The future of same sex marriage in Australia

The High Court has found that the ACT Marriage Equality (Same Sex) Act 2013 is of no effect. 

Although some groups who are anti gay marriage are treating this as a win, the better view of the ruling is that it actually helps the case for marriage equality. 

The High Court have ruled that under the Constitution, '"marriage" is a term which includes a marriage between persons of the same sex.' You can see the full judgment here. This now clears the way for the Commonwealth to make legislation allowing for same sex marriage, without requiring a referendum or reconsideration of the Constitution. 

So although it is a very disappointing result for same sex couples in the short term, particularly those who were married and now have had the marriage declared invalid, in the long term, having same sex marriage legislated at a federal level is a far preferable outcome.

Having Commonwealth Legislation rather than state or territory laws means that marriage really will be equal, rather than having one set of laws for heterosexual couples and another for same sex couples. 

As set out in my previous blog post on ACT same sex marriage, if the High Court had declared the legislation valid, although that would have meant that same sex couples could be "married" in the ACT, it would not be the same as a marriage under the Marriage Act and would therefore still be separate. It would have also created difficulties for those couples from a Family Law and Estate Planning point of view. In particular, divorce and property settlement could have become a much more complex and costly exercise for these couples. 

There would have been different definitions of "marriage" and separate laws and systems for divorce. As a family lawyer, I was concerned that the ACT system would have created unnecessary cost for separating couples,  confusion regarding the applicable law and may have resulted in substantial (and costly) litigation. It may have also created problems in the event of the death of either partner and what would happen to that person's estate, will and superannuation. 

The Greens have now proposed the Marriage Equality Amendment Bill into the Senate, which provides for amendment to the commonwealth Marriage Act to remove discrimination on the basis of sexuality and gender identity.

Amending the Marriage Act really is the best way forward for true marriage equality and for equal treatment under the Family Law Act.

If you are a same sex couple and want advice about your current circumstances, contact Farrar Gesini Dunn Family & Collaborative Law for advice.

High Court to deliver judgment on same sex marriage this week

Driving through Canberra on the weekend I saw a happy sight - multiple wedding parties posing for photos and celebrating their marriage. But the question remains, will their marriages be valid?

This coming Thursday, the High Court will deliver judgment on 2 key questions:

- is the ACT Marriage Equality (Same Sex) Act 2013 inconsistent with the Commonwealth Marriage Act and/or the Commonwealth Family Law Act? and 

- if the ACT Legislation is inconsistent, does that cause the ACT Legislation to be of no effect or void?

In total approximately 46 couples have registered to marry under the ACT Legislation. So what affect will the High Court ruling have on them? 

If the High Court finds that the ACT legislation is inconsistent, then the likely effect is that the marriages will be deemed invalid. From a Family Law point of view, the parties would then likely be treated as de facto couples (subject to meeting the criteria under the Family Law Act) if they ever separate. 

If however the High Court declares the legislation valid, although this will mean that same sex couples can be "married" in the ACT, it does create some difficulties for these couples from a Family Law and Estate Planning point of view. In particular, divorce and property settlement could become a much more complex and costly exercise for these couples.

More on this coming soon...

A quick guide to the High Court challenge to ACT same-sex marriage legislation

Today is the first day of the substantial hearing of the Commonwealth challenge to the ACT's Marriage Equality (Same Sex) Act 2013.

Essentially, the questions for the Court to determine are:

- is the ACT legislation inconsistent with the Commonwealth Marriage Act and/or the Commonwealth Family Law Act? and 

- if the ACT Legislation is inconsistent, does that cause the ACT Legislation to be of no effect or void?

Both the Commonwealth and the ACT have filed written submissions in this matter, as have "Australian Marriage Equality Inc" (see here).

Brief Summary of the arguments:

The case for the Commonwealth is that:

"It has always been within the power of the Commonwealth to exercise that power to legislate to declare a single and uniform rule for Australian society as to what constitutes a valid marriage."

 They argue that the Marriage Act:

"leaves no room for there to be any other laws in Australia which purport  to clothe a union with the legal status of marriage (or a form of marriage)"

On that basis, the Commonwealth seek a declaration that the ACT Marriage Act is of no effect. 


The ACT however submits that 
"It is not accepted that the Marriage Act coupled with the Family Law Act, provides a uniform set of rules for the holding of the status of marriage for the law of Australia."

and that:
"The Commonwealth fails to demonstrate that the ACT law destroys or  detracts from a right conferred by the Commonwealth Law."

For their part, Australian Marriage Equality Inc submits:

"The critical question in the present case is therefore whether the ACT Act is to be construed as an inconsistent attempt to regulate attainment of the status of marriage which is regulated by the Marriage Act. It is not. The ACT Act attributes a character or status to relevant same-sex couples, being a type of status which was never regulated (and is now expressly self-limited) by the Commonwealth in the Marriage Act."

 

For more information visit www.fgd.com.au

How to reduce your legal fees

Most lawyers charge primarily on a “time costing” basis.  This can mean that something as simple as calling your lawyer a few times when you forget to mention something in an earlier call can quickly increase your costs.

Here are some tips our firm, Farrar GesiniDunn Family & Collaborative Law, developed that may help you limit your fees and make your matter more cost effective:

• Rather than playing “telephone-tag” with your lawyer, ask their assistant to make a telephone appointment
• Prepare a list of questions to ask your lawyer before your meetings 
• Send  one  email  that  deals  with  a  number  of  issues rather  than  numerous  short  emails 
• Consider a  regular  telephone  appointment  once  a  week  with your solicitor  rather than multiple telephone calls during the week.
• If you only require minor changes to a proposed document, speak to the solicitor’s assistant instead of your solicitor.  
• When  documents  have  to  be  drafted,  provide  clear, concise  notes  on  the  topic  the  solicitor  has requested
• If documents from another source are required, discuss with your solicitor who will obtain the documents.  
• When providing documents to your solicitor try to bring in one bundle of documents rather than delivering one document at a time unless it is urgent.  
• If you provide your solicitor with a large bundle of documents, keep it mind that the more organised the documents are, the less time it will take (and less money it will cost) for your solicitor to review them 
•  Discuss  with  your  lawyer  the  option  of  copies  of  either  letters  being sent to you in bundles of three (if not urgent) 
• Ask your lawyer if they practice Collaborative Law, this process can be more cost effective than Court 
• Ask your lawyer if they offer fixed fees
  

At Farrar GesiniDunn Family & Collaborative Law, we invite our clients to choose how we charge. For Canberra Family Law matters, contact our Canberra office today. For all your Melbourne Family Law needs, contact our Melbourne office.

By Kasey Fox

Director

Farrar Gesini Dunn

I'm a Director!

I am very excited to announce that I have been appointed as a Director of FGD

Here is a link to the firm announcement:

http://www.fgd.com.au/blog/new-directors/ 

More details coming soon!

To file or not to file...

So often as lawyers, we contemplate whether to take the next step in a matter and file at Court. It might be that we think the other party is hiding documents, or being unreasonable in negotiations or trying to intimidate our client by being overly demanding and aggressive in their correspondence. But is going to Family Court really the answer?

Family law is a difficult area for all involved. Is adding fuel to that fire really going to solve the problems?

Sometimes people go to Court thinking that it will hold all the answers, and that they will be vindicated. But unfortunately the system often leaves people feeling as if they spent a lot of time and money on a process that leaves them feeling unheard. 

Don't get me wrong - I'm a lawyer, and I spend a lot of my time in Court. It is challenging and therefore one of the most interesting parts of my job. But as I do more work in Collaborative Law, I am increasingly finding that it provides a better process for my clients. 

When I was first trained in Collaborative Law a number of years ago, I remember thinking, 'This will be a good process for people who want to stay amicable.' I assumed that the majority of matters would still go to Court or be negotiated in the traditional sense, and a small percentage would choose Collaboration. However, as Collaborative Law has grown, particularly in Canberra, I've found that it isn't only suitable to those easy cases where parties want to stay amicable, in fact, it can be a godsend in matters where the parties don't trust each other at all. 

For example, if my client thinks the other side is hiding something, instead of waiting 12 months for a final hearing to get them in the witness box, I can ask the other party direct questions from our very first meeting. Asking a question in a roundtable conference is much more cost effective than exchanging a war of correspondence between solicitors and more likely to lead to truthful responses. 

Not only do the parties commit to the Collaborative process, but the lawyers do too. This means no more aggressive letters sent at 4.59pm demanding a response the following day and no threats of going to Court. Lawyers on opposing sides working together. Who would have thought?!

As Collaborative Law has grown in Canberra, so have the number of lawyers, and different firms who practice it. I am a member of Canberra Collaborative Family Lawyers who have members from 5 different local firms, and we are adding new members all the time. 

Our Firm Farrar Gesini Dunn also has an office in Melbourne, where Collaborative Law has a large number of lawyers who are committed to the process. 

I don't think we will ever be able to leave the Courts behind completely, they are a necessary part of the system. But maybe if the majority of matters are solved via Collaborative Law, this might take some of the pressure off the Court system, so only the matters that really need a Judge to make the decision go to Court.

Happy International Women's Day

Today is international women's day. But what does this actually mean for me: a single 30 year old woman living and working in Canberra Australia? 

To be honest, most years it means attending a breakfast or lunch seminar where we hear about some of the great achievements women have made in the past. I then go back to work and continue with my day. 

This year, I missed out on the lunch, but it still gives me time to reflect on where I am in life.

Growing up in Australia, and having parents who are very focused on equality for everyone, I am extremely lucky. I was brought up to believe I can achieve anything I set my mind to, no matter what my sex/race/religion etc. Today I work in a job I love, in a firm which has about 80% women (pretty good numbers for a law firm).

That said, as great as we have it here in Australia compared to elsewhere in the world, as I get older, I get more cynical about whether woman are actually equal with men, particularly on a professional level. 

I still see the "boys club" environment in business. Deals done on the golf course, salary surveys which show men earn more than women for the same amount of work, women losing huge amounts of super when they take maternity leave, woman subject to different dress codes, being talked down to by men who assume we know less about business because we are female, etc etc.

But what I also see, is a new way of thinking from both sexes. One of acknowledging similarities, but also embracing differences. 

What I also see, is rather than women being bitter about the differences, they are being clever and creative in coming up with their own strategies to improve their position.

For someone in my position, it is about working smarter, rather than fighting harder.

So happy International Women's Day to everyone: men and women alike. We may be different in a number of ways, but at the end of the day we just want the best for ourselves and our families. For some of us, we just get there in a different way.

Family Law Collaboration: the new solution for hard cases

From my article published in B2B Canberra in June 2012

Believe it or not, not all difficult divorces need to end up in Court. Collaboration is great alternative to resolve family law matters and keep parties out of Court.

In Collaboration each client is represented by his or her lawyer through a series of meetings and all information and advice is given openly in those round table meetings. This process helps to address any power imbalance between the parties, so that one party is not bullied into a settlement. It also allows the parties to structure more creative solutions which go beyond the scope of the Court. 

(visit this page for more info on the idea behind Collaborative Law: http://www.fgd.com.au/lemon.html )

What makes Collaboration unique from other methods of dispute resolution is the contract that is signed by each of the parties and their lawyers, committing not to go to Court. If the matter doesn’t settle, then the lawyers cannot represent the parties at Court. It means that instead of lawyers playing the traditional role of a litigator and being strategic in negotiations, their goal is to settle the dispute by agreement.

So far all of my Collaboration matters have been “hard” cases. Often separating couples have zero trust in the other and will take steps simply to push each other’s buttons. In some cases, in addition to the hostility, there has been a complicated property structure, including companies, self managed superannuation funds and investment properties.

Was reaching a settlement via Collaboration for these matters cheap? No. Was it easy? Definitely not. Did the parties improve their relationship by the end of the process? Sadly not in all cases. Was it better, cheaper, faster and more controlled than Court? Absolutely!

If the parties had chosen the Court process, they would have been faced with: the Court imposing timeframes on them, limited capacity of the Court to deal with urgent issues, the lawyers only able to question the other party directly at the end of the matter (in a hearing), being unable to raise matters considered irrelevant by the Court, the possibility of the Court ordering the sale of assets, possible delay in receiving a judgment and large expenditure on lawyers, barristers and experts. 

Overall, in these cases, the Collaborative process was by no means easy, but it gave the parties the power to control their own settlement rather than rolling the dice with the Court.

For more information about lawyers who practice Collaborative Family Law in Canberra, 

visit: https://www.facebook.com/CanberraCollaborativeFamilyLawyers 

or see Canberra Collaborative Family Lawyers  spread in B2B Canberra