Important changes to Divorce Applications

On 10 June 2025, amendments were made to the Family Law Act 1975 (Cth).  Many of the changes have been directed to increasing the safety of children and families, particularly where family violence impacts that family, and to improve the efficiency of the Court system.

Prior to the amendments coming into effect, couples married for less than two years seeking to divorce were required to attend counselling and provide a certificate to the Court.  This requirement has been removed.  Accordingly, you are now able to apply for a divorce once you have been separated for at least 12 months, without the need to attend counselling regardless of the length of your marriage. 

Another change includes the need for attendance at a divorce hearing.  Prior to 10 June 2025, a sole applicant to a divorce application was required to appear at a divorce hearing where the parties had children under the age of 18 years.  With recent changes to the legislation, a sole applicant is no longer required to appear at the divorce hearing as long as the respondent does not request to attend the hearing.

The Court filing fees for a divorce – whether a sole or joint application – are now uniform.  As at 1 July 2025, for an application for divorce, the filing fee is now $1,125.  Where you are eligible for a reduced fee (i.e. if you can demonstrate financial hardship or hold certain Government concession cards), the filing fee will be $375.

Importantly, the following has not changed with respect to divorce proceedings:

1. Australia has a ‘no fault’ divorce system.  This means you can apply for a divorce as long as at least one of you is of the view that your marriage has irretrievably broken down.  You must state that there is no reasonable chance that you and your former spouse will reconcile. 

2. You do not require mutual consent to separate.  Separation occurs if you have communicated to your former spouse that you regard the relationship as over and you do not wish to reconcile.

3. You can be separated under the one roof, or where you are living separately.  Where you have been separated under the one roof, you will need to provide the Court with further information to establish the ‘change’ to your relationship by way of affidavits in support of your divorce application. This includes information about changes to sleeping arrangements and routines, division of finances, care of children, outward appearance to social circles etc.
   If filing for a joint application, both parties to the marriage will need to file an affidavit. If filing for a sole application, the party making the application will need to ask someone to file an affidavit in support of their application in addition to their own affidavit. Your support person will need to provide as much information as they can about the separation including any direct observations about you and your partner living separate lives and any conversations that you have had about your separation. It is important they provide this evidence independently of you and your partner.

4. An application for divorce is separate to your property settlement.  You can commence the property settlement process prior to making an application for divorce.  Once your divorce has been granted, you have 12 months to commence proceedings in relation to financial matters or lodge an application for consent orders.

5. You can make arrangements for any children prior to any application for divorce.  Again, this is separate to an application for divorce.  If you have children under 18, you will be required to detail any arrangements for them in your divorce application.

If you are considering applying for a divorce or if you have recently separated, you should consider seeking independent legal advice from a family lawyer.  Our lawyers here at Robinson + McGuinness Family Law can provide you with tailored advice about divorce, parenting arrangements and property settlements. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

Supporting Victims and Survivors of Family Violence after Separation: Property Settlements and Spousal Maintenance

The Family Court’s approach to acknowledging family violence in property settlements and spousal maintenance claims under the Family Law Act 1975 has changed as of 10 June 2025.

Why the change?

There is increasing recognition of the prevalence of family violence within the community and the risks posed to parties going through separation.

Changes to the Family Law Act 1975 were made to help address the economic consequences that victims and survivors of family violence experience during and following separation.

These changes are intended to provide the Family Court with broader discretion to consider the economic impact of family violence to ensure settlement outcomes are just and equitable and that parties are provided with proper financial maintenance following separation.

Key changes

1] The definition of Family Violence under section 4AB of the Act has been amended to encapsulate a broader range of economic and financial abuse.

This has been done by repealing the existing references to economic and financial abuse and placing examples of economic and financial abuse into their own separate provision.  Examples of behaviour that may constitute economic and financial abuse include:

1. unreasonably denying a family member the financial autonomy that the family member would otherwise have had, such as by;

   a] forcibly controlling the family member's money or assets, including superannuation; or

   b] sabotaging the family member's employment or income, or potential employment or income; or

   c] forcing the family member to take on a financial or legal liability, or status; or

   d] forcibly or without the family member's knowledge, accumulating debt in the family member's name;

2. unreasonably withholding financial support needed to meet the reasonable living expenses of a family member, or a family member's child;

3. coercing a family member (including by use of threats, physical abuse or emotional or psychological abuse):
   a] to give or seek money, assets or other items as dowry; or

   b] to do or agree to things in connection with a practice of dowry;

4. hiding or falsely denying things done or agreed to by a family member, including hiding or falsely denying the receipt of money, assets or other items, in connection with a practice of dowry.

2] Family violence is a factor that may be considered in spousal maintenance claims under section 75(2).

The effect of any family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned in section 75(2) (such as the health of a party) must now be considered by the Family Court when considering spousal maintenance claims.

This amendment recognises that family violence may impact a party’s need for spousal maintenance. For example, a party may not be able to leave the family home because they cannot afford the expense of alternative accommodation or because they have been restrained from having their own bank account or access to their own funds.

This amendment is intended to ensure parties are provided with sufficient maintenance at the end of a relationship, and it is not intended to be punitive or compensatory.

3] Family violence is also a relevant consideration under the property settlement framework under section 79.

Family violence can be considered by the Family Court when assessing parties’ contributions to the relationship, as well as any future needs of the parties, when determining a property settlement.

This acknowledges that family violence may have impacted a party’s ability to contribute to the relationship and also their future circumstances. For example, one party may have prevented the other from engaging in employment during the relationship, thereby limiting their financial contributions. This act of family violence, in turn, may impact a party’s ability to gain meaningful employment in the future.

If you would like confidential and specialist advice about your particular circumstances, contact us today to arrange an appointment by email at info@rmfamilylaw.com.au or call 02 6225 7040 or get started now online.

When should I update my will?

A will should be regularly reviewed and updated to ensure it reflects your current circumstances. Outdated wills can create confusion, result in unintended outcomes, and in some cases, lead to conflict between family members. It is recommended to update your will in the following circumstances:  

1. Marriage – A will is automatically revoked upon marriage, unless the will was made in contemplation of marriage. After your marriage, it is important to prepare a new will to ensure your estate is still distributed in accordance with your wishes.

2. De facto relationships – De facto relationships may give rise to an expectation that you look after your partner in your will, depending on how long you have been together and the circumstances of your relationship. If you have been married before or have a blended family, you should make sure your wishes are clearly reflected in your will.

3. Separation – Separation alone does not invalidate your will; however, a divorce will revoke any gift to your former spouse or appointment as an executor, trustee or guardian. If you pass away while separated but not divorced, your former spouse may still inherit from your estate or be entitled to superannuation.

4. Starting a family – You may wish to update your estate plan to ensure your children are provided for and to appoint a guardian in the event you and your partner pass away. This can help make your intentions clear in the event of a dispute between families; however, the appointment of a guardian is not binding.

5. Disposal and acquisition of assets – If you make a specific gift of property in your will but sell the asset before you pass away, you should update your will to ensure this is reflected in your estate plan. You cannot gift assets that you do not own and an outdated will may cause confusion and conflict between your loved ones. It is also important to update your will if your financial circumstances change significantly. 

If you’re unsure whether it’s time for an update, speaking with an estate planning lawyer can help clarify your next steps. If you would like to update a Will or prepare a Will, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers. We offer fixed fees for simple* estate planning.

Before undertaking any work, we will discuss your instructions and confirm whether your Will is able to be prepared for a fixed fee.

Addbacks in Property Settlements: Shinohara v Shinohara [2025] FedCFamC1A 126

The Full Court of the Federal Circuit and Family Court of Australia recently confirmed in Shinohara v Shinohara [2025] FedCFamC1A 126 that 'addbacks' are to no longer form part of the balance sheet in property proceedings. This results from the Family Law Amendment Act 2024, which came into effect in June 2025.

Previously, Courts could notionally “add back” assets that no longer existed at the time of a hearing, for example, money that has been wasted or spent by one party on legal fees. Even though the asset no longer existed, its value could still be included in the asset pool for division.

The Court has now confirmed that only existing property at the time of trial is to be included in the balance sheet for division. Williams, Altobelli and Campton JJ state at [121] “The text of s 79(3)(a)(i) is clear. Only the existing property of the parties is to be identified, and only that existing property is to be divided or adjusted.”

Notwithstanding the above, the principles underpinning the existence of addbacks have not been disregarded entirely. Williams, Altobelli and Campton JJ continue at [125]: “s79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage.”

The Full Court further noted: “The holistic approach in assessing and determining contributions and adjustments thereto…remains applicable. Each of the considerations, by either s 79(4) or s 79(5), requires engagement with the circumstances of the disposal of property, the value it achieved, and its use and application being considered and weighed to achieve the mandate of justice and equity that permeates s 79 of the Act” [126].

The conclusion reached by the Court in Shinohara suggests the approach taken to the disposal of assets in property proceedings will need to change. Parties can no longer rely on assets being notionally added back to the property pool and will instead need to seek that these matters form part of the Court’s holistic assessment of the parties’ current and future circumstances.

You may wish to seek specialist family law advice about your circumstances, particularly if you are concerned your ex-partner is reducing your combined property pool. If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Costs Orders in Estate Litigation – What happens once an Order has been made?

When a Court makes a costs Order, it typically means that one party (usually the unsuccessful party) must pay some or all of the legal costs of the other. However, in most situations, the Order for costs doesn’t set out the amount to be paid, or when it has to be paid.

This post explains what happens after a costs Order is made in estate litigation in NSW or the ACT, and how parties can move from the Court’s decision to actual payment or enforcement of legal costs.

What Does a Costs Order Mean?

A costs Order generally sets out who must pay legal costs, but not how much. Common forms of orders include:

• “Costs as agreed or assessed” – The parties should attempt to agree on an amount; if not, the costs must be formally assessed.

• “Costs on the indemnity basis” – Requires the paying party to cover nearly all legal costs of the other, including some that might not be strictly necessary.

• “Costs in the cause” or “Costs reserved” – These orders defer responsibility until a later stage or depend on the case’s outcome.

Both in NSW and the ACT, the actual amount payable must be worked out through negotiation or, failing that, costs assessment (NSW) or taxation of costs (ACT).

First Step: Try to Reach an Agreement

Before entering formal processes, the parties usually try to negotiate a cost figure. This often involves:

• Exchanging invoices or itemised bills of costs;

• Informal discussions between legal representatives; and

• Offers to settle for a reduced or rounded amount.

If parties agree, payment can be made directly—there’s no need for court involvement or further paperwork or costs associated with any assessment, or delay.

There is no Agreement - Formal Assessment or Taxation of Costs

In NSW, if parties can’t agree on costs, the party entitled to payment can apply for a costs assessment under the Legal Profession Uniform Law (NSW) and associated rules.  Any application must be made within 12 months of a costs order being made.

This is an administrative, not judicial, process managed by the Supreme Court’s Costs Assessment Scheme. An independent Costs Assessor will review the bill and determine what is fair and reasonable.

In the ACT, the equivalent process is referred to as taxation of costs, as outlined in the Court Procedures Rules 2006 (ACT).  An application for taxation of costs must be made within 3 months of a costs order being made.

In the ACT, costs are assessed (or “taxed”) by a Registrar of the Supreme Court, who examines the bill, hears objections, and determines what is payable.

In both jurisdictions:

• The process begins with a bill of costs served on the other party.

• That party may respond with objections, and

• The assessor (NSW) or registrar (ACT) decides.

What Happens After Costs Are Assessed or Taxed?

Once the amount is determined, the matter can go one of two ways.

In the event payment is made, the matter finalises. The paying party should pay the amount promptly, as interest may accrue on unpaid costs from the date of the original court order.

In the event that no payment is made, the party owed costs may commence enforcement action. The following is important to keep in mind:

In NSW, the party who is owed costs:

1. Must register the certificate of determination as a judgment of the Supreme Court under the Uniform Civil Procedure Rules 2005 (NSW); and

2. Thereafter, it can be enforced like any other judgment through garnishee orders, writs, or bankruptcy/insolvency.

In the ACT, the party who is owed costs:

1. Must apply for a certificate of taxed costs; and

2. Thereafter, file the certificate in the Supreme Court and enforce it as a judgment debt under the Court Procedures Rules 2006 (ACT).

Important considerations

If you have been ordered to pay costs, you should act proactively and seek an itemised bill from the other party, if you haven’t already received one.  In the absence of a costs assessment/taxation, it is open to the parties to reach an agreement as to the amount that should be paid.  If an agreement can be reached, payment should be made promptly to avoid interest and enforcement costs.

If you are entitled to costs, you must serve a bill of costs promptly and keep detailed records of your fees and disbursements paid.  Don’t delay the filing of an enforcement application in the event you’ve not received payment.

A costs order is just the first step. Whether you’re paying or recovering legal costs, understanding the correct procedures in NSW or the ACT is essential to avoid unnecessary delay, expense, or enforcement proceedings.

If you’re unsure how to proceed—whether you need to assess, negotiate, or enforce—it’s important to seek legal advice to understand how to best proceed.  Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Guiding you through Family Court proceedings – Dispute Resolution

If your matter is already in Court, you may be wondering what happens next. Whilst you may be aware of the initial steps, the procedural pathway isn’t always clear to parties involved in Court proceedings.

The first time that your matter comes before the Court is usually the first return (see our blog post about the first return here if you have not already). If there are issues in dispute which require immediate determination, it may be necessary for your matter to be listed for an interim hearing (see also here for our blog post about the interim hearing).

After your matter has been listed for a first return and/or interim hearing, the next time your matter comes before the Court will likely be for a further directions hearing where a Judicial Registrar is likely to make orders about the future progression of your matter. This can occur at a further directions hearing; orders can be made at the conclusion of an Interim Hearing; or judicial officers will often grant leave to parties to provide consent orders for the Court’s consideration if the parties reach agreement about procedural matters (on an interim or final basis about any issues in dispute).

After any necessary interim hearing and prior to your matter being listed for a final hearing, it is likely that a judicial officer (such as a Judicial Registrar, a Senior Judicial Registrar or a Judge) will require parties in a matter to participate in dispute resolution. Dispute resolution can include a mediation, a family dispute resolution conference or a conciliation conference. The dispute resolution process can be Court-based or external, such as a private provider or through Legal Aid.

In a property matter where both parties have funds and financial resources available to them, parties may choose to participate in a private mediation whereby they select their preferred mediator. Orders providing for the parties to participate in a private mediation can usually be reached by agreement.  If there is disagreement about the proposed mediator and/or payment of the mediator’s fees, a Judicial Registrar can make orders to determine these issues.

Alternatively, the Court can make orders providing for the parties to participate in a Court-based dispute resolution process, on the basis the Court is satisfied that this is appropriate, having regard to the means and resources available to the parties.

In a property matter, parties may be ordered to participate in a Conciliation Conference with a judicial registrar. A significant benefit to participating in this dispute resolution process is that if you reach a final agreement on the day, orders can be made to finalise your matter, and you can exit the Court system.

Parties are expected to engage in good-faith negotiations and make a genuine effort to resolve issues in dispute. At the conclusion of the dispute resolution process, a dispute resolution certificate is issued by the judicial registrar. If the Court finds that a party has not participated in good faith and/or has not made a genuine effort to resolve the issues in dispute, there can be cost consequences as a result of a party’s actions.

Prior to participating in a dispute resolution event, parties are expected to exchange relevant financial disclosures and, for property matters, obtain updated valuations if necessary. In a parenting matter, it can often be useful to participate in dispute resolution following the release of an expert report, such as a Child Impact Report or a Family Report.

If you are at the stage of your matter where you are considering participating in a dispute resolution process, it is worthwhile to engage a family lawyer to advise and guide you. A family lawyer will be able to identify any steps that need to be taken before participating in a dispute resolution process, and provide you with guidance as to possible settlement outcomes. They can also make sure you have the best possible chance of success in a dispute resolution process.

Our specialist family lawyers here at Robinson + McGuinness can assist you at any stage of your matter, including at the dispute resolution process.  To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

What Is an Informal Will?

A properly drafted and executed Will ensures that a deceased individual’s assets are distributed according to their wishes after they pass away. But what happens if someone leaves a note, a voice memo, or even a text message outlining their intentions—these documents may not meet the formal legal requirements and may be considered an informal Will.

What Is an Informal Will?

An informal Will is a document or recording that expresses a person’s wishes about the distribution of their estate after death, but doesn’t meet the formal requirements set out in the Wills Act 1968 (ACT).

To be considered a formal Will in the ACT, a document must:

• Be in writing;

• Be signed by the testator (the person making the Will); and

• Be witnessed by two people present at the same time.

If any of these elements are missing, the document may still be admitted as a valid Will—but only if the Supreme Court of the ACT is satisfied that the deceased intended it to be their Will.

Examples of Informal Wills

Informal Wills may include:

• Unsigned or unwitnessed handwritten documents;

• Typed documents on a computer or phone;

• Video or audio recordings;

• Text messages or emails; and

• Letters expressing testamentary wishes.

Legal Basis in the ACT

Section 11A of the Wills Act 1968 (ACT) gives the ACT Supreme Court what’s known as a dispensing power. This allows the Court to accept a document that doesn’t meet the formal requirements if it is satisfied that:

1. The deceased person intended the document to be their Will, an alteration to their Will, or a revocation of a previous Will; and

2. There is enough evidence of that intention, even if the document is not signed or witnessed.

This is not straightforward.  The Court will need to be persuaded by detailed evidence of the above; such evidence may include oral/written evidence from family members or others close to the deceased about the testator’s expressed intentions; handwriting experts to compare the deceased's handwriting to that contained in the informal Will (if its hand written); and medical information for the deceased to establish capacity.

Why Informal Wills Are Risky

While the law offers some flexibility, informal Wills carry significant risks, including:

• There is no guarantee of validity: The Court may ultimately reject the document.  If this occurs, the laws of intestacy apply.

• There will be increased legal costs: Court proceedings to prove an informal Will are expensive and time-consuming; the estate usually bears such costs.

• Family conflict may arise: Ambiguities in an informal Will often lead to disputes among relatives.

• Delays in administration: Court proceedings are time-consuming; seeking assistance from the Court in relation to whether an informal Will is valid can delay probate and estate distribution significantly.

How to Avoid Informal Wills

To ensure your estate is distributed in accordance with your wishes, and in a timely and cost-effective manner, you must execute a well-drafted Will in accordance with the requirements set out in the Wills Act 1968 (ACT) (or the relevant legislation in your state or territory).

Seeking the assistance of an experienced estate planning lawyer can assist you in ensuring that you record your intentions correctly and avoid any difficulties in having the Court accept your Will as your valid testamentary intention.

You should also regularly review your estate planning documents to ensure they accurately reflect your intentions.  If you have a thought to change your Will, seek the advice of your estate planning lawyer, rather than simply noting down the changes that you want to make; such action may just be the difference between a valid and an informal will.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

What do I need to disclose? Changes to the duty of financial disclosure under the Family Law Act 1975

During family law negotiations and proceedings, all parties have an ongoing obligation to provide full and frank financial disclosure.

From 10 June 2025, the importance of the duty of financial disclosure has been elevated. The Family Law Amendment Act 2024 has codified the duty of disclosure by inserting new disclosure provisions in the Family Law Act 1975.  This new framework provides parties and practitioners with clarity about the scope of the duty and the consequences of failing to comply with the duty.

The duty of disclosure is now part of the Family Law Act 1975 under sections 71B (in the case of marriages) and 90RI (in the case of de facto relationships). The new sections confirm the following:

1. Parties have a duty to both the court and each other to provide ongoing full and frank disclosure on time;
   If you receive a reasonable request for financial disclosure from the other party, it should be answered in a reasonable timeframe. You are also entitled to ask for the equivalent disclosure of the other party, so long as it is in their possession or control.

2. The duty applies for the duration of the proceedings.
   This includes from when negotiations commence until final orders or a financial agreement are made.

3. The Court has the power to impose consequences on a party if they do not comply with its duty of disclosure.
   The Court may:

   1. Take the failure into account when making an order for the alteration of property interests under section 79;

   2. Make any orders concerning disclosure that the court considers appropriate;

   3. Make an order for costs that the court considers just;

   4. Impose sanctions;

   5. Punish a party for contempt; or

   6. Stay or dismiss all or part of the proceedings.

4. The duty extends to information known to the party and documents that have been in their possession or control, as well as information and documents prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

   This includes information and documents relating to a party’s income and any of their financial resources, assets, liabilities and superannuation. Some documents that are often requested or exchanged are bank statements, tax returns, superannuation statements, share statements and online car valuations.

5. There is now a higher standard expected of legal practitioners when advising clients about their duty of disclosure.

   Legal practitioners must provide their clients with information about their duty of disclosure and the consequences of non-compliance with their duty of disclosure. Legal practitioners must also encourage clients to take all necessary steps to comply with their duty of disclosure.

If you are unsure about your legal obligations in relation to the provision of financial disclosure, you should seek legal advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Did getting a divorce just get simpler?

There have been some recent amendments made to the Family Law Act 1975 which affect the process for getting a divorce and arguably may make what is likely a hard process, a little easier.

Do you need marriage counselling?

Prior to 10 June 2025, parties who had been married for less than two years could not apply for a divorce without first attempting marriage counselling and obtaining a counselling certificate. The purpose behind this requirement was to encourage parties who have only recently married to work on their relationship and reconsider whether it was time for the marriage to come to an end, a somewhat optimistic inclusion in the Family Law Act. Despite the optimism, most of the time, when you know, you know and there may be little to no utility in marriage counselling.

From 10 June 2025, the Court no longer requires parties who have been married for less than two years to attend marriage counselling. Now, regardless of the length of the marriage, a party to a marriage may apply for a divorce without needing to go to marriage counselling, provided they have been separated for 12 months and one day.

Divorce hearings

Previously, the requirement to attend a divorce hearing depended on the circumstances of the parties/party seeking a divorce. Most of the time, parties did not have to attend a divorce hearing, including:

1. If parties were filing a joint Application for Divorce; or

2. If a party was filing a sole Application for Divorce and there were no children under 18.

However, if a party filed a sole Application for Divorce and there were children under 18, the Applicant would be required to attend the Divorce Hearing before a Registrar of the Court and speak to their Application for Divorce, including whether appropriate arrangements had been made for any children of the relationship.

From 10 June 2025, parties are generally no longer required to attend a Divorce Hearing, regardless of whether there are children under the age of 18 or the Application was made by one party alone. There are exceptions to this, including that the Court may require parties to attend a Divorce Hearing if it is not satisfied that there are appropriate arrangements in place for the care of the children or if one or both of the parties have requested to attend the Divorce Hearing.

Important things to remember about divorce:

1. A party to a marriage cannot apply for a divorce until 12 months and one day after the date of separation. This means that if you separated on 3 April 2025, you are not eligible to apply for a divorce until 4 April 2026;

2. Divorce is separate to your property settlement. Divorce is simply the process of becoming un-married. It does not deal with the division of your property pool or the care arrangements for your children. Divorce does however trigger a 12 month time limit within which parties have to make an application to the Court to formalise their property settlement. This means that if your divorce order became final on 7 July 2025, you have until 8 July 2026 to make an application to the Court seeking orders in relation to property matters.
   Applications in relation to the care arrangements for children under 18 years of age can be made at any time after separation (including any time after divorce). 

3. You do not have to do it alone. If you are considering a divorce and would like some advice, please get in touch with us.

Death of a parent – what happens to a child’s care arrangement?

The death of a parent is an incredibly difficult time for any child and their extended family. While navigating such loss, there are significant legal and practical decisions to be made about what a child’s ongoing care arrangements look like.

When a Parenting Order Is in Place: Section 65K of the Family Law Act 1975

If a parenting order was in place at the time of a parent’s death, the arrangements outlined in that order do not automatically transfer to the surviving parent. Instead, section 65K of the Family Law Act 1975 applies.

Section 65K provides that

• The surviving parent cannot require the child to live with him or her; and

• The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.

This means the existing order becomes ineffective insofar as it relates to the deceased parent. The surviving parent does not automatically assume sole care or decision-making responsibility for the child. In some cases, it may be necessary for the Court reassess the child’s living arrangements to determine what arrangements operate in the child’s best interests.

It is not only open to the surviving parent to seek further orders about the child’s care arrangements. Any individual with a significant connection to the child, such as a grandparent or close family member, can also seek Orders from the Court concerning the child’s ongoing care arrangements.

What if there is no Parenting Order?

Not all parents (including separated parents) have parenting orders for their children (i.e. separated parents who are amicable, parents in an intact relationship, single parents etc). If no parenting order exists at the time of the parent’s death, the situation is more open than that described above. In many cases, if there is a surviving parent, then that parent will assume care of the child. However, this is not always the case.

Under section 65C of the Family Law Act 1975, the following individuals may apply for parenting orders:

• The child’s parents (and in this case the surviving parent);

• Grandparents; and

• Any other person concerned with the care, welfare, or development of the child. This could include step-parents, close relatives, or family friends.

What will the Court consider?

In either of the above situations, the paramount consideration of the Court will be the child’s best interests. In assessing a child’s best interests, the Court is required to consider the matters set out in section 60CC of the Family Law Act 1975, namely:

1. What arrangements promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
   (i) the child; and

   (ii) each person who has care of the child.

2. any views expressed by the child;

3. the developmental, psychological, emotional and cultural needs of the child;

4. the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

5. the benefit to the child of being able to have a relationship with the child's parents (and in these cases the surviving parent), and other people who are significant to the child, where it is safe to do so; and

6. any other matters that are relevant to the particular circumstances of the child.

Appointing a Guardian in a Will

Parents can nominate a guardian for their child in their Will. While this nomination is not legally binding, it is an important factor that the Court will consider. The Court may give considerable weight to the deceased parent’s wishes, particularly if the nominated guardian has an established relationship with the child.

Robinson + McGuinness can assist you in preparing your Will, including provision for the care of minor children in the event of your death.

Seeking Legal Advice

Care arrangements after the death of a parent are legally complex and can be highly emotional. Whether or not a parenting order already exists, it is important that decisions are made promptly concerning a child’s care arrangements and that they are in the child’s best interests. Regardless of whether you are the surviving parent or another person who has an established relationship with the child and who is concerned for the care, welfare and development of the child, you must obtain prompt legal advice.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

The Courts’ new approach to Property Settlements and Spousal Maintenance

The process for determining property settlements and spousal maintenance has changed as of 10 June 2025. This is a result of amendments made to the Family Law Act 1975 by the Family Law Amendment Act 2024.

Spousal Maintenance

The court now has greater flexibility and discretion in determining whether a party is eligible for spousal maintenance under sections 75(2) (or section 90SF(2) in the case of de facto relationships).

The court must now refer to a non-exhaustive list of matters when considering spousal maintenance, including new subsections (aa), (c) and (r).

• (aa) The effect of any family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned elsewhere in this subsection.

  Subsection (aa) allows the court to consider the impact of family violence when determining whether to make provision for the maintenance of parties to a relationship. The intention behind subsection (aa) is not punitive or compensatory but to consider the financial and economic impact family violence has had on a party to a relationship. Examples include where one party was prevented from accessing funds or having their own bank account.

• (c) The extent to which either party has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child.

  Subsection (c) allows the court to consider the housing needs of a child of the relationship and acknowledges the importance of children having stable housing which is often a key issue that arises during separation.

• (r) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

  Subsection (r) has given the court even more flexibility and discretion in determining whether a party should receive maintenance.

Property Framework

The court’s four step approach to property settlements under common law, known as the “Standford pathway”, has now been codified under the new sections 79(3) and 90SM(3).

This change was intended to make it easier for self-represented parties to navigate the process. It is intended that self-represented parties will now more easily be able to understand the Court’s approach to making and deciding what orders altering the property interests of parties are appropriate.

The four steps the Court must take are now codified under sections 79(2) and (3) and section 90SM(2) and (3) and are explained below.

1. Firstly, the Court must identify the existing legal and equitable rights and interests in any property of the parties to the marriage and any existing liabilities

2. Secondly, the Court must take into account the considerations relating to parties’ contributions under section 79(4).

3. Thirdly, the Court must take into account the considerations relating to the parties’ current and future circumstances under subsection 79(5).

Section 79(5)/90SM(5) replaces the reference to subsection 75(2)/90SF(2), which often confused self-represented parties as it referred to spousal maintenance but was also considered during the property process.

Section 79(5)/90SM(5) also contains different considerations than those under sections 75(2)/90S (2) including:

• (a) The effect of family violence

  This means that the Court can consider how exposure to family violence has impacted on the ability of a party to make contributions to the relationship whether that be financial, non-financial, parenting or homemaking. This change is intended to codify the case law established in Kennon v Kennon [1997] FamCA 27.

• (d) The effect of wastage

  This inclusion was intended to limit parties’ abilities to make trivial claims of wastage and references wastage “caused intentionally or recklessly”.

  Examples of wastage may include gambling, allowing a third party to have access to an asset or resource for free i.e. living at a property that could be producing rental income or damaging the reputation of a business, thereby reducing profits.

• (e) Liabilities

  It is intended this amendment will protect vulnerable parties who may have a liability in their name but who have not had the benefit of the liability or full awareness of a liability they have taken on (i.e. a gambling debt or tax debt).

Finally, the Court must decide whether it is just and equitable to make the Order, notwithstanding consideration taken in Steps 1 to 3.

If you or someone you know has separated and is negotiating a property settlement, our specialist family lawyers at Robinson + McGuinness can provide specialist advice about the new reforms. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

Guiding you through Family Court proceedings: the Interim Hearing

If you are involved in or looking to commence Court proceedings, you may want to know more about the process and what each Court event entails.  If you are looking for more information about the first Court event, click here to read our blog about the first return.

Today, we will be focusing on the ‘interim hearing’.

Not all parties in litigation will proceed to an interim hearing.  If you have commenced proceedings and are seeking ‘interim’ orders, it is likely that your matter will be listed for an interim hearing if you and the other party cannot reach an agreement.

What happens at an interim hearing?

Usually, an interim hearing is listed before a Senior Judicial Registrar, or in certain circumstances, before a Judge.  The purpose of an interim hearing is for the Court to determine any issues that need to be determined prior to a final hearing.   

For example, suppose you and your former spouse cannot agree about whether your jointly owned property should be sold, and one of you is living in the property but defaulting on loan repayments. In that case, there may be an argument about what happens with that joint property.

Interim hearings can also be directed to determine whether one party requires financial support (in the form of spousal maintenance) or to restrain one or both parties from selling joint assets.

In parenting matters, interim hearings can be directed to resolving disputes about temporary care arrangements, arguments about various testing (such as alcohol or drug testing of a parent) or whether it is necessary to obtain further evidence (for example, in the form of a family report). 

Depending on the urgency and complexity of the matter, your matter will often be listed alongside some other matters.  The judicial officer will conduct a ‘call over’ of sorts, to see whether any matters are likely to resolve and consider the priority in which each matter should be heard.

Usually, the judicial officer will ask the parties whether there is any scope for resolution.  At this juncture, parties may negotiate to see if any agreement can be reached.  Sometimes, a judicial officer will give a preliminary opinion about the issue in dispute, which can assist parties in resolving.

If you cannot reach an agreement about all or some of the issues in dispute, your matter will then proceed, or be given a ‘marking’ (or a time at which it will be heard later that day).

What happens in the lead-up to an interim hearing?

At the first return, it is likely that the Court will make directions for you and your former spouse to file any necessary Court documents to prepare the matter for an interim hearing.  This may include updated consolidated affidavits; orders to obtain further evidence (such as material from the police and/or child protection agencies); and an outline of the case document.

You should expect there to be negotiation in the lead up to the interim hearing, to see if you and your former spouse can resolve the issues in dispute (or narrow them).

How long does a decision take?

It depends on the complexity of the issues in dispute.  Sometimes an interim decision is made on the same day; sometimes the judicial officer requires more time to consider the issues in dispute.  More complex matters can take time. Often, judgment will be reserved and handed down on a later date, with written reasons given.

Our specialist family lawyers here at Robinson + McGuinness can guide and support you through your Court proceedings, from start to finish. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

An overview of upcoming changes to the Family Law Act 1975: Property, Spousal Maintenance, Companion Animals, Family Violence and Disclosure

Changes made by the Family Law Amendment Act 2024 to the Family Law Act 1975 came into effect on 10 June 2025. These include changes to how the Court considers companion animals, family violence, disclosure and the process for determining property settlements and spousal maintenance.

This article provides a summary of important things to know about these changes and their potential impacts:

• Spousal Maintenance

Under the current framework, the court will have greater flexibility and discretion in determining whether a party is eligible for spousal maintenance under sections 75(2) and section 90SF(2).

The Court has previously referred to an exhaustive list of matters when considering spousal maintenance. This list will be updated to a non-exhaustive list, including two additional factors. These are family violence and housing needs of any children of a relationship under the age of 18.

• Property Framework

The current approach the Court uses to determine property settlements will be specifically referenced under the new sections 79(3) and 90SM(3) making it easier for self-represented parties to navigate the process.

Sections 79 and section 90SM empower the Court to make orders altering the property interests of parties as it considers appropriate.

Under the previous framework, when considering what orders should be made, the court was required to take into account factors listed under section 79(4) or section 90SM, which included the matters referred to in subsections 75(2) or 90SF(2) relating to spousal maintenance.

Under the 10 June 2025 amendments, many of the considerations under section 79(4)/90SM(4) will remain, but the new section 79(5)/90SM(5) will be the court’s new reference point for assessing the current and future needs of the parties. This is intended to replace the reference to subsection 75(2)/90SF(2) which often causes confusion to self-represented parties as it refers to spousal maintenance but is also considered during the property process.

Section 79(5)/90SM(5) contains different considerations than those under sections 75(2)/90S (2). Sections 79(5) and 90SM(5) will include reference to family violence, wastage, liabilities and housing needs of any children of the relationship under the age of 18. This means that the Court can consider family violence in their contributions assessment including how exposure to family violence has impacted on the ability of a party to make contributions to the relationship.

• Companion Animals – sections 79 and 90SM

Pets were previously treated as property under the Act. However, from 10 June 2025, family pets or companion animals are now considered under their own individual framework contained in sections 79(6) and 90SM(6).

The animal in question will need to meet the definition of a companion animal under section 4(1). The court will then be able to make orders about any pets taking into account the factors under section 79(7) or 90SM(7).

• Family Violence – Section 4AB

The definition of Family Violence within section 4AB of the Act has been amended to encapsulate a broader range of economic and financial abuse. This has been done by repealing the existing references to economic and financial abuse and placing them into a single detailed provision (subsection 2A) which provides a non-exhaustive list of examples of economic and financial abuse.

• Disclosure – Section 71B

The duty of disclosure contained under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 has been incorporated into the Act under section 71B. This amendment is intended to confirm the importance of the duty of disclosure. These sections will oblige practitioners to advise clients about their duty of disclosure and encourage compliance.

Should you wish to know more about the 10 June 2025 changes, keep an eye out for further articles to come from us or book an appointment with our specialist team online or via phone on 02 6225 7040.

To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

Who gets to keep the family pet in a property settlement?

Family pets that meet the definition of a companion animal will be considered a separate form of property under the framework of the Family Law Act 1975 (“the Act”) from 10 June 2025. While companion animals will still be regarded as a form of property, this change implemented by the Family Law Amendment Act 2024 aims to recognise the unique qualities of pets as property by elevating their status to reflect the emotional attachment that many owners have with their pets.

A family pet is considered by many to be synonymous with a child, and parties to family law disputes will often seek that their family pet be subject to care arrangements similar to those of children. However, this only works if parties are amicable and is not something that the court will make orders about. The new amendments confirm that it is not open for the court to make orders for shared care of a companion animal.

Relevant Legislation

The process for determining who keeps the family pet from 10 June 2025 will be as follows:

1.    An animal or pet must first meet the definition of a companion animal under section 4(1) of the Act.

Companion animal means an animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for companionship, but does not include:

• An assistance animal within the meaning of the Disability Discrimination Act 1992; or

• An animal kept as part of a business; or

• An animal kept for agricultural purposes; or

• An animal kept for use in laboratory tests or experiments.

2.    The Court may only make one of three orders about companion animals under section 79(6) (or section 90SM(6) in the case of de facto relationships).

These include:

• That only one party, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or

• That the companion animal be transferred to another person who has consented to the transfer;

• The companion animal be sold.

This means that the court cannot make orders for the shared care of a pet or companion animal.

3.    The court must refer to a non-exhaustive list of considerations under section 79(7) (or section 90SM(7) in de facto relationships) in determining what order to make about a pet or a companion animal.

These considerations are:

• The circumstances in which the companion animal was acquired;

• Who has ownership or possession of the companion animal;

• The extent to which each party cared for, and paid for the maintenance of, the companion animal;

• Any family violence to which one party has subjected or exposed the other party;

• Any history of actual or threatened cruelty or abuse by a party towards the companion animal;

• Any attachment by a party, or a child of the marriage, to the companion animal;

• The demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party;

• Any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

This new framework also aims to support survivors of family violence in retaining their companion animal and recognises that pets can often be used by a perpetrator of family violence as a tool to coerce or control a victim.

If you or someone you know is considering what to do with their pet as part of a separation, our specialist family lawyers at Robinson + McGuinness can provide you with assistance. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

Estate Litigation: who pays the costs?

Estate litigation can be complex, emotional and expensive. Estate litigation includes challenges to wills (including over their validity or a family provision claim); disputes over the administration of estates; and applications for Court directions. These proceedings often involve executors, beneficiaries, and other interested parties.

Unlike ordinary civil litigation, estate disputes frequently involve questions about the deceased’s intentions and the proper administration of their estate; this means that there are some circumstances where the Court’s assistance is required, even when no wrongdoing by any party is alleged.

It is therefore important to understand how the Court will approach the matter of legal costs before commencing estate litigation.

Unlike civil litigation, where costs usually “follow the event” – i.e. the losing party pays the costs of both parties, estate litigation applies a more nuanced approach to the issue of costs and considers the nature of the dispute and the conduct of the parties.

One of the primary cases that the Court will consider when dealing with costs in estate litigation is Buckton v Buckton [1907] 2 Ch 406. The case of Buckton v Buckton sets out three broad categories to guide Courts in determining whether the costs of estate litigation should be paid from the estate or be borne by the parties themselves. The categories are as follows:

1.    Necessary Guidance on Will Construction

Where a trustee or executor applies to the Court to obtain direction on how to administer a will or trust, the costs are generally paid out of the estate. This is because the application is seen as being in the interests of all beneficiaries, and it is necessary for the proper administration of the deceased’s wishes.

For example, If a written will is ambiguous and the executor seeks the Court’s guidance on how to interpret it, all parties will benefit from the Court’s decision. Therefore, the estate typically bears the legal costs of all parties.

2.    Reasonable Disputes Among Beneficiaries

In cases where there is a genuine dispute amongst beneficiaries about the interpretation of a will or the rights of parties, and the parties bring the matter before the Court in good faith, the Court may order that costs be paid from the estate. However, this is subject to judicial discretion and the reasonableness of the parties’ conduct.

For example, If beneficiaries disagree about whether a clause in the will gives a life interest or an absolute gift, and they go to Court for clarity, the costs may still be shared by the estate if the dispute was not without merit.

3.    Contested Litigation

If a party initiates contested litigation, especially to challenge the validity of the will or for personal gain (i.e. a family provision claim) and the challenge is unsuccessful, the Court is less likely to order that their costs be paid from the estate. In these cases, the unsuccessful party may have to bear their costs and potentially those, or a portion of those, of the other parties.

For example, A disgruntled family member challenges the will, seeking additional provisions to be made for them without a strong basis and loses. The Court may see this as an unnecessary expense for the estate and decline to reimburse their legal fees. It is possible that the Court also requires the losing party to pay the estate’s costs (as the estate will have been required to participate to some extent in the proceedings).

While the case of Buckton v Buckton is over 100 years old, it remains a foundational case in the consideration of estate litigation costs. Courts routinely rely on the above categories to exercise their discretion fairly and equitably.

In exercising their discretion, the Court is also likely to consider matters such as:

• The conduct of the parties;

• Whether litigation could have been avoided through mediation, and

• The impact of any costs order on the estate’s assets and the beneficiaries.

If you are involved in estate litigation, whether as an executor, beneficiary, or other interested party, it is essential to understand the rules governing costs.  Legal fees can quickly accumulate and/or erode the value of the estate, particularly in contentious disputes. 

The above summary is a guide only and should not be taken as legal advice.  Each matter is unique, and it is essential to seek specialist legal advice early to understand how costs in the matter will likely be addressed.

 Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced estate lawyers.

Guiding you through Court proceedings: the first return

If you are involved in Court proceedings, or are considering whether to commence proceedings, you will learn that there are a number of Court events that all serve different purposes and will occur at different stages of the proceedings in a Court matter.

This blog post is designed to walk you through common Court events and shed light on at what stage of the proceedings they are likely to occur.  Today, we will focus on the ‘first return’.

What will happen at the first return?

The first return is usually the first time your matter comes before the Court. The purpose of this listing is to determine what needs to happen next to progress the matter, including making orders for any procedural steps that need to take place.

What if my matter is urgent?

For urgent issues that require the Court’s determination, the matter might be listed for an interim hearing, either on a different day or on the same day.  The Court can also make procedural orders to prepare the matter for an interim hearing, which might include ensuring that both parties have filed their Court documents, and making orders for the preparation of any additional material necessary to assist the Court to make an interim decision.

An interim decision is a short-term, temporary decision, usually made pending a final decision.

What type of procedural orders will the Court make?

The Court can make procedural orders to assist with any evidence that will be required for the Court to make a determination.  For example, in financial matters, the Court may make orders for the appointment of Single Experts to prepare valuations of certain assets (such as a business interest, real property or personal property such as vintage motor vehicles or artwork). The Court can also make orders for the provision of certain disclosure, where a party is non-compliant.

In parenting matters, the Court can make orders for the appointment of a private Single Expert to prepare a report, or appoint a Court-based expert to prepare a report.  The Court will also consider whether it is necessary to make orders compelling certain agencies (such as police or child protection agencies) to provide to the Court any material they hold about parents and/or children in a matter. 

In particularly high conflict matters or if other conditions are met, such as serious risk issues, the Court may consider the appointment of an Independent Children’s Lawyer for any children the subject of the proceedings.

What if an interim hearing isn’t required?

If an interim hearing is not necessary, the Court can also make orders for the parties to engage in dispute resolution, such as a mediation, a family dispute resolution conference or a conciliation conference.

Who attends the first return?

Typically, the matter is listed before a Judicial Registrar with delegated powers which are more limited than a Judge’s powers. 

You will need to attend, as will the other party.  Your respective lawyers will also attend.  If you have a lawyer, they can speak on your behalf and make submissions about what they say needs to happen next in your matter. 

Whilst various States and Territories differ, the listing may occur in person or by videoconference.

What do I wear?

You should wear business attire or smart casual clothes.  Most people will be wearing a jacket at the Court too. 

Why should I have a lawyer at the first return?

Whilst it is not compulsory to have a lawyer act for you at the first Court event, it can have a significant impact on the future progression of your matter.  For example, in an urgent parenting matter, it can be extremely important to ensure that a matter is progressing quickly to reduce the potential impact of delays, which could cause prejudice to your case. 

Our specialist family lawyers here at Robinson + McGuinness can guide and support you through your Court proceedings, from start to finish. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

The importance of objectivity in your family law matter

Being involved in a family law matter is difficult. It can be emotional, stressful, and costly. For these reasons, it can be easy for an individual to lose sight of the ‘big picture’ when they are involved in Court proceedings or prolonged negotiations.

Family law matters involve sensitive issues, such as care arrangements for your children or the division of matrimonial property. These issues can also extend to family violence matters, which can impact other areas such as your employment and future opportunities.

If you are engaged in Court proceedings, you will be asking that the Court make orders in your favour (rather than in favour of your former partner).

Whilst it is important to place necessary evidence before the Court in support of your application, you should be mindful that your former partner will read this evidence. If you are in parenting proceedings, you will want to ensure that you frame any allegations against your former partner in a nuanced and considered way.

It is crucial to remember that after the Court proceedings have concluded, you and your former partner are still the parents, and you will likely need to work together to co-parent any children you have together.

When negotiating agreements about children, and particularly if you are entering into final consent orders, you should be aware that orders are final and viewed as the arrangements that will remain in place until the children reach 18. Final orders are difficult to vary without the consent of the other parent.

If you share joint decision-making responsibility, you will need to consult with your former partner to reach agreed-upon positions about long-term decisions for your children, including matters like what school they will go to, what religion they may practice, and medical treatment options.

You may need to work together on a day-to-day basis, for example, if the children leave something at the other parent’s house and vice versa, or if the children participate in extra-curricular activities and you cannot be in two places at once.

You should also give some thought to the coparenting relationship you want your children to see.

Similarly, in property matters, the Court is not interested in making moral judgements. Your evidence is often much more effective and persuasive when it is directed to the relevant facts.

When you are involved in a contested matter – and whilst easier said than done – it is useful to focus on the bigger picture and try to look at the situation objectively. Our family lawyers are highly specialised and experienced in remaining settlement-focused and will discuss with you options to resolve your matter in a way that limits damage to your co-parenting relationship. Here at Robinson + McGuinness, we can guide you through your family law matter with an objective lens, whilst remaining focused on ensuring that you secure a desirable outcome.

To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

What to consider when applying for an airport watchlist order

Some parents may have concerns about their children being taken overseas, without consent or a Court Order permitting such travel. In these serious circumstances, parents can apply to the Federal Circuit and Family Court of Australia seeking that their child be placed on the Airport Watchlist.

The Airport Watchlist is managed by the Australian Federal Police, and places an alert on a child’s name, date of birth and passport. When trying to leave the country, an alert will be issued that the child is not permitted to leave.

To apply to have a child’s name placed on the Airport Watchlist, a parent must file an Initiating Application with the Federal Circuit and Family Court of Australia seeking such orders. Once filed, a request form with the sealed Initiating Application can be sent to the AFP, and the child will be placed on the Watchlist within a few hours.

In making such an application, it is important to consider the following:

1. How urgent is your application?
If you are concerned about an imminent risk of a child being taken unlawfully from Australia, you can make an urgent, after hours application to the Court for an Order, rather than filing an Initiating Application. It is important that you seek legal advice as soon as possible if you are concerned about a serious, imminent risk.

2. Why are you concerned about the other parent travelling overseas?
You need to have a good reason to seek that a child is placed on the Airport Watchlist. For example, in a situation where the other parent has connections to another country, they have packed up or sold their house, they have quit their job and the child has a passport, this may be sufficient to cause reasonable concern that the other parent will take the child overseas, and warrant an Airport Watchlist application.

3. Does the child have a passport or any way of travelling overseas?
You need to consider whether the other parent has access to the child’s passport, or whether they can make a sole application for a passport if the child does not have one.

4. Do you want to travel overseas in the future?
If you make an application seeking that a child be placed on the Airport Watchlist, you need to be aware that this means the child will not be able to travel, even if they are travelling with you. This is called an “absolute” order. You can instead make an application for a “conditional” order, which would permit you or the other parent to travel if you have written consent. It is very important to notify the AFP if you intend to travel with a child where there are “conditional” orders requiring the child to be placed on the Airport Watchlist.

If you are concerned that your child has already been taken overseas, you may be able to make an application seeking the return of the child under the Hague Convention.

You should seek legal advice from a family law specialist if you are considering making an application to place your child on the Airport Watchlist. Please contact Robinson + McGuinness Family Law on (02) 6225 7040, email info@rmfamilylaw.com.au, or get started online with one of our experienced family lawyers.

What Is a Testamentary Trust?

A testamentary trust can be a powerful tool for protecting assets and providing for beneficiaries of a deceased estate.  

What Is a Testamentary Trust?

A testamentary trust is a type of trust that is created by a person’s Will and comes into effect only after their death. It does not exist while the person is alive. A testamentary trust sets out how the deceased’s assets are to be managed and distributed for the benefit of specific beneficiaries.

The executor of the Will will oversee the establishment of the testamentary trust, and a trustee is appointed to manage the trust assets according to the terms set out in the Will.

A testamentary trust can last for many years.  The exact duration will be set out in the terms of the trust; often, a testamentary trust will have a vesting date which is some decades after it comes into effect or upon the beneficiaries of the trust reaching a certain age.

Types of Testamentary Trusts

There are two common forms of Testamentary Trust:

1. Discretionary Testamentary Trust: The trustee has discretion over how and when to distribute income and capital among the beneficiaries. This allows for flexibility and potential tax minimisation.

2. Protective Testamentary Trust: Designed to protect vulnerable beneficiaries, such as those with disabilities or those who may not manage money responsibly. These trusts may be very prescriptive about how the trust assets can be applied and when.

Benefits of a Testamentary Trust

There are some benefits to a testamentary trust, including but not limited to:

• Asset protection: The trust's assets can potentially be protected from claims by creditors or financially irresponsible beneficiaries. There may also be some protection from estranged spouses of a beneficiary; however, this will be case-by-case dependent and not guaranteed.

• Tax advantages: Income distributed from a testamentary trust to minor children is taxed at adult rates, not at the higher penalty rates that typically apply to income distributed to children. This can result in tax savings for families. Please note that this is not financial/taxation advice, and a person seeking to establish a testamentary trust should also consult with and obtain specialist taxation advice.

• Control over distribution: Through a testamentary trust, a person can specify when and how beneficiaries receive assets, which is useful if it’s not intended that young or vulnerable individuals have access to lump sum assets immediately.

• Estate planning flexibility: Testamentary trusts allow for the ongoing management of wealth throughout multiple generations.  This can be helpful if a person wants to try to retain assets within the family.

While testamentary trusts offer many benefits, they also come with responsibilities and potential complexities. Trustees of a testamentary trust have legal obligations and may need to file tax returns for the trust. When identifying who the trustee will be, a person needs to carefully consider who will be able to carry out the role.  It is also important to seek independent legal advice from an experienced estate planning lawyer when establishing a testamentary trust; it’s important that the terms of the trust (which are contained in a person’s Will) correctly reflect the deceased’s intentions, or there can be long-ranging consequences. 

 Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au, or get started now online with one of our experienced lawyers.

I have been appointed as an Executor in a Will; what now?

An Executor is the primary person responsible for the administration of a deceased estate. Appointed by the deceased in their Will, the Executor is responsible for ensuring that the deceased’s wishes are carried out in accordance with the Will and that the estate is distributed properly. This role can be complex and demanding, involving legal, financial, and practical tasks. Understanding the full scope of an Executor’s responsibilities is essential for anyone considering taking on this role or for those identifying who they wish to appoint as the Executor of their Will.

What Does an Executor Do?

An Executor has a fiduciary duty to act in the best interests of the beneficiaries of the estate. This means they must carry out their responsibilities with honesty, integrity, and due diligence. Their primary goal is to ensure that the deceased’s estate is administered according to the Will, and if the Will is unclear or doesn’t cover all assets, the executor must follow the laws of intestacy.

Key Responsibilities of an Executor

1. Locating the Will and Applying for Probate

The first task of an Executor is to locate the deceased’s last Will and confirm the document’s validity. If the Will is valid, the Executor will then apply to the Supreme Court for Probate. Probate is a legal order that confirms the Executor’s authority to manage the estate.

2. Notifying Beneficiaries and Creditors

Once Probate has been granted, the Executor is responsible for notifying all beneficiaries of the Will. The Executor must also inform creditors of the estate, giving them an opportunity to make claims for debts owed by the deceased. The Executor must ensure that the debts are settled before distributing the estate.

3. Managing and Protecting Estate Assets

Once Probate has been granted, the Executor must take control of the deceased’s assets, which may include property, bank accounts, investments, and personal possessions. It is the Executors duty to protect the estate assets until they can be properly distributed. In some cases, this may involve insuring property, paying bills, or managing investments to preserve the estate’s value.

4. Paying Debts and Taxes

Before distributing the estate’s assets among beneficiaries, the Executor must pay the deceased’s debts. This may include mortgages, credit card bills, loans, and outstanding medical expenses. The Executor is also responsible for filing the deceased’s final tax return and ensuring any taxes owed by the estate are paid.

5. Distributing the Estate

After all debts, taxes, and expenses are paid, the Executor can then distribute the remaining assets to the beneficiaries as per the terms of the Will. If any assets are sold, the proceeds must be divided according to the Will. If the Will is unclear or a dispute arises, the Executor may need to seek legal advice or Court intervention. In the ACT, an executor must wait 6 months from the date of the deceased’s death prior to distributing the estate to the beneficiaries; this is to protect the executor from personal liability should a claim be made on the estate.

6. Keeping Accurate Records

Throughout the process, the Executor must keep detailed records of all transactions, including payments, asset distributions, and correspondence with beneficiaries and creditors. This documentation is essential to demonstrate that the Executor has fulfilled their duties and complied with legal requirements.

Being an Executor comes with significant legal and ethical obligations. If the Executor fails in their duties, then they may be held personally liable for any losses or damages to the estate or beneficiaries. Executors should seek professional advice (including but not limited to legal, financial and taxation advice) where necessary to ensure they meet their obligations, and they must always act in the best interests of the beneficiaries.

If you have been appointed as an Executor, it is prudent for you to obtain legal advice early. Robinson + McGuinness can assist you in understanding the role of Executor, apply for Probate, and subsequently administer the estate. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started online with one of our experienced lawyers.