PERSONAL SERVICES BRIEFLY         
April 1999 Issue No 1

Norman Waterhouse News

We are delighted to announce the recent appointments of Jill Miller (Associate) and Michael Prime (Senior Law Clerk) to our Personal Services Team.

Jill practices in the family law area while Michael has vast experience in wills and probate applications, having worked as the Assistant Registrar of Probates at the Supreme Court for the past 9 years.

Jill and Michael complement our Personal Services Team which is headed by partners Brendan Murray (family law and estate litigation) and Peter Fisher (wills and succession planning) together with Ali Kerr (Senior Law Clerk), who for the past 12 years has specialised in wills, powers of attorney and guardianship, succession planning, probate applications, estate administration and litigation.

Why Choose the Norman Waterhouse Personal Services Team?

Because:-

• our Personal Services Team is highly regarded in family law, preparation, succession planning and estate administration;
  

• we provide personal, empathetic and professional service;
  

• our reputation has been consolidated over many years, with many new clients being referred to us by existing clients;
  

• in litigation our practitioners look for early commercial resolutions rather than automatically following the legal process to trial, thus saving our clients time, effort and money; and
  

• we have the advantage of experienced in-house counsel who are committed to securing your commercial objectives.
  

Pre Nuptial Agreements - Proposed Amendments to the Family Law Act

On 19 February 1999, the Attorney General issued a press release which many family lawyers have been eagerly anticipating. It foreshadows the long awaited reforms to the property provisions of the Family Law Act and in particular, the recognition of pre nuptial agreements. Here is an excerpt from the press release:

"The Government will implement family law reforms to ensure greater certainty in property settlements and people will be able to make binding financial agreements about their property before marriage, during marriage and after separation.

Couples will have the freedom to choose to make whatever arrangements they like, and in most cases the Court will not be able to overturn these agreements.

If people are unable to agree about property on marriage breakdown, they will be able to use the services of arbitrators rather than seek a Court resolution of the dispute.

People will not have to endure the some times considerable delays in getting a Court hearing scheduled."

The press release specifically addresses pre and post nuptial agreements and makes the following comments:

"It is currently possible for financial agreements to be made but they are not binding. Under the changes, people will be able to make whatever agreements they like but they will require legal advice on the agreement. In the absence of such advice, the agreement will not be binding and the Court will be able to make orders about the property dealt with in the agreement."

Couples entering into marriage often enquire about pre nuptial agreements and are advised that whilst they are very useful in identifying and placing a value on the parties' assets at the time of the marriage, they are not binding.

These reforms will bring the rights of married couples in line with those of defacto couples who wish to enter into binding agreements as to how their property should be divided upon the breakdown of their relationship. As the law currently stands, defacto couples have the advantage of being able to enter into binding cohabitation agreements which are recognised under State Defacto Legislation. This is in contrast with the position of married couples given that the Family Court is currently not bound by the terms of such agreements.

These changes will be welcome. A discussion paper is expected shortly.

Relocation - Family Court Prevents Wife From Relocating to Scotland

The Full Court of the Family Court has affirmed a trial Judge's decision not to allow a mother to remove her four children from Victoria to Scotland. A significant factor which operated against the mother's case was the possible effect of the move on the youngest child's (aged 3.5 years) relationship with his father. The trial Judge also considered evidence of the importance of the role of fathers in the lives of young boys.

The unacceptable risk test which is often applied in sexual abuse cases was applied in this case and it was held that there was an unacceptable risk that the youngest child would suffer emotional injury if he were to be removed from his father at such a young age.

This case is interesting in that it is understood that the three older children were in favour of the move. The mother's financial position, stress and unhappiness at living in Australia were considered but were not significant enough to outweigh the perceived adverse effect of the overseas move on the youngest child's relationship with his father.

The overriding principle applied by the Family Court in determining this case was, as always, what was in the best interests of the children.

For further information and advice on this article, please contact Jill Miller, Associate on (61 8) 8210 1200 or via email: jmiller@normans.com.au

Year 2000 Readiness and Disclosure

By now your business or organisation should have Year 2000 compliance work well under way, or nearing completion. If not, then you should immediately:

• identify the extent to which your internal systems are exposed to such risks;
  

• identify which affected processes are crucial to you;
  

• identify the extent to which your key suppliers and clients are affected and what they are doing to resolve any problems;
  

• plan corrective action and make contingency plans;
  

• implement and test your plans.
  

There are a number of useful websites on the year 2000 problem, including: www.y2k.gov.au and www.y2kregister.com.au However, you may well need expert assistance.

The Federal Government has recently passed the "Year 2000 Information Disclosure Act 1999". This was intended to encourage disclosure of information about Year 2000 readiness and provides some limited protection to written statements about such readiness. However, the Act is subject to many exceptions, including (but not limited to) the following:

• it does not protect false or misleading statements;
  

• it does not protect statements made to induce people to buy goods or services;
  

• the Act does not protect against liability for defective goods or services.
  

The statement must also reference the Act, in the following way:

"This statement is a Year 2000 disclosure statement for the purposes of the Year 2000 Information Disclosure Act 1999. A person may be protected by that Act from liability for this statement in certain circumstances."

You should still be careful when commenting about your readiness for Year 2000 that you do not make false or misleading statements, as this may lead to legal liability if people rely on those statements.

For further information and advice on this article, please contact Robert Chalmers, Senior Associate on (61 8) 8210 1229 or via email: rchalmers@normans.com.au

We produce the following Briefly editions:

• Business Briefly
  
• Employment Briefly
  
• Local Government Briefly
  
• Environment Briefly
  
• Information Technology Briefly
  
• Personal Services Briefly
  

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The contents of this newsletter are for information only and should not be taken as advice on the law. This newsletter may be reproduced in whole or in part with the prior permission of Norman Waterhouse and acknowledgement of its source and copyright.