What is a Statutory Will?

A statutory Will is a Will made on behalf of an individual who lacks the mental capacity to make a valid Will themselves. In these situations, the Supreme Court may grant approval for the creation of a Will that reflects what the person would have likely wanted if they were capable of making the decision. Statutory Wills are typically used when a person has lost the ability to understand or make decisions due to a cognitive disability or diagnosis (i.e. dementia, brain injury etc). They can also be used for person under the age of 18 who have assets in their personal name (i.e. because they have inherited assets/funds from another person).

The primary purpose of a statutory Will is to ensure that an individual’s estate is managed according to their wishes, even when they cannot express those wishes directly.

When is a Statutory Will Needed?

A statutory Will is necessary in the following situations:

1. If an individual is no longer deemed to have testamentary capacity, and they have not made a valid will prior to their incapacity, a statutory Will may be applied for by a family member or another interested party;

2. If someone has lost testamentary capacity and has never made a Will, it is important to have one in place for the distribution of their estate upon their death; if they don’t, then the laws of intestacy will apply. The Court can appoint a statutory Will to reflect the person’s presumed wishes; and

3. In cases where there is an existing Will but doubts or disputes arise about its validity or intentions, a statutory Will can help resolve conflicts between the surviving family members and beneficiaries and provide clarity.

How Does the Statutory Will Process Work?

Statutory Wills in the ACT are made in accordance with Part 3A of the Wills Act 1968 (ACT).

The following steps apply:

1] Court Application: An interested party, usually a family member, a partner, or a legal representative is required to make an application to the ACT Supreme Court for leave to apply for a statutory Will. The evidence provided by the interested person should include evidence of the person’s lack of testamentary capacity, the person’s personal circumstances, and their known or presumed wishes. Expert medical or psychological evidence may be required to satisfy the Court the person lacks testamentary capacity.

2] A Hearing: The Court will conduct a hearing wherein the Court will review the evidence presented and determine whether a statutory Will is appropriate. The Court may also consider the views of interested parties, such as family members, to help assess what the person would have wanted. To be satisfied that a statutory Will is required, the Court must be satisfied of the following:

• There is reason to believe that the asserted individual who lacks testamentary capacity is incapable of making a Will; and

• The proposed Will is, or is reasonably likely to be, one that the person would have made had they had testamentary capacity; and

• It is or may be appropriate to make the Order for a statutory Will; and

• The interested person applying for leave is an appropriate person to make the application; and

• Adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person who lacks testamentary capacity.

3] Approval and Creation of the Will: If the Court agrees that a statutory Will is necessary, leave will be granted for the interested person to apply for an Order for a statutory Will to be created. Once the Order has been made, the Will will be created and signed by the Registrar of the Court.

4] Implementation: Once the statutory Will is approved, it will be treated as a legally binding document, just like any other Will.

Who Can Apply for a Statutory Will?

People who can apply for a Statutory Will include:

• Family members: A spouse, children, or other close relatives of the individual may apply;

• Legal representatives: A person acting under power of attorney or a guardian appointed to care for the individual may also apply; and

• Executors of the estate: If a person has previously nominated an executor, they may apply on behalf of the individual, particularly if there are doubts or disputes arise about its validity or intentions; and

• Beneficiaries: People who stand to inherit from the estate may also have standing to apply.

What Should a Statutory Will include?

A statutory Will should reflect the individuals’ likely intentions regarding the distribution of their estate. This can include:

• The distribution of assets: How property, money, and other assets should be divided among beneficiaries;

• Appointment of executors: Who will be responsible for managing the estate and ensuring the Will is carried out; and

• Provision for dependents, including any spouse or children.

What happens when there is no statutory Will?

If there is no valid Will, and no Statutory Will in place at the time an individual dies, then that person’s estate will be distributed in accordance with the laws of intestacy. You can read more about intestacy in the ACT here.

If you have a loved one who you think has lost testamentary capacity, or is on their way to losing testamentary capacity, it is important that you seek legal advice to understand what options are available to put their affairs in order. 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.

Radecki & Radecki: what does this mean for my Final Family Law Orders?

In May 2024, significant changes were made to the Family Law Act in relation to how the Court determines arrangements for children. One of the significant changes to the Family Law Act involved codifying the principle espoused in the well-known case of Rice & Asplund. In this case, the Court decided the reasons why a Court could reconsider final family law orders. It has generally been seen not to be in the best interests of children for litigation to continue, or be ongoing. The Court found that there had to be a significant change in circumstances since the making of the final Orders.

The 2024 amendments to the Family Law Act codified this principle in section 65DAAA.

Since these amendments, there have been several judgments that deliberate exactly how section 65DAAA is to operate. The section states that the Court must not reconsider the final orders unless the court has considered whether there has been a significant change in circumstances. There is no part of section 65DAAA that states what the Court is to do once it has “considered” this question. The Court, in various judgments, was divided as to whether the section required to the Court to then go a further step and make a finding one way or another as to whether a significant change of circumstances had occurred, or a “consideration” of this issue was sufficient.

In the case of Radecki & Radecki, the Full Court of the Federal Circuit and Family Court of Australia, contemplated this question. The case involved a 12 year old child, whose parents had been separated for about 10 years. Final Orders had been made when the child was 2 years old, on an undefended basis, given that the father had not participated in the proceedings. There was a notation in the Final Orders that included that the parties intended to review the orders three months after the child started primary school. The parties had a good relationship at the time of the making of the orders, and it was submitted to the Court that they could work together to agree on the time arrangements for the child once they went to school.

The Father brought an application to re-open the proceedings approximately 8 years later, citing that the co-parenting relationship had broken down, and seeking substantially more time with the child. The trial judge declined to re-open the proceeding. However, the trial judge did not come to any conclusion as to whether or not a significant change in circumstances had occurred. Ultimately, the Full Court upheld the appeal, finding that the trial judge had not properly “considered” whether there had been a significant change in circumstances.

The case of Radecki & Radecki clarifies for parties and legal professionals how the Court should approach the application of section 65DAAA. The Court must consider whether there has been a significant change of circumstances since the making of the final orders, and make a finding accordingly. If the Court finds there is no change, then the matter is finalised. If the Court does find that there has been a significant change of circumstances then the Court will need to consider the second limb of whether reconsideration of the final orders is in the child’s best interests.

You should seek legal advice about your options in relation to seeking advice to make an application pursuant to section 65DAAA of the Family Law Act. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

A sham marriage: happily ever after?

In January 2025, multiple news sources published a curious story about a woman who successfully annulled her marriage. She sought a declaration of nullity on the basis that she was not aware she was entering a legal marriage.

A brief summary of the facts are as follows:

1. The parties met on an online dating platform around September 2023 and commenced a relationship (the extent of which was in dispute).

2. The applicant believed that the respondent was a social media influencer.

3. The applicant told the Court that in December 2023, she and the respondent visited Sydney together. The respondent told her to bring a white dress, as they would be attending a ‘white party’.

4. The night before the white party, the respondent gave the applicant a diamond ring and proposed to her.

5. The next day, she was surprised that the ‘white party’ was actually a wedding organised by the respondent. This was described as a ‘prank’ to the applicant, to promote the respondent’s social media.

6. The ceremony was filmed, and the parties participated in a seemingly traditional ceremony.

7. Later, the respondent asked the applicant to include him in her application for permanent residency on the basis that they were spouses. The applicant asserts that the respondent said he had organised the marriage to help him.

8. The applicant subsequently obtained a copy of the marriage certificate; and applied to the Court seeking to void the marriage.

The Court ultimately accepted the woman’s evidence that her consent to marry was not real consent, on the basis that she was mistaken as to the nature of the ceremony performed. The applicant believed that she was participating as an actor in a video of a marriage ceremony for the respondent to use on his social media.

The Federal Circuit and Family Court of Australia has the power to determine whether a marriage was legal, or whether the marriage was invalid.

The Court is only able to grant a decree of nullity in limited circumstances. Section 23 of the Marriage Act 1961 (Cth) sets out the grounds on which a marriage is void, which includes:

1. If a party to the marriage was already lawfully married to another person at the time of marriage;

2. If the parties are in a prohibited relationship (i.e. the parties are siblings); or

3. If a party to the marriage did not provide real consent, because:

a. The consent was obtained by duress or fraud;

b. That party was mistaken as to the identity of the other party or the nature of the ceremony performed;

c. That party was mentally incapable of understanding the nature and effect of the marriage ceremony; or

d. Either of the parties was not of a marriageable age.

To seek a declaration of nullity, you must file an Initiating Application setting out the orders you seek, and an Affidavit setting out the facts you rely on to annul the marriage and the details of the type of marriage ceremony performed.

Should the Court accept that the marriage is void, it will issue a decree of nullity. This is an order which establishes that there was no legal marriage between the parties, notwithstanding the possibility that a marriage ceremony took place.

The decree of nullity becomes effective immediately, once granted.

If you are concerned that you may have entered into a legal marriage but one of the circumstances set out above applies to you, you should seek legal advice from a lawyer who specialises in family law. You can make an appointment with one of our experienced family lawyers at Robinson + McGuinness. To arrange an appointment by email contact us at info@rmfamilylaw.com.au or call us on 02 6225 7040 or get started now online.

To read the case, click here.

Why should I have a Will?

Preparing a Will is often something people delay or avoid; however, it is one of the most important things that a person can do to ensure that their wishes are followed once they die. This post sets out why you need a Will and how it will benefit your family once you are no longer with them.

1. Your Will Determines How Your Assets are Distributed

Your Will can clearly identify who you would like to leave your assets to. Without a Will, the laws of intestacy will decide who inherits your property and assets; for further information on intestacy click here. These laws may not align with your intentions (i.e. if you have a blended family). By preparing a Will, your assets will be distributed in accordance with your wishes.

2. Minimise Family Conflict

Grief and loss can sometimes bring out the worst in families, and disputes over assets are sadly common when someone dies without a valid Will. In the absence of a valid Will, there is room for disagreements over the division of your estate, which can lead to prolonged legal battles and emotional stress. Having a well-thought-out Will helps reduce the chance of family disputes, giving your loved ones clear guidance on your wishes.

3. Protect Your Children

If you have dependent children, a Will allows you to nominate a guardian who you would like to take care of your children in the event something happens to you.

In the event there is disagreement between your loved ones after your death about who should care for your dependent children, the intentions set out in your Will will be important.

4. Appoint an Executor You Trust

When preparing your Will, you will appoint someone you know and trust to be the executor of your Will. This person will be responsible for ensuring your estate is administered according to your wishes. Your executor will manage everything from paying off debts to distributing assets. Choosing someone you trust is crucial, as they will be navigating both legal and financial matters during an emotional time.

5. Avoid the Intestacy Process

If you die without a valid Will, your estate must go through a legal process known as intestacy. The process can be time-consuming, costly, and emotionally draining for your family. It often involves the Public Trustee and Guardian stepping in to determine the distribution of your assets, which could result in a distribution that doesn’t reflect your wishes or the needs of your loved ones.

6. Update Your Will to Reflect Life Changes

As your circumstances change, i.e. in the event of marriage, divorce, the birth of children, or a significant change in your financial situation, it is important to review your Will and make sure it reflects your wishes. A Will isn’t a one-time task; it’s something that should evolve as your life does, ensuring it always reflects your current situation.

7. A Simple Process That Brings Peace of Mind

Preparing your Will does not need to be complicated or overly expensive. We believe that all individuals should have a Will in place. A Will will give you peace of mind, knowing that your wishes are clear, and your family is looked after.

If you would like to 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.

ACT Reforms: Family Violence Lease Terminations and how they may impact you

On 10 December 2024, a number of reforms to the Housing and Consumer Affairs Legislation Amendment Act 2024 came into effect in the ACT. The reforms are aimed at increasing safety measures for renting families experiencing family violence. If you have experienced family violence, you can now break your fixed term lease immediately and without penalty.

To end your lease immediately and without penalty, you must complete a ‘family violence termination notice’ and provide notice to your landlord or managing real estate agent in writing, by email, post or in person. The family violence termination notice is available on the ACT Government website and via this link.

You may end your tenancy agreement on the vacating date in your notice. Rent is payable up until your vacating date, but you will not be subject to any break lease fees.

To establish a ‘family violence termination’ as a tenant, you will need supporting documentation; such as a family violence order, a family law order (being an injunction under section 68B or section 114 of the Family Law Act 1975 (Cth)) or a declaration by a competent person (such as a mandated reporter if dependent children are involved, DVCS employees, CYPS employees or eligible social workers).

Upon providing notice and your supporting documentation, your landlord will not be able to ask for any further documentation and is subject to certain confidentiality requirements. Your landlord is only able to share your family violence termination notice with a limited number of people, including their agent, an employee of their agent and the ACT Government. Your landlord is also able to share the notice with their lawyer, to obtain legal advice.

Your landlord cannot inform any co-tenant that you are leaving prior to your vacate date - any co-tenant will be informed within 7 days following your vacate date. The landlord must issue a co-tenant with a ‘notice of continuing tenancy’ which will alert the co-tenant to the fact you have provided the landlord with a family violence termination notice. The co-tenant may then choose to continue their tenancy agreement (paying the full rent for the property), or end their tenancy agreement (subject to any applicable notice periods). This form is available on the ACT Government website and via this link.

For those living in Housing ACT properties, you should not complete a family violence termination notice unless you have found alternate housing outside of your public housing tenancy. Housing ACT has a number of other supports available to those experiencing family violence - see more via this link.

If you are a victim of family violence or need assistance in navigating leaving a relationship safely, you can make an appointment with one of our experienced family lawyers at Robinson + McGuinness. To arrange an appointment by email contact us at info@rmfamilylaw.com.au or call us on 02 6225 7040 or get started now online.

For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.

Author: Anika Buckley, Associate

R+M RANKED ‘FIRST TIER’ AGAIN IN 2025 DOYLE’S GUIDE

The Doyle’s Guide Yearly Best Firms & Lawyers listing is compiled by peers within the legal profession. For a firm to receive a ‘First Tier’ ranking the firm not only needs a high vote count, but they also need to have glowing reports from clients and individuals. The same applies for the individual rankings; those who place in the Preeminent and Leading lawyers’ categories are those who consistently draw the praise of both clients and peers.

We are proud to announce that Robinson + McGuinness has been recognised once again as a First Tier - Leading Family and Divorce Law Firm in Canberra, a great achievement for the firm which has now been in practice for over nine years.

Members of the Robinson + McGuinness team have also been recognised for their excellence in the family law field. Our Directors, Kevin Robinson and Sally McGuinness have yet again been recognised by their peers as Leading Family and Divorce Lawyers, with Sally being acknowledged as Preeminent within the ACT. Both Directors have also been recognised in the Leading Parenting, Custody & Children’s Matters, with Kevin being acknowledged as Preeminent. Our Associate, Anika Buckley, has also made a lasting impression, being recognised as a Rising Star in Family Law for the second year in a row.

We are very grateful for the recognition and support, and we congratulate our team on their great achievements!

If you would like to make an appointment with one of our experienced lawyers, please contact us today either online, via phone on (02) 6225 7040 or via email on info@rmfamilylaw.com.au.

You can read the full 2025 ACT listing on the Doyle’s Guide website.

How to Prepare for The Family Report Interviews?

A Family Report is a report prepared by an expert, such as a psychologist, psychiatrist or social worker, who will analyse and assess what the most appropriate parenting arrangements are for your children. A family report could be ordered by the Court and take place either in the Court building (with a Court-appointed expert) or with a privately paid expert. It is common too for parties to obtain a family report without being engaged in active court litigation.

Part of this process will involve the Family Report writer meeting with you, your children, the other parent and any significant other person in the children’s relationship (such as your current partner, any of the children’s half-siblings or step-siblings or grandparents). 

The family report is an important piece of evidence for your parenting case, so it is important that you are prepared for the interview.

Below are 8 things to consider when preparing for your family report interview:

1. You should be able to articulate what it is you are seeking in terms of the children’s arrangements. If you are in Court, you should be able to explain what Orders you are seeking and why they are in the children’s best interests.

2. Ensure that you know the date, place and time of your interview. If it is a court-appointed expert, make sure that you attend the correct Court and if it is a private expert, make sure you know where the interview will take place. Make sure you arrive on time.

3. Dress smart, and it is not necessary to wear business attire.

4. Consider whether you are being overly critical of the other parent and how that may reflect on you.

5. Ensure that you have enough food and drink for yourself and the children. It is also important to bring along any toys or games that you enjoy with the children for the observations, depending on how long you will be there.

6. You may wish to re-read the evidence that is currently before the Court. This includes your and the other parent’s affidavits, Notice of Child Abuse, Family Violence or Risk and any expert evidence already before the Court (such as a Child Impact Report). You will likely be asked questions based on the evidence that is filed and it is important that you can recall those events.

7. Depending on the ages of the children, you may need to tell them that they will be meeting with the family report writer, but you should not be telling them what you want them to say. There are helpful brochures on the Federal Circuit and Family Court of Australia website about how to approach discussing the family report with children of different age groups. 

8. Remember that nothing you say or do is confidential and whatever you say could be written in the family report, and therefore seen by your ex-partner, Independent Children’s Lawyer, your solicitors and the judge.

If you would like specialist legal advice about the family report interview process, please contact Robinson + McGuinness today to arrange an appointment on (02) 62257040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Catherine Finucane, Associate

Moving Forward and Moving Away: When You Seek To Relocate And The Other Parent Doesn’t Agree

When parents separate, they are still faced with the reality of co-parenting.  This can be challenging for parents to navigate following the breakdown of a relationship, when emotions are high and unresolved issues may remain.  This is especially challenging when one parent seeks to move.

The focus for parents should always be what is in the best interests of their children. When faced with a parenting matter, this is also the Court’s primary consideration (see section 60CA of the Family Law Act 1975 (Cth) (the Act)).  In determining what is in a child’s best interests, the Court will consider the matters set out in s 60CC(2) of the Act.

It is not recommended (nor usually condoned by the Court) for parents to relocate the residence of a child without the both parents agreeing to the proposed move; or without a Court Order allowing the parent to move with the child.

When a parent is seeking to relocate with a child, the Court will be interested in how the proposed move will impact that child; having regard to their developmental, psychological, emotional and cultural needs.  For example, a parent seeking to relocate will need to consider how the move will impact the child’s education.  The Court will be interested in understanding the child’s educational arrangements, including what year the child is in at school and whether they have special educational needs (for example, that can only be met in certain schools).     

In most cases, a proposed relocation is likely to have an impact on the care arrangements for the child, and the capacity for both parents to spend time with that child as they have been.  The Court gives consideration to the benefit afforded to the child of having a relationship with their parent, and other significant people. 

Parents should be able to identify how they will be able to support a relationship between the child and the other parent if they are (and/or are not) able to move.  The Court will be interested in the practicalities of the move, including what travel will be involved to visit the other parent and the costs of that travel.  

The moving parent should be able to clearly articulate how they will support the relationship between the other parent and any other significant people in the child’s life.  This may involve giving consideration to greater time with the other parent in the school holidays and communication (for example, video communication at set times and with regular frequency).

Where a parent has been subjected to family violence by the other parent, the Court will give consideration to whether the arrangements promote the safety of the child (and the caring parent).

In making a decision about relocation, there is (generally) no easy answer.  Discussions about resolving a matter will involve one parent compromising on their position significantly, or both.  The Court will ultimately balance the parties’ competing proposals and make a determination about what they consider is in the child’s best interests.

If you are considering relocating with your child, you should speak with a specialist family lawyer to understand your rights and obligations.  You can 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: Anika Buckley, Associate

Christmas Arrangements: Things to Think About

Many separated couples have very different ideas about how they would like to organise their Christmas arrangements between the children. Parents want to enjoy the magic of Christmas with their children, especially while they are young. It is important for separated parents to really consider how they will split Christmas as early as possible, so that they can organise their own holiday plans, and avoid conflict where possible.

There are a few arrangements that parents could consider in terms of how to celebrate Christmas with their children, as follows:

1. Splitting Christmas Day

Most parents want to spend Christmas Day with their children. One option is to arrange time such that a child spends Christmas Eve to the middle of Christmas Day with one parent, and then from the afternoon of Christmas Day to Boxing Day with the other parent.

A benefit of this arrangement is that the child gets to spend Christmas Day with both of their parents, and extended families. However, some parents do not have such an amicable relationship and decide that seeing their ex-partner on the day would be too stressful, or perhaps too tiring for the children. In those circumstances they can consider other arrangements as set out below.

2. Alternating Christmas Day

Some parents decide that they will forgo spending Christmas Day with their children every year, and instead spend alternating Christmases. This could mean that a child spends time with one parent from 24 December to Boxing Day with one parent, and with the other parent the next year and so on.

3. Alternating weeks

Other parents decide that they want the option to travel for Christmas Day, and will agree to a week of time, or longer, around Christmas to enable travel to occur each alternating year.

It is important to remember that when you are considering parenting arrangements around Christmas, it should be about the traditions and quality of time you spend with your children and not necessary principled about spending time with them on 25 December each year. 

Time to file an application in Court for Christmas arrangements in any given year is the second Friday of November. This year it has already passed.

If you do not file an application with the Court by that date, you are unlikely to get any hearing (or a decision) from the Court in time for Christmas. If you do not have the arrangements settled for Christmas time this year, you should consider attending an urgent mediation to discuss the arrangements with your ex-partner.

If you would like specialist family law advice about parenting arrangements at Christmas, please contact Robinson + McGuinness today to arrange an appointment on (02) 62257040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Catherine Finucane, Associate

Recent surrogacy reform in the ACT

The Parentage (Surrogacy) Amendment Bill 2023 came into effect in the ACT on 10 July 2024, bringing about a series of amendments to surrogacy arrangements in the ACT.

The reforms are directed to making surrogacy arrangements more accessible to hopeful parents, and to bring the ACT legislation in line with surrogacy arrangements across the country.

The primary changes to surrogacy arrangements in the ACT are:

1. It is no longer a requirement that there be two intended parents of a surrogacy arrangement, and a single person not in a marriage or de facto relationship may pursue a surrogacy arrangement;

2. The timeframes in which an application must be made to the ACT Supreme Court for a Parentage Order have been relaxed, in some circumstances;

3. To provide surrogates and intended parents greater access to fertility services and greater freedom of movement, it is no longer a requirement that a child born of a surrogacy arrangement be conceived and birthed within the ACT. Intended parents who wish to make an application to the ACT Supreme Court for a Parentage Order may utilise assisted reproductive technology treatment, or birth a child outside of the ACT;

4. It is no longer a requirement that there be a genetic connection between the child and the intended parents. Prior to the recent amendments, it was required that one intended parent provide genetic material used for conception;

5. Whilst commercial surrogacy remains unlawful in the ACT (and all other Australian states and territories), hopeful parents wishing to enter into a surrogacy arrangement are now permitted to advertise a proposed altruistic surrogacy, to improve their prospects of connecting with a surrogate;

6. The Parentage Amendment 2024 which also came into effect from July 2024, provides a prescribed list of antenatal and postnatal expenses which are deemed to be “reasonable expenses” for which a birth parent may seek reimbursement;

7. The amendments place greater emphasis upon the Court’s ability to exercise discretion to grant a Parentage Order where it is in the best interests of the child to do so.

For specialist legal advice in relation to surrogacy arrangements, 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: Margot McCabe, Associate Director.

What you should know about Family Violence Orders

Anyone may apply for a Family Violence Order (an FVO) against a family member if they are in fear for their safety and in need of ‘immediate protection’.  The definition of ‘family member’ is set out at section 9 of the Family Violence Act 2016 (Cth).

Upon application, the Court may grant an interim FVO in the absence of both parties putting on further material before the Court.  An interim FVO will place certain restrictions and conditions on the respondent to the application, preventing them from engaging in family violence.  For example, this may include a prohibition on attending a protected person’s workplace or home; or a prohibition on contacting the person.

The respondent to an application for a final FVO may file an application to revoke the interim FVO, for example if the restrictions contained within the order are overly restrictive or they can demonstrate the applicant does not require the protection of an order.

An interim FVO can become final either by consent on a without admissions basis (meaning the Court has not made any findings); or at a final hearing, where the Court has ‘tested’ the evidence and made findings as to the respondent engaging in family violence against the protected person.

Unless there are ‘special or exceptional circumstances’, a final Family Violence Order will generally remain in place for a period of 1 or 2 years.  Sometimes, the protected person might agree to the order being in place for a shorter period (say 6 months).

If a protected person is still in need of protection and the FVO is due to expire, they can file an application seeking to extend the order.  In an application to extend the order, the respondent then bears the onus of proof to demonstrate that the applicant is no longer in need of protection.

If your FVO is due to expire, it is crucial that you take steps to seek an extension of the order prior to the order expiring.  If you do not apply for an extension until after your order has expired, you will face a ‘fresh’ application and the burden of proof remains with you as the applicant to demonstrate that you are in need of protection.

If you are considering applying for an FVO or whether to seek an extension of your order; or if you are the respondent to an application, you should obtain specialist legal advice. The ACT Magistrates Court website also contains valuable information, including frequently asked questions.  A lawyer will be able to help you collate your evidence and advise you about the merits of your case, including possible settlement options. 

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 family lawyers.

For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.

Author: Anika Buckley, Associate 

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