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12.01.2022 REPRESENTATION- SPORTS PROFESSIONALS Tom, an A grade representative soccer player, had been charged under Section 66C(1) of the Crimes Act 1900(NSW) being the offence of having sexual intercourse with a person between the ages of 10 and 14. At the time he was 18. This happened in January 2008 and the matter was only listed for committal hearing in October 2009. A plea of not guilty had been entered and the player had a strong defence case. As is commonly known there is a ...Continue reading
10.01.2022 BINDING FINANCIAL AGREEMENTS Binding Financial Agreements (FA’s) were introduced into the Family Law Act in 2000. These agreements are tricky and may not be as ...enforceable as the parties may have hoped. The Courts take a firm approach to them in that they must strictly accord with technical requirements of the Act. The history of that position is briefly explained by consideration of some court cases for example in J and J( 2006) Fam CA 442 where certificates of independent advice were in the wrong form and the FA held invalid in consequence or Millington and Millington (2007) Fam CA 687 where one party did not hold the original FA and the other party a copy and inconsequence the FA was held invalid. These defects were interpreted more leniently by the decisions in Black and Black (2006) 36 Fam LR 680 which found satisfaction if the purpose of the legislation was met or Ruzic (2007) FamLR 473 where invalid solicitors’certificates were subsequently replaced with valid ones. However, Black and Black (2008)FamCAFC 7 being a decision of the full court reversed that trend upholding a literal approach. That case is now the guiding judgment. From January 2010 amendments to Part VIIIA introduced by the Federal Justice System Amendment (Efficiency Measures) Act sought to allow Courts leniency in interpretation of FA’s which contained technical flaws. Despite that the full court in Kostres and Kostres (2009) FamCAFC 222 found that a court, despite strict compliance of an FA with technical requirements may still set aside an FA. The court found that the terms of the agreement themselves were imprecise and ambiguous so much so that the parties themselves had disagreement over significant terms of the FA. The full court found it could not enforce the agreement at all and sent it back to another federal Magistrate for re-hearing which would have been heard on the basis that the FA did not exist as a legal document. In other words the Federal Magistrate was obliged to hear the matter under equitable principles of the family law. The above decisions establish that it is not sufficient to attempt to avoid future court intervention by simply creating an FA. One must ensure that it is in technical compliance with the legislation (providing the purpose of the legislation is met) and also that it is capable of unambiguous interpretation by the parties and others. #familylaw #familylawyercentralcoast #centralcoastfamilylawyer
