Employment Workplace Relations

Director, Philip Brewin is a specialist in Workplace Relations and heads our Workplace Relations Work Group.

Corporate and Business Law

The Nevett Ford Corporate and Business Law team has a wealth of experience and expertise and have established quality relationships with clients, including many small and medium business enterprises, across a wide range of industries.

Dispute Resolution ( Litigation)

Nevett Ford has wide experience in all manner of litigation.

Mediation

Mediation is a process and set of principles designed to manage and resolve disputes between parties. It is an efficient and effective method of dispute resolution that can help to preserve relationships through the intervention of a third party, known as a mediator.

Property Law

Nevett Ford has been conveying Victorian property for more than 150 years.

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Monday, 6 March 2017


The Nuts and Bolts of a Property Claim in a De Facto Relationship under the Family Law Act


De Facto Relationship:

A De Facto relationship arises when two people, who are in a relationship, are not married or related by family, and having regard to all the circumstances of the relationship, are a couple who live together on genuine domestic basis. Circumstances of the relationship that the Court will consider in determining whether a De Facto relationship exists or not include the duration of the relationship, living arrangements, whether there was a sexual relationship, financial arrangements, property owned jointly or individually, any registration of the relationship under State or Territory law, any children and public representation of the relationship.

Grounds for Property Claims in a De Facto Relationship:

If a De Facto relationship breaks down, the Family Law Act provides that a Court can make orders in relation to property of the relationship only if: -

  • The relationship has lasted for a minimum of 2 years; or
  • If there is a child of the relationship; or
  • A party has made a substantial contribution; or
  • The relationship was registered under a State/Territory law.

As a result, the De Facto relationship that last for less than 2 years, a property claim can only be made if there is a child of the relationship, the relationship is registered or if the concerned party has made a substantial contribution.

Substantial Contribution:

Substantial contributions are contributions which are not ‘illusory’ and are ‘considerable or large’ having real worth or value. Contributions that would be considered by the Court as being substantial contributions include, but are not limited to, the following: -

  • Financial contributions made for acquisition, conservation or improvement of any property of parties
  •  Non-financial contributions made for the acquisition, conservation or improvement of any property of parties
  • Contributions made to the welfare of the relationship and/or children of the relationship including homemaker contributions.

When determining whether a contribution is a substantial contribution, the Court may also take into account other considerations, such as: -

  • Effect of any proposed order on earning capacity of any party
  • Matters such as age, health, income, care or control of child, any commitments, standard of living, extent of contributions to financial resources of the relationship
  • Any financial agreement/arrangement between the parties
  • Child support

There is a further requirement for claims based on substantial contributions. If a party makes a substantial contribution and in the absence of an order that party would suffer a serious injustice, only then can a claim for property be made by that party. The Court requires this injustice to be more than slight and a mere injustice will not suffice.

If you have been in a de facto relationship that has unfortunately broken down and you would like to discuss further what your entitlements are, please do not hesitate to contact one of our approachable family lawyers. The number to dial is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au

Tuesday, 7 February 2017

Partner Visa (Australia) – Married or De Facto






You could be granted a Subclass 820/801 or Subclass 309/100 Partner visa if:

• Your partner is an Australian citizen, permanent resident or an eligible New Zealand citizen.

• You are married or can show that you have lived together with your partner in a ‘de facto’ relationship for 12 months.

The 12-month cohabitation can be waived if the couple registers their relationship in the state they live in. Relationship registration is only available for people living in certain Australian states.

Relationship registration in Queensland, Victoria, Australian Capital Territory or New South Wales:

The registration process is different in each state and not all states allow couples to register. If you can register your relationship, you can lodge a Subclass 820 partner visa application without having lived together for the 12 months prior to lodging the visa. You must however be living together when your 820 partner visa is lodged.

For example, to register your relationship in New South Wales, you’ll need to prove that neither of you are married and that one of you has lived in NSW for a short period of time. Registering your relationship in NSW is crucial if you have not lived together for 12 months prior to lodging the application.

To register your relationship in Queensland, you’ll need to prove that neither of you are married and that at least one of you has lived in Queensland for a minimum of 6 months. You must register your relationship in Queensland to be able to lodge the Subclass 820 visa, if you have not lived together for the most recent 12 month period.

To register your relationship in Victoria, you’ll need to prove that neither of you are married and that at least one of you has lived in Victoria for a short period. Victorian relationship registration is essential if you have not lived together for the past 12 months.

To register your relationship in the Australian Capital Territory (ACT), you’ll need to show that neither of you are married and that one of you is ‘usually’ resident in the ACT. An ACT relationship registration allows you to apply for a Subclass 820 partner visa if you have not lived together for 12 months.

We can provide detailed information on relationship registration requirements.

Showing evidence of your genuine and ongoing relationship

In relation to a Subclass 820/801 Partner visa application you must be living together when the visa is lodged. You need to show evidence of your shared life, such as financial commitment to one another, shared living and social recognition of your relationship. We help you put together your evidence to demonstrate your commitment to each other.

A permanent residency partner visa straight away

If you have been living your partner for at least 3 years prior to your application – or you have a child together and have lived together for the previous 2 years, you can apply for the Subclass 801 visa straight away (i.e. without having to hold the Subclass 820 (temporary residence) Partner visa first.  It is ultimately at the discretion of the Department as to whether they will grant the permanent residence visa straight away but if you meet either/both of these policy criteria then you have a good chance.

If this does not apply to you, the Subclass 820 visa application must be submitted first before you can apply for permanent residency. Once 24 months has passed since your first visa application, you can then apply for the Subclass 801 permanent residency visa, by showing that you are still a legitimate couple.

Onshore Partner visas and work rights

If you hold an eligible visa and you lodge your Partner visa, you transition on to ‘Bridging Visa A’ or a BVA when the first eligible visa expires. You have full work rights on your BVA, during the partner visa processing time and you can also obtain a temporary Medicare card for medical services.

It should also be noted that if you lodge a partner application whilst holding a 457 visa, you cannot stop working for the sponsor until your Subclass 820 visa is granted.

If you hold a Working Holiday 417 visa and lodge a partner visa, we can help you apply for a work rights wavier, allowing you to remain working longer that the allowed six months, for one employer.

It currently takes the Department approximately 12 - 15 months to process the Partner visa application.

Please contact us if you would like further information, advice and assistance, including an initial consultation. 

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Sunday, 5 February 2017

Binding Financial Agreements (BFA)

Parties can enter into a BFA before marriage (s 90B), during the marriage (s 90c), after a divorce (s 90D), before entering into a de facto relationship (s 90UB), during a de facto relationship (S 90UC) or after the breakdown of a de facto relationship (s 90 UD). Both heterosexual and same-sex (LGBT) couples can enter into a BFA.

A Binding Financial Agreement (or BFA) is a written document signed by both parties to a relationship which contains provisions about the division of property in the event of a separation. It must comply with either Part VIIIA or Part VIIIAB of the Family Law Act 1975 and parties to the Agreement must obtain independent legal advice about the Agreement.

A Binding Financial Agreement is often referred to as Prenuptial Agreement (prenup or prenups), Cohabitation Agreement, Postnuptial Agreement (postnup or postnups), Property Settlement Agreement or Divorce Settlement Agreement.


Binding Financial Agreements entered into prior to or during a Marriage or De Facto Relationship

Advantages

  1. It allows parties to protect assets and financial resources which existed prior to the relationship from a claim for division after separation.

  1. It allows parties to protect an inheritance or gift they received prior to the relationship, during the relationship or after separation.

  1. In some circumstances, it allows parties to remove their respective responsibilities towards the other to provide spousal maintenance.

  1. It provides a degree of certainty to the parties as to how their assets, financial resources and liabilities will be treated in the event they separate and remove any anxieties they may have about entering into a relationship in the first place.

  1. It allows parties to be clear about the responsibility of debts such as credit card debts, home loan, personal loans, business loans, etc.

  1. In conjunction with a will, it allows parties to plan their estate and ensure that their children, especially any children from previous relationships, are not disadvantaged in the division of the estate.

  1. It allows parties to determine their property settlement without the intervention of the Courts and costly legal disputes.

Examples of when a Binding Financial Agreement may be useful

  1. When one party has significantly more assets and financial resources than the other, a BFA (whether entered into before or during the relationship) allows that party to keep those assets and financial resources safe from the other in the event that they separate.

  1. When both parties have significant assets and financial resources and they both wish to quarantine those assets and financial resources from the other in the event that they separate.

  1. When one or both parties have children from previous relationships and wish to protect all or part of their assets and financial resources for their children.

Binding Financial Agreements entered into after separation

Advantages

  1. It allows parties to keep the terms of their settlement agreement away from the eyes of the Courts, the Australian Taxation Office (ATO) and other persons and organizations.

  1. It allows the parties more flexibility in how they wish to determine their financial matters.

  1. In some circumstances, it allows parties to remove their respective responsibilities towards the other to provide spousal maintenance.

Examples of when a Binding Financial Agreement may be useful

  1. When parties have complex property, business or trust arrangements which they wish to keep as private as possible.

  1. When the settlement terms are more in favour of one party and as a result may not be approved by a Court.

  1. When the parties need a quick resolution to their financial affairs and wish to avoid an agreement which requires the review and approval of a Court (consent orders).

We have a competent and approachable team of family lawyers who is able to assist you in determining the right kind of Binding Financial Agreement for your circumstances. We recommend you contact us on 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au.

Monday, 16 January 2017

Preventing unlawful removal of children from Australia

Do you have concerns that your child may be removed from Australia against your permission? Have you agreed to your child traveling overseas with the other parent but there is a genuine fear that they may not return your child to Australia?

We understand that this would be a stressful situation for any parent.

If so, it may be important that you act immediately to prevent this. You will need to obtain a Family Law Watch List from the Family Law Courts preventing or limiting your child from travelling outside Australia. A Family Law Watch List is also otherwise known as an Airport Watch List. If the situation is urgent, the Courts may make an Order on an ex parte basis.

The Family Law Watch List directs the Australian Federal Police to put your child’s name on the Watch List which in effect, operates at all international departure points including sea ports until discharged by the Courts. It is crucial to note though that the Family Law Watch List does not restrict interstate travel. The Australian Federal Police will not place your child’s name on the Family Watch List without a Court Order, unless in very limited circumstances.

If a child does not have a valid passport, Australia requires the other parent’s signature on the Passport Application form. If this is the case, and you suspect the other parent may fraudulently make an Application, you may, at first instance, consider whether a Child Alert Request will suffice. A Child Alert Request is a warning to the Department of Foreign Affairs and Trade not to issue an Australian Passport for a child without first making further enquiries (https://www.passports.gov.au/passportsexplained/childpassports/Pages/childalerts.aspx).

If the other parent has an international passport, you can make enquiries with embassies/consulates about the possibility of the other parent obtaining an international passport for your child. If there continues to be a real risk your child could travel on an international passport, you can make an application for your child’s name to be placed on the Family Law Watch List.

When facing with an application for a Family Law Watch List, or an application for the child to travel overseas, the Courts uphold its primary consideration being the child’s best interests – Will a travel abroad be in the child’s best interest? What is the time period and reason for the intended travel? Is there a real risk that the child will not be returned to Australia? Is the intended/likely travel destination a Hague Convention country? To find out whether a country is a Hague Convention country, go to https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionontheCivilAspectsofInternationalChildAbduction.aspx.

On the other hand, if you are a parent considering removing a child from Australia without the other parent’s consent, or relocating overseas, you should think twice as your actions may constitute an offence punishable with imprisonment up to three years. If you wish to relocate with your child, you should consult the other parent seeking an agreement in writing, or seek Court Orders allowing your child to travel or relocate.

If you have a pressing fear that your child may be removed from Australia unlawfully, or you simply wish to know more about international travel arrangements, you can contact our attentive Family Law team on 03 9614 7111 or Melbourne@nevettford.com.au.

Tuesday, 6 December 2016

Protect Your Family’s Investment


Many people choose to invest in property in Australia for their retirement, as a source of income, or to assist their children with somewhere to live. This is true of both local buyers and overseas purchasers. When you do this however, you should turn your mind to how Australian family law will consider this type property in the event that there is a separation involving yourself or your children in the future.

If a parent buys a property for their child, their child marries and then divorces, it is not as simple for the parents as getting their money back out of the property ‘dollar for dollar’. Australian family law will usually consider this assistance from a parent a type of financial contribution, not a loan, and is not inclined to repay the money as if it were a normal debt. Often people will walk away from a relationship having lost not only a lot of money themselves, but also a lot of their family’s money, resulting in increased family tension.

At Nevett Ford Lawyers, our large and experienced team advise and assist with a range of solutions to help to protect you and your family in these situations. When you purchase a property, we recommend considering a Binding Financial Agreement under the Family Law Act to protect yourself and your children, as well as ensuring loan documents are drafted to assist in recovering money if necessary. We are also able to draft Inheritance Agreements to help to protect inheritances from family law disputes in the future. We can even draft Agreements that will operate for couples who are not yet married but may do so in the future and want to make just one document to cover these different situations.

It is important to look at these types of documents and have them prepared when everything is going well, to protect you in the event of future uncertainty. Determining the right kind of document for your circumstances is a skill at which our lawyers excel, and we recommend you contact us to enable you to make this important decision in an informed manner. Our number is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au

Thursday, 3 November 2016

What is urgency for parenting cases?

Parents in the heat of family law situations will often want to know if the Court can help them with their dispute urgently. To a parent in the middle of a dispute situation – they may not have seen their child for months, or they may want to change their current arrangements – their situation may appear genuinely urgent. However, this is not the test that the Court applies in determining whether a matter should be listed urgently in front of a Judge or Registrar.
In the matter of Fowler & Glover (http://www.austlii.edu.au/au/cases/cth/FCCA/2016/2595.html), the Court considered what test is, and should be, applied to determining whether something should be heard urgently when it is delivered to the Court Registry to file.
In that case, the Father had not seen the child concerned since separation, with there being a delay of some more than six years between separation and the Father seeking Orders. The Father was trying to get orders made in time for his planned visit to the area where the child lived. The visit was scheduled for only a month after the Court documents were being filed. The Court empathised with the situation, but emphasised that the reality of the Court’s resources were that the Court was already overlisted (above capacity) with other matters. Nevertheless, the Court clarified that it continued to overlist urgent matters, which were described as typically involving ‘allegations of serious and immediate risk of harm to children.
This reflects our experience. The Court will largely only overlist / list urgently parenting situations where there is the immediate risk of harm to a child. An immediate risk will usually be a threat to the safety of a child well above and beyond any harm that is suffered as a result of a delay in that child’s relationship with a parent.
A good family lawyer will be able to advise you on how to identify what are, and are not, good reasons to list urgently, and be able to make a compelling case to the Court for why urgency is justified. Our lawyers will advise you on this and other practical measures to take in relation to your situation, and are available to speak to you on 03 9614 7111 (tel:0396147111) or Melbourne@nevettford.com.au

Thursday, 6 October 2016

Consistency and Understanding the Key for Courts Dealing with Family Violence



In August 2016, TC Beirne School of Law and the Australasian Institute of Judicial Administration released (http://www.lawyersweekly.com.au/wig-chamber/19479-judges-draw-on-new-guide-for-family-and-domestic-violence) the initial version of their ‘bench book’ for Courts across Australia dealing with family violence. A bench book is a guide to Judges and Magistrates to assist them in applying risk assessment systems, case law, and making suggestions in coming to decisions.

It is a difficult task for lawyer, judges and people caught in the family violence systems to ensure they can assess situations with the impartiality, reality-testing and credibility required of them, and the guide aims to simplify this process for the judiciary, resulting in a more consistent framework that better protects those in need, and better recognises when people are not being genuine in their desire for, or opposition to, an order being made.

Clients will often speak of a Judge or Magistrates having taken a view about them personally and not treating them, in their view, fairly. This guide should help in ensuring that there is a consistent and clear approach and restore damaged confidence in aspects of the system. 

Of course our lawyers (http://www.nffamilylawyersmelbourne.com.au)  have many decades of experience dealing with family violence matters and providing clients with realistic and sensible advice in obtaining, opposing, or renewing orders and if you do have a concern about your situation, we encourage you to call us to discuss your situation. 

We are available on 03 9614 7111 or by email on melbourne@nevettford.com.au.