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

Caveats in Family Law

When a relationship ends, figuring out who gets to keep certain property can be a cause of concern, especially if you have been contributing to mortgage repayments on a property owned solely in your former partner’s name. What happens if you break up? Can your partner just sell the house without telling you? This is where a caveat may assist, in certain circumstances.

What is a caveat?

A caveat is like a public record indicating an interest in real property. If you lodge a caveat on a property, it means that the registered proprietor is unable to sell or deal with the property without the caveat being removed from the title.

Why and when to lodge a caveat?

In certain circumstances, including where you can establish an equitable interest in a property, a caveat may be used to protect your interest, or to delay certain dealings with a property that you may not know about or consent to. The Family Court has dealt with cases involving caveats in the past and has determined that a mere interest in a property as a result of an arguable case for an adjustment of property interests between separated parties may not (of itself) be a caveatable interest. Care must accordingly be taken when exercising such a right or taking such a step to lodge a caveat over a property not legally owned by you.

How to lodge a caveat?

To lodge a caveat, you must be able to demonstrate that you have a legal or equitable interest in the property. This may include by having made financial contributions towards the acquisition or improvement of the property. The application process involves completing specific forms and submitting them to the land titles office, as well as paying a fee. It is very important to seek legal advice before you do so, as lodging a caveat without a proper basis can have consequences, including in some circumstances financial penalties.

Does a caveat expire?

In jurisdictions like the ACT, a caveat remains on the title of a property once registered, until the caveator takes steps to remove it or the registered proprietor of the property applies for the lapsing of the caveat. If a caveat is disputed, the issue may need to be resolved in the Supreme Court, where a judicial officer decides whether the caveat is valid based on the evidence presented to the Court.

If you have a query about lodging a caveat and you are separated or considering separating, you should seek specialist family law advice.

Our team at Robinson + McGuinness is ready to guide you to ensure your rights and interests are prioritised. Contact us 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.

Protection and Separation

Separating from a spouse can be one of the riskiest times for an individual, particularly where family violence has been a feature of the relationship. The legal definition of ‘family violence’ can be found at section 8 of the Family Violence Act 2016 (ACT) or section 4AB of the Family Law Act 1975 (Cth). The definition in both pieces of legislation is broad and canvasses many different types of behaviour that constitute family violence.

Sometimes an individual may not recognise that certain behaviours they have experienced during their relationship constitute family violence until they are out of that relationship. Other times, an individual may have felt powerless or not known what avenues are open to them to protect their safety.

In the ACT, any person can apply for an interim Family Violence Order (FVO) for their immediate protection, or to prevent substantial property damage. Applications for a FVO are generally heard ex parte, meaning that the Court considers the applicant’s evidence in the absence of the respondent (the person who the FVO is being sought against).  

If the Court is satisfied that an applicant is in need of immediate protection, an interim FVO will be granted on the same day as the application is made. The interim FVO generally remains in place for 12 months, pending a final hearing where the Court will determine the application on a final basis (namely whether a final order should be made protecting the applicant). An interim FVO can be extended in some circumstances.

In the ACT, the Australian Federal Police will serve a copy of the application and the FVO on the respondent.

Either party can file documents seeking to amend an FVO, if amending the order will not adversely affect the safety of the protected person. For example, if the protected person’s circumstances have changed since the making of the FVO, or if the FVO restricts the respondent’s rights unnecessarily.    
If you are experiencing family violence, or are at risk of experiencing family violence, it is worthwhile speaking to one of our experienced family lawyers. We can advise you on your prospects of successfully obtaining an FVO and what type of restrictions you might want to seek in a protection order based on your experiences in the relationship, and your concerns.  

We can also advise on the next steps once an FVO has been granted (whether you are the applicant or the respondent), including any flow-on effects that an FVO may have on your family law matter.

In the event you are concerned for your safety, there are a number of services available to you:

1. If you are concerned for your immediate safety, you should contact 000.

2. The Domestic Violence Crisis Service offers assistance with safety planning and can be contacted on (02) 6280 0900.

3. To discuss a potential breach of a Family Violence Order, you should contact 131 444 (the non-urgent ACT Policing number).

For advice in relation to your property settlement, 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

Can I record my ex-partner: The use of secret recordings in Family Law

Oftentimes in a person’s everyday life, they are on camera: the camera on their phone, the dash cam in their car, the security camera as they walk in and out of a shopping centre. In a family law dispute, a person may seek to use their camera to record contacts with their former partner, they may record conversations with family members or friends, or record children before or after time with the other parent. While people may think they are acting protectively in a low conflict manner, there are risks that flow from secretly recording another person and using that recording.

In each state and territory in Australia, there are recording and surveillance laws. Some jurisdictions permit the use of recordings in certain circumstances. For example, in Queensland, a recording is legal if made with only one party’s consent. The person consenting to the recording can be the same person who takes the recording. In the Australian Capital Territory, however, there is no such exception. In the ACT, it is illegal to record another person without their consent, including an audio recording. It is also a criminal offence to transmit that recording, for example, providing it to family and friends, or to a lawyer for advice.

At its basic, this means that generally, it is illegal to record another person or retain such a recording, in the ACT. There are exceptions that apply in certain circumstances. The Court does not permit the use of such recordings, except in certain limited circumstances. Those circumstances may include where, notwithstanding the recording was made contrary to the relevant law, the desirability of admitting the recording into evidence before the Court outweighs the undesirability of admitting such evidence. In simple terms, the information obtained by a secret recording, and the relevance of that information to the circumstances of the particular case, may outweigh the issue of relying on a secret recording that was improperly obtained.

There is no hard and fast rule about the acceptance or rejection of secret recordings in family law. It is dependent on the circumstances of the case and the admissibility (or lack thereof) of the secret recordings. The Court is particularly critical of secret recordings where the evidence could be obtained by other means:

• By the making of diary entries, on a note’s app or in hard copy, at the time of each incident or event;

• By the making of complaints to police, counselling, domestic violence or child welfare services, which can later be obtained by Subpoena;

• By making written contact with family, friends or services, where contacts can be later produced. 

There are often other ways to gather evidence to support your position that is safe, respectful, and within the bounds of the law. If you intend to use recordings that you have, you should seek legal advice on whether or not these recordings can and should be used. To understand how the law applies to your particular circumstances, contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Family Violence Orders in the ACT

An Order made for the protection of an individual against a family member, intimate partner or relative is known as a Family Violence Order (FVO) in the Australian Capital Territory. You may also know them as a Personal Safety Intervention Order (PSIO) in Victoria, or as an Apprehended Violence Order in New South Wales.

In the Australian Capital Territory alone, it is unfortunate that on a regular day, police will attend numerous call outs for assistance in relation to complaints of a family or domestic violence nature. These may range from complaints about compliance with an existing FVO, a request for an Interim FVO to be made, incidents that may have family violence elements, referrals from associated agencies for welfare checks and actual incidents of family or domestic violence which may range from actual physical violence to threats of violence.

Unlike other jurisdictions, the majority of FVO in the Australian Capital Territory are brought by the victim themselves. An FVO brought by police may be in circumstances where there is significant risk to the victim if they apply for an FVO themselves, or where the FVO is applied for outside of usual Court hours (known as an After-Hours FVO). An After-Hours FVO is intended to provide immediate and urgent protection, to give the victim an opportunity to attend the ACT Magistrates Court and make a formal application for an Interim FVO should they wish to. An After-Hours FVO is only in effect for a maximum of two business days.

The person applying for the FVO is called the “applicant”, with any children who are sought to be included known as “the protected persons”. The person who the FVO is against is known as the “respondent”. While children may be put on the FVO of a parent or legal guardian, it is not uncommon for a child to seek their own FVO, such as against a parent or care giver.

When making an application for a FVO, a person will be required to fill out and file three forms with the ACT Magistrates Court. There is no fee associated with filing for a FVO. These forms include:

1. The application for a FVO in their favour, this form covers the application for both an Interim FVO for their immediate safety (if necessary), and a FVO made on a final basis; and  

2. The contact details the applicant is agreeable for the Court to know to ensure the smooth progress of their FVO application, but which can be kept confidential from the respondent; and

3. The contact details and information about the respondent that will assist the police in serving the FVO application, and Interim FVO if granted, upon the respondent.

Regardless of whether you are granted an Interim FVO or not, the respondent will receive a copy of your application, and is entitled to seek a copy of the evidence that you give to the Court in the process of applying for the FVO.

Your circumstances and the level of protection you and others may require may impact upon which FVO is available to you. If you feel you need to urgently address your safety, you should call 000 or DVCS on (02) 6280 0900.

The process for a FVO may feel overwhelming, and it is crucial that the right documents are filed with the right details. Getting detailed family violence advice may be the difference in ensuring you receive an Interim FVO with the right protections to ensure your safety and the safety of others. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Making an application for a Family Violence Order

In applying for a Family Violence Order (FVO), you should consider whether your safety needs will be met with a Final FVO, or whether you also need an Interim FVO. An Interim FVO is made in circumstances where protection is needed to ensure the safety of the victim(s) and / or their personal property before the Court has the time to consider the application for a Final FVO. Often when an Interim FVO is discussed, the circumstances are considered “urgent” or especially volatile. An Interim FVO may be sought at the conclusion of a relationship, where leaving safely is unlikely to occur unless an Interim FVO is in place, or where the whereabouts or circumstances of the respondent are unknown or unpredictable and elevate the risk to the victim(s).

Both FVO are applied for with the one set of forms, however when applying for an Interim FVO you will be required to give evidence to the Court on the day you make the application. While the respondent is not given notice of the application, or usually an opportunity to appear at the Interim hearing, they are entitled to seek a copy of the evidence you give to the Court following the Interim hearing by way of request for the transcript. They will also be given a copy of the application, regardless of whether the Interim FVO is granted.

During the current Covid19 lockdown in the Australian Capital Territory, you can still apply for a Family Violence Order (FVO). You are able to fill in and file the three forms required electronically or in-person with the ACT Magistrates Court. The forms are readily available on the ACT Magistrates Court website, and there is no fee associated with making the application. When filing them you should ensure you keep a copy of the forms yourself to refer to later on. If you have applied for an Interim FVO, you will be contacted by the Court to attend your Interim Hearing by way of teleconference. You should ensure you are able to attend the teleconference in a quiet space that is free of any distractions or interruptions. The Court officer who will hear the Interim FVO application is often a Deputy Registrar. They will have read the application filed by you, and will have you swear or affirm to the truth of its contents and of any further evidence you may give on the telephone. They may ask you a range of questions which are aimed at determining the extent of the family violence alleged and whether it meets the test for you to be granted an Interim FVO.

Following the Interim Hearing, you may or may not be granted an Interim FVO. If an Interim FVO is granted, it may not always be in the exact terms that you sought. At the conclusion of the Interim Hearing, you will be given a date by the Deputy Registrar to return to Court to attend a Preliminary Conference, the respondent will also be required to attend the Preliminary Conference in relation to your application for a final FVO.

The Australian Federal Police (AFP) will then serve a copy of your application (but not the form that includes your contact details) upon the respondent. If you were granted an Interim FVO, they will also serve a copy of it upon the respondent. Once the Interim FVO is served upon the respondent, it is in effect, and you will be notified of this by the AFP. Any conduct by the respondent that is contrary to the terms of the Interim FVO following service may give rise to a breach of the Interim FVO, and you may contact AFP to report these.

It is best to remember while a FVO is in place for your safety, and the safety of others, it should be treated as a two-way street. While you are the applicant, or the protected person, you should not engage in behaviour that is prohibited by the terms of the FVO. If you are unsure of your obligations while a FVO is in effect, you should seek legal advice.

Attending Court to make an application for an Interim FVO is a lawful exception to the lockdown restrictions. If you feel you need to urgently address your safety, you should call 000 or DVCS on (02) 6280 0900.

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.