Report into National Plan to End Violence against Women and Children speaks of significance of reform within family law

The Domestic Family and Sexual Violence Commission has recently released the 2022-2023 Yearly Report to Parliament, the Yearly Report since the release of the National Plan to End Violence against Women and Children in 2022.

Domestic, Family and Sexual Violence Commissioner, Michaela Cronin, states in the Foreward to the report that “serious concerns have been raised that government systems, including the family court and child protection are causing harm and that police too often misidentify women as the primary aggressor… when they are the person most in need of protection”. The Commissioner goes on however to say that “if we are bold and determined” it is possible to achieve their goal of ending domestic, family and sexual violence within a generation.

The Report speaks about family law reform implemented by the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 which are hoped will improve outcomes for women and children experiencing family violence, including:

1.      Removal of the presumption in favour of parents sharing parental responsibility, and the pathway to consideration of equal time arrangements in the event that parents share parental responsibility;

2.      Simplification of the factors that may be considered pursuant to Section 60CC of the Family Law Act in order to determine the best interests of children, and to place greater emphasis upon safety of children and their caregivers;

3.      Strengthening of provisions to prevent harmful or vexatious proceedings;

4.      Mandatory requirement for Independent Children’s Lawyers to meet with children, and seek their views;

5.      Improved information sharing between government agencies.

The Report speaks of the need for drastic improvements in funding in order to improve outcomes for women and children, noting that “the experience and outcomes of involvement in family law processes is also influenced by a person’s access to legal representation”.  Accordingly, there has been a greater call for increased funding to the community legal sector. The Report also speaks of the need for more targeted education regarding family violence for legal practitioners, and frontline workers, to assist in identifying and responding to family violence.

The release of the report also coincides with the announcement of Attorney General Mark Dreyfus on 30 August 2024 for a review of the Federal Circuit and Family Court of Australia Act 2021. The establishment of the Federal Circuit and Family Court of Australia in September 2021 was primarily directed towards improving efficiencies within the Court, in order to limit the duration of family law litigation. Amongst other things, the review will address the level of specialisation of judicial officers determining outcomes in family law litigation, however the Terms of Reference do not specifically call for a review of the family law system generally.

For family and domestic violence support and assistance, you can reach out to 1800 RESPECT via the National Helpline on 1800 737 732. For legal advice in relation to your family law matter, including family violence, 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.

Author: Margot McCabe, August 2024

Who pays for pregnancy? – Section 67B of the Family Law Act

Section 67B of the Family Law Act provides that a father must make a proper financial contribution to maintenance of the mother in relation to childbirth and reasonable medical expenses. It is important to note that this section only applies to parties who are not married.

The first issue the Court must consider is the length of time of the childbirth maintenance period. This is the period in which the father is liable to contribute to childbirth expenses.

Section 4 of the Family Law Act defines the “childbirth maintenance period” as commencing either:

-          The day that the mother is required to cease working due to medical advice; or

-          2 months prior to the day the child is due to be born.

The childbirth maintenance period ends 3 months after the child’s birth. Therefore, the childbirth maintenance period will be for a period of at least 5 months.  

It is important to note that the expenses claimed must be relevant to the mother, and not the child. For example, items such as a bassinet, bottles or car seat are used to help in setting up and preparation for a child’s arrival, but the Court has previously found that these are items for the child, and therefore fall under child support, and not maintenance for the mother. However, living costs such as food, rent and utilities are items that could be claimed under this section of the Act.

The Court must ultimately consider how much the father is liable to contribute to the total costs of the mother’s childbirth maintenance and medical expenses. While it may seem fair that a father is liable to pay for half of those costs, the Court must take into account the following matters when making such a determination, pursuant to section 67C:

-          The income, earning capacity, property and financial resources of the mother and father to the child (but excluding any entitlement of the mother to an income tested pension or benefit);

-          Commitments of the mother and father to enable them to support themselves, or any other child or other person that person has the duty to maintain; and

-          Any special circumstances.

The Act provides that an application made for childbirth maintenance expenses must be made within 12 months of the child being born, so it is important to ensure that you are aware of this timeframe.

You should seek legal advice about your options in relation to making an application for childbirth maintenance. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced lawyers.

Author: Catherine Finucane, August 2024

What to do when you think the Registrar got it wrong:

When you make an application to the Court seeking procedural or interim orders, you may not realise that your application may be determined by a Judicial Registrar.  There are three categories of Judicial Registrars – Deputy Registrars, Judicial Registrars and Senior Judicial Registrars.  Each, depending on their seniority, is able to exercise judicial power which has been delegated to them by Judges of the Federal Circuit and Family Court of Australia (Division 1 and Division 2).  For example –Deputy Registrars can determine applications for urgency, whilst Senior Judicial Registrars can determine interlocutory applications (making interim parenting or financial orders) and summarily dismiss a proceeding.

When a Judge makes final orders and the Court has made an error, parties are able to challenge that decision (or seek to ‘appeal’ the decision).  Similarly, where a Registrar makes a decision and there has been an error, a party is able to file an Application for Review (a ‘review application’).

A review application must be filed within 21 days of the Order being made.  Where possible, the Court lists review applications for hearing within 28 days of filing. The application will be listed before a Judge for a ‘hearing de novo’ (meaning the Judge considers your application with ‘fresh eyes’).

Parties are usually required to rely on one affidavit – which can be an updated affidavit or the affidavit that was before the Registrar – and a written outline of argument.  Parties may also be required to prepare a joint statement of agreed facts and issues in dispute, to assist the Court.

Whilst the prospect of filing a review application may seem appealing, if you are unhappy with an interim decision you should proceed with caution.  The Court published information about the success rate of review applications in 2023 and surprisingly, over 90% of review applications were dismissed.

In Lawson & Glenning [2021] FedCFamC2F 118, Riethmuller J said at [27]:

“The new Court system of having Registrars undertake interlocutory work should not be treated as an invitation to simply lodge review applications without careful consideration of the need for a review application, and the importance of properly using the Court’s resources. A Registrar’s hearing should not be used as a ‘dry run’ or a ‘practice run’ at a case, but rather the main event, with a review application there in the background, in a similar way to that of an appeal if it were a judge dealing with the matter.  If the system is not approached in this manner, then litigants and practitioners can expect costs and other consequential orders, to ensure that the processes of the Court are not misused or wasted.” (emphasis added)

When contemplating filing a review application, you should be aware that the application itself does not operate as a stay of the order.  For example, if the Order requires you to do something within a certain timeframe, you may need to also file an Application in a Proceeding seeking to suspend the orders pending the outcome of the review hearing (known as a ‘stay application’).

Before you file a review application, you should speak to a family lawyer to obtain advice about the merits of your application and whether a stay application is necessary.  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.

Author: Anika Buckley, August 2024

Importance of full and frank disclosure prior to entering into Binding Financial Agreement

The Family Law Act 1975 and Federal Circuit and Family Court (Family Law) Rules 2021 set out a positive obligation for a party entering into financial orders for the purpose of a property settlement to provide full and frank disclosure of their financial circumstances. Whilst there are no mirror provisions which apply to a party entering into a Binding Financial Agreement, an obligation arises because, if such disclosure does not occur, the Court has the discretion to set aside such an agreement where a party has failed to disclose a material fact relating to their financial circumstances.

Why must a party provide financial disclosure of their financial circumstances prior to entering into a Binding Financial Agreement?

A party seeking to set aside a Binding Financial Agreement entered into pursuant to the Family Law Act may seek relief under the following provisions:

-  Pursuant to Section 90K (in the case of a marriage) and 90UM (in the case of a de facto relationship) of the Family Law Act, a party may seek that the Court may set aside a Financial Agreement that was obtained by fraud, including non-disclosure of a material matter;

-  Alternatively, a party may seek that the Court exercise common law and equitable principles by setting the agreement aside pursuant to Section 90K(1)(b) of the Family Law Act, including a party’s failure to provide accurate disclosure of their financial circumstances.

In the recent decision of Quincey & Quincey [2024] FedFamC1A 30, Justice Tree of the Federal Circuit and Family Court of Australia upheld the decision of the trial judge to set aside a Binding Financial Agreement entered by the parties, on the basis of material non-disclosure by the Husband.

At first instance, the trial judge found that the Husband had failed to provide disclosure to the Wife of material facts relating to his financial circumstances, including:

1. There had been a reduction of over $560,000 in the value of the net asset pool in the weeks prior to the parties entering into the Binding Financial Agreement;

2. He had purportedly entered a loan with his parents, which was similarly not disclosed to the Wife; and

3. There had been a reduction in the Husband’s personal savings of approximately $450,000 prior to the Wife signing the Binding Financial Agreement.

What lessons emerge from the decision of Quincey?

1. Both parties should provide full and frank disclosure of their financial circumstances, prior to entering into a Binding Financial Agreement;

2. Such disclosure should be made available by way of exchanging source documents such as bank statements, tax returns, loan documents, etc. It is preferrable to a party simply providing an estimate of the value of their assets, liabilities and superannuation, as it enables the other party to “look behind” such statements to ascertain for themselves the accuracy of such information;

3. Parties should have sufficient time to review and consider such financial disclosure in advance of entering into a Binding Financial Agreement;

4. Caution should always be exercised when parties are entering into a Binding Financial Agreement, but particularly in the event that are parties entering into an agreement after a period of temporary separation, if there has been disharmony within the relationship, or if there is a power imbalance between the parties.

Financial disclosure is important when entering into a Binding Financial Agreement as the information exchanged may inform a party whether they still wish to enter into an Agreement or not.

If you wish to obtain specialist advice in relation to Binding Financial Agreements, 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 other parent isn’t following our Court Orders regarding our parenting arrangements. Now what?

It can be an incredibly difficult and frustrating time if you are separated, and the other parent is not complying with Court Orders. There are a few options to consider if you are struggling with a parent who is not complying.

1. Write to the other parent and ask them to comply

Sometimes there may be some ambiguity in Court Orders, which means that the way you have interpreted the Orders is different to how the other parent has interpreted the Orders. This could occur if, for example, there is no Order about how time recommences after school holidays. In these circumstances, direct communication or negotiation with the other parent may be the easiest and simplest way to ensure that the other parent complies.

2. Invite the other parent to attend a mediation

Often parents who have been through the family court system dismiss attendance at another mediation as it “won’t work” or there is a misconception that the other parent “won’t agree to anything”. More often than not, attendance at a mediation can result in a better understanding of why the other parent is not complying with Court Orders, even if there is ultimately no agreement about how to reinstate the Orders. Mediation offers an opportunity for both parents to have time to consider how they would like to proceed with whatever hardship or obstacle is currently in the way of compliance with Court Orders or consider a change to any Court Orders.

3. File a Contravention Application

If no agreement can be reached between you and the other parent, you have the option to file a Contravention Application with the Federal Circuit and Family Court of Australia. This includes preparing a Contravention Application, setting out that:

a.      The other parent is aware of the Orders and their obligations;

b.      Specifically what Order was breached;

c.      How the Order was breached; and

d.      The date and time of the breach.

An Affidavit will also need to be filed with a Contravention Application, to provide the Court with your evidence as to how the Orders have been breached.

It is important to remember that in Contravention Applications, the non-complying parent will need to confirm if they agree the breach occurred or not. If they agree that it did occur (that is, they plead guilty to the contravention), then they need to show the Court that they had a reasonable excuse to breach the Orders.

If the Court finds that the non-complying parent has breached the Orders, then the Court has a variety of options available to ensure that the Orders are complied with, including placing the non-complying parent on a bond, issuing a fine, or ordering make up time. You should note that while the Court has the option to revisit the Orders, it is often unlikely that it will make a significant change to Orders in a Contravention Application.

4. File an Initiating Application

If you consider that the Final Orders must be changed because of the non-complying parent’s actions, then you may need to file an Initiating Application to seek a substantial change to the parenting Orders. You will need to ensure that you can satisfy the Court of the requirements of section 65DAAA of the Family Law Act, in that there must be a significant change of circumstances and that in all the circumstances, it must be in the best interests of the child for the Court to revisit the Orders.

You should seek family law advice about your options in relation to ensuring compliance with parenting Orders. Contact Robinson + McGuinness today 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.

Selling property after a separation

When you separate, there can be a number of unexpected expenses.  For example – if you are required to vacate a shared property, you may need to find a new place to live.  Depending on the circumstances of your separation, you may be required to source replacement furniture.  If you shared a car, you may need to purchase a new car.

Unless you have a robust emergency fund, you may need to raise funds to meet significant (and unplanned) expenses.  If you own property, your first thought may be to sell the property, however a decision to sell is not always as simple as it seems.

When thinking about whether to sell property after separation, you should consider the following:

1. Is the property in your sole name or is it in joint names?

2. Does your former partner agree to sell the property?

3. Will the property be sold at the current market value?

4. Do you need to sell the property now or can it wait until you have sorted out your property settlement?

5. Is the property your primary residence or is it an investment property?

Generally speaking, you should avoid selling assets of value that form part of the matrimonial pool without first obtaining the agreement of your former partner.  Even if your former partner is not listed on the title of a property, your former partner may have an equitable interest in the property (depending on the circumstances of your relationship).

You and your former partner should discuss and ideally agree to the terms of the sale, how the net sale proceeds are to be applied and who will be responsible for sale costs (which can include repairs and maintenance involved to prepare a property for sale). 

If the property you intend to sell is in joint names and your former partner does not agree, you may need to apply to the Court seeking orders to sell the property and apply the proceeds of sale in a certain way.   An application would likely be successful if you can demonstrate that you are in financial hardship and you need to sell the property to meet your reasonable living expenses.

There are also other considerations, such as whether you are entitled to a stamp duty exemption (which may be applicable in your State or Territory if the sale occurs pursuant to a Binding Financial Agreement or Court Orders).  If the property is an investment property, you should consider the potential capital gains tax implications.

Selling property after separation is not always straightforward.  If you are unsure about whether you should be selling your property, or if your former partner wants to sell property and you don’t agree or you would like clarity around your rights and obligations, you should speak to a family lawyer to obtain 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.

Family Violence: What is it and how to apply for a Protection Order if you feel unsafe

In the ACT, the Family Violence Act 2016 sets out the pathway for a Registrar or Magistrate to make a Family Violence Order in favour of a party seeking protection.

What is family violence?

Family violence includes behaviour towards a current or former partner or spouse, or another family member involving physical, emotional, financial or sexual violence or abuse, as well as threatening or coercive and controlling behaviour. Specific examples of behaviour which constitutes family violence recognised under the Family Violence Act include exposure of a child or children to family violence, sexually coercive behaviour, damaging property and harming an animal.

How do I apply for a Family Violence Order?

An Application for Family Violence Order will be heard by a Registrar or Magistrate in the ACT Magistrates Court.

The Court will generally hear an application for an Interim Family Violence Order on the same day that the application is made. It is heard on an ex-parte basis, meaning that the Respondent is not put on notice that the application has been made until after the application for an interim order has been determined by the Court.

On what grounds may the Court make an Interim (Temporary) Family Violence Order?

The Court may make an interim order if satisfied that the order is required to:

1.      Ensure the safety of an applicant from family violence; or

2.      To prevent substantial damage to an affected person’s property.

If an interim order is granted, it will remain in place until such time as the application for a final family violence order has been determined, unless an application is withdrawn. An interim order should not however be in place for longer than 12 months.

After the application for an Interim Family Violence Order has been determined, the Court will conduct a preliminary conference in order to determine whether there are prospects of the matter resolving by agreement on a final basis. This may include an agreement for an Order being in place for a defined period; an agreement that no order will be made; or in an outcome where one or both parties make an Undertaking to the Court to refrain from engaging in family violence.

On what grounds may the Court make a final family violence order?

The Court may make a final order if:

1.      The applicant (the person seeking protection) has reasonable grounds to fear family violence by the respondent (the person that they are seeking to be protected from); or

2.      The respondent has used family violence against the applicant.

The Court can make a final order that is in place for up to two years, but if requested, the Court may make an order for a longer period of time if the Court is satisfied that there are special or exceptional circumstances that justify it.

Will the Family Violence Order only be recognised in the ACT?

Family Violence Orders are nationally recognised and there is no need to apply for separate orders in different states, if for example, you live between NSW and the ACT and wish to ensure that the Order operates irrespective of your location.

For advice in relation to a family violence application, 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.

Author: Margot McCabe

Altruistic Surrogacy in the ACT: Your guide to recent reforms

Making the decision to bring a child into your lives is a big and exciting milestone.  Whether you are in a relationship or you are pursuing parenthood on your own, it is not always as easy as it seems.  For some Australians, giving birth is not an option – whether due to fertility challenges, biological barriers, or other reasons.  These individuals or couples might consider other pathways to parenthood, such as adoption or surrogacy.

Surrogacy provides future parents with the opportunity to have a child, where they are unable to give birth.  Whilst in some countries you can pay an individual to give birth on your behalf, commercial surrogacy is illegal in Australia. Surrogacy in Australia is governed by states and territories.  All Australian jurisdictions permit altruistic surrogacy, where the surrogate is unable to profit from the arrangement but their reasonable expenses are covered.

If you reside in the ACT and are pursuing parenthood, you should take note of the recent changes to legislation.   On 25 June 2024, the ACT Government passed the Parentage (Surrogacy) Amendment Bill 2023 (ACT).  The Bill brings a number of amendments to altruistic surrogacy in the ACT which include:

1.      The removal of the requirement that two intended parents enter into a surrogacy arrangement.  This allows for a single person to consider surrogacy, without the need to be in a relationship;

2.      The removal of the requirement to have a genetic connection with the child.  This change will be welcomed by future parents who face fertility challenges as it allows for traditional surrogacy (where the altruistic surrogate may conceive a child using their own egg); and

3.      All parties are required to seek independent legal advice and counselling prior to entering into a surrogacy arrangement.  This will likely reduce the potential for conflict, as altruistic surrogates and aspiring parents can better understand their rights and the nature of the surrogacy agreement.

The amendments better align ACT’s surrogacy laws with that of other Australian states and territories.

Surrogacy presents unique legal challenges for all adults involved.  For example, if you engage in commercial surrogacy, it may be difficult to gain recognition as the child’s legal parent in Australia, and the surrogate may remain the legal parent of the child.  Many future parents and potential altruistic surrogates negotiate and enter into surrogacy arrangements, which can stipulate what ‘reasonable’ expenses will be covered.

The likely costs involved for intended parents and the surrogate may include fertility treatment, legal advice (for you and the surrogate), counselling and psychological assessments, pregnancy and birth related expenses, and costs associated with obtaining a parentage order. Additional costs you should consider may include travel costs, loss of income, allied health treatment and pre-natal supplements.

Surrogacy laws can be tricky to navigate on your own.  For advice in relation to surrogacy laws in the ACT, 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.

Author: Anika Buckley

How can I resolve my matter out of Court?

When you separate from your former partner, it can be difficult to imagine how to wade through the breakdown of your relationship. For example, you might be thinking:

 ⁃ How will you divide the assets you have accumulated together?
⁃ How will you decide what arrangements should be in place for the children?
⁃ Will I end up in Court?

 You may have friends telling you stories about their separation, or situations their friends have faced in the “family courts”.

 Before you start to worry about ending up in front of a Judge, you should consider how you can resolve your legal issue outside of Court. A common (and effective) way to do this is through dispute resolution, such as mediation.

 Mediation is a negotiation convened by a neutral third party. You can mediate with your former partner, with or without lawyers.

 There are a number of different ways to participate in mediation, at all stages of a matter. This includes:

1. Mediation with a government funded organisation such as Relationships Australia. This occurs without lawyers and usually takes place in the early stages of a matter.

1. Private mediation with a specially trained family law mediator. This will usually be with an experienced family lawyer, or in some cases, a former Judge of the Court. This can take place at any stage of your matter. There are also specialist mediators who will convene a child-inclusive mediation (see our blog about child-inclusive mediations and what they entail).

1. Court-based dispute resolution with a Registrar of the Court. To participate in Court-based dispute resolution (such as a Family Dispute Resolution Conference or a Conciliation Conference), your matter will be in the Court system. 

However, the Court can order that you and your former partner engage in mediation at any stage of the proceedings. In some instances, the Court will order that a Court Child Expert (for example a social worker or psychologist) participate in the dispute resolution event, for example to provide information about child development theory.

Mediation and other forms of dispute resolution can be a great way to resolve your legal dispute without the need for Court (or as a way to exit the Court system).

When mediating, it is important to consider whether any power imbalances exist and how you might address this. For example, where there are allegations of family violence or if you do not feel comfortable engaging with your former partner, the mediation might take place via shuttle or on an electronic platform (which means you do not need to see your former partner in person).

Even if you decide to participate in a mediation or dispute resolution event without lawyers involved, it is crucial to understand your legal rights and entitlements.  This will help you assess what you might agree to at mediation, including your best possible outcome and worst possible outcome.

If you are considering how to resolve your family law dispute and would like advice about your rights and entitlements, or if you would like further information about how to prepare for and what to expect at a mediation, 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. 

 Author: Anika Buckley

Circumstances warranting recusal of a Judicial Officer based on Apprehended Bias

In the event of apprehended bias by the ongoing involvement of a judicial officer, a party may seek that the judicial officer (most commonly a judge) recuse themselves of any further involvement in the proceedings. The failure of a judge to recuse themselves may lead to judicial error that forms grounds for an appeal.

In the decision Johnson v Johnson [2000] HCA 48, the Court found that the test to be adopted in determining the existence of judicial prejudice or apprehended bias was “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

This test is objective to ensure that the public can have confidence in the outcomes of litigation. In the decision of Henley & Bestari [2024] FedCFamC1A 12, the Court emphasised the need for the “fair-minded lay observer” to be reasonable in their assessment of the existence of bias or impartiality, noting the test requires “an observer who is neither complacent nor unduly sensitive or suspicious, who is also taken to be reasonable, is all too aware of the reality that the judge is human, is not conceived of as a lawyer but a member of the public served by the courts and is not to be assumed to have a detailed knowledge of the law, or the character or ability of a particular judge.”

What circumstances may give rise to a recusal application?

In the case of Silva & Phoenix [2018] FamCAFC 41, the trial judge was exposed to proposed final consent orders. The trial judge declined to make those Orders on the basis that they were not satisfied that the outcome was just and equitable. The Court found that having been privy to the parties’ in principle agreement which deviated from their respective applications, the trial judge should have recused himself.

In the similar case of Henley & Bestari [2024], the trial judge declined to make orders by consent agreed upon by the parties, due to his concern that the effect of the Orders was so unclear as to prevent the Court from determining whether the outcome was just and equitable. His Honour refused a recusal application after having received into evidence draft orders, a balance sheet and submissions addressing why the outcome of the agreement was just and equitable. On appeal, the Court found that having knowledge of the in-principle agreement and balance sheet may reasonably impact the trial judge’s ability to determine the matter impartially.

In the case of Charisteas v Charisteas [2021] HCA 29, the Court found that the social interactions between Counsel for the Wife and the judge throughout a two week trial, including an exchange of text messages during the course of the trial, would cause a lay observer to form the view that the judge was not able to impartiality determine the outcome of the matter.

If this issue has arisen in your matter, or you are concerned that a judicial officer is not acting impartially, you should seek specialist family law 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.

Author: Margot McCabe

Parental Responsibility and Best Interests Explained

The passing of the Family Law Amendment Act 2023 has codified considerable changes to the concept of parental responsibility. Parental responsibility has been a central concept in family law matters for some time. It is the responsibility parents have in relation to major long-term decisions about the welfare and development of their child/ren, for example where they live, the school they attend, medical decisions, their name, and religious and/or cultural upbringings.

In 2006, changes to the Family Law legislation saw the introduction of the concept of equal shared parental responsibility, and provided that unless there were reasonable grounds to believe that a parent of the child has engaged in family violence that it would not be in the best interests of the child, that a presumption of equal shared parental responsibility applied. The Australian Law Reform Commission found in its 2019 report that the presumption that separated parents have equal shared parental responsibility for their child/ren was too frequently misinterpreted as a presumption of an equal shared care arrangement. The occurrences of misinterpretation of the law is said to have created a risk of harm to children.

The Family Law Amendment Act 2023 removes this presumption such that each parenting case before the Court will be evaluated on the matter’s specific merits, primarily focusing on the child/ren’s best interests. The Amended Act simplifies the objects of Part VII of the Family Law Act 1975 (Cth) as follows:

1.       To ensure that the best interests of the child are met, including by ensuring their safety; and

2.       To give effect to the Convention on the Rights of the Child.

The Amended Act simplifies the section 60CC factors  - those factors that the Court considers to decide what parenting arrangements will be in the best interests of the child – from the previous and hierarchical primary and secondary factors, to the-now six factors of general considerations and two further considerations if the child is Aboriginal or Torres Strait Islander. These six factors of general consideration are:

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

a)       the child;

b)      and each person who has care of the child (whether or not a person has parental responsibility 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 other people who are significant to the child, where it is safe to do so;

6)      Anything else that is relevant to the circumstances of the child.

These simplified and streamlined factors are intended to provide the Court with wide discretion to make decisions which posit the safety of children at the forefront of any arrangement. Parents at all stages of the separation process will need to consider these changes. An understanding of who is able to exercise parental responsibility in relation to what issues, and how and when joint decisions are to be made in relation to children, is an important yardstick to achieving successful parenting outcomes.

The practical impacts of these changes are yet to be seen, and our team of family law experts at Robinson + McGuinness will be closely following the development of jurisprudence in relation to parental responsibility from decisions in both Division 1 and 2 of the Federal Circuit and Family Court of Australia. If you need clarification regarding these latest amendments to the Family Law Act 1975 (Cth) or you would like advice on how they may impact your situation, please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Lauran Clifton

All About Conciliation Conferences, Dispute Resolution Conferences, and Judicial Settlement Conferences

As part of your family law proceedings, the Federal Circuit and Family Court of Australia has the option to order that you, and any other parties in your matter, attend a Conciliation Conference (for property matters), a Dispute Resolution Conference (for parenting matters) or a Judicial Settlement Conference. The purpose of these conferences is to assist parties in resolving their matter without being put to the costs or stress of the matter progressing to a hearing.

The three types of conference all adopt a similar method and procedure. Their key differences are that Conciliation Conferences and Dispute Resolution Conferences are convened by a Judicial Registrar, and often occur earlier in the ligation process. Further, a Court Child Expert may also attend the Dispute Resolution Conference to provide their perspective and assistance to the parties. Contrastingly, a Judicial Settlement Conference is convened by a Judge, and is typically utilised as a ‘last resort’ option prior to the parties participating in a Final Hearing.

These conferences are a form of dispute resolution, in which the Deputy Registrar or Judge acts as mediator between the parties. You do not have to be legally represented to attend one of these conferences, however it is generally beneficial to engage a lawyer who can then provide you guidance and advocate for you to receive the best possible outcome. The expertise and experience of the convening Deputy Registrar or Judge can contribute to the quality of negotiation which occurs between you and the other party. 

Attending a conference organised by the Court provides parties with the opportunity to negotiate in a safe and controlled environment. Additionally, any final orders resulting from the conference will be made by consent.  This means that the final outcome of your matter is one you have agreed to, even if you have made some concessions from your original position, and you will likely feel a greater sense of control over the result than if you had proceeded to Final Hearing. Additionally, if your matter does settle during or after the conference, you will be able to avoid the significant costs and time associated with your matter remaining in the Court system.

If you have been ordered to attend a court-based conference, or it is an option you would like to know more about, we recommend you seek legal advice. To make an appointment with one of our experienced family lawyers please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

When your former partner resists a Property Settlement

Dealing with the breakdown of a relationship is difficult.  If you have intermingled your finances, you must also consider how to ‘sever’ your financial relationship.  This can be especially complicated if your former partner is not on the same page as you with respect to how you progress your separation.   For example, your former partner may not ‘accept’ your separation and put their ‘head in the sand’ by choosing to ignore communications from you.  Your former partner may also be unable to progress matters as a result of mental incapacity, such as due to cognitive decline or poor mental health, or physical disability.

If you have done some research on what happens after separation, you will be aware that the Court usually adopts a ‘4-step approach’, being to determine what the property ‘pool’ is (through understanding the assets, liabilities and superannuation), to assess contributions (including initial, during the relationship and post-separation), future needs and whether the outcome is ‘just and equitable’.  For more information, you can review our blog post about the 4-step process.

Notwithstanding which step you are at in the property settlement process, if you experience difficulties in engaging with your former partner, there are options available to you to ensure that your matter progresses.  

You can engage a lawyer to communicate with your former partner.  This can help to take the heat out of communications and to focus your communications on progressing your matter.  Your lawyer can also advise you about whether you need to commence Court proceedings.

If your former partner refuses to respond or is unable to progress matters, you may need to commence Court proceedings.  Once you are involved in Court proceedings, you are still able to continue negotiations outside of the Court process. 

Once in Court, if your former partner continues to refuse to engage and there is no evidence about any incapacity to make decisions, your matter might progress to an undefended hearing.  This would mean that the Court ultimately makes a decision about how any property should be divided, based on the evidence before it, in the absence of your former partner.

If there is evidence that your former partner may be unable to progress matters due to some incapacity, the Court may appoint a litigation guardian as a last resort.  A litigation guardian acts on behalf of a party and ‘stands in the place’ of a party, including making decisions about the conduct of the proceedings. 

A litigation guardian is usually a third party with no adverse interests to the person in need of a litigation guardian, such as a close friend or in some instances, a family member.  The public trustee can also be appointed as a last resort.

If you are concerned about the progress of your matter, you should contact a family lawyer to obtain 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.

Author: Anika Buckley

Harman Undertaking: What is it and what does it mean for you?

In the recent decision of Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, Justice Michael Lee commented on Bruce Lehrmann’s likely breach of the implied Harman undertaking, arising as a result of Lehrmann releasing to Channel 7 documents obtained by him through the ACT Supreme Court proceedings. So, what is the Harman Undertaking and what does it mean for your family law matter?

What is the Harman Undertaking?

The Harman Undertaking is an implied undertaking by parties to litigation that they will not release information or documents which they have obtained during the course of litigation for an improper purpose.

Does the Harman Undertaking apply in family law matters?

Parties are prevented from using information obtained in family law proceedings for a purpose which does not relate to those proceedings, without seeking leave of the Court. For example, a party seeking to rely upon Subpoenaed documents in family law matters in support of an application for a protection order in the ACT Supreme Court.

In the case of Pedrana & Pedrana [2012] FamCA 348, the Wife was attempting to rely upon evidence obtained in family law proceedings as to the Husband’s income, in order to increase the child support payable by the Husband. Ultimately, the Court found that the documents could be considered by the Child Support Registrar, saying “It could not be viewed as an appropriate outcome that … the carer entitled to child support was unable to draw to the Registrar’s attention the fact that the liable parent had not given [relevant] disclosure because the carer entitled to child support was constrained from doing so because of the Harman obligation and was required to go back to court to get permission to do so”  Although approved in this matter, parties should exercise caution and seek legal advice if considering releasing documents obtained in family law proceedings.

Who is bound by the Harman Undertaking?

Parties to litigation are bound by the Harman Undertaking. It also extends to parties’ solicitors, and other third parties in possession of documents relating to family law proceedings.

What are the consequences of breaching the Harman Undertaking?

The Court in which the confidential information was obtained has the discretion to determine consequences of a breach of the Harman Undertaking. The consequences may include the non-compliant party being held in Contempt of Court, or the Court ordering that the non-compliant party meet the costs of the other party or parties.

What does it mean for your family law matter?

1.      You should keep confidential information or documents obtained in the course of family law proceedings, in order to comply with the Harman Undertaking, and also to comply with Section 121 of the Family Law Act 1975 which prevents publication of information relating to family law proceedings;

2.      If you wish to use information or documents obtained in family law proceedings for another purpose, you need to seek permission of the Federal Circuit and Family Court of Australia before providing the confidential information;

3.      You should be aware that the Harman Undertaking doesn’t only apply to litigants. It also applies to solicitors or other third parties who are made aware of the confidential information;

4.      You should seek independent legal advice about your obligations in relation to confidentiality in family law proceedings.

For advice in relation to your family law matter, 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.

Author: Margot McCabe

Child Inclusive Mediation: Can my child have a say?

The time of separation can be associated with complex feelings of loss and grief. It is usually at this exact time that parents are expected to make very important decisions about parenting moving forward. What household will our children live in? How much time will they spend with me and with the other parent? How are our children expected to transition into this completely novel arrangement? The resolution of parenting arrangements after separation can often be a complex process, not least of which because the idea of having to give up any time with a child can be an extremely daunting prospect when a person is already experiencing the grief and loss associated with the breakdown of their relationship with their former partner.

Separated parents usually attempt to organise their parenting arrangements via discussion, compromise and through participation in dispute resolution, such as mediation. Of course, this is a requirement under Part VII of the Family Law Act 1975 (Cth) (the Act), save for a handful of exceptions outlined at section 60i(9) of the Act. Where parents can reach agreement, these are usually documented through a parenting plan or a binding agreement made by the Court (known as Consent Orders).

Fundamental to the dispute resolution process in relation to parenting, is the ability for separated parents to put aside what their individual wishes might be in relation to the care arrangements of the child, and to put the child’s best interests and developmental needs above their own. Sometimes traditional models of family dispute resolution and mediation do not fit the needs of separated parents and their children. It might be that Child Inclusive Mediation would be a more suitable process for these families to partake in.  A Child Inclusive Mediation provides the opportunity for the child to express their views to an independent third party- views which might not otherwise be expressed within the confines of the family dynamic.

A Child Inclusive Mediation usually involves you and the other parent, and the child (or children) separately attending upon a qualified child expert or specialist for the purpose of an interview. This child expert is usually someone who has tertiary qualifications in child psychology and oftentimes will be dually qualified in family law. They will ask subtle and non-confrontational questions to adduce the child’s views on the arrangements and ascertain any effects of the separation on the child/children.

The parents will then attend a mediation separately. It is important that parents understand the child (or children) will not attend this aspect of the Child Inclusive Mediation. The child expert may act as mediator as well, provided they have the requisite qualifications, or will remain in attendance with the mediator to provide insight into the children’s views throughout the mediation process. The child expert will usually convey what the children have told them in their private sessions, provide an expert opinion on this, and identify any potential pathways forward. It is hopeful that the parents can then come to a parenting arrangement which takes into account the child’s views, in a very safe and child focussed manner.

Not every family dynamic is suitable for Child Inclusive Mediation. The Family Law Act provides that the Court can have regard to any views expressed by the children when determining what Orders to make. However, for really young children, how much weight can the Court attach to their views? For adolescents or late teens, the weight the Court would attach to their views would likely be much higher. A Child Inclusive Mediation, might be very helpful if you have children who are of an age where they can clearly express their views and wishes. If you believe your family may benefit from Child Inclusive Mediation, or you are considering whether this is a suitable process for you, do not hesitate to reach out to our team of experienced family lawyers here at Robinson + McGuinness Family Law.

For advice in relation to your family law matter, 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.

Author: Lauran Clifton

Reconsideration of Final Parenting Orders – the new section 65DAAA of the Family Law Act codifies the long-standing rule set out in Rice & Asplund.

Final parenting Orders are made every day, either by consent, or following protracted litigation in the Federal Circuit and Family Court of Australia. It is intended that final parenting Orders apply and operate until the children turn 18 years old. However, it is sometimes necessary for final parenting Orders to be reconsidered prior to their expiry to ensure that the Orders continue to operate in the best interests of the children.

Commencing 6 May 2024, the Family Law Act 1975 will be amended to insert a new section 65DAAA into the Act; this new section of the Act will specifically deal with the reconsideration of final parenting Orders (something which previously has only been dealt with by case law).

The new section 65DAAA will state:

If a final parenting Order is in force in relation to a child, a court must not reconsider the final parenting order unless:

1. The Court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

2. The Court is satisfied that, in all circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

The new section 65DAAA will apply to all matters before the Court from 6 May 2024.

The new section 65DAAA is a codification of the principle set out in the case of Rice & Asplund, which provides that the Court should only hear an application to alter an earlier parenting Order if the Court is satisfied that there has been a material change in circumstances such that a rehearing of what is in the children’s best interests is warranted.

When deciding whether there has been a significant change in circumstances, such to justify the reopening of the proceedings, the judicial officer is required to make a discretionary decision about whether the Applicant’s evidence demonstrates a prima facie change in circumstances and weigh the significance of that change, against the potential benefit or detriment to the children caused by the reopening of the proceedings.

What is a significant change in circumstances?

With the amendments not due to come into effect until 6 May 2024, there is no current case law outlining what the Court considers to be a significant change in circumstances. However, until such case law exists, it is expected that the Court will have regard to previous case law which has dealt with the principle set out in Rice & Asplund.

Rice & Asplund considers material changes in circumstances; examples of which include:

• A decision by one of the parties to relocate which was not contemplated at the time of the final parenting Orders being made;

• The views of a child in circumstances where time has elapsed since the making of the final Orders; and

• A change in a parent’s mental health and wellbeing.

A further discussion about what is classified as a material change in circumstances can be found here.

The Court does not entertain applications to amend or set aside an earlier parenting Order lightly. If you are considering such an application it is important that you obtain specialist family law 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.

Financial resources and how they impact property settlements

The definition of “property” in the context of a property settlement in Australia is outlined in section 4 of the Family Law Act 1975 (“FLA”). It defines the “property" as:

(a) in relation to the parties to a marriage or either of them--means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or

(b) in relation to the parties to a de facto relationship or either of them--means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.

The property pool that is considered available for division between separated couples usually includes assets such as cash in bank accounts, real properties, shares, investments, superannuation, motor vehicles, furniture, jewelry, business interests, etc.

While the definition of financial resources differs from assets when considering a property settlement, the FLA does not provide a specific definition for it. In the High Court case of Hall & Hall [2016] HCA 23 defined a financial resource as “a source of financial support which a party can reasonably suspect to be available to him or her to supply a financial need or deficiency”.

A financial resource may have the potential to generate future income or to give access to capital, which may not be immediately divisible but can influence the financial situation of a party in the future.

The Court may take into account financial resources of the parties and may adjust the division of the property pool having regard to those financial resources. Such adjustments will usually be based on the future needs of each party, ensuring a fair distribution that accounts for both current assets and future financial prospects.

Financial resources may include:

• Future Inheritances: Expecting to receive an inheritance even if not in the near future, can still be considered a potential financial resource. It can significantly impact a party's future financial security/position.

• Trust Beneficiaries: Interests in trusts, especially where an individual is a discretionary beneficiary, may not provide immediate financial benefits but can be regarded as a potential future income stream or cash flow, depending on what has happened in the past.

• Superannuation Interests: A superannuation interest is generally treated as property and can be available for spitting if necessary. However, the defined benefit superannuation schemes, known for their (at times, generous) pension phase, may generate significant income for one party upon retirement. Therefore, this entitlement is considered more as a valuable financial resource than mere property, especially in the long term. Consideration must be given to the nature of the interest at the time (i.e. whether it is in the growth phase or payment phase).

• Employment Leave: Significant periods of leave, such as long service leave may be seen as financial resources. This perspective was supported by Baker J in the Whitehead case (1979), where it was concluded that accrued long-service leave entitlements constitute a financial resource rather than an asset.

• Pending Legal Claims: An anticipated payout from litigation, such as a personal injury claim or other litigation where a financial settlement is expected, are likely to be included as they represent a future financial benefit.

• Loan Repayments: The expected repayment of loans owed to an individual can improve their financial position once received, and therefore be taken into account.

• Business Goodwill: The value associated with a business’s reputation and client relationships, particularly if it could generate financial gain beyond tangible assets, can also be considered as a financial resource.

• Tax Losses: Tax losses that can be used to offset future taxable income, therefore improving financial status, can also be seen as a financial resource.

• Support from Family Members: Regular or reliable financial support or expected support from family members, while not a formal asset, can be considered a financial resource due to its potential effect on an individual's financial position.

In summary, the consideration of relevant financial resources is essential for achieving a fair and equitable property settlement when negotiating a property settlement with a former spouse. The identification of these resources is important and should not be overlooked.

If you are exploring a property settlement and you need family law advice it is beneficial to see a specialist. To make an appointment with a member of our team please contact us today at (02) 6225 7040 or by email info@rmfamilylaw.com.au.

After Separation: what to do with the Matrimonial Home

The family home, which used to be a shared space, filled with joy, sorrow, and countless memories, becomes a complex asset to address when it comes to separation.

The decision of whether to sell, keep, or consider other options requires careful thought and consideration between you and your former partner. It is a decision that should ideally be made jointly if possible.

Here, we explore the various paths you may consider and the implications of each. There can be creative solutions to suit the unique dynamics and needs of different families.

Selling the property

Selling the matrimonial home is a common choice for many separating couples. It is a way to say goodbye to one chapter of life, split the proceeds, and embark on a new chapter of life. Both of you must agree on key decisions of sale if the property is jointly owned, such as choosing a conveyancer, real estate agent, setting the listing price, etc.

While in a fluctuating market, you may want to make sure the sale is profitable after paying off the mortgage and related expenses to ensure there will be a profit to be divided. If the sale potentially leads to debt, retaining the property as an investment or considering alternative options as introduced below, may be more prudent.

Co-owing the property

Some couples opt to continue jointly owning the house for a period of time post-separation. This arrangement can be temporary and allow children to live in a stable familiar environment until they finish school or another period of time as agreed, or until the market has improved for selling, for example.

It requires cooperation and detailed arrangements should be discussed as to the mortgage repayments, and outgoings including rates, utilities, and eventual sale terms. This option may be suitable for families with school-aged children where you and your partner are amicable and can communicate well about decisions.

Keeping the home

One partner may wish to retain the home, often due to the emotional attachment or if they are the primary carer of the children. This typically involves one partner buying out the other’s share and transferring the property’s title from joint to a single name. The challenge here is ensuring the serviceability of the mortgage, as it will need to be refinanced from a joint name to a single name, only relying on that individual’s income.

This process can be challenging and requires the individual to have an adequate and stable income. It could be a concern for a lot of families especially under the current high-interest rate environment. You may need to consult a financial planner and/or a broker who can assess if this option is open in your financial situation. Child support can be considered an income source in some circumstances, depending on whether there is an administrative assessment in place and how long child support has consistently been paid for.

If there is a court order in place requiring the property transfer, our team is equipped to assist with the process.

Renting out the home

Another option is to keep the family home as an investment property, which may offer an alternative income stream. This arrangement involves both of you moving out and renting the property, with the income potentially covering the expenses. This could be a beneficial temporary arrangement when the market is down or if both of you want to keep it as an investment.

It also requires the communication between both of you to be effective and amicable, as you will be handling the tenants, and liaising with the agent. You also need to agree on how the rental income will be applied and expenses paid, as well as allocating who the property management responsibility will fall to.

Making a decision about the family home during or after a separation is never easy. It can require input from third parties such as accountants, financial planners, mortgage brokers, and, for navigating property settlement matters, experienced family lawyers. The team at R+M is here to assist you.
If you have questions about how the family home should be dealt with post-separation, you should obtain specialist family law advice early on. 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.

Valuations and the Asset Pool

One of the first questions when completing a property settlement is “What is the asset pool?” By quantifying the assets, liabilities, superannuation, and financial resources of the parties, parties can then start to think about how the asset pool will be divided between them, having regard to their respective contributions and future needs.

It is important that the asset pool is identified before any settlement negotiations take place, the parties attend a mediation/conciliation conference, or the matter proceeds to a hearing.

The value of some assets, such as bank accounts, shares, and accumulation superannuation interests, are usually easily identified by obtaining the most recent account statement. The value of other assets however can be more difficult to identify, examples of such assets include:

• Motor vehicles;

• Collectable items, including antiques and vehicles;

• Real estate;

• Businesses; and

• Defined benefit superannuation interests.

If parties can agree on the value of the above types of assets, the agreed value can be adopted for the purposes of the balance sheet and the property settlement. For example, parties may agree upon the value of a car by obtaining a RedBook valuation, or the value of real estate by obtaining a market appraisal from a real estate agent.

If there is no agreement as to the value of a certain asset, the parties will need to engage an independent expert to value the items. When obtaining a valuation, it is important to:

• Agree upon who will carry out the valuation – the valuer should be appropriately qualified to carry out the valuation;

• Agree upon who will pay for the valuation – it is common for valuation fees to be shared equally between parties;

• Jointly instruct the valuer in writing – it is inappropriate for parties to individually speak with/instruct the valuer; and

• Request that the valuer provide their valuation in writing.

If no agreement can be reached about the appointment of a valuer, and the matter is in Court, the Court has the power to appoint a valuer (known as a Single Expert).

If the matter is in Court, once a joint valuation has been obtained, the parties are bound by the value unless otherwise agreed or ordered by the Court. If one party does not accept the valuation, they can ask questions of the valuer in accordance with Division 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; obtain a second valuation and/or seek permission from the Court to rely upon a second valuation (known as an Adversarial Expert Report); this is not a straightforward process, and specialist family law advice should be sought prior to making an application to rely upon an Adversarial Expert Report.

If you have questions about valuations and your property settlement you should obtain specialist family law 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.

Author: Peta Sutton, Senior Associate

Dying without a will in the ACT

If a person passes away without a valid will, or a will that does not adequately dispose of their assets, their estate will be distributed in accordance with the rules of intestacy. 

Intestacy is governed by the Administration and Probate Act 1929 (“the Act”) in the ACT. The Act determines who is eligible to inherit from the estate and the order in which assets are to be distributed. 

Who inherits an intestate estate? 

The primary beneficiaries of an intestate estate are typically the partner and children of the deceased. The Act provides for intestate estates to be distributed as follows: 

• If the value of the estate is less than $200,000, the partner of the deceased inherits the whole estate. 

• If the value of the estate is higher than $200,000, the partner is entitled to the first $200,000, plus 8% interest per annum calculated from the date of death until the date the partner is paid. 

• Any remaining balance is distributed between the partner and any children (or grandchildren) of the deceased. If there is one child, the partner receives half of the remainder and the child the other half. If there are multiple children, the partner receives one third of the remainder and the children receive equal shares of the balance. 

• If the deceased has children and no partner, the estate will be divided equally between the children.  

• If the deceased died without a partner or children, the parents of the deceased are entitled to the estate in equal shares. 

• If the deceased died without a partner, children or parents, their next of kin are entitled to the estate. Next of kin are defined as brothers and sisters, grandparents, uncles and aunts, and nieces and nephews. 

• In the event a deceased leaves behind no family, the ACT government is entitled to the estate. 

Who is considered a partner?

A partner can be a party to a marriage or to a de facto relationship. The Act defines a partner as either:

1. The spouse, civil partner or civil union partner of the intestate: or

2. An eligible partner of the intestate. 

An eligible partner is someone who was the domestic partner of the deceased at the time of their death and was either in a continuous relationship with the deceased for at least 2 years, or is the parent of a child of the deceased. 

If the deceased was separated from their partner but not yet divorced, the partner will still be entitled to inherit from the estate. As such, it is important to update your estate planning arrangements to ensure they reflect your wishes, particularly after major life events such as separation. 

It is highly recommended to seek legal advice before administering a deceased estate. If you would like to discuss your situation 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.

Author: Amy Davis