FAMILY LAW

(25 October 2018)

Media Release form Attorney-General, Christian Porter

Breakthrough on super-splitting for WA de facto couples

Separated de facto couples in Western Australia will soon be able to achieve a split of their superannuation assets in property settlements.

"De facto couples in the West have, for too long, had to put up with a situation regarding the treatment of super assets in property settlements which is different to the rest of the country," the Attorney-General, Christian Porter, said.

"This has disadvantaged many people, particularly women, in property settlements. It has resulted in inequitable splits of property, especially in situations where superannuation is the main asset - as occurs often when housing property is heavily mortgaged."

The Attorney-General said the Morrison Government would amend the Family Law Act 1975 Cth as soon as possible to allow for the move, ending a decade-old stalemate between the WA and Commonwealth Governments.

"This will at last mean that separating de facto couples in Western Australia can be treated fairly by the courts and, in terms of superannuation, consistently with de facto couples across the country," the Attorney-General said.

"All other states long ago fully referred powers to the Commonwealth, which allowed superannuation and other assets to be split in family law property settlements."

"The Morrison Government will accept the limited referral provided by Western Australian to ensure superannuation can be split. Other aspects of property division will still be kept within WA state law."

"The limited nature of the referral complicates the legislative process, but I would hope that the necessary legislative amendments can be dealt with through 2019 to allow for the super-splitting to take effect from the beginning of the following year."

Johnstone Crouse Lawyers

RESTRAINING ORDERS

(8 March 2018)

Family, domestic and sexual violence

Family, domestic and sexual violence is a major health and welfare issue in Australia and globally. It occurs across all ages, socioeconomic and demographic groups but mainly affects women and children. Indigenous women, young women and pregnant women are particularly at risk.

The Australian Institute of Health and Welfare report released on 28 February 2018 combines data from more than 20 sources to provide a comprehensive picture of what is known about family, domestic and sexual violence in Australia.

Some interesting data from the report is set out below. A full copy of the report is available here: Family, Domestic and Sexual Violence in Australia

Violence takes various forms

Restraining Order Statistics

* Source: Family, domestic and sexual violence in Australia 2018, Australian Institute of Health and Welfare

Often people do not seek advice or support

A large proportion of women and men do not seek help or support for partner violence.

For women

According to the 2016 Australian Bureau of Statistics (ABS) Personal Safety Survey (2016 PSS), almost half of the women (46%) who experienced current partner violence and more than one-third (37%) who experienced previous partner violence did not seek advice or support after the incident.

The most common reasons women gave for not seeking advice or support were that they either:

  • felt they could deal with the issue themselves (50% for current partner violence; 47% for previous partner violence);
  • thought the incident was not serious enough (36% for current partner violence; 18, for previous partner violence); or
  • felt shame or embarrassment (11% for current partner violence; 25% for previous partner violence).

For men

According to the 2016 PSS, more than two-thirds of men (68%) who experienced current partner violence, and 3 in 5 men (59%) who experienced previous partner violence did not seek advice or support after the incident.

The most common reasons men gave for not seeking advice or support were that they either:

  • thought it was not serious enough to seek help (49% for current partner violence; 22% for previous partner violence);
  • felt that they could deal with it themselves (37% for current partner violence; 60% for previous partner violence); or
  • did not want or need help (31% for current partner violence; 31% for current previous partner violence).

Police and legal system

Police intervention is a key entry point to formal family, domestic and sexual violence services for victims and perpetrators.

In some cases, a court order (known as a restraining order) can be obtained to prohibit an individual from carrying out a particular action, especially approaching or contacting a specified person.

Based on the 2016 PSS, of those who experienced previous partner violence:

  • 1 in 4 (24%) women had a restraining order issued against their previous partner; and
  • 1 in 10 (10%) men had a restraining order issued against their previous partner.

For information on restraining orders, click here.

Johnstone Crouse Lawyers

PROPERTY LAW

(6 March 2018)

Summary of changes to the Joint Form of General Conditions 2018

The Real Estate Institute of Western Australia ("REIWA"), in conjunction with the Law Society of Western Australia, recently released the 2018 Joint Form General Conditions for the Sale of Land ("2018 General Conditions") which replaces the former 2011 version.

The 2018 General Conditions aim to adapt to the ever evolving legal landscape within Western Australia by taking into consideration new legislation and changes to common law.

Some of the major amendments include:

  • Inclusion that notices can be served electronically by email (clause 21 4(a)(3)).
  • Inclusion of matters relevant to chattels covered under the Personal Property Securities Register (clause 2.8).
  • Inclusion of the Foreign Resident Withholding Regime (clause 3.7) (currently annexure #190) Inclusion of Electronic Conveyancing (clause 3.12) (currently annexure #187).
  • Final inspection - a further right to inspect the property if the initial inspection identified items that require rectification by the seller under the contract (clause 5.1(b)).
  • Seller representation and warranty- new provision that if anything occurs between contract date and settlement that results in a warranty or representation being untrue then the buyer does not have any right to terminate or defer settlement unless the event unreasonably affects the proposed use of the property by the buyer or materially affects the value of the Property (clause 9.3).
  • Sub-division - provides for the changes to section 13 of the Sale of Land Act where the seller of a sub-division of land or a strata lot is not the registered proprietor of the land when entering into the contract with the buyer. There are special provisions relating to a Warning Notice, the Deposit, conditions on approval, lodging plans and giving information (clause 13.9). Form 191 "Warning For Purchasers - Sale of Land Act" contains the required warnings.

For more information on our property law services, click here.

Johnstone Crouse Lawyers

RESTRAINING ORDERS

(1 July 2017)

Changes to the Restraining Orders Act 1997 (WA)

On 1 July 2017, a new type of restraining order was introduced in Western Australia, namely a 'Family Violence Restraining Order' ("FVRO"). This is in addition to the existing 'Violence Restraining Order' ("VRO") and 'Misconduct Restraining Order' ("MRO") that exist to help people experiencing domestic violence in Perth and throughout WA.

How does this impact Violence Restraining Orders?

VRO's are no longer available to parties in a family relationship. If there is a family relationship, the application would need to be for a FVRO.

Before 1 July 2017, the Court could make a VRO if it was satisfied that an 'act of abuse' has been committed to another or that a person applying for a restraining order reasonably fears that an act of abuse will be committed. This is no longer the case. Now the Court has to be satisfied that that either an act of 'personal violence' or 'family violence' has been committed to another or that a person applying for an order reasonably fears that such and act will be committed.

A further significant change is that the requirement that a person seeking protection 'reasonably fears' that the other party will commit an 'act of abuse' against the person has been replaced with a requirement that there be 'reasonable grounds to apprehend' that the other party will commit either an act of 'personal violence' or 'family violence' against the person seeking protection. This means that there is an objective assessment of fear rather than a subjective assessment, which gives the Court a basis on how to make the assessment of the fear factor on any application made.

For more information on restraining orders, click here.

Johnstone Crouse Lawyers

DIVORCE AND SEPARATION

(1 May 2017)

Separation and divorce statistics

Separation and divorce have unfortunately become a way of life in today's modern world. On the one side is "for better or for worse", and on the other the reality for many is being in an unhappy marriage or relationship due to love being gone, adultery, abuse or various other reasons. In those circumstances it can perhaps be said that separation is a good thing.

Regardless of whether separation is a good or a bad thing, unfortunately for a large number of Australians separation and divorce is part of life.

Divorce statistics in Australia

The number of divorce applications granted in Australia in 2015 increased by 4.34% from the previous year, with:

  • the highest number of divorce applications being made during the 4th year of marriage; and
  • the median length of marriage to separation being 8.5 years.

Of the divorce applications granted in Australia in 2015:

  • 43% were made by the husband and wife jointly;
  • 32% were made by the wife; and
  • 25% were made by the husband.

In 2015, 47.5% of the divorce applicants had more than one child.

How many marriages end in divorce?

An average of between 40 to 45% of marriages end in divorce. In last 5 years there were 119,750 registered marriages per year and 48,301 divorce applications per year.

One in five registered marriages in Australia in 2015 involved a party that had previously been married.

Of the registered marriages in Australia in 2015:

  • 54% of the marriages were between people who were both born in Australia.
  • 14% of marriages were between people who were born in the same overseas country.
  • 32% of marriages were between people who were born in different overseas countries.

For more information on divorce and separation, click here.

Source: 'Australian Bureau of Statistics, catalogue 3310.0 – Marriages and Divorces, Australia, 2015'.