Procedures & Resources

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

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

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

Making the most out of your first appointment

There are different stages where you may be thinking about seeing a family lawyer. You may be thinking about entering into an agreement with your partner setting out what will happen to your assets and liabilities if you were to separate. On the other hand, you may be at the conclusion of your relationship and wondering what to do next.

Whether you have done some research about family law firms and chosen one, or whether a family or friend has recommended a particular firm, the next step will likely be to book in an initial appointment or consultation.

To make the most out of your first appointment with a family lawyer, there are a number of things you can do or start to think about:

1. Consider your assets, liabilities and superannuation

When you see a family lawyer, it is useful to understand the composition of the property pool. This means knowing what assets you or your spouse own, and any debts or liabilities that may be owing. If you have time, it is worth preparing a list or balance sheet setting out your estimated values of assets and liabilities and checking your current superannuation balance.    

2. Think about the outcomes you want to achieve

You may have booked an initial appointment with a family lawyer seeking to understand your rights and what you might be entitled to arising from your separation. It is useful if you give some consideration to what assets and liabilities exist, and which of those are important for you to keep in any separation. Your family lawyer will likely be able to provide some guidance about what a realistic outcome might look like, including the mix of assets and liabilities you are seeking to keep.

3. Prepare a summary or background of your relationship

Once again, if you have time, it is helpful for you to prepare a short summary or background/ chronology of your relationship for your family lawyer. This includes when you first met, started living together and when you separated. It is also useful to include relevant details such as:

  1. What you each owned at the start of the relationship;

  2. How the various assets and liabilities were accumulated throughout the relationship;

  3. How you divided any household responsibilities;

  4. Whether you received any gifts, inheritances or insurance payouts during the relationship;

  5. If you own property – whether you ever did any renovations;

  6. Your current employment status and your income; and

  7. If you have children – how you divided the parenting responsibilities and how you see the future arrangements for your children.

If you do not have time to prepare a summary of your relationship or a list of your assets, liabilities and superannuation, do not worry. At an initial appointment, your family lawyer will be able to provide you with important information to guide you through the next steps.  If you are ready to book an initial appointment with a specialist family lawyer, contact us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice. The earlier the appointment the better, so you can make informed decisions about your options.

Author: Anika Buckley 

Ebrahim & Ebrahim & Lamsaard: A lesson in what not to do in litigation

Litigation is a stressful and arduous process. The recent case of Ebrahim & Ebrahim & Lamsaard [2023] FedCFamC1F 28 and Ebrahim & Ebrahim & Lamsaard (No 2) [2023] FedCFamC1F 209 serves as a reminder of the importance of following Court procedure and adhering to the Rules and Orders of the Court, in family law proceedings.

So, what happened in the case of Ebrahim & Ebrahim & Lamsaard?

This is a parenting case in which the Mother commenced Court proceedings seeking orders in relation to the parties’ child. After procedural orders were made in relation to the conduct of the parenting case in June 2022, neither the mother nor her solicitor attended any future Court events. The Court formed a view that the Mother’s application did not have prospects of success. On 31 January 2023, and after the Mother had been provided with a number of opportunities to re-engage in the litigation, the Mother’s Application was dismissed. The Father successfully sought that the Mother meet his legal costs of the proceedings, and that a portion of those costs be paid by the Mother’s solicitor.

What are the lessons to learn from Ebrahim & Ebrahim & Lamsaard?

  1. Do not make an ambit claim - An “ambit claim” is where a party to litigation seeks an outcome which has no reasonable prospects of success.

  2. Prosecute your own case - Parties to litigation, particularly an Applicant (the party who initiates Court proceedings) has an obligation to prosecute their own case by participating meaningfully in Court proceedings.

  3. Know the rules - You should familiarise yourself with the Central Practice Direction, as well as the Federal Circuit and Family Court Rules and the Family Law Act. These documents set out the pathway towards resolution of litigated matters, and what expectations the Court has of parties to Court proceedings, amongst other things. Of course, the legislation and rules contain complex legal concepts and so, it is prudent to obtain independent legal advice or legal representation if you are involved in Court proceedings.

  4. Do not cause undue delay –The Court found that the Mother should have filed a Notice of Discontinuance approximately 6 months prior to her application being dismissed by the Court, given her failure to engage in the proceedings. The failure of the Mother to attend Court carried significant weight in the Court’s decision to dismiss her case.

  5. Communicate with your lawyer – In this case, both the Mother and her solicitor have fallen short of their respective obligations. If the Mother’s solicitor was not able to obtain instructions from his client, he should have filed a Notice of Ceasing to act, indicating that he was no longer able to represent the Mother. If the Mother did not want to or was not able to continue the proceedings, she should have filed a Notice of Discontinuance. It is essential that parties communicate openly with their solicitor about how they wish to conduct their case (and whether they wish to continue litigation at all), so that they can receive advice about their options. For example, if a party does not wish to continue proceedings, they may receive advice to make offers of settlement to resolve the proceedings, attend mediation or to file a Notice of Discontinuance.

What does this mean for you?

If you are self-represented and unsure of your obligations as a party to litigated proceedings, or you would like a second opinion, you should obtain specialist legal advice in relation to your circumstances.

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 family lawyers.

Author: Margot McCabe

Costs: When can you seek that one party meet your legal costs of family law proceedings?

The Family Law Act provides for each party to bear their own legal costs. In some cases however, a party may seek that the other meet their legal fees.

Section 117(2) of the Act provides that the Court may make an order that one party meet the other party’s costs of Court proceeding, “if there are circumstances that justify it doing so”.

Costs applications are commonly made where one party has made an offer to resolve the proceedings, the offer is rejected by the other party, and then the first mentioned party goes on to receive a similar or more advantageous outcome than the offer that was refused.

If I am successful in the proceedings, do I automatically get a costs order?

Costs will not automatically be awarded at the conclusion of a hearing. This is consistent with the general principle in family law proceedings that each party will be responsible for meeting their own costs.

If you wish to seek that the other party meet your costs, it will be necessary to file an Application, with a supporting Affidavit. The Court will conduct a separate hearing of your costs application, either by considering the documents in Chambers (where the parties do not need to appear) or at a hearing. Unfortunately, this means that you are likely to incur further legal costs whilst seeking that the other party meet your costs of the proceedings.

What will be considered when determining a costs application?

The Court will have regard to the following matters, as identified in section 117(2A) of the Family Law Act:

  1. The financial circumstances of each of the parties to the proceedings;

  2. Whether any party to the proceedings is in receipt of assistance from Legal Aid, and the terms of that assistance;

  3. The conduct of the parties to the proceedings;

  4. Whether the proceedings were necessary as a result of one party’s failure to comply with Orders of the Court;

  5. Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

  6. Whether any party to the proceedings has made an offer of settlement in writing to the other party, and the terms of any such offer;

  7. Any other relevant matter.

Will I be reimbursed all of my costs?

If a costs order is made, it will not necessarily provide for you to be reimbursed for the amount you spent on the litigation. The Court can consider awarding costs from the date that the offer was made (and for rejected) until the conclusion of the proceedings for example.

The Court has the power to order that a party meet the other party’s costs of the proceedings on an indemnity basis, or in accordance with a scale of costs set in the Federal Circuit and Family Court (Family Law) Rules 2021. The scale of costs set in the Family Law Rules is significantly lower than the costs that a party would likely have incurred with their solicitor.

Indemnity costs effectively provide for a party to be reimbursed the costs incurred by them with their solicitor (for the relevant period, from when the offer was made until the conclusion of the hearing). It is rare that the Court orders one party to pay costs on an indemnity basis. In order to do so, the Court must be satisfied that a party “imprudently refused of an offer to compromise”, as found in the case of Colgate-Palmolive v Cussons [1993] FCA 536. Indemnity costs can also be ordered against a party who has failed to comply with Court Orders or who has improperly conducted themselves throughout proceedings.

The Court may also order that costs be paid as assessed or agreed, whereby if the parties cannot agree on the amount of costs to be paid, an independent assessor can be appointed to determine the amount of costs payable, based on what costs were reasonably incurred during the proceedings. The costs assessor is entitled to be paid for their work in assessing the costs also.

What does this mean for me?

The above matters emphasise the importance of making reasonable offers to resolve your family law matter, and also the necessity to consider any offer of settlement very carefully.

If you wish to obtain 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

Choosing your family lawyer

Separation is a deeply personal matter. When you are involved in the breakdown of a relationship and need to seek advice, you will often need to share private information with your advisor.

Your lawyer will ask you questions about matters that you may otherwise consider to be private, however it is important that they have as much information as possible to be able to advise you accurately. For example, in a property matter, your lawyer will ask you what your income is. They may ask how you divided your household chores and how much you contributed towards the purchase of your house. In a parenting matter, your lawyer may ask who was more involved in bedtime and bath-time in the first few years of your child’s life.

You may need to discuss the state of your physical and mental health. This may lead you to disclose information about any treatment you receive, or how you coped with your separation. The information you provide will shape the legal advice you receive, which will ultimately impact on the decisions you make for your future.  

Given how much you need to share in a family law matter, it is crucial that you select the right lawyer. You need to feel comfortable with the advice you are receiving. First and foremost, you need to feel secure in sharing private and personal information with your lawyer in the knowledge that they will use that information to provide you with appropriate and accurate advice.

Whilst your lawyer may not be your best friend, you need to be able to work with your lawyer. When you meet with a lawyer, for example when you attend an initial appointment, you will have a ‘feel’ of what they are like and how they will approach your matter. At the early stage of your matter, it is useful to discuss what the process is for resolving your legal matter and which direction they see your matter going.

Many clients opt for a boutique approach to their matter in contrast to a ‘big’ corporate firm. A boutique family law firm can provide an extra level of comfort, where the firm’s Directors have oversight on your matter, and you can feel assured that your matter is progressing in a strategic direction.

It is also important for your lawyer to have a broad network. Family law matters regularly require a multidisciplinary approach, involving accountants, property valuers, psychologists and other experts. Your lawyer will draw on their knowledge and connections to assist you in reaching an early resolution of your matter where possible.

Here at Robinson + McGuinness, our family lawyers have a wide range of expertise and extensive networks to assist you with your family law matter. To arrange an appointment with one of our lawyers, please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

 

Author: Anika Buckley 

 

Applications for an Appeal filed Out Of Time

While many family law matters are able to be resolved by agreement, there are some matters that require a decision to be made by a Judge of the Federal Circuit and Family Court of Australia.  In the event a Judge is required to make a decision, they will usually provide written reasons in support of their decision.

Parties who have received judgment in their family law matter have a period of 28 days from the date judgment was received to file a Notice of Appeal in the event they feel that the Judge has made an error such that a “miscarriage of justice” has occurred.  There are strict rules that must be complied with in the event a judgment is appealed; you should seek specialist family law advice before filing a Notice of Appeal.

Of course, there are some circumstances where a Notice of Appeal is sought to be filed after the 28-day period mentioned above has lapsed. This is known as filing “out of time”.  

In the event a party wishes to file a Notice of Appeal out of time, the appellant must first apply for leave to appeal out of time.  

The High Court case of Gallo v Dawson [1990] sets out the principles that the Full Court is required to consider when looking at an application for leave to file a Notice of Appeal out of time.  

Those principles require the Full Court to consider its discretionary power to extend the time for filing a Notice of Appeal in the event the appellant can satisfy the Court that strict compliance with the 28-day rule would result in an injustice between the parties.  When considering this:

A. The Court requires the appellant to show that an injustice will occur in the event the appeal does not proceed. The appellant does not need to show, at this stage, the deficiencies in the Orders that they seek to appeal; and

B. The Court cannot grant leave to file the Notice of Appeal out of time on the basis that the Court has doubts about the correctness of the Orders that are sought to be set aside.

As such, the first question to be determined by the Full Court is “has the applicant established that there is a substantial issue to be raised on appeal?”.

1. If the answer to this question is “no”, the then application for leave to appeal out of time must fail; however,

2. If the answer to this is “yes”, then the Court needs to consider:

a. The extent of the delay, and the reasonableness of any explanations offered with respect to the delay;

b. The history of the proceedings, and the conduct of the parties throughout;

c. The prejudice to each of the parties if leave was and was not granted for the appeal to proceed out of time; and

d. The need for finality to the ongoing litigation.

No two family law matters are the same, and while there can sometimes be similarities between cases each case must be assessed based on its own facts and circumstances.  In the event you are considering filing a Notice of Appeal out of time you should first obtain specialist family law advice in relation to the evidence that you can give in support of your application for leave, and the prospects of your leave application being successful.

It is important not to delay in the event you are considering filing an application to appeal out of time.

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

The issue of forum: when proceedings are commenced in Australia and overseas

The majority of applications for a property settlement that come before the Federal Circuit and Family Court of Australia (“FCFCOA”) involve two parties who ordinarily reside in Australia and own property in Australia.  However, there are some matters where:

  1. The parties ordinarily reside in Australia, however most of their assets are owned overseas; or

  2. One or both of the parties do not usually reside in Australia, but they have property in Australia.

In these circumstances, it may be possible for the parties to invoke the jurisdiction of not only the FCFCOA, but also the courts of another country (i.e. where the parties are residing or where the property is held).  Commencing proceedings in another country, when the FCFCOA already has jurisdiction mostly occurs out of convenience, however it is also sometimes done for strategic advantage. 

If proceedings are commenced in FCFCOA by one party, and in another country by the other party, it will likely be necessary for the FCFCOA to decide whether it should continue to hear the matter.  In these circumstances, it is likely that the following two applications will be made in the FCFCOA:

  1. The Applicant in the FCFCOA proceedings will likely seek an anti-suit injunction restraining the other party from continuing the overseas litigation; and

  2.   The Respondent in the FCFCOA proceedings will likely seek a stay (or in other words a pause) of the FCFCOA proceedings to enable the overseas litigation to continue.

The FCFCOA will not lightly make the decision to stay its own proceedings; it has an inherent jurisdiction to permit the protection of its own processes from being used to bring about an injustice.

The High Court case of Voth v Manildra Flour Mills (1990) 171 CLR 538 outlines that the relevant principle to be applied by the FCFCOA in determining an application for a stay of the Australian proceedings is that of forum non conveniens. The relevant test associated with this principle is whether the Court in which the stay is sought is “clearly an inappropriate forum”.  The onus of establishing that Australia is clearly an inappropriate forum will be upon the party seeking the stay.

When considering whether Australia is clearly an inappropriate forum, the FCFCOA will look at:

  1. Whether each Court has jurisdiction to hear the matter;

  2. If the answer to 1 is yes, will each Court recognise each other’s orders or decrees?

  3.  Which forum will provide a more complete resolution of the matters?

  4.  In what order were the proceedings instituted?

  5.  What stage are each set of proceedings up to?

  6.  What costs have the parties incurred in each set of proceedings?

  7.  The connection of the parties and their marriage with each of the jurisdictions and the relief that is available in each of the jurisdictions?

  8.  The parties’ resources and understanding of the language – for example, can the parties participate in the proceedings on an equal footing? and

  9.  The general nature of the case, taking into consideration the true nature and full extent of the issues involved.

The purpose of the above is not to compare the two jurisdictions or consider which is more appropriate; rather, the FCFCOA is to consider whether it is clearly an inappropriate forum having regard to the above.  If the Court finds it is clearly an inappropriate forum, it will be required to grant a stay of its proceedings.

However, if the stay application is denied, the FCFCOA will then consider any application for an anti-suit injunction.  Where the proceedings are the same (i.e. seek orders with respect to the same subject manner), the FCFCOA must give consideration to whether the continuation of duplicated proceedings is likely to be vexatious or oppressive.  Where the answer is yes, the FCFCOA may consider making an anti-suit injunction preventing the continuation of the other court proceedings.

Issues of forum can be complex.  It is important that the issue of forum is raised early, and without delay.  If you think this issue is applicable to your family law matter, you should seek advice from a specialist family lawyer without delay. 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

Family Law and financial disclosure: What you need to know

The Family Law Act 1975 and Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out the obligations on parties to provide full and frank financial disclosure of their financial circumstances. Parties have an ongoing obligation to provide information and documents relating to their income, property and financial resources. Having transparency regarding the financial circumstances of the other enables parties to be able to negotiate a robust settlement, and indeed, a financial settlement cannot occur if the asset pool is unknown.

What information do I need to provide?

You have an obligation to provide information and documents in relation to income, financial resources, assets, liabilities, and superannuation in which you have a legal or equitable interest.

The obligation to provide financial disclosure only extends to documents which are in your possession or control. Generally, a party is able to access documents such as bank statements, Notices of Assessments issued by the ATO, superannuation statements, etc. A party may receive a request for disclosure documents where they cannot fulfill the request. This could occur, for example, where disclosure may be sought in relation to the quantum of a distribution received from an inheritance or compensation award, when the amount may not yet be determined.

Do I need to comply with all requests?

A request for disclosure should be answered within a reasonable timeframe, subject to the request for documents being reasonable, and relating to the issues in dispute.

If you have received a request for financial disclosure which you think is unreasonable, seek legal advice.

Is it sufficient to provide information about my financial circumstances?

By agreement, parties can exchange information relating to their financial circumstances, as opposed to a formal exchange of documents. However, a party is entitled to request documents, if that remains their preference.

Can I provide disclosure of the value of my interest in property at the date of separation?

It is necessary to provide financial disclosure in relation to the current value of assets, liabilities and superannuation. Although the value of property at the time of separation may be a relevant consideration, as well as what contributions have been made by each party following separation, generally the Court requires the most up to date information about the value of assets, liabilities or superannuation, rather than adopting the values of property as at the date of separation.

Do I need to provide more information after we have participated in an exchange of financial disclosure?

The obligation to provide financial disclosure regarding your financial circumstances is an ongoing obligation. It is necessary for parties to provide updates in relation to their financial circumstances  until a property settlement has been finalised, either by entering into Orders or a Binding Financial Agreement. That obligation exists irrespective of whether there has been a request for updating financial disclosure. If your financial circumstances materially change, there is an obligation to inform your former partner about that change.

What does this mean for you?

If you are uncertain about your legal obligations in relation to the provision of financial disclosure, or your former partner is refusing or delaying the provision of financial disclosure, you should seek legal advice.

It is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. 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

Exploring the Proposed Amendments to the Family Law Act 1975

In early 2023, following reviews by the Australian Law Reform Commission and the Parliamentary Joint Select Committee into Australia’s family law system, the Attorney-General’s Department published an exposure draft of the Family Law Amendment Bill 2023 for public comment. The primary focus of the proposed amendments is ensuring that the family law system prioritises and recognises the best interests of the child.

 The amendment Bill contains a number of proposed changes. Some of the most significant are:

The Removal of the Presumption of Equal Shared Parental Responsibility

Currently, section 61DA of the Family Law Act applies a presumption that parents should receive equal shared parental responsibility unless a party can show the Court that it is not in the best interests of the child. The removal of this presumption could make the process for obtaining parenting orders simpler for parties, which would in turn allow the Court to better focus on understanding the best interests of the child.

An Overhaul of the Factors Considered by the Court when Determining the Best Interests of the Child

In its existing form, the Family Law Act provides two main factors and thirteen additional factors to be considered when determining what parenting arrangement would be in the best interests of the child. The suggested changes see this being simplified to six factors of equal weight. There is also a seventh factor to be applied when the child identifies as Aboriginal or Torres Strait Islander.

Requiring that the Independent Children’s Lawyer meet with the Child

Independent Children’s Lawyers are not presently required to meet with the child whose interests they are representing. It is being proposed that Independent Children’s Lawyers must meet with all children over the age of five, so that they are able to voice any views or concerns they may have in relation to the matter.

Restricting the Filing of Potentially Harmful Applications

The amendment Bill seeks to limit the filing of applications which may be especially harmful to the child and/or the respondent. Under the proposed changes, the Court would have the power to dismiss applications it believes are frivolous, vexatious or an abuse of process.

Notwithstanding these proposed changes, navigating the family law system can be complex and confusing. 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.

Author: Hannah Gibson

When Do You Call in the Experts? Expert Evidence in Family Law

Experts are commonly engaged in family law proceedings to address a gap in the evidence before the Court or to resolve an issue in dispute. Expert evidence is obtained by way of a written report in order to guide the parties to a resolution or to provide guidance to the Court as to the most appropriate outcome, in either parenting or property proceedings.

Expert evidence is frequently obtained in the following circumstances:

  1. For an accountant to give an opinion as to the value of a business in property proceedings;

  2. For a valuer to give an opinion as to the value of a house or other asset in property proceedings;

  3. For a child psychologist to give an opinion about the most appropriate care arrangements for a child or children in parenting proceedings;

  4.  For a psychiatrist to conduct an assessment and offer an opinion including a diagnosis as to the mental health and recommended treatment of one or more parties involved in parenting proceedings.

It is not a requirement in each case that expert evidence be obtained, however, it is uncommon for there to be no expert evidence. In property proceedings, if parties are able to agree on the value of assets, then there may be no need for the appointment of an expert.

A Single Expert, being an expert in the Court proceedings, can be appointed either by the Court or by parties to proceedings. One of the purposes of the Federal Circuit and Family Court of Australia Rules is to encourage parties to only obtain expert evidence in relation to a relevant and significant issue in dispute, to limit the costs of parties, and also to limit the risk to parties regularly obtaining expert evidence, or to “expert shop” if they do not accept the expert evidence they have obtained.

The Court Rules aim to reduce the prevalence of a party seeking to put before the Court expert evidence which interests their own case. It is generally preferable to appoint a joint expert, who receives joint instructions and therefore may be more inclined to offer an opinion that is balanced, considered, and will withstand scrutiny, as opposed to an expert who may become biased as a result of only hearing the instructions of one party.

A party may seek to leave to appoint its own adversarial expert, rather than appointing a joint expert. An adversarial expert can only be appointed however in certain circumstances, such as where it is argued the joint expert had insufficient qualifications or expertise in the subject matter about which they are providing an opinion.

The Court is not bound by the opinion or recommendations given by an Expert in Court proceedings. The Court can use its discretion in order to determine whether to rely on the opinion of an Expert, either in whole or in part.

To obtain specialist family law advice in relation to your matter, contact Robinson + McGuinness to arrange an initial appointment. Contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

 

Author: Margot McCabe

 

Multi-purpose documents? Harman Undertakings & sharing the evidence

Following the breakdown of a relationship, you can find yourself facing multiple legal issues, including arrangements for the children, dividing property and in some cases, allegations of family violence arise. It is not uncommon for someone to be involved in proceedings before the Federal Circuit and Family Court of Australia (FCFCOA) (dealing with parenting or property matters), as well as proceedings before the ACT Magistrates Court.

As part of parenting proceedings, the FCFCOA sometimes will make an order for you and the other party to attend upon a psychologist for the purposes of preparing a Family Report. The Family Report is admissible in the FCFCOA proceedings; however you may consider that the report is useful to defend some of the allegations in the proceedings before the ACT Magistrates Court. Similarly, there may be certain evidence (including Affidavits or subpoena material) which would assist you in defending proceedings before the ACT Magistrates Court.

Where documents have been prepared for the purposes of proceedings before the FCFCOA, you are not automatically allowed to use those documents in proceedings outside of the FCFCOA. This is due to an implied undertaking or obligation to the Court (known as the Harman Undertaking), that documents prepared for the purposes of the FCFCOA proceedings will only be used for that purpose.

Separately, section 121 of the Family Law Act 1975 (Cth) imposes a restriction on the publication of any part of family law proceedings which identifies any person that is a party to or otherwise associated with those proceedings. However, this only relates to the voluntary broadcasting of information and does not apply to evidence to be given in Court.

In special circumstances, the Court may grant leave (or permission) for the release of certain documents (or parts of documents) to use in other proceedings (such as criminal or civil proceedings). The Court will consider whether there are ‘special circumstances’ (or a legitimate reason for the release of the document(s)) and whether there is any injustice caused to a party in providing that document.

You must make an application to the Court for leave to be released from the Harman Undertaking.  Where there is an application for documents to be released to the ACT Magistrates Court, it is likely that you will be able to argue that the document will remain confidential if it is just being released to the Magistrate. You should also consider whether you need a full document, or whether certain paragraphs of that document will be sufficient for the purposes of defending or supporting your matter before the ACT Magistrates Court.

In any event, it is important for you to seek advice from a lawyer if you wish to use certain evidence before the FCFCOA in proceedings before the ACT Magistrates Court. A lawyer can assist you with assessing the probative value of that evidence, and the process of obtaining the release of that document. Robinson + McGuinness is available to assist you with your family law matters and personal protection matters, including applications for release of documents.

If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

 

Author: Anika Buckley

How does Family Law treat pets?

Pets are classified as the property of their owners, rather than creatures with consequential rights. Pets, particularly in the wake of COVID-19 and the various lockdowns since 2020 have become more and more popular. The rise of “COVID puppies” for instance is a prime example of human needs and the value they place on companionship.

In the case of Downey & Beale [2017] FCCA 316, Judge Harman highlighted the way in which the law treats pets:

The law describes the manner in which this case is to be determined. [the pet] is a chattel and his ownership is to be determined by the Court as an issue of ownership of property.

This means the following will be considered:

  • Who purchased the pet;

  • Who is the registered owner;

  • Who was responsible for maintaining the pet (i.e. walking, feeding, paying for vet bills); and

  • Who is in possession of the pet?

It is important to consider the above factors together, as payment for purchase alone does not by itself determine ownership. Ownership must be determined before the Court can make any order for adjustment of interests. It is difficult to ascertain the value of a pet, when its worth for many is not considered monetary but, in the love, and affection, they have for it.

“Shared custody” of a pet, is sometimes considered between ex-partners. Whilst this is an agreement that parties can come to informally between themselves when they are amicable, at law this is not something that will be adjudicated by Courts. In Davenport v Davenport (No. 2) [2020] FCCA 2766, Judge Tonkin confirmed that:

Even if the court did have jurisdiction to make the order sought by [party] for shared custody of the dog, it would not be appropriate to exercise that jurisdiction on an interim basis given the significant conflict between the parties. [The party’s] application for shared custody also does not fall within Part VII of the Family Law Act.

Part VII of the Family Law Act deals with children, their best interests and how the Court approaches parenting orders. There is no reference to pets within the Family Law Act.

If you or someone you know is considering what to do with their pet between an ex-spouse or partner, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.

If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Family Law as a team sport?

While some family law matters resolve relatively quickly with only the assistance of a family lawyer, if your matter is more complex you may find that a team of different specialists and individuals is required to help you achieve the best outcome. In those more complex matters, it is important that you have the right team by your side, as it is crucial that these different individuals work together and towards the same goal.

The first person on your team is your family lawyer. It is important that you feel confident and comfortable with your lawyer because in addition to the vital role they play in managing your case and advising you, they are also the person who will help you pick the other players, and help you identify when another player is necessary. If complexity or the volume of work requires it, more than one family lawyer may be working on your case to ensure that work is done efficiently and effectively.

If your matter progresses to Court or is particularly complex, the next person on your team may be a family law barrister. Barristers are specialist advocates whose bread and butter is courtroom advocacy, and they will usually be retained to argue your case in Court or at an earlier stage to assist with strategy. Your family lawyer will help you choose the right barrister for you, and will work closely with them to provide them with the information they need to represent you in Court.

Other than your legal team, you may also need to engage with other professionals such as forensic and clinical psychologists, accountants, property valuers, business valuers, taxation specialists, mortgage brokers, and conveyancers. These individuals must be instructed appropriately, provided with the relevant information, and the information they provide either shared or not shared with their former partner as is appropriate in the circumstances. In some situations, these individuals are engaged jointly with your former partner, and in other situations, they are engaged by you alone.

If this feels a bit overwhelming, don’t worry. It is your family lawyer’s job to help you navigate this process and to explain when and why you might need some additional support.

If you would like to discuss how we can assist you, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

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.

Application for Consent Orders – Registrar Notification / Requisition

In the event you and your former partner agree in relation to the division of your property, or the care arrangements for your children, you can seek Consent Orders from the Federal Circuit and Family Court of Australia formalising the agreement. To do this, you need to file an Application for Consent Orders and Minute of Consent Orders with the Court.

Once filed, a Registrar of the Federal Circuit and Family Court of Australia will review your application and decide whether the Orders that you seek can be made by the Court. In making this decision, the Registrar will want to be satisfied that:

  1. You have completed the Application for Consent Orders correctly, including all relevant sections have been completed and any mathematical (property only) calculations have been accurately carried out;

  2. The Orders you seek have been appropriately drafted and are capable of being carried out;

  3. The Orders you seek are appropriate for the Court to make (for example, the Court is unlikely to make a self-executing cost order);

  4. If you seek property Orders, that the Orders you seek are just and equitable; and

  5. If you seek parenting Orders, the Orders you seek are in the best interests of the children.

In the event the Registrar is not satisfied with one or more of the above, it is likely that they will raise a Registrar Notification / Requisition with you and your former partner.   The Notification / Requisition will identify the reasons why the Orders you seek cannot be made and set out the steps that you and your former partner need to take to have the Orders you seek made.  This may include, though is not limited to:

  1. Filing an Amended Application for Consent Orders;

  2. Filing a further Minute of Consent Orders;

  3. Filing an Affidavit with the Court addressing the issues that have been identified by the Registrar.  The Affidavit may need to set out why you say the Orders you seek are just and equitable based upon your financial contributions to the property pool, your income and your financial resources; or the Affidavit may need to set out why you say the Orders you seek are in the children’s best interests; or

  4. Filing further information with the Court, such as a letter from the Trustee of your super fund stating that they hold no objection to the proposed superannuation split (if there is one included in the Orders you seek).

The Registrar Notification / Requisition will stipulate a time frame within which you need to complete the requested steps. This is usually 4 weeks.  A failure to comply with the request within the stated timeframe will result in your Application for Consent Orders being dismissed without further notice. 

It is important that you comply with the Registrar Notification / Requisition notice.  You should seek specialist advice from a family law solicitor to make sure you understand the notice and have appropriately complied with the steps outlined therein.

As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to any Registrar Notification / Requisition notice that you may receive.  We can also advise you about your rights and entitlements, no matter where your family law matter is up to, and assist you to finalise your agreements.

If you would like to discuss your options and how we can assist you, please contact us today contact us on today on (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Peta Sutton

Litigation Guardian in Family Law Proceedings

Family law disputes can arise in the lives of people from all walks of life, and all ranges of ability and disability. Sometimes a person who is a party to a family law dispute will be unable to conduct their family law matter because of a mental or physical disability, and in those circumstances, a ‘litigation guardian’ can be appointed to represent that person’s interests. 

Simply having a disability or impairment does not mean that person needs a litigation guardian. The Court starts with the presumption that adults do not need litigation guardians, and that children do, and so there must be the evidence put before the Court that proves that is not the case for a particular person. Litigation guardians will only be appointed for adults when their incapacity or disability means they are unable to understand the nature and possible consequences of their proceedings or are not capable of conducting their own matter or giving adequate instructions to their lawyers to conduct the proceedings.

Once the Court had determined that it is appropriate for a litigation guardian to be appointed, the question arises of who will act. A litigation guardian must be an adult who has no interest in the proceedings that are adverse to the interests of the person they will be representing. They must also be capable of fairly and competently conduct the proceedings on that person’s behalf. Litigation guardians are often friends or family members, and where there is no one available, the Attorney General can be asked to appoint an independent person.

Acting as a litigation guardian is an important role, and often a difficult one. The role comes with serious legal obligations, as once appointed, a litigation guardian must comply with all the Court rules and do everything that must be done by a party to the proceedings. This includes engaging in alternate dispute resolution where required and meeting all filing deadlines. In the case of friends or family members, there can be the added layer of difficulty of making decisions that may not be what the person you are representing would like you to do.

If you find yourself in a situation where you require advice about appointing (or being) a litigation guardian, contact us for an initial appointment at (02)62257040 or email info@rmfamilylaw.com.au or get started now online.

Who you appear before in the FCFCoA and what they can do?

In Australia, the Federal Circuit and Family Court of Australia (FCFCoA) determine family law disputes. There is now a range of judicial officers who have varying degrees of delegated power in which to support your matter through the case management pathway that now exists in the FCFCoA. They include Judges, Judicial Registrars and Deputy Registrars, just to name a few.

While a Judge of the FCFCoA – in either Division 1 or Division 2 – is appointed, the balance of judicial offers, who have lesser delegated powers, are employed with varying qualifications and are called Registrars. There are now three types of Registrars in the FCFCoA: Senior Judicial Registrar, Judicial Registrar and Deputy Registrar. Each type of Registrar may become involved at one time or another in your matter once you file and commence Court proceedings, and while you may not appear consistently in front of one or another, they each have different roles in managing your matter from filing to finalisation. 

The different roles are as follows:

1.    Deputy Registrars (DR):

a.    These officers have a constrained delegated power, to deal with procedural, consent or dispute resolution applications, such as:            

  • Consent Orders, either parenting, property or both, are filed with the Court for review and finalisation.

  • Divorce Orders, in undefended proceedings (i.e. proceedings that are not disputed because one party does not respond or get involved).

  • Dispute Resolution processes are facilitated by the FCFCoA, namely Family Dispute Resolution Conferences (FDRCs).

  • Orders by consent are procedural and managerial orders that are intended to support the case through the management pathway.  

2.    Judicial Registrars (JR):

a.    These officers have the powers of the DR, plus some limited further powers, including:

  • The ability to make cost Orders and security for costs (i.e. requiring someone to put up funds in advance of deciding the proceedings).

  • The ability to make location Orders.

  • The ability to make parenting, property, or both style of Orders, in undefended proceedings (i.e. where one party does not respond or get involved) in a limited set of circumstances.

  • The ability to make parenting, property, procedural, or a combination of all three Orders, when by agreement of the parties.

  • The ability to make, vary, discharge or suspend spousal maintenance orders in a limited set of circumstances. 

  • The ability to appoint an Independent Children’s Lawyer.

  • The ability to make Orders in relation to Subpoenas.

  • The ability to make Orders that direct parties to attend upon a Court Child Expert. 

3.    Senior Judicial Registrars (SJR):

a.    These officers have substantive delegated powers, with the aim for them to run and determine interim matters. In addition to what the DR and JR have, the SJR can:

  • Make interim parenting Orders.

  • Make interim property Orders.

  • Make Orders for maintenance, location and recovery.

  • Summarily Dismiss proceedings.

  • Make Orders for enforcement of parenting or property Orders.

  • Grant injunctions until further Orders or in undefended proceedings.


It is important to understand which Registrar you appear before, as their powers will limit the extent to which they can deal with the issues at hand. For advice tailored to the stage and type of family law proceedings you may find yourself in, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

To make an appointment please telephone (02) 6225 7040 or send enquiry