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Our presentation to the Sydney community on LGBTQI family law
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ABOUT DTL We are LGBTQI We are experienced family and property lawyers We know the complexities of relationships We do fixed fees for clients’ certainty and transparency We are always accessible We give a shit about our clients
Parenting
Who is a parentConsideration of Commonwealth and State law:
Section 60H Family Law Act 1975 (Cth) Section 14 Status of Children Act 1996 (NSW) Section 65C Family Law Act 1975 (Cth) Section 12 Surrogacy Act 2010 (NSW)
Who is a parentCase Study: Re Patrick (2002) 28 Fam LR 579
The sperm donor wanted to be a parent of Patrick* The parenting agreement was entered into prior to the birth of
Patrick The parenting agreement was evidence of the parties
intentions The court considered what was in the best interests of Patrick Also see AA v BB and LU v Registrar of Births Deaths and
Marriages (No 2)
Who is a parentDonors
Donors are not regarded as legal parents, regardless of intention
Donors may later seek parenting orders for the care and wellbeing of a child
Donors may enter a parenting agreement with the other party/parties for the purpose of setting out the parties’ intention with respect to the child’s care and wellbeing, and the child’s contact with the donor and other party/parties
Who is a parentDonors continued
Parenting agreements are not binding or enforceable, but they are important from an evidentiary point of view
Often other documents are important to evidence such intentions, including Wills
Handout (Parenting Agreement example)
De facto relationships
What is a de facto?There is no exhaustive definition
The court will consider:i. the length of the relationship;ii. the nature of the relationship;iii. if the couple were engaged in a sexual relationship;iv. the financial arrangements that existed between the parties
during the relationship;
What is a de facto? vi. the arrangement between the parties for the ownership of assets
and whether they own properties jointly;vii. the degree of commitment to the relationship;viii. whether the relationship has been registered in any state or
territory;ix. the existence of any children; andx. the reputation and public aspects of the relationship.
What is a de facto? Case Study: The unwilling de facto – Toms v Centrelink 2014
Friends with benefits Freedom of sexuality in the age of Grindr and Tindr Intention of the parties is sometimes different to relationship
presentation and factual de facto consistencies
‘Friends with Benefits’ (2011)
Property division
The basics Two year minimum cohabitation + de facto before a party can apply
to the court What is the length of the relationship? Who owns the assets? Joint ownership vs separate What are each party’s financial contributions? What are each party’s non-financial contributions? Is there a homemaker? What is the health of the parties? What are the incomes of the parties and what are the ongoing
employment prospects like?
Consent orders Consent orders are binding court orders that are rarely
appealed Parties can informally agree on a settlement before
engaging a lawyer for preparation of consent orders Parties can formally agree on a settlement through
negotiation or mediation, then proceed to consent orders Consent orders require full disclosure and a fair split of the
assets of the relationship between the parties
Disputes about property Issues in dispute usually revolve around perception of
contributions and narrow views of asset protection Sometimes one party earns considerably less than the other
and that party also acts as homemaker Sometimes one party has a related family business
generating a substantial income for the parties, but on separation the other party might argue that they contributed to that wealth directly or indirectly
Disputes about propertyThe court will consider prescribed inidicia in the Family Law Act covering age, health, income, children, standard of living of the parties during the relationship, opportunities for employment and training to gain employment and so on.
Life, death and loved ones
The Will Rules for what happens to your money and assets after
you die including appointing beneficiaries Appoints an executor to administer your estate Sets out your intentions with respect to donation of
organs, funeral arrangements and charitable gifts Cannot assign an interest in superannuation
No Will when you die The Succession Act determines who gets what, placing
the deceased’s spouse in possession of the lion’s share
Family Provisions Claims People left out of your Will may be entitled to claim on
your estate If you cut somebody out, give solid reasons If you have been left out, speak to us first The court will consider the plaintiff’s relationship with the
deceased including financial, emotional and living relationship
Powers of Attorney // Enduring Guardians
A Power of Attorney give financial powers to an attorney while you are alive, usually when you lose capacity
An Enduring Guardian is a person with power to make medical and care decisions on your behalf when you lose capacity
Who do you trust with your money and health if you cannot make decisions independently?
Evidencing your relationships Register you relationship with Births, Deaths and
Marriages Execute a Will Execute a Power of Attorney Execute an enduring Guardian document Have your Medicare cards sychonised
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