Surrogacy Law in Australia

As the social fabric of Australia is ever-changing, family law has its work cut out for it in keeping up!

Advances in modern technology has meant there are now many options for people including same-sex couples and single people wanting children but for many reasons cannot conceive their own.  One of these options includes surrogacy.

Many people suffer under the misapprehension that surrogacy is illegal in Australia.  That is not quite correct, but requires some qualification:

“Commercial” surrogacy arrangements (ie money exchanging hands) are illegal in Australia, however, altruistic (no monetary consideration) arrangements are not.

Surrogate children are provided for in the Surrogacy Act (NSW) 2010 & The Family Law Act 1975.

Parentage Orders under the Surrogacy Act:

The Court may make a parentage order in relation to the child of a surrogacy arrangement which is defined as “an arrangement under which a woman agrees to become or to try to come pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons”.

The following requirements are mandatory regarding any application for a parentage order:

  • Applications must be made not less than 30 days and not more than 6 months after the child’s birth (or for “pre-commencement surrogacy arrangements”*, within 2 years after the commencement of the Act (commencement is: 1 March 2011).
  • Application must be supported by a report prepared by an Independent Counsellor.
  • The best interests of the children is the paramount consideration for the Court when making a parenting order.
  • The surrogacy arrangement must be altruistic and agreed before conception.
  • The intended parent(s)** must be a single person or member of a couple (includes same sex couples and de facto) and each must be at least 18 years old at the time of entering into the arrangement.
  • The birth mother must have been at least 25 years old when entered into surrogacy arrangement, or for Pre-Commencement Arrangement, it is sufficient that birth mother was at least 18 years old.
  • The birth mother and her partner (if any) must freely consent to the parentage order, unless they cannot be located, die or lose capacity to consent.

There are other requirements which must be satisfied (but these can be waived by a court in exceptional circumstances) including:

  • The surrogacy agreement must be in writing.
  • The child’s birth must be registered and certain aspects of the arrangement must be registered on the donor registry.
  • The child must be living with the intended parent(s) in NSW. 
  • All parties must have had the counselling and legal advice. 
  • There must be a social or medical need for the surrogacy (male same-sex couples automatically satisfy this condition) (NB – this precondition does not apply to a pre-commencement surrogacy arrangement).

*“Pre-commencement Surrogacy Arrangement” is an arrangement entered into before the commence of this Part (s.15(2)) and even if it was rendered void by a law in force before the commencement of this Section (as if it had not been rendered void) (s.15(3)) and the Court may make a parentage order in relation to a surrogacy arrangement whether it was entered into before or after the commencement of the Act.

** “Intended Parent” means the person(s) to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement.

Since the commencement of the Surrogacy Act, various other Acts have been amended to include and make provision for children born as a result of surrogacy arrangements, such as the Births, Deaths & Marriages Registration Act 1995 with respect to the registration of parentage orders and issuing of birth certificates (NB – it is not included on the birth certificate that the child is born as a result of a surrogacy arrangement, however, a notice is recorded on the Registry indicating that further information is available upon request).  The Succession Act 2006 has been amended to enable surrogate children to be included for the purposes of distribution on an intestacy.

Once the Court has made a parentage order referred to above, then for the purposes of the Family Law Act, the surrogate child is in all respects, the child of the parent(s) and not the birth mother (s.60HB).

If you require family law advice, please do not hestiate to contact our friendly family law team. 

Plans For Small Business Owners When Key People Are Out of Action

Small business owners adhere to insurance policies to protect their assets and premises, although this fails to cater for dangerous business risks such as losing key people.

This can include illness, death or the departure of a business partner, founder or vital employee which may cause issues within the business, if there are no adequate plans in place.

Legal and financial experts say two ways for business owners to protect themselves include introducing buy-sell agreements and key person insurance.

AMP financial planner Mark Borg says a key person policy will provide the money for a company to cover lost profits or increased costs. He states a buy-sell agreenment is “a bit like a pre-nuptial agreement for your business”. There needs to be processes in place for the business to operate smoothly, regardless of disruption from absence of important employees.

Please contact our offices for more information.

Source: Daily Telegraph 25/11/13

Fixed Rates “to lock or not to lock”

What to consider by way of finance when it comes to conveyancing

With fixed rates just about bottomed out, there has been a constant eye observing the fixed rate space with many lending institutions reviewing the current economic conditions. Swap rates (whilst very volatile) have shown a distinct upward trend over the last month.

As swap rates are one of the major drivers of fixed rates – it is advisable that any new fixed rate loan applicants consider paying a fixed rate lock fee to ensure that they lock in our latest advertised fixed rate pricing.

Communication received highlights that the major banks might increase their fixed rates as early as this afternoon. Resi have yet to make any official announcements – except to say that they will be watching this space (i.e. swap rates and the movements of our competitors) on a daily basis.

Please call us if you have any questions.

Strata Law Revolution

New bylaws allowing pets in units, curbing smoking on apartment balconies and preventing the installation of noisy timber and tiled floors are among the changes in the biggest overhaul of strata laws in more than 50 years.

Announcing the long-awaited reforms, Fair Trading Minister Anthony Roberts noted that 30 per cent of people in NSW either live or work in strata and there are now more than 72,000 strata plans – ranging from two-unit duplexes to massive mixed residential and commercial blocks. In 20 years, half the state’s population will live in apartments or townhouses.

The size of buildings, electronic communications, lifestyle changes and the fact that increasing numbers of people choose to rent all their lives, rather than as a transition towards home ownership, needed to be addressed, Mr Roberts said.

On pets, smoking and timber floors, Mr Roberts said that although owners can choose their own bylaws, many unit blocks adopt the government’s model by-laws by default and it’s only after people move in that they find they don’t reflect the way they want to live. However, once they are in place, they are very hard to change.

Source: http://smh.domain.com.au/real-estate-news/nsw-strata-law-revolution-20131103-2wuy4.html

Business Insurance for IT. Even though you’ve paid the premium, are you covered?

Lost laptops, website hacking & other cyber hazards

Business insurance policies cover tangible assets including the cost of replacing a lost or stolen computer. However, computers store vital information needed to run a business such as client lists and their account details, business financial records and confidential internal emails. These intangible but highly valuable assets are usually not covered by a business insurance policy.

Who is at risk?

The use of digital technology has created an industry of cyber theft – not just for the large, high profile companies or e-commerce sites but for businesses of all sizes relying on computers, mobile devices and the internet – so that’s most Australian businesses.

What do cyber hazards include?

  • Data access by external hackers and disgruntled employees (or former employees)
  • Data loss caused by software and/or hardware breakdown
  • The financial impact of network downtime resulting in lost productivity and sales
  • Loss or theft of hardware such as hard-drives, laptops and devices
  • The relatively new phenomenon of cyber extortion where a company’s data is stolen or attacked with ransom demands made to return the data or provide the decryption key
  • Exposure to defamation claims and intellectual property infringements through improper use of social media sites by staff

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 So what can you do?

Cyber liability cover is now available to protect you and your business from network disruption and cyber attack. With the help of an experienced insurance broker, cyber liability cover can be designed around the needs of your business so you only pay for the cover you require. For example, the risk exposure for an e-commerce business will be very different from a shop-front retail business.

Factors influencing the type of cover you require are:

  • The size of your business
  • The type of data you may collect from your customers
  • The number of customers you have

As part of PTW Law’s Trusted Advisory Network, Nsure General Business Advisors are specialist business insurance experts.To discuss your options, please call/email us or  Rami at Nsure on 0402 362 362 or rami@nsure.com.au.

Parenting Orders & Overseas Travel with Kids

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At this time of the year we receive numerous enquiries from our family law client’s about the forthcoming long summer school holidays.  It is common knowledge that Australians love to travel overseas with their families. Sometimes parenting orders are put in place which do not adequately provide for overseas travel; often they do not incorporate sufficient safeguards to ensure the departing parent’s return to Australia with the children.

The common issues we are asked to provide advice about include:

  • My ex refuses to sign my child’s passport application and I want to go overseas in the holidays with them, what can I do?
  • My ex refuses to give me my child’s passport, how can I get it?
  • My parenting orders do not make provision for me to travel overseas or interstate with my children and in these holidays I want to, how can you help me?
  • My ex is taking the kids overseas and I am worried he/she might not come back with my kids, what can I do?
  • My kids are on the airport watchlist but my ex also has an additional passport in a third country, can he/she have that passport endorsed so my kids can travel on it?
  • What do I do if my ex goes overseas, arrives there, then rings me up and tells me he/she’s not coming back, and neither are my kids?
  • What do I do if I do not have parenting orders in place and I think my ex will leave Australia with my children and not tell me about it until they have arrived overseas when he/she calls me up to tell me they aren’t coming back?
  • What do I do if he/she goes into hiding with my children?I have just found out my kids are about to board a plane with my ex to depart from Australia, I wasn’t told about it and I fear they might not be coming back?

If you would like to talk to us about these issues then we look forward to hearing from you and providing you with our advice and expertise.

Sometimes, but not always, an application to the Family Court is required in order to achieve the desired result. November and December are notoriously busy months in the Court and for that reason, a deadline is in place requiring all school holiday matters to be filed by 4.00pm, Friday 8 November, 2013.

So if you would like some assistance in relation to the forthcoming long school holidays and you think a court application might be required, then there is not a moment to lose and we look forward to hearing from you.

 

 

Duties of Executive and Non Executive Directors

Directors of Companies

Directors of companies whether public or private have various responsibilities towards their companies, breach of which may not only be detrimental to those companies and their shareholders but also may lead to civil and criminal liability of the individual direction concerned.

Executive and Non-Executive Directors

Executive and Non-Executive Directors have the same responsibilities in law. An “Executive Director” is a director who has separate responsibilities within the company as an Executive.

The role of a non-executive director has a positive contribution to making and ensuring that the board fulfils its main objectives. He can exercise an impartial influence and bring to bear experience gained from other fields: executive directors would therefore be well advised to consider the appointment of such directors to serve alongside them.

Powers of Directors

Directors derive their power from the Articles of Association and the Memorandum of Association.

Directors must exercise their powers collectively and majority decisions will prevail.

Duties of Directors

The duties of directors are owed to the company as a whole. Their duties and responsibilities arise both out of common law and out of statute and can be classified as follows:

  • Fiduciary duty to act honestly and in good faith;
  • Duty to exercise skill and care; and
  • Statutory duty

Directors should bear in mind that breach of these duties may result in their being judged unfit to be concerned in the management of a company and lead to their disqualification as directors.

For further information contact tolly.saivanidis@ptwlaw.com.au

The Best Interests of the Child

Some of you may have heard the expression in family law “the paramount consideration of the Court when making parenting orders is what is in the best interest of the child.”

But what does this mean in practical terms and what factors does the Court take into consideration when determining what is in the best interest of the child?

The factors the Court must take into consideration are set out in Section 60CC of the Family Law Act 1975, comprising “primary considerations” and “additional considerations”.

 Primary considerations:

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

Additional considerations:

  • Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks relevant to the weight it should give to the child’s views. For example, a 3 or 4 year old child would not be capable of expressing a view that would be given any weight by the Court, however, a 12 or 13 year old child may be considered to have a “voice” and an opinion which would be taken into consideration by the Court.
  • The nature of the relationship of the child with each of the parents and other persons (including grandparents and other relatives).
  • The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, spending time with the child and communicating with the child.
  • The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child, the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent, or any other child or other person (including grandparents and other relatives with whom he or she has been living.
  • The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. This is particularly important when one parent may live interstate or in a remote location, far away from the child.
  • The capacity of each parent and any other person (including grandparents and other relatives) to provide for the needs of the child including emotional and intellectual needs;
  • The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either parent, and any other characteristics of the children that the Court thinks are relevant;
  • If the child is of Aboriginal or Torres Strait Islander: the child’s right to enjoy his or her Aboriginal or Torres Strait Island culture including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part of the Act will have on that right;
  • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
  • Any family violence involving the child or a member of the child’s family;
  • If a family violence order applies, or has applied, to child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the Court in, or in proceedings for, the order;

(v)  any other relevant matter;

  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
  • Any other fact or circumstance that the Court thinks is relevant. This is a very wide discretion the Court has and is considered a “catch all” clause to encapsulate any other possible issue which may arise and the Court should take into account.

Although it is not expressly mentioned in the above list, the historical care arrangements for the children generally have a significant impact on the outcome of children’s cases.

 

 

Probate Law in Australia can be straight forward and simple

Prior to the ability for assets to be distributed to third parties, including to the beneficiaries, a Grant of Probate may have to be applied for by the Executor. This is a legally enforceable document that the Executor will use to obtain access to various assets, which may include cash in a bank account, shares in a company or even real estate.

Unfortunately, things can become complicated when there is no Will and therefore the deceased dies intestate, leaving the proposed beneficiaries in a situation that requires far more than the above.

At Pryor Tzannes & Wallis, we have experts in the area of Probate Law to assist from the straight forward application for a Grant of Probate, right through to complex estate disputes, including intestacy and distribution advice in respect of beneficiaries and other third parties.

Please do not hesitate to contact Tolly Saivanidis of our offices for further information and/or assistance.

ATO’s New Powers To Pursue Directors Personally

Given the influx in director enquiries we have received recently, we thought it vital to blog this issue for your information.

You may be aware that the Australian Financial Review, recently confirmed reports that the ATO is currently issuing notice letters to various directors of companies which have outstanding PAYG or Superannuation debt.

Importantly, directors are now being informed that if their companies have not lodged their Business Activity Statements, the personal liability of a director is at risk. This includes personal assets of directors. Please note that non-lodgement of Business Activity Statements with the ATO to prevent the tax liability being raised will assist cash flow in the short term, however along with the ATO’s new regulations this strategy could come at great personal cost, as directors may now be held personally accountable for late lodgement of BAS, should the company ultimately fold.

Directors should be aware of their companies’ solvency status, their duties as directors, and the consequences of non-compliance with their obligations to the ATO.

Early intervention is the key. Directors’ can often prevent its complete collapse. If you have any queries in respect of your company’s obligations we encourage you to contact Tolly Saivanidis of our offices.

 

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