Spencer & Speight”), which Rudstein Kron Lawyers was involved in. In that case, the Court held that you do not need to have engaged in sexual intercourse (or indeed any kind of sexual activity) to be considered to be in a de facto relationship. How does the Court determine if there is a de facto relationship? Sectio...

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Published in Family Law on 28th Sep 2013

How does the Court determine if two people are in a de facto relationship? The determination of whether a de facto relationship exists will turn on its individual facts, and the Court looks at each relationship on a case-by-case basis. Section 4AA of the Family Law Act 1975 (“the FLA”) provides some guidance in this area, and defines a de facto relationship as one in which a couple are “living together on a genuine domestic basis” having regard to “all the circumstances of their relationship”. The “circumstances” may include “any or all” of the following factors: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether...

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Published in Family Law on 10th Oct 2012

The doubt over the constitutional validity of the bill appears to have been its undoing, with speakers against the bill speculating that the law may be inoperative because it is inconsistent with the Commonwealth Marriage Act. The general consensus was that a High Court challenge was inevitable, which would be costly and time-consuming. Unfortunately, the answer to whether a state law permitting same-sex marriage would be inoperative or invalid will not be known until such a challenge is brought before the High Court. Attention has now turned to South Australia where it is expected that a same-sex marriage bill will be introduced to Parliament early next year. This article provides infor...

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Published in Family Law on 17th Sep 2012

Unless your property settlement is documented in Consent Orders (and approved by the Family Law Courts) or a Binding Financial Agreement, it is an “informal property settlement” and it is not legally binding. Whilst there is no law preventing you from making an informal property settlement, it means that you are vulnerable to your former spouse or partner making an application to the Family Law Courts for a greater share of the property pool in the future. This means that months or years down the track, even after you may have re-partnered or purchased new property, your former spouse or partner can come back for “another bite”. We recently acted for a client whose former spouse...

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Published in Family Law on 9th Sep 2012

On 30 August 2012, Tasmania made the news headlines when its lower house of Parliament became the first in Australia to pass a bill to legalise same-sex marriage when the Same-Sex Marriage Bill 2012 was passed by 13 votes to 11. There has been some heated debate over the constitutional validity of laws made by states and territories pertaining to same-sex marriage. The prevailing view appears to be that while the states and territories have the power to legislate on same-sex marriage, any laws made may be invalid or inoperative to the extent that they are inconsistent with the federal Marriage Act 1961. Ultimately, the question is one for the High Court to answer. Tasmania’s upper hous...

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Published in Family Law on 19th Jun 2012

It is our experience that the earlier you meet with a lawyer, the better positioned you will be to take advantage of the alternative dispute resolution processes available, such as mediation and collaborative practice, and most likely avoid costly Court proceedings. There are significant benefits, both financially and emotionally, in using alternative dispute resolution including: the processes are more private, informal, timely and cost-effective than Court proceedings; you and your former partner can negotiate an outcome that meets the needs of all involved, including the needs of your children; the focus is not on “winning” or “losing” but on what is “fair” and “reas...

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Published in Family Law on 12th Apr 2012

The Family Court found that Mr Talbot’s application had no factual basis when Ms Norman gave evidence that she had no intention to terminate her pregnancy and his application was dismissed. Still, Justice Murphy went on to consider whether the Family Court had the power or jurisdiction to grant the injunction sought by Mr Talbot, and found that in the circumstances the Family Court had no such power. The injunction sought by Mr Talbot was directed towards Ms Norman, but was in respect of the unborn child. The parties never married The fact that the parties had never married was very relevant. In a much earlier case, In the Marriage of F (1989) FLC 92-031 (“Re F”), the Family Cou...

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Published in Family Law on 17th Feb 2012

The scenario above depicts the increasing trend of marrying later in life, which comes hand in hand with the issue of one person having accumulated more financial assets than the other. This is where the issue of a Binding Financial Agreement (also known as a “pre-nuptial agreement”) becomes a hot topic. A Binding Financial Agreement is an agreement between a de facto or married couple that sets out how property and finances will be dealt with should their relationship break down. It allows couples to have control and certainty as to their financial futures and to protect their individual assets.  If you are in a similar situation to Sally, it is likely that suggesting a Binding...

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Published in Animal Law on 31st Aug 2011

Well, you may ask, what legal protection is afforded to animals in Victoria? How can we protect, for example, our much loved canine companions? Dogs are, as with any other domestic animal, entitled to live a comfortable life, free from abuse. Pursuant to the Prevention of Cruelty to Animals Act 1986 (“the Act”) it is an offence to allow your animal to experience unreasonable pain or suffering or to fail to meet their daily needs, for example access to proper and sufficient food and water, veterinary treatment and shelter. All dog owners should be aware of the specific health, diet and exercise requirements of their particular breed of dog, so that their dog’s needs are met. The Cod...

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Published in Family Law on 11th Aug 2011

Ms Golden did not appear in the matter before the Court and she did not file any evidence in response to Mr Robert’s application to have the marriage declared null and void. Mr Robert’s evidence was that in about September 2010 Ms Golden informed him that she was pregnant. Mr Robert responded by asking her to terminate the pregnancy as “we don’t want a child”. Importantly, Ms Golden is said to have stated “I’m possibly not going to terminate the pregnancy unless you marry me”. Mr Robert’s evidence was that he only consented to marrying Ms Golden because he felt he had no other choice in that Ms Golden was adamant that she would not terminate the pregnancy unless they wer...

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Published in Family Law on 25th May 2011

Biotechnological advances have posed a challenge to the laws of property (ownership and control) because the laws of property were made wellbefore methods of assisted reproductive technology were conceptualised and developed. These scientific developments will no doubt see our courts and law makers confronted with complex questions concerning legal interests in human biological materials, such as sperm, embryos and cells. In other words, this unusual case is likely to become far less unusual within the next few years. The relationship between Jocelyn and Mark Edwards Jocelyn and Mark Edwards were married in November 2005 and they planned to have children soon after. In 2008, when Ms Edwa...

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