Interim Property Orders - Do I Have to wait wntil the Final Hearing to ask the Court to sell the house?

The Family Law Act 1975 gives the Court power to make Orders dividing up your and your ex-partner’s assets, liabilities, and superannuation entitlements after you separate. As with all family law issues, what Orders will be made (if any) will turn on the specific facts of each case.

Generally speaking, the Court will exercise its power to make these types of Orders on a final basis. This means that once any necessary transfers have been made, bank accounts closed and superannuation split, you will have your separate ‘pool’ of assets that you can do whatever you want with, your ex has theirs, and you each then go your separate ways with the matter finalised and behind you.

In some cases, however, people simply cannot wait years for a final hearing to determine what will happen to their assets on a final basis. The asset pool might be diminishing because the parties cannot pay the mortgage, or a party may need access to funds that are locked up in a frozen bank account to pay a tax debt or other liability, or legal costs. In those cases, the Court may be asked to step in and make interim or ‘partial’ property Orders.

The Full Court in the matter of Strahan (2011) set out the two-step process that the Court will generally follow when asked to consider these types of applications.

Firstly, the Court must consider whether the interests of justice require the exercise of its power on an interim basis and whether it would be ‘appropriate’ to make that Order, with the interests of justice being the overarching consideration. Though an applicant does not need to show “compelling” circumstances, the Court will have regard to the fact that usually property orders are made after a final hearing. 

In the second stage, the Court must turn its mind to making a conservative assessment of what the range of possible outcomes may be on a final basis so that whatever property is left over after the interim order is made will still be enough to meet the ‘legitimate expectations of both parties. In other words, what one person is given on an interim basis must be less than what they could possibly be entitled to on a final basis, or the order must be capable of being reversed so that the Court does not wind up deciding that the other person is entitled to more than what is then left available (and is appropriate) for the division at the end of the hearing.

Successfully applying to sell a house on an interim basis is, therefore, possible, but of course, will depend on the facts of your own case. You should seek specialist family law advice before going ahead with an interim application. If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

My ex is selling our house – Can I lodge a Caveat?

To lodge a caveat you must have an equitable interest in the property. A caveat acts like an Injunction, which is a Court order directing a person to not do a specific thing. This can stop the sale of land or property. You must have reasonable grounds to lodge a caveat, together with meeting the requirements of the Land Titles Act 1925.

Reasonable Grounds

Examples of reasonable grounds include:

• There is a Constructive Trust: where you are not on the title or mortgage but you can prove that you have made financial contributions to the property either through:

1. Mortgage repayments; or

2. Contribution to the purchase of the property; or

3. Contribution to the maintenance or improvements of the property.

• A declaration has been made by the Courts that an equitable interest exists.

In proving that there is a constructive trust, you must have proof in writing between you and your ex-partner that these financial contributions are contributions towards the property. This can be difficult to prove if you are simply transferring money for the purpose of your share of the mortgage to the personal account of your ex-partner.

Despite the above, a caveat cannot stop the registration of a Writ; the registration of another caveat; the registration of a document executed by the property owner whose interest was registered before the lodgement of your caveat or a correction or alteration of the registered by the registrar-general.

The caveat will require your full name and address, and a sufficient description to identify the land and the interest that you seek to claim. This is different to caveats lodged by order of the Court or by the registrar-general.

Unreasonable Grounds

Examples of unreasonable grounds include:

• Simply being in a personal relationship with the owner of the land or property; or

• An interest under the Family Law Act 1975 or the Property (Relationships) Act; or

• An interest in the sale proceeds of the property expected to be included in a property settlement; or

• A simple debt owed to a person by the person selling the property; or

• You and your partner simply “agreeing” that you have an interest.

This means:

You are not able to justify a caveatable interest under the Acts if it has not been declared by the Courts. The interest must be an interest in land, not to protect a contractual or personal right or a statutorily based right that does not confer any interest in the land. This means it is not enough to have a verbal agreement between you and your ex-partner that you have an interest in the property, nor is an interest found in your non-financial contributions to the property, such as caring for the property and/or the other person.

You are also not able to lodge a caveat for an interest that will arise in the future, such as an expected property settlement. This means if you have an interest in the proceeds of the future sale of land or property, you do not have a right to lodge a caveat. This is different to a right to enforce the sale of the land or property, which can come into force once you have formalised your property settlement either by Consent Orders or a Binding Financial Agreement.  

What can I do if I didn’t financially contribute to the property?

If you do not have reasonable grounds to lodge a caveat, you can file an injunction with the Federal Circuit and Family Court of Australia and seek a declaration from the Courts that you have an equitable interest.

If you or someone you know is considering your rights and interests to their property, 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.

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.

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

Why do I need to formalise my property settlement?

The division of assets, including superannuation, is something that most couples negotiate after separation.  Sometimes this negotiation is amicable, and parties are able to reach an agreement between themselves, and sometimes parties require the assistance of a family lawyer.

Regardless of how you reach an agreement, it is important that you formalise your property settlement.  There are substantial risks associated with a failure to formalise a property settlement by way of Consent Orders or a Financial Agreement. If you do not enter into one of these documents, and simply divide up your assets and liabilities, you are completing an informal property settlement.

An informal property settlement carries many risks and is not legally binding or enforceable upon you or your former spouse.  This means that:

1. Should a party fail to do something that was agreed, for example, make a cash payment to you or sell a property, there is no way of compelling that party to act in accordance with the agreement; and

2. You may be open to a later claim from your former spouse, and the claim may be bigger than that which you are exposed to at the time of separation.  This is because the Court considers the assets, liabilities and superannuation at the date it makes a decision; therefore, any growth in your assets (including superannuation) and any new assets that you have acquired between separation and the later claim will likely be included in the asset pool available for division.

There are time limits that apply to point (2) above.  Parties to a marriage have 12 months to make a claim upon their former spouse following a divorce order taking effect, and parties to a de facto relationship have 2 years from the date of separation to make a claim.  Claims brought after this time will need to be considered by the Court on a case-by-case basis.

There are two ways to formalise your property settlement:

1. By way of Consent Orders - this is a relatively straightforward process and neither party is required to receive legal advice.  In saying this, it is beneficial to engage a family lawyer to advise you on the property settlement that you have reached, whether it is just and equitable and within the range of outcomes that could be expected from the Court, and to assist you with the preparation of the Consent Orders and accompanying application.  A failure to complete the documents correctly gives rise to a risk of a requisition being issued by the Court, or the Consent Orders being incapable of being implemented; and

2. By way of Financial Agreement – this document is often more complex and requires both parties to have received independent legal advice prior to the document being entered into.  Unlike Consent Orders, a Financial Agreement is not subject to the Court’s approval.  It is often used when parties are entering into a property settlement that may not be approved by the Court.

Regardless of which document you choose, formalising your property settlement will give you peace of mind that no further claim can be brought against you by your former spouse except in very limited circumstances.  The documents will also allow you to “split” superannuation and may provide stamp duty relief to a party who retains real property or assets such as motor vehicles.

No matter where your property settlement is up to, 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 in an efficient and cost-effective way.

If you would like to discuss your options and 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.

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.

Parents vs Grandparents vs Carers: Who Does the Court Prioritise in a Parenting Dispute?

In Australia, there is a myriad of formations of who may act in the role of a parent: the traditional two-parent household, the common single-parent household, or where an extended family member (like a grandparent, aunt or uncle) acts in the role of a parent. Relevantly to the Family Law Act 1975 (Cth), all of these parties can possibly seek parenting orders from a Court subject to their particular circumstances.

A parenting order may be in relation to:

1. The allocation of parental responsibility;

2. With whom a child is to live; or

3. With whom a child is to spend time.

The Court must regard the best interests of the child as the paramount consideration. In determining this, the primary considerations are:

1. The benefit to the child of having a meaningful relationship – being one of positivity and benefit – with each of their parents; and

2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is required to give greater weight to the second consideration. There is also a range of additional considerations the Court must take into account when seeking to make parenting orders.

The Court has no pathway as to how to prioritise the “parent” over that of a grandparent, aunt or uncle, or a person “otherwise concerned with the care, welfare or development” of the child. Put simply, there is no such priority. What is an unconditional right, is the standing of a parent, a child or a grandparent, to apply for parenting orders. The aunt, uncle or say, the step-parent of a child, must first establish themselves as a person so concerned with the care, welfare or development of the child, and once established, may then proceed to seek parenting orders.

An example of this was Winship & Wrays [2019] FamCAFC 225, where the Full Court of the Family Court of Australia upheld a decision that:

1. The aunt of the subject child is granted sole parental responsibility.  

2. The child to live primarily with the aunt.

3. The child to spend significant and substantial time with the father, being alternate weekends in the school term and half of school holidays and special occasions.   

Relevantly in Winship, the child had been in the care of the mother, who unfortunately passed away due to breast cancer. The aunt cohabitated with the mother and father to provide support and care for the mother in her illness, and in the care of the child, who had their own health needs. The mother passed away after the parties separated, with the aunt remaining with the child in the mother’s home, the father having moved out. There were circumstances of family violence as between the father and the mother, and a particularly fraught incident involving the father, the mother, and the child, that led both the mother and the child to fear for their safety from the father.

Following the mother’s passing and failing resolution of an agreed parenting arrangement between the father and the aunt, the father brought proceedings to the Family Court of Australia. The trial judge ultimately determined orders in favour of the aunt as against the father, relevantly as it was in the best interests of the child to live with the aunt over the father. The fact the father perhaps had a “better” standing to seek orders about the child, made no difference to how the Court regarded what was in the child’s best interests.  

While the Court may give regard to previous decisions, it is not in any way bound by them. The Court will apply the relevant law to the facts in your particular circumstances at the time. To know what options are available to you, it is important to get advice tailored to you. If you would like to discuss your matter and how we can assist you, contact us today on, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

I’ve Been Served a Family Violence Order That Includes My Children, Now What?

In the Australian Capital Territory, an order that is made for the safety and protection of a person, against a former partner or family member, is known as a Family Violence Order or FVO. Children can be included on an FVO of a parent. They can be included as a “protected person”, which means generally they are considered in all terms set out in the FVO, or they may be specifically referred to in one or some of the terms, such as to not commit acts of family violence towards them or in front of them.

It is important to carefully review the entire FVO when you are served by police, and to understand how the children are named, and to what extent they are covered by the prohibitions of the FVO. Often, there are exceptions contained within the FVO, for example, there may be a restriction on the respondent coming within 100 metres of the applicant, except at a Court or tribunal proceeding, for the purpose of mediation; or where children are involved, when attending changeover, where the distance may be reduced to a range that ensures the safe handover of the children appropriate to their age.  Each FVO will contain different prohibitions, set to the evidence given in the application filed by the applicant and their evidence given before a Deputy Registrar at the interim hearing.

In the event there are no exceptions in the FVO that permit contact between the respondent and children, including in person or by telephone, the respondent is entitled to:

1. Make an application to vary the FVO in the ACT Magistrates Court. An application in the ACT Magistrates Court focuses on not adversely affecting the safety of the protected person/s.

2. Make an application to vary the FVO in the Federal Circuit and Family Court of Australia (FCFCoA). An application to vary the FVO in the FCFCoA focuses on what is in the children’s best interests.

3. Negotiate a variation by the agreement at the Preliminary Conference, usually the first Court event in the family violence proceedings a respondent attends, to include the ability to communicate with and spend time with the children.

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. It is important to ensure you comply with the terms of the FVO while they are in effect. While a FVO is a civil order, it has criminal ramifications in the event it is breached. A breach of the FVO, no matter how trivial or minor, may also be used as a basis to amend, extend, or seek an interim FVO be made final.

In the event you are concerned for your immediate safety, you should contact the police on 000. In the event you require safety planning or guidance on non-urgent family violence matters, you should contact the AFP on 131 444 or DVCS at (02) 6280 0900.

Determining how to vary, or whether to vary an FVO, can be a difficult process. Depending on the circumstances of your situation, such as whether there are related family law, criminal law or child welfare proceedings, will assist in determining which pathway is more suitable for you. If you would like to discuss your options and 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.

Adopting a Child from Overseas: What Do I Need to Know

Adopting a child from overseas is known as an intercountry adoption. There are partner countries with Australia who assist in facilitating overseas adoptions under the Hague Convention, which aims to protect children from trafficking, and illegal and ill-prepared adoptions. It remains a foremost principle that the adoption of a child from overseas must be in the child’s best interests. Adoptions must also be approved by your state and territory central authority.

Currently, Australians can adopt within the following partner countries:

• Bulgaria

• Chile

• China

• Colombia

• Hong Kong

• India

• Latvia

• Poland

• South Africa

• South Korea

• Sri Lanka

• Taiwan

• Thailand

You must meet the eligible criteria of the state or territory you live in, together with the eligibility criteria of your chosen partner country. This includes whether you are married or single, same-sex, de facto and in some countries, whether you are male or female (as a single).

Other considerations are the ages of the children and the difference in age between you as the adoptor and the child and your mental and physical health. There are fees associated with intercountry adoption which vary from country to country. This can include program fees, translation fees, travel and accommodation and incidentals.

The adoption of a child or young person from overseas is recognised provided:

• The adoption is granted by the central authority of the convention country (the country from where the child is being adopted);

• Arrangements for the adoption of the child or young person have been made by the director-general or a private adoption agency; and

• An adoption compliance certificate issued in the convention country is in force for the adoption.

Having this recognition means that the legal relationship between the child or young person and the pre-adopted parents or legal guardians is now terminated provided the law of the convention country provides that. If the convention country declares that it does not recognise the adoption, it has no effect on the law of the state or territory in which you live. Should they not recognise the termination, you may be able to apply to the court to terminate the relationship between the child or young person and the pre-adoption parents or guardians.

It is dependent on the country as to who finalises the adoption order, whether it be in the country of birth or Australia. Should it be Australia, the adoption order will need to be finalised in an Australian court after your child arrives in Australia. If the above has been complied with, your child will be eligible to become an Australian citizen. You may also be able to register your adopted child’s birth through your local Registry of Births, Deaths and Marriages and then apply for the birth certificate.

If you or someone you know is considering overseas adoption, 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.

Why should I formalise my Property Settlement?

The Family Law Act 1975 (the Act) provides two enforceable ways of formalising a property agreement after the breakdown of a marriage or de-facto relationship: Consent Orders (CO) or a Binding Financial Agreement (BFA). While it may seem easier or cheaper to simply divide what you have with your former partner, and go your separate ways, there are many benefits in formalising the agreement, and equally, many risks in not doing so.

Why should I?

Deciding on how to formalise your property settlement will depend on a range of factors: the complexity of your agreement, what is within the property pool, and what your pathway forward may look like.

Consent Orders are prepared with or without lawyers involved and are filed with the Court for a nominal filing fee. They can generally take from six-eight weeks to be reviewed by the Court. Once reviewed, the Court may approve them and issue you with sealed Consent Orders, or they may write asking for matters to be explained or parts of the proposed Consent Orders to be amended. The agreement the parties come to must fall within a permissible range of what is a just and equitable division of the pool as set out in the Act. Once issued, they are enforceable and binding upon the parties. They can only be set aside in very limited circumstances.

Binding Financial Agreements must be prepared where each party has had the benefit of prior independent legal advice and is an agreement that effectively seeks to deviate from the rights and protections under the Act. It is not reviewed by the Court like Consent Orders are, and it can be an agreement that does not fall within what a just and equitable division of the pool may look like. It must be precisely prepared, otherwise, it can be set aside for failure to comply with the strict requirements of the Act. 

Both sets of documents, once completed and issued in final, have the benefit of:

1. Bringing your property dispute to a close with certainty. Unless a very limited set of circumstances apply, the agreement is final and prevents either party from seeking to make further claims against the other.

2. It is enforceable, meaning either party can seek the other to comply with the agreement, even if they decide they no longer want to, by way of Court enforcement mechanisms.

3. It can offer tax benefits, such as the transfer of some assets such as property and motor vehicles under a stamp duty exemption.

What if I don’t

While it is ultimately your decision whether you choose to formalise your agreement or not, you need to be aware of the risks of not formalising, including:

• If your ex-partner decides not to comply with any of the terms of your agreement, you have little in the way of “enforcing” the agreement be complied with.

• You cannot split superannuation entitlements.

• You expose yourself to the risk of your ex-partner coming back for “more”, particularly if you have re-established yourself, such as buying further property, pooling assets and resources with a new partner, or paying down debts / paying a higher rate of superannuation. 

• They may be entitled to make a claim upon your estate and may continue to be considered a beneficiary.

If you intend to proceed with an informal property settlement, you should seek accounting, tax and estate law advice to properly inform yourself of the risks that this may expose you to. While it may seem like a convenient and cheap option, informal property settlements are likely to cause you more trouble down the track. To understand what may apply in your particular circumstances, contact our office at (02) 6225 7040 or info@rmfamilylaw.com.au.

Who Can Adopt?

If you are looking to adopt, you are required to be ordinarily resident in the ACT. You must also be on the register of suitable people. To be on the register, you must make an application in writing to the Director-General for approval to be registered as suitable for the placement of a child or young person for adoption.

If you are a couple, you need to have lived together in a domestic partnership for at least 3 years. If you are single or a step-parent, you can apply for an order to be made in your favour.

Consents to Adoptions

If you are wishing to adopt a child or young person, and they have not been previously adopted, you will be required to obtain the consent of each parent or guardian of the child or young person. If the child or young person has previously been adopted, you will need the consent of each adoptive parent or guardian. It is possible, however, to seek the requirement for consent to be removed.

Placement of a child or young person before adoption

During the adoption process, the child or young person will be placed in the care of a person with the Director-General as guardian, or to a person on the register of suitable people (intending to apply for an adoption order for the child).

The Director-General must if practical, provide the child or young person with information about the proposed placement. The child or young person will be allowed the opportunity to freely express their views about the proposed placement, be provided assistance in understanding the information and have counselling if required.

Guardianship before adoption

Prior to adoption, the Director-General is considered the guardian of a child or young person for all purposes except:

• If each person required to consent to the adoption has consented or if consent has been dispensed with; or

• If the application for adoption was made by a step-parent and the other parent of the child or young person has a continuing role as a parent; or

• The principal officer of a private adoption agency is the guardian where consent has been provided by the required persons and they have told the Director-General in writing that they are willing to assume the guardianship.

If you or someone you know is considering adoption, it is important to seek specialist advice from those best qualified to assist you. Robinson + McGuinness is available to provide you with advice about your family law matter, including adoption matters.

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.

Covid Vaccinations for Children Over 16 Years

Previously, we have spoken about parents not agreeing to vaccinate their children in an article (link) written by Anna-Kate Visser. It stated that such decisions fall within the major, long-term decisions in the scope of ‘parental responsibility under the Family Law Act, together with the recent case of Covington & Covington (2021) FLC 94-014 where it was found that the Family Court has the power to make Orders about vaccinations. But what about children who are over 16 years of age?

The reality is, the older a child is, the more regard the Court must-have for their wishes. This is dictated under section 60CC(3)(a) of the Family Law Act. This is not the primary consideration, however, which are:

1. The benefit of a child having a meaningful relationship with both of the child’s parents; and

2. The need to protect the child from physical or psychological harm.

With regard to a 16-year old, regard will be given to their:

• Maturity;

• Their level of understanding;

• Whether their wishes are well informed;

•  Whether their wishes have been influenced by one of the parents.

This will typically be assessed through an interview by a court-appointed expert.

Regard will also be given to the state-based rules surrounding what ages a child is legally able to obtain a vaccination or booster shot.

Therefore, given the above, it is unlikely that a Court would make parenting orders for the vaccination of a 16-year-old or older given their age and likely maturity to make informed decisions for themselves. This extends to prohibiting a 16-year-old from obtaining a vaccination or booster shot through parenting orders for the same reason. 

If you find yourself in this situation, you should seek specialist family law advice before taking any steps. Medical history and prior circumstances may factor into any decision that needs to be made by a third party about a child obtaining a vaccination or not.

If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 or by email at 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.

First Return, Mention, Direction, Interim Hearing, Child Dispute event: What do the Court events mean in the FCFCoA?

The Federal Circuit and Family Court of Australia (FCFCoA) have been designed to be a one entry point system to support and facilitate the timely resolution of family law disputes. A downside of this, however, is that there may seem like an overwhelming number of events and Court ‘triaging’ from filing to finalisation. It is important to familiarise yourself with the types of Court events, to help you understand what can and cannot be achieved at a certain time in your matter.

Most matters will involve one or more of the following Court events:

1.  Mention / Directions: this may be before a Judge, Senior Judicial Registrar (SJR) or a Judicial Registrar (JR). Your matter is likely to be one of several, and will usually be allocated a short period of time. The Court is unable to deal with any “meaty” concerns at this time (i.e. where a child is to live, how property is to be divided), but instead looks to confirm whether your matter is ready to proceed to a type of hearing or alternative dispute resolution process, and if not, what needs to happen to get it ready. In a Mention or Directions hearing, Orders may be made for the gathering of further evidence (such as by way of Subpoena, by the production by one party or both, or by the undertaking and preparation of an expert report or valuation).

2. Hearing: this may be before a Judge or an SJR. While an SJR only has delegated power, such as to make a decision on interim arrangements, a Judge has the power to make a decision on both interim and final arrangements. Usually, your matter will have been listed for Mentions and Directions along the way, to ensure it is ready to proceed to hear. If it is an interim hearing, you may be one of a few matters listed on any given day, with a set period of time in which to run your case. If it is a final hearing, you may be the only matter, however, there are still time constraints and your matter will be allocated a set number of days or half days.

3. Conciliation Conference: this is a type of dispute resolution for property matters. This is where a JR will act as a mediator/facilitator, endeavouring to broker an agreement if possible between the parties to achieve a property settlement. The JR does not have the power to make a decision, however, can make Orders if the parties are able to reach an agreement. You may be the only matter listed before the JR in that period of time, however, it is a fixed period of time that it runs for, usually half a day.

4. Court Facilitated FDRC: this is a type of dispute resolution for parenting matters. This is where a JR will undertake an intake with each of the parties on a separate day, to see what the extent of the dispute is and whether there are any common ground/specific issues to be aware of. They will then, if they determine suitably, undertake a mediation on a separate day. While it may be that some of the mediation is held together with all parties involved, at other times, it may be the JR talks to one party (and their lawyer) and the other party has a break. The JR will then talk to the other party (and their lawyer) and see what agreement, if any, can be reached. This is often referred to as a “shuttle” conference. Like a Conciliation Conference, the JR cannot make a decision if the parties are unable to reach an agreement. If an agreement is reached, the JR can however make Orders.

It is important to know what Court event your matter is listed for, as this will constrain what you can ask the FCFCoA to do. If you are not prepared for the listing, and it needs to be listed again at another time, you may be at risk of paying some of the other party’s costs in the event it is determined that any waste or delay is your fault. 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.

Can I Adopt an Adult?

Adoption in the ACT is governed by the Adoption Act 1993. This deals with the adoption of children and young people. The adoption of a person who is 18 years old or older is permitted in the Australian Capital Territory under section 10 of the Act. There are certain requirements to be met prior to the adoption taking place. These are:

1. That the adoptor/s have been in a care-giving relationship with the person; and

2. The person has received physical, emotional, intellectual and educational support from the adoptor/s; and

3. The person, or at least 1 adoptor, is ordinarily resident in the ACT.

The Court will not make an adoption order for a person 18 years old or older unless the person consents to the adoption by the adoptor and the court is satisfied that the adoptor is of “good reputation”.

Further considerations for the adoption of an adult over the age of 18 include:

4. Consent by an adoptor for the adoption order is not required;

5. Consent must be signed and attested to under the appropriate form and prescribed regulations;

6. The court may refuse to make an adoption order if it appears that any required consent was:

a. Not given in accordance with the Act;

b. Obtained by fraud, duress or other improper means;

c. The form whereby consent was signed was altered without the authority of the person who gave the consent;

d. When signing, the person who gave the consent was not in a fit condition to give the consent or did not understand the nature of the consent;

7. An adoption order must not be made unless the applicant has, not later than 28 days before the return date for the application, been served written notice of the application and its return date on:

a. Anyone whose consent to the adoption is required but whose consent has not been given.

8. The court has the authority to remove the requirement to serve an application;

9. The court has the authority to direct the adoptor to serve the application on anyone it deems necessary;

10. The court may permit anyone it thinks fit to be joined as a party to a proceeding for the purpose of opposing the adoption application or opposing an application to remove a requirement for consent on a person; 

11. On application, the court may discharge an adoption order if the court considers that:

a. The adoption order or any consent to the adoption was obtained by fraud, duress or other improper means; or

b. Other circumstances that justify the discharging order;

c. Discharging orders must be served by written notice to the adopted person (if over 12 years), each adoptive parent and each person whose consent to the adoption was required.

If you or someone you know is considering adoption, 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 matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

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