Binding Financial Agreements (‘BFAs’), also known as pre-nuptial agreements, allow couples to protect their individual assets and debt liability, and opt out of having their property settled by court orders, should their marriage, or de facto relationship, end.

However, the case of Hoult & Hoult (2013), confirmed that unlike other Family Law remedies, such as separation and consent Court Orders, BFAs will not be set aside solely because they are unfair or unjust to one party. Instead, BFAs operate similarly to contracts by binding parties to their agreed terms, even if it were a very unfair deal. Consequently, the very nature of these agreements means that they often significantly favour one party over the other.

As a result, before entering a BFA, s 90G Family Law Act 1975 requires you to seek independent legal advice to consider the advantages and disadvantages of a BFA, prior to signing it. As seen in Thorne v Kennedy [2017], this law also operates to protect you from undue influence or unconscionable conduct, which would enable a court to set aside your BFA. This principle was part of the basis for an application to set aside a BFA in Frederick & Frederick [2018]. However, the trial judge found that the mere fact the applicant was concerned her partner would end the relationship should she refuse to sign the BFA does not constitute undue influence or unconscionable conduct.

Despite this, the appeal of this case, Frederick & Frederick [2019], illustrates a caveat of this principle. Set out in section 90K(d) Family Law Act 1975, courts may overturn BFAs where circumstances have changed to such an extent it would cause one parent hardship, should the BFA not be set aside. As seen in Frederick, changes such as having a child since signing the agreement, particularly with a disability, will likely cause hardship to the parent with lesser assets.  

Therefore, while your personal circumstances at the time of signing the BFA may not be relevant when the court considers whether to set it aside, changes to these circumstances may play a role, should the validity of the agreement come into question. Therefore, it is important to seek good legal advice to protect both your financial position in the present and future.

Our specialist law team at Sanicki Lawyers has the necessary skill and experience to prepare a BFA which considers a wide variety of circumstances tailored to your personal situation. Further, we can advise you on whether a BFA is in your best interests to protect your financial position in the event of relationship breakdown.

So don’t delay – contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law at Sanicki Lawyers for legal advice and representation today, by calling 03 9510 8999, or emailing stephanie@sanickilawyers.com.au.

Family report writers are independent third parties who provide expert evidence to the court. Their knowledge, experience and skill in assessing family environments and preparing reports are extremely valuable to the Court’s decision making. However, as in all professions, some experts act unethically and breach their professional obligations. As a result, the integrity of their work – and the quality of their recommendations – may be called into question.

This was the case in McElhinney & McElhinney, where the psychologist who prepared the family report was disqualified from practice, because they formed a personal relationship with a former client. While both parents in the dispute agreed the report writer should be discharged, the father wanted another psychologist from the same practice to continue the report. The mother disagreed, arguing a new report should be written.

The Court held that the disqualified psychologist’s report was inadmissible and a new one should be prepared, because the fact the psychologist was suspended raises a reasonable apprehension to the integrity of their decision making and opinions. Thus, if another psychologist from the same practice were to complete this report, at least part of the report would still be based on the disqualified psychologist’s opinions.

However, contrast this decision to Behrendt & Cadenet (No. 2), where a father sought to dismiss a family report writer because he had lost confidence in the writer’s ability to form an opinion exclusively based on evidence. Despite this, the father failed to substantiate his claim that the report  writer’s opinion was compromised in any way.  Instead, the court in this case considered Bookhurst & Bookhurst, which held that an expert will not be disqualified just because one party believes the evidence is at odds with his/her version of logical reasoning.

Therefore, a parent’s mere belief or assumption that the family report writer’s opinion may be compromised is not sufficient enough to discharge them from their duty. However, where a report writer has been suspended for professional misconduct due to their unethical conduct, this is grounds to discharge them, and order a new report to be prepared by a new expert.

Therefore, if you have evidence your report writer has acted unethically, or you believe the integrity of the report has been, or will, be compromised, you should seek legal advice immediately.

Our specialist Family Law Team at Sanicki Lawyers has the necessary expertise to help you prepare this application and present your case. Further, if the other party to your case is trying to discharge your expert witness, but you do not believe the expert has done anything wrong, you should seek legal advice to present your position to the court.

Contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law at Sanicki Lawyers for legal advice and representation today, by calling 03 9510 8999, or emailing stephanie@sanickilawyers.com.au.

COVID-19 travel restrictions and social distancing orders have affected families across Australia. Particularly, for families with court-issued parenting orders requiring travel, it may not be reasonably practicable to follow these orders during this time. However, unless the contravention of an order falls under the ‘reasonable excuse’ definition in section 70NAE Family Law Act 1975, serious sanctions may be imposed against the parent. As this section is primarily concerned with protecting the child or parent’s health and safety, the parent must reasonably believe the contravention was necessary to provide protection.

This was the central feature of Kardos & Harmon [2020], where a mother contravened an order requiring her to travel interstate to bring the child to the father during the pandemic. The Court held the mother’s concerns for the child’s health and effect of border restrictions, which would require herself and the child to self-isolate for two weeks, constituted a reasonable excuse under section 70NAE(4)(a–b). This decision was influenced by Riberio & Wright [2020] at [6], which noted that the health, safety and well-being of children and families is the most important consideration during COVID-19. Therefore, the court will balance the importance of a child receiving emotional support of both parents, and mitigating risks of the child coming into contact with the virus.

However, the decision in Pandell & Walburg (No. 2) [2020] illustrates a situation where the mother had evidence that the child’s pre-existing health concern increased their risk of adverse reaction, should they contract COVID-19. This constituted a reasonable excuse to disallow the child to spend time with the father, breaching court orders. However, once updated evidence provided that the child was not at a greater risk, the mother no longer had reasonable excuse to breach the orders. This case demonstrates how a family’s individual circumstances play a very influential role in determining whether a reasonable excuse exists.

Therefore, if COVID-19 restrictions are preventing you from complying with your parenting orders, you must ensure you have a ‘reasonable excuse’ to do so, based upon your individual situation.

Our specialist law team at Sanicki Lawyers can consider your personal circumstances and advise you on whether you have a reasonable excuse for contravening your court orders.

Critically,  a contravention application by an unhappy parent may still be dismissed by the Court – even in cases of a breach of Orders – should the application be ‘petty and unwarranted’, as in Adam & Tan (2019). In this case, the mother’s contravention effected from genuine miscommunication, resulting in a mistake. The application was dismissed because the mother had taken steps to remedy the situation once becoming aware of it.

If you are concerned about complying with family law parenting Orders because of Covid-19, or if the other parent of your child (or children) are breaching parenting Orders due to Covid-19, then contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law at Sanicki Lawyers for legal advice and representation today, by calling 03 9510 8999, or emailing stephanie@sanickilawyers.com.au.