Who is a Parent for the Sake of Parental Responsibility?

Who is a Parent for the Sake of Parental Responsibility?

The term ‘parent’ has expanded beyond merely describing a person who is the biological mother and father to a child, which has created legal difficulties in determining who has parental responsibility and their rights in relation to non-biological children. ‘Parent’ is not defined within the Family Law Act 1975 (Cth), leaving it to the Court to interpret the term with its ordinary dictionary meaning.

Being a parent requires more than common biology

As most parents would understand, being a parent is about more than sharing biological data or genes. This is recognised at common law by the interpretation of the Family Law Act 1975 (Cth) in cases involving children conceived through Assisted Reproductive Technology (ART) or IVF procedures. Sperm donors supply their genetic material for a child’s conception, and thereby fit the definition of a biological father to the conceived child. However, the Courts will not impose parental obligations on a person who merely donated biological material and has no other involvement in the child’s life in terms of parenting capacity. This further demonstrates that being a ‘parent’ requires more than just common biology.

Can a genetic donor be a parent?

The High Court in Masson v Parsons & Ors [2019] HCA 21 held that a sperm donor can be found to be the legal parent of a conceived child in certain circumstances, which significantly extends the scope of the definition of a “parent” beyond the traditional mother and father. In 2006, Masson provided his semen to his friend, Parsons, so she could conceive a child through IVF under the presumption that he would be involved in the child’s life. Parsons commenced a de facto relationship after the child’s conception with another person, and Parsons then sought to move to New Zealand in 2015 with the child. Masson commenced proceedings to order a restraint on relocating the child and to seek equal shared parental responsibility.

The High Court of Australia upheld Masson’s appeal from the Full Court of the Family Court, ordering that Masson was a legal parent of the child, despite him only being a sperm donor. Masson’s inclusion on the birth certificate as the child’s biological father, contributions of financial support and act of taking on the responsibilities of being a parent who had the intention of ongoing involvement regarding the child’s health, education and general welfare, were pertinent factors in making the decision. The High Court held that as a legal parent, Masson was entitled to equal shared parental responsibility which required him to be consulted on major long term decisions, including potential relocation to New Zealand.

Can a de facto partner be a parent?

Parsons’ de facto partner was not held to be the legal parent of the child. The High Court noted the significance that they had not been involved in a de facto relationship at the time of conception. The Family Law Act 1975 (Cth) provides that a partner to a woman who has a child via IVF must prove they were married or in a de facto relationship at the time of conception to establish that they are a parent of the conceived child. This meant that despite the de facto partner’s substantial presumed involvement in the child’s life after the conception, the High Court determined they were not a legal parent.

Relevance for parental responsibility

Determining who legally constitutes a child’s parent is most relevant for determining who has parental responsibility for the child. Parental responsibility involves decision making powers relating to the duties, powers, responsibilities and authorities which parents have in relation to their child. A presumption exists that it is in the child’s best interests for their parents to have equal shared parental responsibility. Equal shared parental responsibility, as ordered between Masson and Parsons, requires both parents to partake in major long term decisions, such as relocation, health care or education (as discussed in another article). The Family Law Act 1975 (Cth) provides that it is in the child’s best interests to have a meaningful relationship with both parents, as encouraged by this requirement for joint involvement in important decision making.

How Etheringtons Solicitors can help you

A solicitor at Etheringtons Solicitors can provide clarification you with of the relevant family laws and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with navigating proceedings for parenting orders or assigning parental responsibility.

If you need further advice or assistance with family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.


Divorce in the Cryptocurrency Age

Divorce in the Cryptocurrency Age

The adoption of Bitcoin and other digital assets or cryptocurrency in individuals’ asset portfolios is the new normal in this day and age. However, the legal treatment of digital assets is unclear. This presents many legal challenges in the area of Family Law and questions as to the proper division of digital assets upon divorce.

Furthermore, these speculative assets are incredibly volatile and almost impossible to predict their value. There are many stories going viral, such as one investor in the UK who made an initial investment of £80,000 in 2016 which became a lucrative investment of £1 million in 2017, only to be reduced to £600,000 in 2018.  A recent case in the Family Court of Australia provides some initial insight into how the Australian Courts may determine property settlements involving cryptocurrency.

What is cryptocurrency?

Cryptocurrencies are a form of digital currency with self-contained systems that allow investors to exchange and trade currency without a central bank. Each unit moves within a network, and as such are not subject to any bank fees or charges. However, cryptocurrencies such as Bitcoin are defined as property under Australian law, and as such, any profits upon sale would be subject to Capital Gains Tax.

Some of the more well-known cryptocurrencies are Bitcoin and Ethereum which have seen substantial fluctuation in their value. For example, in 2016 a Bitcoin was worth $200, but by 2017, it was worth nearly 100 times that amount ($19,783).

Since divorce and other family law proceedings can often stretch over many months, the unpredictability of such investments makes accurate disclosure incredibly difficult. Importantly, property settlements following divorce proceedings affect estate planning, and we have discussed the specific impact of these digital currencies in the article here.

The recent case of Powell v Christensen [2020] FamCA 944

In late 2020, the Family Court heard a matter involving the disclosure and valuation of cryptocurrency assets. The Husband in these proceedings had purchased personal and business assets in the form of cryptocurrency during the course of the relationship. In the property settlement proceedings, he failed to provide any substantial documentation to indicate the contemporary value of those assets. He contended that the tracking of value was a ‘non-trivial’ task and that exchanges are unable to provide certified statements. In the absence of any disclosure detailing current values or market patterns the Court determined that the purchase price of the cryptocurrency to be added back to the wife’s asset pool. This decision effectively disregarding any depreciation in the cryptocurrency held by the Husband and placed the onus on him to account for any difference between purchase price and actual value of the assets.

The importance of financial disclosure for divorce

In property settlement proceedings, each party has a duty to provide full and frank disclosure of their assets and liabilities accrued before and during the marriage. Although in Powell v Christensen the Court found that the Husband had wilfully failed to provide disclosure of such assets and their value, the lack of certified or official statements associated with trading cryptocurrency was apparent. As such, parties may need to establish and track a chain of transactions before and during any property settlement proceedings to adequately show their value in the assessment of the asset pool.

Furthermore, cryptocurrency can be hidden more easily than tangible money held in a bank as it does not need to be tied to a particular account or user. Hiding assets by transferring them to cryptocurrency is a significant risk to disclosure obligations between parties. While digital forensics can be hired to determine if assets are being hidden from the other party, this is a time consuming and expensive process which will only lengthen divorce and property settlement proceedings.

As cryptocurrencies are relatively new, persuasive precedent on how the Courts should handle these cases is yet to be set. However, it is anticipated that these new forms of digital currency will continue to pose challenges within the realm of family law.

How Etheringtons Solicitors can help you

Property settlement and family law proceedings are often complex and burden parties emotionally and mentally. If you would like further information regarding property settlements or if you have any general family law enquiries, please do not hesitate to contact one of our experienced solicitors on 9963 9800 for a confidential discussion or via our contact form.

Protecting Property Using an Injunction

Protecting Property Using an Injunction

In hostile property settlements, one partner may seek to dispose of property or other assets to prevent them from being included in the asset pool and distributed. This only adds to the existing emotional and financial burden parties experience during separation. If your former partner is seeking to dispose of assets prior to a property settlement, there are legal avenues you can take to protect your property for the duration of legal proceedings. The most common way is by protecting property disposal through an injunction.

What is an injunction?

An injunction is a court order that requires either a party to do something or to refrain from doing something. Conduct regulated by injunctions can include restraining a person from selling property, entering a residence or making contact with a child. Failure to comply with an injunction can result in civil or criminal penalties, which could include a prison sentence.

A party can apply for an injunction regarding property matters under section 114 of the Family Law Act 1975 (Cth). Courts have broad discretionary power to grant an injunction which can have the effect of preventing a party from selling or disposing of an asset of the relationship. An asset of the relationship can include any jointly owned asset, such as a family home, or assets contributed to the relationship by the parties individually.

There are two main factors the court will consider regarding the unique circumstances of the case, when determining the outcome of an injunction application.

  1. The Applicant (who is the person applying for the injunction) will often be required to give an undertaking to the court. This is a legal binding promise which requires the Applicant to take responsibility for any damages (or foreseen losses) that may arise as a direct result of the injunction’s enforcement in the event that it is decided that the injunction was incorrectly granted.
  2. Courts will consider whether the injunction is necessary to protect the asset entitlements of the Applicant party on the balance of convenience between the parties. This means that the inconvenience sustained by one party cannot be outweighed by the convenience granted to the party seeking the injunction as this would cause substantial injustice.

Intention to dispose of property: M v DB (2006) 36 FamLR 454

In the Marriage of Waugh (1999), the Court narrowly interpreted section 114 and invalidated an injunction on the basis that there was a lack of evidence as to an intention by the husband to dispose of marital assets. In M v DB, the Court demonstrated a shift away from this narrow interpretation and held that whilst an enquiry into the risk of disposal is relevant, intention is only one of the factors the Court may consider under their broad discretion when granting injunctions. In this case, the fact that the wife lived oversees and had placed the property up for sale were relevant considerations when determining the risk of her disposing of marital assets.

Other discretionary factors which the court may consider when granting injunctions include:

  • The urgency of the matter being considered;
  • Whether damages would be an adequate remedy if the Applicant suffered loss in circumstances where the injunction was not granted;
  • How long the Applicant has waited before seeking the injunction; or
  • Whether the parties have made a full and fair disclosure of all the relevant material facts known to them relating to the matter.

Injunctions and de facto relationships: Dunworth v Faletti [2020] FamCA 178

Injunctions are not exclusive to proceedings involving the formal dissolution of marriage. In Dunworth v Faletti, the Court granted the Applicant an injunction preventing her purported de facto partner from selling his property. Even though the nature of their relationship was yet to be determined, the Court held that this issue was a serious matter to be tried and that the Applicant would likely suffer a loss which would be unable to be remedied by damages if the injunction was not granted and the property was sold. The Court later found in favour of the relationship.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide you with clarification of the relevant law on property injunctions and its application to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with resolving your separation, divorce or property settlement with the best outcome for you. If you would like more information on how we can advise you on matter, do not hesitate to contact us on 9963 9800 or via our contact form here.

Dividing Assets when Divorcing Later in Life

Dividing Assets when Divorcing Later in Life

The recent separation of technology mogul, Bill Gates, and his former wife, Melinda Gates, after 27 years of marriage, highlights the increasing trend of ‘grey divorce’ cases. The average age of divorcees in Australia is gradually rising, which is disrupting the retirement plans of many Australians who, after decades of marriage, did not expect to find themselves starting over independently at a later point in life.

In the unique case of Bill and Melinda Gates, who are worth over $100 billion dollars, they have contractually ended their relationship whilst committing to working together at the Gates Foundation.

Divorcing later in life or after a significant period of marriage is particularly complex, therefore it is important that you consult with an accredited Family Law specialist, such as Etheringtons Solicitors.

Dividing assets upon divorce

Dividing the assets of any marriage puts a mental and emotional strain on all parties involved. If you are of older age and have left the workforce, you may face more angst about how you will financially recover. The most valuable assets to divide are often the family home and superannuation. Bill and Melinda have substantially more assets than the norm, but despite their wealth, they are still seeking a division of joint assets in accordance with their separation agreement.

In matters where a couple divorces later in life, normally this will not require a child custody or maintenance determination, and the separation of assets can instead focus on protecting their children’s inheritance. Etheringtons Solicitors can assist couples with splitting joint assets in accordance with each party’s contributions through a Consent Order, where a formal written agreement can be made between the parties, or through a Court Order.

Contributions to the marriage

Throughout a long marriage, each party will make different financial and non-financial contributions to the relationship, which must be assessed when dividing the assets in the event of a relationship breakdown according to section 79 of the Family Law Act 1975 (Cth). In many long-term relationships, there is a presumption will be made that the parties contributed equally. According to this presumption, the party’s assets are usually split evenly between them, and then necessary adjustments are made to take into account other factors (such as spousal maintenance or family violence). In long-term relationships, it is common for one party to make a greater financial contribution, while the other party makes a greater homemaking and parenting contribution, and this presumption recognises that both equally necessary to the successful functioning of a marriage.

However, every case must be considered independently and there are exceptions to this presumption where one party has:

  • Brought considerably greater assets to the relationship than the other;
  • Contributed substantially more via inheritance, gift or other settlement;
  • Demonstrated special skills or talents which have brought in substantial assets throughout the relationship; or
  • Behaved in a deliberate or reckless manner resulting in loss.

These factors recognise that while a long-term relationship is ideally an equal partnership of shared contributions, there are circumstances where it would be inequitable to grant a 50/50 division of the assets.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide you with clarification of the relevant law surrounding divorce and separation and its application to your individual circumstances. If you need further advice or assistance with a family law matter, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

The Influence of a Child’s Perspective when making Parenting Orders

The Influence of a Child’s Perspective when making Parenting Orders

When children are involved in a separation or divorce, a court may make parenting orders in relation to time each parent spends with their child. These orders are made when the parents have made a genuine effort to engage in family dispute resolution or pre-action measures (such as counselling or mediation), and have made reasonable efforts to communicate with the other party, but still cannot come to an agreement regarding the child arrangements.

Parental responsibility and parenting orders

Parental responsibility encompasses all of the duties, powers, responsibilities and authorities which parents have in relation to their children by law. This includes decision making powers relating to important matters such as medical care or education (as discussed in our article here). The Family Law Act 1975 (Cth) s 61DA requires the application of a presumption of shared parental responsibility to be made in the best interests of the child. This presumption exists unless there are reasonable grounds for believing a parent has engaged in family violence, or abuse of the child or another child who was a member of the parent’s family. However, shared parental responsibility does not mean each parent is entitled to shared or equal time with the children.

Parenting orders set out the specific parenting arrangements for children, and may consider:

  • How much time the children spend with each parent;
  • Who the children reside with until the age of 18;
  • How the children will communicate or how much time the child will spend, with parents or other people who they will not live with (for example, as discussed in relation to grandparents in another article); and
  • Any other aspects of the care, welfare or development of the children.

When making parenting orders, the court’s paramount consideration is on ensuring that the orders made are in the best interests of the child. With this in mind, the court can decide to make orders for equal time spent with each parent, substantial or significant time with either parent, or any other arrangement that they see fit.

The Family Law Act 1975 (Cth) s 60CC(2) sets out the primary considerations involved in determining a child’s best interests for a parenting order:

  1. The benefit to the child of having a meaningful relationship with both parents; and
  2. The need to protect the child from physical or psychological harm, and from being subjected or exposed to, abuse, neglect or family violence.

Perspectives of children and parenting orders

There are also numerous additional considerations (within s 60CC(3)) which the court may use in determining parenting orders, including any views expressed by the child and any factors that the court thinks are relevant to the weight that should be given to the child’s views. The significance of the child’s perspective will be affected by the degree of maturity and understanding of the circumstances that the child is assessed as having. This perspective can be shared by the child themselves, if deemed appropriate, or by an independent person, such as a social worker or psychologist, in the form of a Family Report.

A child’s perspective must be balanced against other factors, including their insight and maturity, attitude towards their parents or the perspectives of other stakeholders. This ensures that the pressure placed on the child in influencing this decision does not become overwhelming, which could be detrimental for their emotional development in the already stressful time of their parents’ separation.

That being said, courts are generally more reluctant to make parenting orders relating to children who are 15 years and older as they are seen to be able to make their own decisions relating to parenting arrangements. Even where parenting orders are made, they are rarely enforced in practice as by this age the child can generally effectively choose for themselves whether the parenting orders should apply to them. However, until the child turns 18, the court may still intervene where the child is an unsafe or inappropriate situation and there is no age under 18 years old where the court will solely consider the child’s perspective when making a parenting order. Parenting orders are only effective until the child turns 18 years old, gets married themselves, or forms a de facto relationship.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law on parenting orders and its relation to your individual circumstances. Furthermore, if Etheringtons Solicitors can assist with family law and separation matters more generally, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form here.


How to Choose a Divorce Lawyer

How to Choose a Divorce Lawyer

A divorce recognises, by law, the termination of a relationship and the end of legal responsibilities partners owe to one another. It often involves making arrangements in relation to property, children and spousal maintenance. Divorcing a partner is a major life event and can be a stressful and emotional time for you and your family. It is therefore pertinent to choose the right divorce lawyer to represent you and guide you through this process.

1. Assess your Needs

Every divorce lawyer has strengths in different areas. When choosing a divorce lawyer, you should always ask yourself – what is it that you require the lawyer to do for you? Obtaining a divorce order does not automatically determine issues relating to property, maintenance or children, therefore it is important to consider the impact your divorce may have on these aspects of your relationship.

Where there are many legal facets to your separation, you will benefit from good legal representation with experience in Family Law. It is also important to consider how you want the process resolved. There are collaborative alternatives to litigation, such as mediation, in which you have more autonomy to determine the outcome and the lawyer plays a different role. Such options are available and can be applied depending on the facts and circumstances of your matter. However, if an amicable agreement between the parties cannot be reached, you may need to consider engaging a lawyer to assist you in court proceedings.

2. Do your Research

Understanding the advice you are provided with is essential and key. Understanding the core principles of advice can be a good start and the Family Court of Australia has an online resource that provides an essential guide, however there is no substitute for good legal advice.

Once you have a basic understanding of divorce law, you will be better equipped to start researching different lawyers. Factors to consider when assessing whether a lawyer is right for you include:

  • Level of skill and experience (divorce is a specialised area of law so choosing someone with the right skills is essential);
  • Recommendations from trusted people;
  • The values of the firm they work within; and
  • Any initial information regarding their approach and communication style.

Your research should assist you in compiling a modest list of lawyers you can contact. It is recommended you do not limit yourself to just researching one law firm in the event that they are not available or are not a good fit for helping you to achieve your desired outcomes.

3. Initial consultation

The next step is to arrange an initial consultation with the lawyers on your short list. This will enable you to gauge the attributes of each lawyer. At Etheringtons Solicitors, we offer a discounted rate for an initial consultation, during which you will receive preliminary advice and you will have the opportunity to better understand who your lawyer is and how they can assist you.

It is important that you feel comfortable with your lawyer as they will be assisting you through a vulnerable stage of your life and your decision may greatly impact other parties, such as grandparents and children. Therefore, personality and ease of communication is also a factor to consider.

How Etheringtons Solicitors can help

Etheringtons Solicitors can assist with your separation and divorce. If you need further advice or assistance with Family Law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.