Keeping Pets in Strata Schemes

Keeping Pets in Strata Schemes

Keeping Pets in Strata Schemes – Can You Have Pets in an Apartment?

Have you ever been forced to choose between keeping your pet and living in a strata building? You are not alone. Did you know that Australia has one of the highest household rates of pet ownership in the world? Yet more and more Australians are living in apartments and townhouses, where their strata schemes may not allow pets.

In this article, we explore the NSW Strata laws in relation to keeping pets in a strata building. But first, a quick recap of strata schemes.

Strata Laws, By-Laws and Owners Corporation

If you live in an apartment or townhouse, then you are probably living in a strata scheme. The Strata laws (Strata Schemes Management Act 2015 (NSW) regulate an Owners Corporation’s rights and responsibilities. All the owners in a strata scheme make up the Owners Corporation.. Owners Corporations can adopt the model by-laws that are set out in the Act, or they can amend them or write their own.

Can I Keep My Pet in a Strata Scheme?

This depends on the by-laws that apply to your strata scheme.

Previously, the model by-laws excluded pets unless the owner was given permission. The new strata laws amended the model by-law to be more pet-friendly, as it encourages schemes to allow pets rather than ban them altogether.

The new model by-law for pets includes two options for new schemes to choose from:

  1. Option A– An owner or occupier may keep a pet if they give the Owners Corporation written notice.
  2. Option B– An owner or occupier may keep a pet with the written approval of the Owners Corporations. The Owners Corporation cannot unreasonably refuse the owner or occupier permission to keep their pet.

What if I am a tenant living in a strata scheme?

If you are either a prospective tenant or currently a tenant living in a strata scheme, you will still need permission from your landlord to keep a pet in your apartment or townhouse.

Seek Legal Advice

It is important to be fully aware of your obligations under your strata scheme in relation to retention of pet. If you would like further information regarding strata schemes or general strata law advice, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form here.

Case Study: When Binding Financial Agreements Aren’t Enforceable

Case Study: When Binding Financial Agreements Aren’t Enforceable

A binding financial agreement also commonly referred to as a ‘pre-nuptial agreement’ is an agreement which can allow for certainty, trust, and peace of mind in a relationship.

However, the High Court has made it clear in a recent case that it will not enforce any binding financial agreements as a consequence of unconscionable conduct, particularly when there is a significant power imbalance between the parties. Unconscionable conduct is defined to mean conduct which is so harsh that it goes against good conscience. A common instance is when an innocent party is subject to a special disadvantage which seriously affects the ability of the innocent party to make a judgment as to their own best interests.

What are Binding Financial Agreements?

Binding financial agreements are legally binding agreements that address what happens to a couple’s finances and property in the event that there is a break down in a marriage or de-facto relationship.

The Family Law Act 1975 is the relevant legislation which applies to binding financial agreements. Importantly, a binding financial agreement can protect assets including cash, property, superannuation and inheritances. However, in order for a binding financial agreement to be binding on the parties’, it is prudent that each party obtain independent legal advice, and the binding financial agreement must contain a statement from a legal practitioner.

Recent Case: Thorne v Kennedy

A recent High Court case has demonstrated that if a binding financial agreement is entered into in circumstances of unconscionable conduct, the agreement will not be upheld.

Thorne v Kennedy involved a binding financial agreement between a wealthy Australian property developer and his ex-wife.

The couple met online in 2006 on a website for potential brides. At the time, Ms Thorne was 36 years old, living in the Middle East with no substantial assets. Mr Kennedy was 67 years old and had assets in the vicinity of  $18 million – $24 million.

Ms Thorne moved to Australia. Then, ten days before their wedding Mr Kennedy took Ms Thorne to a solicitor to obtain advice about the terms of a binding financial agreement which was purported to be entered into between them. The lawyer told Ms Thorne it was the worst agreement they had ever seen, and advised Ms Thorne not to sign it. Mr Kennedy told Ms Thorne that if she did not sign the agreement then the wedding would not go ahead. Despite the lawyer’s ‘advice, Ms Thorne signed the agreement and the wedding continued.

The couple separated in 2011 and Ms Thorne was provided with what the High Court described as a ‘piteously small’ lump sum payment based on the terms of the binding financial agreement. After lengthy legal proceedings, the High Court ruled that Mr Kennedy had taken advantage of his ex-wife’s vulnerability to obtain an agreement which was ‘entirely inappropriate and wholly inadequate.’ The agreement was entered into as a result of undue influence, illegitimate pressure and unconscionable conduct. As a result, the binding financial agreement was not enforceable and was subsequently set-aside.

Impact on Binding Financial Agreements in Australia

This ruling has been considered a landmark case in the interpretation of binding financial agreements in Australia. As a consequence of the Binding Financial Agreement being set aside, the Federal Circuit Court allowed Ms Thorne to bring a property settlement application against Mr Thorne.

This case serves to reinforce that binding financial agreements are not cheap documents and therefore appropriate advice and caution must be taken when entering into these agreements.

Contact us

If you would like more information on how we can assist you with your binding financial agreement or any other family law matters, do not hesitate to contact us on 9963 9800 or contact us via the form here.

Separated Under One Roof – How Do I Apply for Divorce?

Separated Under One Roof – How Do I Apply for Divorce?

Can You Apply for a Divorce?

To be eligible to apply for a divorce, you or your spouse must have been separated and living separately for a minimum of twelve (12) months, with no reasonable likelihood of resuming married life.

What If you are separated but Still Living Together?

It is possible to be separated even if you are still living together. This can occur for a variety of reasons, often for the sake of the children. If you live under the same roof during all of or part of the minimum twelve month separation period, you will need to file an Affidavit (a sworn statement) from yourself and at least one witness.

What Should the Affidavit Contain?

Your Affidavit should address changes that have occurred between you and your spouse before and after separation. This is to show that even though you’re living in the same residence, your relationship doesn’t reflect a marriage. You can include the following matters in the Affidavit:

  • Do you have separate sleeping arrangements?
  • Has the sexual relationship ceased?
  • Have you changed the domestic services you perform for each other since separation?
  • Do you have separate financial arrangements such as separate bank accounts?
  • Have you stopped attending social functions and activities together?
  • Why are you still living separated under one roof? For example, financial pressures, stability for children of the marriage.
  • What arrangements are in place for children under the age of 18?
  • Have you informed any government departments such as the Department of Human Services – Child Support of your separation?
  • Do you think there will be a change to the living arrangements? If so, when will this occur?

Filing the Affidavits

The Affidavits are filed with the Divorce Application, Marriage Certificate, documents establishing citizenship (unless a citizen by birth) or for non-citizens an Affidavit establishing that one of the parties is domiciled and/or ordinarily resident in Australia.

After the application for divorce is filed, the other side may file a Response to Divorce within 28 days, if they disagree with any of the facts set out in the Affidavit and Application for Divorce. The court will process the Application and arrange a hearing date thereafter.

Contact us

If you and your partner are going through a separation or divorce we recommend seeking legal advice to ensure the best outcome. We have experienced family law solicitors who can provide advice and draft Affidavits. If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.

Subpoenas in the Family Court

Subpoenas in the Family Court

What is a Subpoena

A subpoena is a legal document issued by the Court, at the request of a party involved in court proceedings which involves requiring the subpoenaed party to either produce documents or give evidence at a hearing.

Subpoenas in the Family Court

In family law matters, proceedings can be held either in the Federal Circuit Court of Australia or the Family Court of Australia. During these proceedings, it may be necessary for a party to issue a subpoena for relevant information to be provided in Court. Ordinarily, it may be necessary to issue more than one subpoena in Court proceedings.

Subpoenas are generally issued when one party fails to provide all of the necessary documents to the court.  Subpoenas are often issued to banks or superannuation funds for purposes of seeking production of financial material related to the other party. In parenting matters, an Independent Children’s Lawyer, a lawyer who acts for the children in parenting matters, will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They may also issue a subpoena to either parent’s doctor, if necessary.

Filing for a Subpoena

In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially relevant when there are court orders in place or there are less than seven days before a hearing commences. In the Federal Circuit Court, there is a capping of no more than five subpoenas to be issued by each party, unless permission is granted by the Court. There is no restrictions imposed in the Family Court for subpoenas.

If you gain the court’s approval, the filing of the subpoena can proceed as normal. The original subpoena must be filed at the Federal Circuit Court or Family Court registry (depending which jurisdiction the matter is in). You must also file enough copies for one to be served on each party in the proceeding as well as the person or organisation being asked to produce material.

Importantly, the court can refuse the issuance of a subpoena if it finds that the subpoena amounts to a ‘fishing expedition’. That is, the deliberate attempt by one party to search or investigate with the hope of discovering information on the other party. Therefore it is important that when issuing subpoenas in family law, one must ensure that they are seeking information or documentation relevant to the current court proceedings.

Filing fee

A subpoena will incur a filing fee of $55.00 per subpoena.

Serving a Subpoena

Once the subpoena has been filed, it must be personally delivered (served by hand) to the person it is addressed to.

If you are serving a subpoena to a bank or financial institution, a small amount of money must be provided to the subpoenaed party. This is known as ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure with the subpoena.

Objecting to a Subpoena

A party is entitled to raise an objection to the issuance of a subpoena. A number of objections which can be raised involve:

  • The documents requested are irrelevant
  • The documents are privileged
  • The terms of the subpoena are vague or non-specific
  • Insufficient time given to comply with the subpoena
  • Subpoena issued without a ‘legitimate forensic purpose’
  • Insufficient conduct money

In order to do so, you have to file a Notice of Objection and the matter will subsequently be listed before the court for determination.

Contact us

If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.

Parental DNA Testing and Family Law

Parental DNA Testing and Family Law

The two realms of family law and parental testing often cross paths. It is common for parental testing to be sought in order to settle matters such as child support or parenting proceedings. In this blog, we answer some of the most common questions surrounding parental testing and how these relate to the rules and regulations in family law.

What Happens When Both Parties Agree to DNA Testing?

If both parties agree to DNA testing, then they can arrange for DNA testing to be carried out privately without a court order. However, to ensure that the test results are admissible in court, you must select a DNA testing laboratory which is accredited by the National Association of Testing Authorities and that the testing complies with the requirements of Part IIA of the Family Law Regulations 1984.

What if the One Party Does not agree to DNA Testing?

If one party does not agree to DNA Testing, then either party can apply to the Family Court or Federal Circuit Court for an order for parentage testing under  the Family Law Act 1975. This is only possible if you have also sought a Declaration of Parentage.

However, the court only has jurisdiction to make orders relating to parentage if there is a real issue as to the parentage of the child and a substantive issue in relation to the child before the court, such as contact or child support issues.

When is Someone Presumed to be the Father of the Child?

The Family Law Act 1975 provides the relevant basis for circumstances where a person is presumed to be the father of the child:

  • The person was married to the child’s mother
  • The person cohabited with the child’s mother at any time during the period 44 weeks and 20 weeks before the child’s birth
  • The person’s name appears on the child’s birth certificate as the father
  • Another court has made a finding of parentage
  • The person has executed a document under a law of the Commonwealth, a state or territory of the Commonwealth or prescribed overseas jurisdiction acknowledging he is the father of the child

What Do You Need to Prove for the Court to Order DNA Testing?

If a man is presumed to be the father of a child, by reference to the presumptions set out above, it would be necessary to rebut the presumptions and provide evidence to demonstrate that you have an honest and reasonable belief as to why that person is not the father.

If a man is not presumed to be the father, by reference to the presumptions set out above, it would be necessary to put forward evidence to the court to demonstrate that you have an honest and reasonable belief as to why that person is the father, notwithstanding that the presumptions do not apply.

If you find yourself in a situation where you want to prove or disprove parentage, then it is best to contact a lawyer to ensure that you maximise your prospects of resolving the dispute through DNA testing, either by means of an agreement for testing or by an application to the court for testing to be carried out.

Should I seek Legal Advice?

It is vitally important to be aware of the rules and requirements surrounding parental testing if you believe it is relevant to your family law matter. If you would like more information on how we can assist you with your parental testing matter or if you have any general family law enquiries, do not hesitate to contact one of our experienced family law solicitors on 9963 9800 or via our contact form.