What To Expect On The First Return Date?

Once you have commenced proceedings in the Federal Circuit and Family Court of Australia your matter will be allocated a first return date.  In most instances, the first return date will be 4-8 weeks from the date that your application was filed and will take place before a Judicial Registrar.

The purpose of a first return date is to triage and assess matters and to put a procedural plan in place for the progression of the matter.

On the first return date, it can be expected that the Court will consider:

1.    Whether any Orders can be made by consent.  This can include procedural orders and more substantive orders in relation to both parenting and property matters;

2.    Whether the pre-action procedures have been complied with.  If you are unsure of your obligations to comply with the pre-action procedure you should click here;

3.    The issues that are in dispute and whether an alternative dispute resolution process such as mediation, or a Court based dispute resolution service will be of assistance in resolving those matters;

4.    If alternative dispute resolution is not appropriate, whether an interim hearing is required; and

5.    What Orders and directions are necessary to progress the matter.

The orders and directions that are made on the first return date will vary depending upon the issues in dispute and how much work has been carried out prior to the first return date.  It can be expected that the following Orders may be considered:

A.   In parenting cases, the Court may make orders in relation to:

a.    The production of notes and records from the Police and child welfare agencies;

b.    The appointment of an Independent Children’s Lawyer; and

c.    The preparation of an expert report if this will be of assistance to the parties and the Court in resolving the matter.  

B.   In property matters, the Court may make orders in relation to:

a.    The exchange of financial disclosure; and

b.    The preparation of valuations, including real property and business entities.

In general, Orders will not be made on the first return date for parties to attend dispute resolution until such time as the Court is satisfied that the matter is ready to progress to that stage.   However, if on the first return date the Court is satisfied that the matter is ready to progress to mediation it is open to the Court to make those Orders.  

Sometimes there is urgency attached to a matter or an issue in dispute such that the issue requires immediate determination.  In those circumstances, and should the Judicial Registrar consider it necessary, the matter can be transferred to a Senior Judicial Registrar or a Judge for interim determination.  

As family law solicitors, we at Robinson + McGuinness are able to advise you in relation to your rights and entitlements and assist you to finalize matters following separation.  We are also able to represent you in litigation before the Federal Circuit and Family Court of Australia. Please contact us today on (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Peta Sutton

Can I get Orders dealing with overseas assets as part of my Property Settlement?

In this day and age, it is not unusual for people going through separation to hold overseas assets. They may have emigrated to Australia after building up assets in another jurisdiction, or travelled and lived overseas for a period of time. Sometimes people just choose to invest overseas. These assets can include overseas pensions, real estate, shares, companies and bank accounts. Regardless of how the assets came about, if they are owned by people who are going through a family law settlement they will likely need to be address in some way.

While it may sound a little odd. Australian Courts do have the power to make Orders dealing with assets held overseas if the Court decides that it is appropriate to do so. This is because section 31(2) of the Family Law Act gives our Court power to make Orders about ‘things’ and ‘people’ outside of Australia. The Orders will not be directed specifically to the asset, but rather to a party to the proceedings – requiring that person to do something with the asset, like transfer it to someone else. Sell it and disburse the proceeds in some way. Or even just to retain it in their own name.

Even though the Courts do have that power, dealing with overseas assets in a property settlement can still be a tricky area of family law if one person does not want to ‘play ball’ with the process. The first problem you may encounter if the other person is being evasive or not properly disclosing their holdings is proving that the asset exists at all, and then after you have done that, establishing precisely how it is legal owed. Once that has been done, you will need to establish what the asset is worth. This can mean obtaining valuations from afar, which can be logistically difficult and expensive. These issues can usually be worked out, but it can take some time.

Perhaps the most significant issue that people can run into in this area is deciding what to do once and Order has been made about overseas assets, but the person who is supposed to do the thing – e.g., transfer the asset, sell the asset, simply refuses. Some overseas jurisdictions will recognise and Australian Order and enforce it as if it had been made in that country, but other jurisdictions will not – it is up to each country. The Court may try to avoid this issue altogether if there are enough assets held within Australia to simply assign the overseas assets to the person who already holds them, and giving the other person a greater share of the Australian assets instead. Whether this is appropriate will of course turn on the particular facts of each case.

If you or your former partner own assets overseas and you are going through a property settlement, or think you might be in the future, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Anna-Kate Visser

Navigating your post-separation relationship: General obligations which parents have to each other

Following separation, parents have the difficult task of developing and navigating a new type of relationship. Although they have co-parented throughout their relationship, co-parenting while separated understandably becomes more difficult as a result of changes in living arrangements, communication, and a range of other challenges. Many parents simply follow their gut instincts when making decisions about how to parent post-separation.

What many parents may not know however is that the Family Law Act sets obligations upon parents to encourage and facilitate a child’s relationship with the other parent, where there are parenting orders in place. The purpose of these obligations is to promote the right of a child to have a meaningful relationship with both of their parents, and to ensure that both parents are able to have a say in the future parenting of their child and to exercise decision making in relation to their child. 

Pursuant to the Family Law Act, parents who share parental responsibility (the rights and responsibilities which parents have in relation to decision making for their child) are encouraged to consult with each other and attempt to reach an agreement about matters relating to the care, welfare and development of a child. This may include, for example, what school a child will attend, whether they will participate in particular religious activities, or certain medical treatments. 

Parents who share parental responsibility do not have an obligation to consult with each other on day to day matters which are not long term issues, such as what a child wears to school or what items are packed in their lunch box.

 So, what other obligations might you have?

Where there are parenting orders in place providing for a child to live with one parent, the other parent must not, contrary to any parenting order:

Remove the child from the care of that parent;

Refuse or fail to deliver or return the child to that parent; or

Interfere with that parent exercising their parental responsibility in relation to that child.

Where there are parenting orders in place providing for a child to spend time with another parent, the other parent must not prevent the child from spending time with that parent, as provided in the parenting orders or interfere with the other parent and the child having the benefit of spending time with each other.

Where there are parenting orders in place providing for a child to communicate with a parent, such as via telephone or FaceTime, the other parent must not prevent the communication from occurring or interfere with that communication.

There can be serious consequences for breaching these obligations. The Court may require parents to participate in post-separation parenting courses, or order that there be “make up time” to account for any communication or time that was not exercised with a child. In cases of more serious breaches of parenting orders, the Court may require parties to enter into a bond, pay a fine or serve a term of imprisonment.

If you have questions about separation or 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.

Author: Margot McCabe

Financial matters in the FCFCoA: where am I going and what am I filing?

On 1 September 2021, the two Courts which previously conducted family law matters in Australia merged, becoming the Federal Circuit and Family Court of Australia (“the FCFCoA”). While the overarching Family Law Act 1975that legislates how to resolve divorce, parenting and property issues arising from the conclusion of a marriage or de facto relationship has remained the same, there are new Rules that support how any resolution is to be achieved. There are also comprehensive Practice Directions that have issued to assist in understanding how to approach the new FCFCoA system.

With the FCFCoA bringing a stronger focus on parties complying with their pre-action duties and resolving, where possible and appropriate, their matter through dispute resolution alternatives to litigation, it is important that you are aware of your duties and obligations before making an application to the FCFCoA to resolve your property matter.

The Family Law Rules 2021 sets out a clear procedural pathway for the resolution of property matters:

1. Complete Pre-Action Procedures set out in Schedule 1 of the Family Law Rules 2021.

a. You may fall into one of the limited circumstances where exceptions to completing the pre-action process are permitted.  

2. Failing resolution of your matter at the Pre-Action stage, you may then need to progress to alternative means of dispute resolution such as:

a. Mediation.

b. Private Arbitration.

c. Collaborative process.

3. Failing resolution at the dispute resolution stage, and subject to pre-action procedures being complied with, or an exception relevant to your circumstances being available, you may then need to progress to litigation:

a. If the total property pool is less than net $ 500,000 – filing in the “Priority Property Pools” list after reading the relevant Practice Directions.

b. If the property pool is greater than net $ 20,000,000 or otherwise involves a complex issue in dispute – filing in the “Major Complex Financial Proceedings” list after reading the relevant Practice Directions.

c. For all other property matters – filing in the usual manner after having read the relevant Practice Directions.

d. Although you may be in litigation, there are still a range of Court facilitated dispute resolution processes available to you, including:

i. Financial mediation through a Conciliation Conference facilitated by a Registrar of the Court.

ii. Court Ordered Arbitration managed through the National Arbitration List.

4. Following the conclusion of litigation, a Judge will make a determination and issue Orders. At any stage during litigation, it remains open to the parties to resolve their matter by agreement.

The agreement can be formalised by way of Consent Orders that are filed with the Court, or in certain circumstances, by entering into a Binding Financial Agreement.

It is important to remember that whether your property matter is resolved by way of decision of the Court, arbitrator, or jointly by the parties, the resolution must be just and equitable to both parties if the Court is required to make the Orders.

A failure to comply with your obligations at any stage of your matter, and particularly the pre-action stage, may see a resolution of your property matter delayed, or disadvantaged. It may help you better understand how to cost effectively progress your property matter by getting specialist family law advice tailored to your circumstances. 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.

What is the role of an Independent Children’s Lawyer (ICL)?

An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Court to assist the Court in determining what parenting arrangements are in the child (or children’s) best interests.

ICLs are experienced family lawyers who have completed the national ICL accreditation program. Their fees are usually met in the first instance by the local Legal Aid authority, but parties are often requested to make a contribution to the costs of the ICL, and the Court may order that they meet the costs of the ICL.

An ICL is not appointed by the Court in every parenting matter. The Court can appoint an ICL on its own motion, or following an application by one or more of the parties. When considering whether to appoint an ICL the Court may take into account factors, including:

• Any allegations of risk or family violence;

• The age and maturity of the children;

• Where there is significant conflict between the parties; or

• Where one (or both) parties are not legally represented.

Once appointed, the ICL will read all of the documents filed by the parties, consider any relevant subpoena material, express their view (where applicable) to the parties about any issues that arise, and attend and participate in each listing of the matter before the Court.

Although the ICL may meet with the children to discuss their views and may communicate those views to the Court, they are not appointed to be a lawyer for the children or to act on their instructions. Instead, their role is to provide an independent view and assist the Court in working out arrangements that are in the children’s best interests. This may, or may not, be consistent with the children’s views or the views held by the parties.

The ICL also helps the Court by ensuring important evidence is available for the Court’s consideration, such as by issuing subpoenas to obtain relevant records from the children’s schools, the police or child protection bodies.

If the matter proceeds to a final hearing, the ICL will also ask each of the parties questions during cross-examination and, having read, heard and considered all of the evidence, make submissions to the Court about the final orders that they consider are in the best interests of the children.

The ICL plays an important role as an independent ‘honest broker’ between the parties and can help negotiate a settlement of their parenting matter without the need for a determination by the Court, such as by organising and participating in a mediation with the parties and their lawyers.

Although the ICL’s view is likely to carry some weight in the proceedings, the ultimate determination about the children’s arrangements rests with the Court.

If you think an ICL may need to be appointed you should seek legal advice from a family lawyer about whether this is appropriate in the circumstances of your matter.

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.

Welland & Hawthorn – A cautionary tale; the risks of delay when making a property application with the Court

There are strict time limits that apply when making an application to the Court in relation to family law property matters. Section 44 of the Family Law Act 1975 (Cth) (“the Act”) specifies that a married person must make an application in relation to property matters within 12 months of a Divorce Order taking effect. For de facto couples, a person must make an application within 24 months of the breakdown of the de facto relationship. If an application is not made within these time periods, then the Court must provide leave (or special permission) for an application to be made out of time; and leave is not always granted.

Section 44(6) of the Act stipulates that the Court may grant an extension of time if the applicant demonstrates that they will experience hardship if they are not given the chance to bring proceedings for substantive relief. If hardship is demonstrated, numerous factors can influence whether the Court allows an application to be made out of time, including the length of the delay, the adequacy of reasons for the delay, and the prejudice the respondent would suffer if the application for extension of time was granted. This means the application to extend time is not guaranteed and might not be granted. The onus rests with the applicant to demonstrate why an extension of time should be granted.  It is not up to the respondent to demonstrate why the application should be refused.

The recent case of Welland & Hawthorn [2021] FCCA 1232 highlights the importance of making an Application in relation to property matters within the required time period. In this case, the parties were in a de facto relationship for around 16 years, commencing a relationship in 2000 and separating in February 2016. They had 2 children together.

After the parties separated in 2016, the Wife engaged several lawyers throughout 2017, 2018 and 2019 and obtained advice in relation to property matters. On her own evidence, she was advised by her lawyers on several occasions that she needed to make an application within the required time period, and she was also advised that she was running out of time to make an application. Notwithstanding this advice, the wife failed to make an application regarding property matters until November 2019, almost 2 years late.

On appeal, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction dismissed the Wife’s application for property orders out of time, on the basis that, while the Court was satisfied that the applicant would suffer hardship, she did not provide an adequate explanation as to the reason for her delay. The Court considered that she had willingly engaged lawyers, attempted mediation and engaged in negotiations with the Respondent, and as such there was no satisfactory reason for why she didn’t commence proceedings in the required time frame.

If you have recently experienced a relationship breakdown, we recommend that you contact our office as soon as possible to obtain advice about resolving property matters, within the required time period. Delay or procrastination in these circumstances could result in you not being entitled to a property settlement, that you would otherwise be entitled to, if made in the appropriate time period.

Author: Ellen Russell

Why can’t we be friends? – The necessity of judicial impartiality in family law

In the usual course, practitioners who excel in their application of the law and in advocating for their client’s interests quite often are the ones who are appointed later in their careers as judges. In what is now known as the Federal Circuit and Family Court of Australia (the Court), judges have often spent years working as barristers, requiring them to have close and positive relationships with members of the legal profession. In the highly specialised field of family law, this may mean those practitioners who were once colleagues may find themselves appearing in front of judges that are well known to them, and who they may consider to be friends.

Some practitioners may hold these friendships out as a benefit to clients. The High Court of Australia has sought to temper this, with the recent case of Charisteas v Charisteas [2021] HCA 29 strongly warning practitioners that contact with judges during proceedings is not on except in “the most exceptional of cases”.

In the long running case of Charisteas v Charisteas, the High Court set aside certain property orders made by the Trial Judge on the basis of apprehended bias. The difference of apprehended bias, versus actual bias, is an important distinction. What this means is that there were no allegations that the Judge engaged in behaviour or conduct that was prejudicial against one party over another. Rather, it means that a normal, everyday person (known as the “fair-minded lay observer”), may have perceived the judge to be biased.   

In this particular case, the circumstances involve the Trial Judge and the barrister for the Wife, who during the course of the proceedings:

1. Met for “drink or coffee” on no less than four occasions; and

2. Spoke on the telephone; and

3. Exchanged text messages during the trial, pausing for submissions, but continuing again before judgment had issued.

The barrister for the Wife failed to disclose the relationship, or the communications to the lawyers for the Husband or their barrister. Instead, the lawyers for the Husband found out through “gossip”.

It was in this context that the High Court found that the “fair-minded lay observer” would likely have thought the Trial Judge’s impartiality was compromised. The basis for this perception was the communications that were not disclosed, and the meetings on several occasions. The Husband successfully appealed to the High Court and the Wife was ordered to pay his costs along with some of the orders being set aside.

The important takeaway from Charisteas v Charisteas is that there is no excuse for communicating improperly with the Court. All communications, ideally should:

1. Include all other parties either in writing or in their presence;

2. Be agreed, down to the wording, prior to contacting the Court;

3. Be proper with all relevant parties, from the judge down to the Court registry staff;

4. Be mindful and courteous up to the time judgment issues.

At any stage of litigation, the importance of judicial impartiality cannot be understated. It is a confusing and sometimes misunderstood element of going to Court. It may help you better understand judicial impartiality, and its impact on your Court proceedings, by getting advice tailored to your circumstances. 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. 

What’s in a name? Changing a child’s surname after separation

While it may sound unusual, situations can arise when parents may wish to change their child’s name. A child may have always informally been known by one name, but legally has a different name and now wants to make that change formal. A child may no longer have a relationship with the parent whose surname they bear and wish to have the surname of the parent who cares for them full time. Parents may have separated, and one parent may decide that they would like to add their own surname to the child’s surname, or substitute it for their existing surname. In very rare cases, a parent may need to change their child’s name as a safety measure to try to conceal them from the other parent who is a significant risk to that child.

If both parents agree, changing a child’s surname is a relatively straightforward process. But if there is no agreement, a parent seeking the change will need to apply to the Court for Orders which will permit them to change their child’s name without the consent of the other parent. That application can form part of a broader application for Orders about parenting arrangements, or can be a ‘single issue’ application brought by one parent without seeking any other Orders.

When considering an application to change a child’s name, the Court will treat the child’s best interests as the paramount consideration. To determine whether or not the particular change is actually in a child’s best interests, the Court will look at a number of factors including the long and short term effects of the change, any embarrassment to the child, whether the change will cause the child confusion in their identity, the contact each parent has with the child, and the degree to which the child identifies with each parent.

Ultimately whether or not it is appropriate to change a child’s name after they are born will turn on the particular facts of each case. If you are considering applying to change your child’s name, you should seek specialist family law advice.

If you would like to make an appointment to discuss your circumstances with a member of our team, please contact us on (02) 6225 7040, via email on info@rmfamilylaw.com.au or get started online here.

Is Family Violence relevant in Property Proceedings?

Family violence can absolutely be a relevant factor in property proceedings. Depending on the specific circumstances of each case, a person who has experienced family violence may find that they are entitled to a greater share of the asset pool than they might otherwise have received had they not been subjected to violence.

The effects of family violence can be relevant at several stages of the property settlement process, and must be considered in the context of the case as a whole. In some cases, one party may be able to demonstrate that their contributions to the relationship, either financially or otherwise, were impacted or made ‘more onerous’ by their experience of violence, and so should be given greater weight than the contributions of the other party. In other situations, one party may be able to demonstrate that their experience of violence has had an ongoing impact on their healthcare needs, or will negatively affect their ability to work or care for children into the future. This may lead to them receiving an adjustment in their favour to account for their greater future needs over and above those of the violent perpetrator.

The matter of Coad & Coad [2011] FamCA 622 is a clear example of a case where both of the above situations applied. In this matter, the parties were together for 10 years and had one child. At the time of separation, the Wife was severely assaulted by the Husband and he was convicted of attempted murder, intentionally causing serious injury, and endangering life in respect to a person who came to her assistance. He was sentenced to a lengthy term of imprisonment. During the incident, the Wife suffered a fractured eye socket and cheekbone, a broken nose, and was so severely bruised her child did not recognise her in the hospital. Her cheek had to be reconstructed with a titanium plate, she was not able to see properly for several months, and she had difficulty balancing, breathing and bathing herself. The Judge accepted that not only had the Wife’s injuries made her care of the child after separation more onerous than it ordinarily would have been, she had sustained life-long injuries that would continue to impact her capacity to work and care for her child. The Judge assessed the parties’ contributions at 60% to the Wife and 40% to the Husband, and awarded the Wife a 30% adjustment in recognition of her greater future needs meaning the Wife received 90% of available asset pool.

If you are experiencing family violence, 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. In the case of an emergency, you should call 000.

If you would like advice in relation to your family law matter, 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.

Divorce Applications – what are the service requirements?

A Divorce Application has been filed and you have been listed before a Judicial Registrar or Deputy Registrar for a Divorce Hearing. What do you need to do to ensure that the Application can proceed at the Divorce Hearing?

In the event you have filed a joint Application for Divorce, there is no requirement for you to serve the Application upon the other party.

If you have filed a sole Application for Divorce, you will need to ensure that you have affected service no less than 28 days prior to the Divorce Hearing.  This is to ensure that the Respondent is aware of the Application and has an opportunity to respond should they choose to do so.

A failure to serve an Application for Divorce in accordance with the Federal Circuit and Family Court Rules 2021 may result in the Divorce Hearing being adjourned to a later date.

What documents need to be served?

The following documents will need to be served on the Respondent:

1. The sealed Application for Divorce and supporting documents;

2. The Marriage, Families and Separation brochure published by the Court; and

3. An Acknowledgement of Service (Divorce).

How do I serve the documents?

In accordance with the Federal Circuit and Family Court Rules 2021 service of an Application for Divorce can be affected in two ways; (1) by hand / personal service (i.e. a process server) or (2) by post. You cannot serve it on the other party yourself.

In the event you choose to serve the Application for Divorce by post, you will need to provide the Respondent with a pre-addressed return envelope to your address for service, and if the Respondent is in Australia, the correct postage for the envelope to be returned to you.

Once you have affected service, and prior to the Divorce Hearing, you will need to arrange for the relevant Affidavit of Service to be filed with the Court, proving you have done so.  In the event service of the Application for Divorce was affected by a person who does not know the Respondent (i.e. a process server), the Applicant will also need to file an Affidavit Proving Signature prior to the Divorce Hearing.

What if I was unable to serve the Application?

If you have been unsuccessful in serving the Application for Divorce despite your attempts, you may need to make a separate Application to the Court and seek Orders dispensing with the requirements for service, or an order that provides for the documents to be served in another way (i.e. via email). Your application will need to be supported by an Affidavit setting out the steps you have taken to try to serve the other party.

It is important that all necessary steps are taken to comply with the service requirements of an Application for Divorce. A failure to do so may result in the Application being delayed, or in some instances, it may be dismissed.

The service requirements for an Application for Divorce have changed since the Federal Circuit and Family Court Rules 2021 commenced on 1 September 2021. If you are unsure how to serve an Application for Divorce, or the Application itself you should seek advice from a specialist family law solicitor.

As specialist family lawyers, we at Robinson + McGuinness will be able to advise you and act for you in relation to your Application for Divorce.  We offer fixed fees in relation Divorce Applications.  We can also act for you in the event an appearance is required by you or on your behalf at Court.

If you would like advice in relation to your family law matter, 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: Peta Sutton

Superannuation Splitting - Now and Then

Throughout the course of your life, and your marriage or de facto relationship, most people accumulate superannuation through their employment. You cannot usually access your superannuation until you reach preservation age, or other limited circumstances, such as if you sustain an injury and are unable to return to work.  However, notwithstanding this, superannuation entitlements are treated as assets of a matrimonial property pool and can be split between two parties following the breakdown of a relationship.

Under the Family Law Act 1975 (Cth), superannuation can be split in two ways:

1) By identifying a specific dollar amount; this is known as a “base amount” split; or

2) By identify a specific percentage; this is known as a “percentage” split.

Regardless of the type of superannuation split, following service of a sealed copy of the Court Orders that detail the superannuation split, the amount identified (plus/minus earnings/losses incurred since the operative date, and any applicable administration fees) is usually deducted from the member’s balance and deposited into a new account for the non-member. The non-member’s new superannuation interest will operate completely separately from the member’s interest.

However, this has not always been the case. Amendments were made to the Family Law Act 1975 (Cth) in 2001 for married couples, and in 2008 for de facto couples introducing and permitting the division of superannuation between two parties. Prior to these amendments, while superannuation was an asset of a matrimonial property pool, it was not capable of being “split” or “divided” between two parties.  

This meant that there was often one party who retained most of the superannuation in a property settlement.  In recognition of this, notwithstanding a property settlement could be, and often was completed, it may be that the superannuation aspect of the property settlement was adjourned until at time upon which one or both parties were entitled to receive their superannuation entitlements. If this occurred in your property settlement, then keep reading!

If the original orders (which would have been entered into prior to the changes to the Family Law Act 1975 (Cth)) adjourn the superannuation aspect of the property settlement, the Court will need to determine a just and equitable resolution of the issue now, notwithstanding all other assets will have been dealt with, and many years will have passed.

The Court has been required to navigate these matters.  In the Full Court case of Gabel and Yardley [2008] FamCAFC 162 the Court found that:

- It has power to make more than one set of Orders with respect to property settlement matters provided its power to do so is not exhausted by the original orders;

- The original orders can be varied or reversed without a party making an application to set aside the Orders, as “the power to make such Orders not having been “spent” or “exhausted”’; and

- Each case is unique, and the Court’s decision to vary or alter the original orders will depend upon the circumstances of each case and whether it is just and equitable for the Court to do so.   

If you completed your property settlement prior to the superannuation splitting legislation coming into effect, and your Orders adjourn a superannuation split until a later date, you should seek specialist advice from a family law solicitor.   As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to your rights and entitlements and assist you to finalise your property settlement.

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

Author: Peta Sutton, Associate

Adult Child Maintenance – what is it, and can I get it?

Child support usually continues from when a child is born until they turn 18, though it can stop earlier in some cases, for example if a child is adopted, marries or becomes self-sufficient. If a child is still completing their final year of secondary school, it is also possible for the parent receiving child support to apply to extend child support until the end of the school year.  

However, lots of young adults (dare we say, most?) do not magically become financially self-supporting at the stroke of midnight on their 18th birthday, or as they are walking out of their final year 12 exam. This is particularly the case if they are about to embark on a new course of study instead of heading straight into the workforce.

Section 66L of Family Law Act provides for the payment of “adult child maintenance” if it is necessary to enable an adult child to complete their education, or because of a mental or physical disability. This means that a child, or a parent on their behalf, may be able to make an application to the Court to compel their parent or parents to continue contributing to their financial upkeep into adulthood.

How much maintenance is paid depends on a number of factors, including the child’s necessary expenses, each parent’s financial position, and the amount each parent needs to support themselves and other people they have an obligation to support. Necessary expenses can include food and housing, medical needs, and costs to do with study like books and laptops. The court will also consider whether the course the child is pursuing will help the child earn an income, and whether the child can work part time to contribute to their own costs.

If you are being asked to pay child support for an over 18 year old, or you want to apply for child support for a child who is over 18, the first step is usually to try to work it out within the family. If that does not work, or you want to understand your rights and obligations before that discussion takes place, you may wish to seek legal advice from a specialist family lawyer.

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. 

Federal Circuit and Family Court of Australia Contravention List

A common complaint made by clients who are in the middle of a family law dispute, or have already have Court Orders in place, is that the other party is breaching, or not complying with the Orders.

When Orders are made by a Court, whether by consent, or by the Court after a defended hearing, the Orders are binding on the parties and must be complied with. There are serious consequences for a party who fails, without a reasonable excuse, to comply with Orders of the Court. Consequences include: requiring the arrangements under the previous order to resume; varying the existing order; requiring the person who has contravened the orders to pay the other parties’ costs; imposition of a fine; and, in the most extreme circumstances, a term of imprisonment.

A person is considered to have contravened an Order if they have:

1. Intentionally failed to comply with the Order;

2. Have made no reasonable attempt to comply with the Order;

3. Intentionally prevented compliance with the order by a person who is bound by it; or

4. Aided and abetted a contravention of the order, by a person who is bound by it.

In recent times however, it has been difficult to prosecute these breaches in the already overwhelmed family law system.

On 1 September 2021, with the creation of the Federal Circuit and Family Court of Australia, the National Contravention List was established. The National Contravention List will hear all contravention applications in an efficient manner, ensuring that all breaches of court orders are taken seriously, The key objectives of the National Contravention List include:

1. to ensure applications are dealt with in a timely, cost effective and safe way;

2. for applications to be listed before the Court within 14 days of filing;

3. to ensure and increase compliance with court orders; and

4. impose appropriate penalties or sanctions where a contravention has been proved and there is not a reasonable excuse;

5. to proactively facilitate the resolution of underlying issues in disputes that leads to the filing of such applications;

6. to triage appropriate matters to dispute resolution; and

7. to be responsive to a party’s wishes to resolve matters without recourse to additional litigation.

The National Contravention List also seeks to make lawyers more accountable for their role in making and/or defending contravention applications. As a result, legal practitioners appearing in the Contravention List may be subject to personal costs orders if the application or defence is determined to be frivolous, or without merit, or where non-compliance with the Rules of the Court is demonstrated.

The Court hopes that improving the way contravention applications are dealt with will ensure and improve compliance with Court Orders. If you would like advice in relation to the contravention of court orders or filing an application in the National Contravention List, 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: Ellen Russell, Associate

Can I seek the Court dismiss the other party’s application?

Generally, the Court cannot dismiss a party’s application without giving the party an opportunity for the application to be properly heard. Even if an application appears weak and unlikely to be unsuccessful, the Court is reluctant to deny parties an opportunity to prosecute their case and seek a determination of their application by the Court.

However, the Court may summarily dismiss all or part of the application (without the need for a full hearing) if:

· The applicant has no reasonable prospect of successfully prosecuting (or defending) the proceeding; or

· The proceeding is frivolous or vexatious; or

· The proceeding is an abuse of process of the court.

The application does not need to be ‘hopeless’ or ‘bound to fail’ to be summarily dismissed by the Court. Nonetheless, the Court must proceed cautiously and should not lightly use the power to summarily dismiss an application.

In considering whether or not to dismiss the application, the Court must only consider the material put forward by the party seeking to bring the application and consider it ‘at its highest’. This does not mean, however, that the party can mislead the Court and make unfounded allegations in their material to satisfy the Court that their application should proceed: the Court does not have to take the party’s evidence at its highest if their version is ‘inherently incredible or unreliable.’

In Ritter & Ritter and Anor (2020) FamCAFC 86, the husband sought to re-open the family law proceedings because he said his consent to the orders was obtained through deception. The Full Court of the Family Court found that instead of considering the husband’s case ‘at its highest’, the trial judge had been distracted by addressing what orders might ultimately be made by the Court. The Full Court also said that given the seriousness of the husband’s allegations, ‘very little evidence’ was needed to satisfy the Court that the husband should have an opportunity to pursue his application.

If a Court summarily dismisses the application, the Court can make an order for costs if it considers appropriate, such as that the applicant pay the respondents costs of the proceedings.

The respondent to the application can apply to the Court seeking an Order that the application be dismissed, or the Court can dismiss the application on its own initiative.

The Court can also, on its own initiative, dismiss all or part of the proceedings if a party has failed to progress the proceedings for a period of six months. The Court must provide the parties with 14 days’ notice if it intends to consider dismissing the proceedings and cannot do so if there is a future Court date, an interim application that has not yet been determined, or if a party satisfies the Court that the proceedings should not be dismissed.

In rare cases, the Court can also issue ‘summary judgment’, for example to make final orders about the issues in dispute.

If you would like advice in relation to your family law matter, 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.

Obligations to resolve disputes prior to commencing Court Proceedings

Following separation there are many decisions to be made including who will continue to live in the family home and who will move out, what arrangements will be in place for the children, what the property settlement will look like and who gets to keep the dog.

For some couples, these matters can be agreed upon quickly and without too much stress, however sometimes people require assistance from a lawyer, mediator or the Court to resolve disputes following a separation.

On 1 September 2021 the Federal Circuit and Family Court Rules 2021 came into effect.  These rules have created an overarching principle and obligation upon litigants to ensure that they use their best endeavours to negotiate an agreement before commencing Court proceedings.  This includes attendance at a dispute resolution process, such as mediation or conciliation.

These obligations are known as pre-action procedures and must be complied with before Court proceedings are commenced. The pre-action procedures require parties to attend to the following:

1. If it safe to do so, provide the other party with a copy of the pre-action procedures (found here parenting or property), make enquiries with respect to dispute resolution processes (such as mediation), and invite the other party to participate in dispute resolution;

2. Attend a dispute resolution process and make a genuine effort to resolve the dispute. If an agreement is reached at dispute resolution, steps can be taken to formalise the agreement. Parties should seek advice from a specialist family lawyer to assist them in formalising agreements to ensure that it is understood and can be implemented.

3. If an agreement cannot be reached at dispute resolution and it is intended that Court proceedings will be commenced, the first step is to place the other party on notice, in writing, of the intention to go to Court.  The notice should set out:

a. The issues in dispute;

b. The Orders that will be sought from the Court;

c. A genuine offer to resolve the issues in dispute; and

d. A timeframe in which a response is to be provided.  This should not be less than 14 days.

If the other party responds, it is expected by the Court that a reasonable attempt will be made to engage in a discussion and negotiation prior to commencing Court proceedings.  

4. Where an agreement cannot be reached, and proceedings are commenced, a Genuine Steps Certificate will need to be filed outlining that the pre-action procedures have been complied with.

A failure to comply with the pre-action procedures will be taken seriously by the Court and places litigants at risk of their application being dismissed and/or a costs order being made against them.

It is important that you have attended to the above before you commence Court proceedings, unless you meet one of the limited exemptions. There are some circumstances where it would not be appropriate to comply with the pre-action procedures, such as if it is unsafe for parties to attend dispute resolution, or if Court proceedings are required to be commenced urgently.  Advice should be sought from a specialist family law solicitor before seeking to dispense with (or ignore) the pre-action procedures.

As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to your rights and entitlements and assist you to finalise matters following separation. We will also be able to assist you to ensure that you have met your obligations to comply with the pre-action procedures prior to commencing Court proceedings.

Divorce and separation can be incredibly stressful and you should obtain expert advice early to point you in the right direction.

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: Peta Sutton, Associate

Types of Family Violence Orders in the ACT

When considering whether to apply for a Family Violence Order (FVO) you should be aware of the options available to you:

1. After-Hours FVO: Intended to be a “stop-gap” measure to ensure safety in the most serious and urgent circumstances, this FVO is brought by police outside of the ACT Magistrate Court hours of operation. It is in effect for a period of two business days and is generally used to ensure the safety of the victim until they can make a fulsome application to the Court for an Interim FVO.

2. Interim FVO: May be granted the same day it is applied for, an Interim FVO is in effect once served and up until it is withdrawn or a Final FVO is determined. While it usually is in effect for less than 12 months, there are circumstances where it may be extended, such as where service upon the respondent is difficult, or where complexities in the matter has seen the listing for a hearing as to the Final FVO get pushed out. An Interim FVO is intended to ensure the protection of person(s) and their property in circumstances where such is needed prior to the Court being able to determine the application for a Final FVO.

3. Special FVO: Where there are related criminal charges, a Special Interim FVO may be made by the Court or convert an existing Interim FVO between the parties. A Special FVO is in effect until such time as it is revoked, the application for a Final FVO is discontinued or dismissed or a Final FVO is made. A Special FVO cannot proceed to hearing of the Final FVO until the related criminal charges have resolved, and so may often remain in effect longer than a Interim FVO to ensure the safety of the protected person(s) as the related criminal matter proceeds.

4. Final FVO: A Final FVO is what the Court determines at a final hearing but can also be consented to between the applicant and the respondent throughout the FVO process. While generally in effect for a period of two years, there are special circumstances that may warrant the Court ordering a FVO be in place for a longer period. Parties usually cannot consent to a Final FVO that is in effect for longer than two years. A Final FVO may also be extended, so long as the application for extension is made prior to the expiry of the existing Final FVO. If the Final FVO has expired, an applicant will need to make a fresh application for a FVO, including seeking an Interim FVO if they require protection in place prior to the Court being able to determine the fresh application.

5. Non-ACT FVO: Obtained in another state, territory or New Zealand, there is often no need for an existing Non-ACT FVO to be registered in the ACT for it to operate. If the Non-ACT FVO was made after 25 November 2017 (excl. Victoria), it will automatically be recognised in the ACT without the need to register it. For a FVO issued in Victoria, such automatic recognition applies to any order made on or after 25 November 2017. All other Non-ACT FVO will however need to be registered to ensure their effect within the ACT. Both automatically recognised Non-ACT FVO, and registered Non-ACT FVO, can be amended or extended in the ACT without the need to return to the issuing jurisdiction.  

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.

Getting detailed family violence advice may be the difference in ensuring you receive a 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.

What happens at the Preliminary Conference?

Whether or not an Interim Family Violence Order (FVO) was granted, the application for a Final FVO will be listed and given a date for a Preliminary Conference. Previously known as a Return Conference, this is an opportunity for the parties to resolve their family violence matter by agreement. The Preliminary Conference is convened by a Deputy Registrar of the ACT Magistrates Court, and generally runs for a period of a few hours, though some of this may include waiting while the Deputy Registrar goes between the parties and endeavours to broker a resolution of the matter. The parties are in separate meeting rooms and are unlikely to see each other at the Preliminary Conference.

If the matter does not resolve at the Preliminary Conference, and an Interim FVO is in place, it will continue to operate until the application for a Final FVO is determined. At the conclusion of the Preliminary Conference, the parties will be given further dates to attend the Court for:

1. Pre-Hearing call-overs to allocate the matter to hearing; and / or  

2. Pre-Hearing mention the morning on the same day of the hearing of the application for a final FVO; and

3. Hearing date on the same day as the Pre-Hearing mention.

You should ensure you or your legal representation attend the Preliminary Conference. During the current Covid19 lockdown in the Australian Capital Territory, Preliminary Conferences are occurring by teleconference. In the event you do not attend the Preliminary Conference, and you do not seek the Court adjourn the Preliminary Conference, the Court may make a decision as to the matter without further notice to you. If you are the applicant, this may mean your application for a Final FVO is dismissed, along with any Interim FVO in place for your protection. Should this occur, you will then be required to restart the application again in its entirety should you wish to continue. There is also a risk that you may be liable for legal costs incurred by the respondent if they have legal representation. Should you be the respondent, this may mean a Final FVO may be made against you, in the terms as sought by the applicant, such as the inclusion of children as protected persons, without further notice to you. It is crucial if you are unable to attend the Preliminary Conference for any reason you make contact with the Court as soon as possible prior to the listing.

If you attend the Preliminary Conference without legal representation, and your matter does not resolve, it is a good idea to obtain legal advice at its conclusion. Preparing for a hearing of the Final FVO may involve the calling of witnesses, the obtaining of evidence to support your case, issuing of Subpoenas, or requests for information or disclosure from the other party. Each of these elements have certain processes and forms that must be completed correctly and in required time periods. It is unlikely the Court may allow you to adjourn the hearing on the day if you then realise you require further information or evidence to best argue your case.

In the event you feel you need to urgently address your safety; you should call 000 or DVCS on (02) 6280 0900.

While you will not see the other party at Court, negotiating a legal process about family or domestic violence is a stressful situation for anyone. 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. 

I’ve been served with a Family Violence Order, now what?

Service of a Family Violence Order (FVO) or application for a FVO is generally served by the Australian Federal Police (AFP). They may attend without notice to your home, place of residence, or a place you usually attend, or may contact you on your telephone for a suitable place to serve you. If it is an Interim FVO, it is in effect and must be complied with once it is served upon you. If it is an application for a Final FVO, or an application for an extension or amendment of a FVO currently in place, this does not mean that the application is in effect. You should however continue to comply with a FVO that is already in place. It is important to listen to the AFP when they are serving the documents, as they will outline any obligations or requirements that must be met by you.

It is best to remember while a FVO is in place for the protected person(s) safety, it should be treated as a two-way street. The protected person(s) are prohibited from engaging in behaviour that may be contrary to the terms of the FVO. An example of this is where parties agree to alter changeover arrangements for children to a location that is prohibited within the terms of the FVO. Unless there is a term in the FVO that permits such changes, you should not agree to any such arrangements. If you are unsure of your obligations while a FVO is in effect, you should seek advice. It is also important to record any circumstances where a protected person(s) may be acting contrary to the terms of their own FVO, as this may be considered by the Court in any application to extend, amend or make final an FVO.

If you are served with an Interim FVO, you will also be given a document that has a date to attend the ACT Magistrates Court for what is known as a Preliminary Conference. Both you and the applicant, and your legal representatives if you have them, are required to attend. If you fail to attend the Preliminary Conference, a Final FVO may be made in favour of the applicant, in the terms as sought by them, without further notice to you. It is crucial if you are unable to attend the Preliminary Conference for any reason you make contact with the Court as soon as possible. During the current Covid19 lockdown in the Australian Capital Territory, Preliminary Conferences are occurring by teleconference.

While a FVO is not a criminal conviction, it does impact certain credentials such as a security clearance or Working With Vulnerable People (WWVP) certification. Once you are served with a FVO, it is important you seek advice on its impact upon your employment or relevant credentials as soon as possible.  

What you can and cannot do under a FVO may feel confusing and overwhelming. If you would like to discuss your options 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. 

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.