Family Lawyer Property FAQ’s

Navigating a separation is difficult. Whilst every relationship is different, there are a series of questions that clients often ask in their first appointment with a family lawyer. Today, we answer some frequently asked property questions.

What do we do with our joint accounts?

If you have joint accounts, you may have a claim for an equal share of the monies held in that account. How much you are entitled to (and whether you are entitled to any) will ultimately depend on the likely division of your property pool, based on factors including the length of the relationship, your contributions and your respective future needs.

If you are worried about your former spouse ‘emptying’ the accounts, you can contact your bank and ask them to place a dual authorisation on the account (i.e. a ‘2 to sign’ feature) so you can review and authorise any transactions.

It can be prudent to avoid distributing funds from a joint account until you have reached an agreement, however this will not work for every matter as sometimes a party needs to access joint funds to support themselves or the children.

Can I still sell the house before we have negotiated a property settlement?

Sometimes people are concerned about achieving the best possible sale price, particularly in circumstances where there is a decline in the property market. If your property is in joint names, you should usually not sell your property without the agreement (or knowledge) of your former spouse. You might also need to obtain your former spouse’s agreement to sell the property even if the property is in your sole name.

If you both agree to selling a property, you can ask the conveyancers to hold the net proceeds of sale in their trust account. Trust account rules provide that conveyancers will then only release funds on your joint written instructions (similar to a ‘2 to sign’ feature).

What if I don’t know what we own?

We often see people who are not sure about what their property pool includes. This may be where a couple has not shared finances, or where one party has managed the finances throughout the relationship. If your matter is not in Court, you can utilise tools such as the national property ownership search or ASIC searches to understand an individual’s business or property interests in Australia.

Can I just get divorced without a property settlement?

You are not required to go through a formal property settlement before you apply for a divorce. It is important to know that limitation periods will commence upon your divorce, meaning you have 12 months from the date of your divorce to apply for a property settlement with the Court.

There are limited circumstances in which you can apply to the Court after this time, however it is a more costly exercise and there is no guarantee that the Court will allow your application (particularly if you do not have a good reason for the delay).

If you are not married but in a de facto relationship, you have 24 months from the date of separation to apply to the Court for a property settlement.

If you have separated and are looking to negotiate a property settlement, or if you have particular questions about what you should and shouldn’t be doing when it comes to your joint assets, you should seek specialist advice about your particular circumstances. Call us to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Anika Buckley

Can I Change My Child’s Surname?

The Family Law Act 1975 requires that parents endeavor to reach agreement about any major long term issue associated with a child. Major long term issues include matters such as which school to enroll a child, decisions relating to the child’s health, or the child’s religious or cultural upbringing. Another major long term issue specified within the Family Law Act is the surname used by a child.

If parents can’t agree about changing a child’s surname, an Application needs to be made to the Federal Circuit and Family Court of Australia to seek orders for the child’s change of name. The Court also has the power to make orders restraining a parent from allowing or permitting the child to be known by a name other than their surname. Except in cases of urgency, parties to Court proceedings need to participate in mediation before commencing Court proceedings.

In the case of Chapman and Palmer, the Full Court of the Family Court of Australia said that when considering an application for a change of name (or considering whether to restrain the use of a name other than the child’s surname), the Court should have regard to:

1.   The welfare of the child as the paramount consideration;

2.   The short and long term effects of any change in the child’s surname;

3.   Any embarrassment likely to be experienced by the child if the child had a different surname to the parent with whom the child lives;

4.   Any confusion of identity if a child’s name were to be changed, or not changed;

5.   The effect that any change in surname may have on the relationship between the child and the parent that the child has previously shared their surname with; and

6.   The effect of frequent or random changes of name.

Although these factors have often been referred to in subsequent case law, these factors are by no means an exhaustive list of the considerations which the Court can take into account when considering an application for a change of name. Other factors have been considered by the Court, such as the parent’s desire for the child to be known by their original name, the degree of identification that a child has with their parent with whom they share their original surname and the degree of identification with a step-parent or partner of their other parent.

It is prudent to obtain advice tailored to your particular circumstances from a family lawyer. Contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Your Defined Benefit Superannuation Pension is in Payment Phase; So Does it form part of the Property Pool in a Family Law Case?

This question was explored in the 2022 case of Preston & Preston [(2022) FedCFamC1A 157] in which the Full Court heard an appeal of final property Orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia. The trial judge had Ordered a 58.5/41.5 division of the marital asset pool in favor of the Husband – with the Husband’s defined benefit military pension being included as a capitalized asset in the pool. The Husband appealed the trial judge’s decision on the basis that the judge failed to properly consider the nature of his military pension and incorrectly treated it as a capitalized asset in the pool available for division, as opposed to just an income stream.

The Husband’s defined benefit military pension was in the payment phase. The pension was only payable while justified by the Husband’s medical condition, however, both the Husband and the Wife acknowledged it was unlikely the pension would ever be reduced.

At the commencement of the trial, the Wife had initially sought a superannuation splitting Order but abandoned this position throughout the hearing. In her final submissions Counsel for the Wife did not contend for the pension to be counted as a capitalized asset, but anticipated its treatment as an income stream for the Husband. Notwithstanding the Wife’s concession regarding the treatment of the pension, the trial judge still counted the capitalized value of the Husband’s pension as an asset in the pool (even though neither party sought superannuation splitting Orders).

The Full Court found that the trial judge erred in including the capitalized value of the military pension in the asset pool. The capitalized value of the pension formed an integral part of his proportional share of the divided property, notwithstanding he could never liquidate it as an asset and its continued payment was contingent upon an ongoing future review of his medical condition.

The Full Court said:

From [11] “it was impossible to commute the military pension… and neither party ultimately sought a superannuation-splitting order in respect of it… so the expert opinion evidence of having a capitalized value of $638,109… lost its utility”.

At [14] “Her Honour concluded the husband had a significantly higher income-earning capacity than the wife… which in part stemmed from his indefinite receipt of the military pension…”

At [15] “There was no need to ascribe a capitalized value to the military pension when no splitting order was sought in respect of it…”

At [17] “Having been notionally counted as an asset in the balance sheet… the primary judges’ findings necessarily meant that the husband’s 58.5% share of the assets and superannuation incorporates the military pension at its capitalized value of $638,109, even though he does not and never will have that capitalized sum available for his use”.

The Full Court allowed the appeal and the final Orders were set aside. In re-exercising its discretion, the Court Ordered a 50/50 division of the marital asset pool, the difference being that the Husband’s military pension was treated as an income stream and was not included in the marital asset pool available for the division at its capitalized value.

Family law is specialized and complex. If you are separating and considering your options regarding a property settlement with your former partner, including one that will involve splitting superannuation, you should obtain advice from those qualified to assist you.

To make an appointment with one of our specialist family lawyers contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Ellen Russell

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

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

Expert evidence is frequently obtained in the following circumstances:

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

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

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

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

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

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

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

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

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

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

Author: Margot McCabe

Spousal Maintenance and Maintenance Orders. What, Why, When, Where, How?

The Family Court has the ability to order that one party to a marriage (or a de facto relationship) pay spousal maintenance to the other if that party is not able to adequately meet their own reasonable needs.

What is spousal maintenance?

Spousal maintenance is the provision of financial support from one party to a relationship with the other (post-separation). Orders for payment of spousal maintenance may be made with the agreement of parties (i.e. by consent), or as determined by the Court. Generally, the provision of maintenance is aimed at enabling one party to meet their reasonable needs, as opposed to meeting discretionary expenditure, or for the provision of luxury items, such as holidays.

The “reasonable need” is generally considered as relating to expenditures such as housing, utility expenses, food, clothing, medical needs, etc.

Why does the Court make Orders for spousal maintenance?

Spousal maintenance may be ordered to be paid from one party to another if the ‘paying party’ is considered to be liable to maintain the other (and if they are reasonably able to do so).

The ‘receiving party’ must be unable to support themselves, as a result of:

1. Having the care and control of a child of the relationship under 18 years of age;

2. Their age or physical or mental incapacity to obtain employment; or

3. Any other adequate reason.

There are a number of factors that the Court can take into account when considering an application for spousal maintenance, including:

1. The age and state of health of the parties;

2. The length of their relationship;

3. The income of each of the parties, and their physical and mental capacity to obtain gainful employment, as well as their financial circumstances generally and financial resources available to them;

4. Whether one party has the care of children from the relationship;

5. A standard of living that is reasonable in the circumstances.

When can the Court order spousal maintenance?

The Court has the power to order that spousal maintenance be paid during a relationship or following separation. In the case of Eliades & Eliades (1981), the Court made Orders to the Wife in an intact marriage. There are time limits that apply as to when a party may seek that orders be made for spousal maintenance, and accordingly, you should obtain advice tailored to your circumstances in relation to a property settlement and/or maintenance as soon as possible after separation.

In terms of the frequency of the payment, spousal maintenance may be ordered to be paid either as a periodic payment (i.e. per week, fortnight, or month), or as a lump sum.

Where can an order for spousal maintenance be made?

Orders can be made for payment of spousal maintenance within Australia, and also in circumstances where a party is living overseas.

A maintenance order made in another jurisdiction may also be registered and enforced in Australia. You should receive advice tailored to your circumstances if seeking to register a maintenance order made overseas. The jurisdictional requirements are complex and vary from one jurisdiction to another, and whether an overseas order can be enforced in Australia is dependent on whether Australia has a reciprocal arrangement with the country where the maintenance Order was originally made.

How does the Court have the power to make an order for payment of spousal maintenance?

The Court has the power to make orders for spousal maintenance pursuant to Section 74 of the Family Law Act 1975, to make such order as it considers ‘proper’.

Adult child maintenance

In certain circumstances, the Family Court can also make orders for a parent (or parents) to pay adult child maintenance to a child aged over 17 years (or to the other parent for the benefit of the adult child). The Court will consider any medical and/or educational issues that may be preventing the adult child from being able to earn an income to support themself. The capacity of the parent being asked to pay the adult child maintenance is also a relevant factor that the Court must consider before imposing any order on a parent.

If you would like legal advice about your specific circumstances, including property settlement or spousal maintenance matters, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Margot McCabe

Relocation in Family Law Matters: What you need to know

Wanting to move to a new city, state, or country with your children is a common issue that arises in family law matters and is referred to as “relocation”.

So, what do you need to know about relocation matters?

1. If you want to relocate with a child or children, then you should try and talk to the other parent/s about your proposal to relocate. Attending family dispute resolution or mediation can be a useful step to discuss your reasons for wanting to move and to attempt to reach an agreement with the other parent, including what the relocation would mean for the children, for you, and for the other parent.

2. Often if an agreement is reached for the children to relocate with one parent, the children will spend more time with the “non-resident” parent during school holiday periods. If you can reach an agreement about the proposed relocation, it should be formalized by way of Consent Court Orders or a Parenting Plan.

3. If you cannot reach an agreement with the other parent about your proposal to relocate with the children, then you will need to make an application to the Court seeking Orders permitting you to relocate the children’s residence.

4. If you want to stop the other parent from relocating with a child or children, then you may elect to make an application to the Court seeking an order prohibiting the other parent from relocating the child’s residence outside a certain area or region.

5. If you unilaterally relocate the residence of the children without the other parent’s consent or without an order of the Court, there is a real risk that the Court may require you to return the children’s residence to the place that you moved from until the matter can be dealt with at a final hearing. This can cause significant disruption to your life, but more importantly to the children’s lives.

Issues of relocation are difficult matters for all parties, in particular the children and parents who are subject to Court proceedings. The effect of relocation generally means that the existing parenting arrangements, if there are any, will no longer be practicable and so new arrangements will need to be determined. The Court generally prefers to make decisions regarding a relocation on a final basis, after a final hearing, and not on an abridged interim basis.

If you are thinking about relocation with you children, or you want to stop another parent form relocating with your child, make an appointment with us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Ellen Russell

Multi-purpose documents? Harman Undertakings & sharing the evidence

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

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

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

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

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

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

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

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

Author: Anika Buckley

Superannuation and Pensions in Property Settlements in Australia

In most property settlements, each party will have superannuation entitlements with one or more superannuation funds. After the breakdown of a marriage or de facto relationship, it is prudent to obtain advice as to whether to seek an adjustment of superannuation interests, including pensions in payment phase.

Is it necessary to value superannuation?

One of the first steps in the property settlement process is to identify and value all of the assets, liabilities and superannuation owned by each party, or in which they have an interest. It is generally not necessary to value superannuation funds, except where one party has an interest in a defined benefit scheme or fund. The value of a defined benefit fund is determined by reference to a number of considerations, such as the salary of the member spouse over a certain period of their employment, and other factors such as age and gender.

It is prudent to value defined benefit interests in superannuation, so that parties negotiating a property settlement have certainty about the value of superannuation interests.

Can superannuation be split by the Court?

The Court has the power to order that superannuation entitlements, and pensions, be split by a superannuation fund. Before the Court can order that a superannuation interest be split however, the Court must be satisfied that it is just and equitable for there to be an adjustment of the superannuation pool.

Superannuation can also be split by entering into a Superannuation Agreement or Binding Financial Agreement pursuant to the Family Law Act.

What is the effect of a superannuation splitting order?

A superannuation splitting order could provide for three different outcomes of a superannuation split:

1. To create a new membership with the superannuation fund for the incoming spouse, where the superannuation interest is held;

2. To rollover the superannuation interest into another fund; or

3. To payout the superannuation interest as a lump sum payment.

Superannuation splits must occur in accordance with the Rules of a superannuation fund. For example, some superannuation funds will not permit a non-member spouse to make employee or voluntary contributions to their superannuation fund, whereas the member spouse may be permitted to make those contributions to their own superannuation fund.

How is superannuation treated in a property settlement?

In most cases, a superannuation interest will be treated as a capitalised asset available for division in the property settlement.

This approach is not appropriate however in cases where a party has an entitlement to a non-commutable invalidity pension, which is a pension that is not able to be split. It is well-settled in case law that as such pensions are not able to be split, they should be treated as a permanent and ongoing financial resource available to a party as an ongoing income stream, as opposed as being treated as a capitalised asset which is available for division.

Superannuation splitting in family law matters is a highly specialised and technically complex area of law. You should seek specialist advice about superannuation splitting if you are considering it as part of a property settlement with a former spouse or as part of a pre-nuptial agreement, known as a Binding Financial Agreement.

If you are seeking advice in relation to property settlement matters, contact us to arrange an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe

Are you still in a de facto relationship if you’re not living together

Fairbairn v Radecki [2022] HCA 18

The 2022 High Court decision of Fairbairn v Radecki [2022] HCA 18 considers the meaning of “breakdown of a de facto relationship” as per s90SM of the Family Law act 1975.

The parties to the proceedings commenced a relationship in 2005. In 2010, they entered into a formal agreement to keep their assets separate, including that the de faction wife’s home was to remain her property. This was considered to be a fundamental feature of the parties’ relationship.

By mid-2017, the de factor wife was diagnosed with dementia. On the advice of her doctor, she executed and enduring power of attorney in favour of her children from a previous relationship. Shortly after, notwithstanding the wife’s diminished capacity, the de facto husband encouraged the wife to revoke the existing power of attorney, and a new power of attorney was made in favour of him and the wife’s brother. The husband also arranged the wife to execute a new will that was more favourable to him than the wife’s previous will.

In 2018, the NSW Civil and Administrative Tribunal (‘NCAT’) appointed the NSW Trustee and Guardian (‘the Trustee’) as the de facto wife’s guardian and financial manager. NCAT also revoked the power of attorney in favour of the de facto husband.

In March 2018, the wife was moved into an aged care home. The Trustee sought to sell the de facto wife’s home to cover the costs of her ongoing care, however this was opposed by the de facto husband. The Trustee subsequently made an application to the Federal Circuit Court of Australia (as it was then known) seeking Orders for a property settlement.

The primary judge held that the parties’ de facto relationship had broken down by no later than 25 May 2018. The Court found that the de facto husband’s conduct during the demise of the wife’s mental state, was inconsistent with a “fundamental premise” of their relationship, being the strict separation of assets.

The de facto husband appealed the primary decision to the Full Court of the Family Court of Australia. The Full Court overturned the primary Judge’s decision, finding that there was no breakdown of the de facto  as the de facto husband’s conduct was not fundamentally inconsistent with a continuing de facto relationship.

The Trustee (on behalf of the de facto wife) appealed the Full Court’s decision, to the High Court. The Trustee attempted to argue that the parties’ relationship had broken down when the wife moved into an aged care home, arguing that de facto relationships break down when parties to the de facto relationship stop living together. This was rejected by the High Court. The Court held that the term “living together” means sharing a life together as a couple and must be “construed to take account of the many various ways in which two people may share their lives together in the modern world” [33].

Notwithstanding this, the High Court agreed with the primary judge’s finding that where one party to a de facto relationship acts fundamentally contrary to the interests of the other party in relation to the property of the couple, it is possible to conclude that the mutual commitment to a shared life has ended.

The Court noted that keeping their assets separate from one another was an “essential feature” of the parties’ relationship. By 2017, the de facto husband began to act as if he were no longer bound by this agreement. On this basis, the Court upheld the primary judge’s finding that the de facto relationship had broken down by no later than 25 May 2018.

Family law is complex and you should seek specialist advice if you, or a family member, find yourselves in a situation where you may benefit from advice about your entitlements, rights or responsibilities.

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.

Author: Ellen Russell

What are the risks of a poorly prepared Family Violence Order

Being involved in a family violence matter, be it in place for your protection or against you, is a complicated and emotional process. In the ACT, an applicant is able to obtain an interim Family Violence Order, for their immediate protection, the protection of certain personal property, and / or for the protection of children in their care, without any notice to the person against which the orders applies. They are often obtained without the benefit of legal advice about their impact on the specific circumstances of that particular relationship.

This can often lead to clauses within an interim FVO that are ineffective, or clauses omitted that should have been included to ensure Police are able to properly pursue any allegations of breach. While there is the ability to amend an interim FVO, unless it is particularly urgent, the amendment is often dealt with when the Court considers whether or not to make a final Family Violence Order. This can be months after the interim FVO was applied for and granted.

An ineffective family violence order may not only fail to do what was intended, which is ensure the protected person’s safety, it can also impact on related criminal or family law proceedings. For example, a family violence order that provides for no exceptions for contact, where the applicant and respondent share children. While no contact family violence orders can and are made, commonly, there are strict exceptions included in a family violence order to ensure a child’s continue relationship with both parents subject to that relationship being free of a risk of harm to that child. If these factors are not considered, or acknowledged by exceptions that permit safe contact, the solutions are:

1. Applying to amend the family violence order in the ACT Magistrates Court – unless it is urgent, there is a risk the amendment will be tacked onto the final hearing, which means there could be a substantial gap in contact between a child and a parent spending time until that amendment application is determined; or

2. Applying to amend, suspend or discharge part or all of the family violence order in the Federal Circuit and Family Court of Australia. While this process may be more effective on an interim (immediate) basis, the cost of filing, the effort in preparing the documents necessary to file, and whether you have complied with the strict pre-action process (subject to any limited exceptions) can turn a simple issue into an expensive one.

While a family violence order is often obtained quickly, with the priority ensuring the safety of the protected person, it is crucial not to forget that they are legally binding and enforceable orders issued by a Court. A poorly drafted or proposed family violence order may end up costing more in time and money than it provided by way of resolving or de-escalating the conflict or safety issues that may be experienced. It is worthwhile obtaining advice prior to applying for a family violence order, or consider engaging a lawyer to prepare for or defend you against a family violence order.  

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

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. 

Separation essentials: Nine things to know after separation

9 THINGS TO KNOW AFTER SEPARATION

1. Timeframes are important! If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement. If you are married, you have 12 months from the date of divorce to formalise your property settlement. You must be separated for 12 months before applying for divorce.

2. Divorce proceedings are separate to Court proceedings relating to parenting and property matters. The divorce application process is generally a relatively quick and simple process.

3. Delay is risky. It is advisable to formalise a property settlement as soon as reasonably practicable after separation, to ensure that there is not any significant change in the financial circumstances of parties from that which existed during the relationship.

There are also risks associated with delay in parenting matters. For example, if there are unsatisfactory parenting arrangements in place, it can become increasingly difficult to change any “status quo” which may come about, the longer that those arrangements are in place.

4. Transparency is required regarding your respective finances while negotiating a property settlement. All parties are required to provide full and frank disclosure of their financial circumstances, including income, property in their name or possession, and any financial resource available to them. If a party has failed to provide disclosure, there could be scope for the other party to have any Binding Financial Agreement or Court Orders set aside, on the basis of that non-disclosure.

5. You are entitled to obtain independent legal advice, and should do so. Each party ought to obtain legal advice from different lawyers. Your solicitor’s job is to give objective and realistic advice to assist you in resolving any dispute. Anything that you discuss with your solicitor is confidential.

6. Children should not be involved in discussions regarding property or parenting arrangements. It is important for children to be protected from conflict, and not placed in a position where they are exposed to any unkind comments made about a parent or other family member.

7. There are a range of alternative dispute resolution options available to parties, including collaborative law, mediations, arbitration. These alternative options of dispute resolution are aimed at reducing the conflict, delay, and cost which can be associated with more traditional methods of dispute resolution, and of course to avoid Court where possible.

8. Most matters resolve without litigating. Those who have recently gone through a separation are sometimes understandably concerned about the risk of being involved in stressful and costly litigation. The vast majority of people reach agreement without being involved in Court proceedings, and only approximately 5% of matters before the Court progress all the way to a final hearing. Litigation is a last resort, and should be treated as such, unless there are safety issues or in matters of urgency.

9. You, and your loved ones, are entitled to feel safe and if you have any concerns about your safety you should urgently obtain advice, including in relation to the possibility of obtaining a protection order to cease or limit contact with another party.

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

Author: Margot McCabe

International Prenuptial Agreements in Australia

A prenuptial agreement or Binding Financial Agreement (BFA) as they are known in Australia, is a document that sets out how your assets and liabilities will be divided in the event of a separation. A BFA can be entered into before, during or after a relationship.

Prenuptial agreements are common in many different countries and are tailored to the law of each country. If you entered into a prenuptial agreement overseas, you should be aware that it will not automatically be recognised if you are separating in Australia.

For a financial agreement to be binding in Australia, it must comply with the requirements of the Family Law Act 1975.

Part VIIA of the Family Law Act sets out the requirements of a BFA, including:

1. That the agreement be in writing and signed by both parties;

2. That each party obtain independent legal advice prior to signing the agreement;

3. That each party is provided with a signed statement by the legal practitioner who provided them with independent legal advice; and

4. That the signed statement is provided to the other party under the agreement.

Even if an agreement is binding in the country of origin, it may not be enforceable in Australia if it does not comply with the above requirements. In absence of an agreement, the division of property between married couples is governed by section 79 of the Family Law Act 1975, which takes into account the contributions and future needs of each party, among other things. You may wish to inform your lawyer or the Court that a prenuptial agreement exists, but the Court is not bound to follow the terms of the agreement. The Court may, however, take the agreement into account in determining whether orders are just and equitable.

If you would like the terms of your international agreement to apply in Australia, you should enter into a BFA that complies with Australian law. If you have assets overseas, or are a citizen of another country, it is also important to consider the laws of the respective countries to determine how those assets may be dealt with if you separate with your partner. You should obtain specialist family law advice to help you understand how the law applies to your situation.

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.

Author: Amy Davis

I don’t understand what my family violence matter is listed for: the case management pathway in ACT family violence proceedings

There has been a significant streamlining of the family violence process in the ACT. Where previously a matter usually ran through a three step process: application, negotiation, hearing; there have been some changes to the pathway that require you to be familiar with, and understand where, the matter is up to.

The current pathway is broadly:

1. Application: A person files an application with the ACT Magistrates Court for a family violence order. If the application includes for immediate protection, known as an interim Family Violence Order, that part of the application is generally listed the same day it is filed. Whether or not the interim Family Violence Order is granted, the matter is then listed for what is called a preliminary conference, which is a form of negotiation. The preliminary conference is usually 4 – 6 weeks from the date of application, to enable the AFP to serve the respondent and make them aware of the proceedings.

2. Negotiation: After the AFP serve the application and interim FVO (if granted) upon the respondent, the parties are required to attend a preliminary conference at the ACT Magistrates Court. This is the respondent’s first involvement in the family violence process. For the applicant, it will be their second or third, depending on whether their interim application, if applied for, was heard on the same day it was filed. The parties will use the preliminary conference to try to negotiate a final settlement of the dispute, failing which, the matter will be listed for a pre-hearing directions. The pre-hearing directions is usually 6 – 8 weeks from the preliminary conference, to enable people to engage lawyers, get legal advice, or start preparing their case for hearing.

3. Pre-Hearing: this is a purely procedural listing, that helps the Court determine how much time and what level of resources need to be allocated to your hearing. There will be an expectation on the parties to know what may assist in resolving their dispute, what Subpoenas or witnesses need to be arranged, how much time the Court needs to allocate to the matter, and whether there is anything relevant the Court needs to be aware of. It could be there are interrelated matters, or mutual applications, that are best dealt with on the same listing date. These are things the Court should be told at the directions, as it may impact when each of the cases are listed for hearing.

4. Hearing: this is the day where the application will be determined and resolved. While the Court will have allocated time for your matter from what it knows at the pre-hearing directions, there will be time allocated to have further negotiations if they will help. You will need to come prepared to run your case. It is important that if you are thinking of engaging a lawyer, and counsel (known as a barrister), you have done so either prior to the pre-hearing or shortly after it occurred. It is not enough time to engage a lawyer the week or the day before. If you realise the day of the hearing that you need further evidence, or there is a witness who you didn’t properly inform to attend, your matter will run that day without them.

There is an expectation on participants, regardless of whether they have legal representation, or have had the benefit of legal advice, to know where their matter is up to, and what they need to do at that stage. A failure to properly prepare your family violence matter could see an order being made, or refused, against your wishes. Given the lead in time to the hearing in the current pathway, it is no longer enough to turn up to the date of hearing having only just worked out a Subpoena needs to issue, or a witness should have been called. There will be several matters listed with yours at any stage of the process, and the Registrar or Magistrate will only have a limited amount of time in which to hear your dispute. While family violence is a distressing and highly personal area of the law, it is still an element of the judicial process and needs to be respected as part of that process.

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

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. 

Child Impact Reports

The Court has made an Order for you to participate in a child impact report, so what is a child impact report?

A child impact report is a report ordered by the Court, that provides information bout the needs of the children involved in Court proceedings. The purpose of the report is to provide the Court and the parents with information about the children, their experiences, and their needs, in the context of the dispute before the Court.

The report is prepared by a Court Child Expert, who is a qualified psychologist or social worker. Court Child Experts are employed by the Court and have significant experience working within the Court system and with children from separated families.

The child impact report interviews generally occur in 2 parts over separate days. Part 1 includes interviews with each of the parents, and Part 2 includes an interview of the child or children, so long as the children are of an appropriate age and stage of development. The interviews are fully reportable, which means that nothing that you raise with the Court Child Expert is confidential.

When the Court Child Expert meets with parents and children, they may explore issues including:

1. The current care arrangements for the children;

2. The proposed care arrangements;

3. The child’s relationships with their parents, siblings, and other family members;

4. The presence or risk factors, including family violence, drug or alcohol use;

5. The presence of any mental health issues;

6. The child/dren’s age and development needs; and

7. Any other factor that the Court Child Expert identifies as important, given the circumstances.

Following the interviews, the Court Child Expert will prepare a report. The report will be provided to the Court and then released to the parties. Once the report is released, it is not to be shared or shown to any other person, without the Court’s permission. Its contents will be considered by the Judicial Officer hearing the case and it will form one of the parts of evidence in the case at a Final Hearing.

If you are involved in parenting litigation it is important to obtain specialist advice from those qualified to assist you.

To make an appointment with a member of our team please 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 

Am I eligible for an Annulment?

People sometimes use the words ‘divorce’ and ‘annulment’ interchangeably, but they are separate processes with different requirements. Regretting a decision to marry, not consummating the marriage, or realising that one of you is actually in a different financial situation to what you thought may all be good reasons to seek a divorce, but they do not qualify as reasons to seek an annulment.

To obtain a divorce your must first demonstrate that you have entered into a valid marriage that you now wish to end. In contrast, to obtain an annulment you must demonstrate that the marriage you have entered into was never valid at all.

The requirements for a valid marriage are as follows:

- Neither party can be married to another person;

- Both parties have to be over 18, although they can be given leave by the Court to marry at age 16 in certain circumstances;

- It cannot be a prohibited relationship, like brother and sister;

- There must have been real consent to the marriage that took place in a real ceremony, and that consent must not obtained by duress, fraud, or mistaken identity, or take place when a person was incapable of understanding what they were entering into.

The case of Nagri & Chapal [2012] FamCA 464 is a good example of where the Court granted an annulment due to duress. In that case, the parties entered into an arranged marriage that was set up by the applicant’s uncle. The applicant did not want to marry the respondent, but the uncle put the applicant under immense pressure to comply with his ‘family duties’, ignoring the applicant’s objections. The applicant went along with the civil ceremony, but ultimately refused to go through the religious marriage ceremony and applied for an annulment.

The Court found that the applicant was subjected to such “strong feelings of family loyalty” and “religious and cultural beliefs” that he “believed his uncle was entitled to demand his obedience”. He was economically dependent on his uncle and felt that he owed his uncle a debt because of the support his uncle previously provided. The Court ultimately found that these factors taken together meant that the applicant was under duress because his will was “overborne to the extent he was not acting of his own free will”, and granted him the annulment.

Annulments can be a tricky business and applying for one is a much more difficult process than obtaining a divorce. If you are considering seeking an annulment, you should obtain specialist family law advice.

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 If I Can’t Serve My Divorce Application?

If you have filed a sole Application for Divorce, you will need to serve the application on your spouse. The application and supporting documents can be served by hand or by post.  If your spouse lives in Australia, you must serve the documents at least 28 days before the divorce hearing. If they live overseas, you must serve the documents at least 42 days before the hearing.

If you are no longer in contact with your spouse, it can be difficult to serve your divorce application. They may have changed their contact details or moved interstate or overseas. If you are unable to locate your spouse, you should make attempts to contact them or locate them in other ways, such as through their family, friends or employer. You should also try searching the electoral roll if possible.

If you are still unable to locate your spouse despite making all reasonable enquiries, you can make an Application in a Proceeding seeking:

1. Substituted service; or

2. Dispensation of service.

It is important from the Court’s perspective that your spouse has an opportunity to respond to your Divorce Application if they wish to.

Substituted service

Order for substituted service allows you to serve your spouse in another way. For example, if you are aware of your spouse’s email address, you could seek an order that allows you to serve the application by email. You can also seek an order that you be permitted to serve the documents to a third party, such as a relative, who can pass the documents on to them. You must be sure that the method of substituted service will be successful.

Dispensation of service

An order to dispense with service means that service is no longer required. This order can be made with or without conditions. The Court must be satisfied that you have taken all reasonable steps to serve your application and that the requirements for divorce have otherwise been met.

Procedural requirements

An application for substituted service or dispensation of service requires an Application in a Proceeding and a supporting Affidavit. Your Affidavit should set out the attempts you have made to serve your spouse, including:

1. Your attempts to contact and locate your spouse, including copies of any messages/emails;

2. The last known address of your spouse and details of your last communication with them;

3. Enquiries you have made of your spouse’s family or friends and any replies received;

4. Enquiries you have made with your spouse’s employer and any replies received;

5. Details of any child support or maintenance orders, including any correspondence with government departments;

6. Details of any jointly owned property;

7. The costs you have incurred trying to serve your spouse and whether further costs would create financial hardship for you;

8. If you are seeking substituted service, details of the way you propose to serve documents and the basis upon which you believe it will be successful; and

9. Any other relevant information.

The application will generally be heard at the same time as your divorce hearing. You should attend the hearing as the presiding Court Officer may ask you to provide further information.  

You may wish to seek specialist family law advice before applying for substituted service or dispensation of service. If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 by email at info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

How does Family Law treat pets?

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

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

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

This means the following will be considered:

• Who purchased the pet;

• Who is the registered owner;

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

• Who is in possession of the pet?

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

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

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

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

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

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

Family Law as a team sport?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Assets and Financial Resources You May Not Be Considering in a Property Settlement

Each party negotiating a property settlement has a duty to the Court and to each other to give full and frank disclosure of all information relevant to their financial circumstances in a timely manner. When identifying assets that form part of a property pool with your former spouse or partner, it is typically categorised by any interest held in:

• Real property;

• Bank accounts and cash;

• Cryptocurrency;

• Shares;

• Trusts interests;

• Mortgages and/or loans/lines of credit;

• Motor vehicles;

• Superannuation interests; and

• Inheritances.

Beyond these, there are further assets and financial resources that often fail to be considered by parties which may be relevant in determining the entire property pool available for division. These may include:

• Loyalty point programs such as:

1. Frequent Flyer Points; and

2. Hotel points.

• Long service leave entitlements;

• Windfalls such as lottery winnings and/or personal injury compensation payouts;

• House contents such as:

1. Furniture;

2. Electronics;

3. Artwork;

• Pets; and

• Debts such as gambling or personal loans through friends or family.

Some of these items can be difficult to value, given subjectivity, depreciation, or their assumed nil cash value. Whilst frequent flyer points and hotel points may have nil cash value, they still hold a value and they can usually be transferred between parties.

Long service leaves accrued during a relationship may be considered valuable and relevant to the property pool, particularly if it has been accrued over a number of years.

Household contents and furniture are typically valued by their second-hand sale worth, with artwork and other sentimental items often having a higher value to a party, depending on when or how they were acquired (or if for example, they were inherited).

Pets are a complicated ‘asset’ and may have a significant emotional value between parties. This can include the pet’s monetary value from a breeding perspective to a simply strong emotional attachment. ‘Custody’ issues can also arise about jointly owned pets.

Personal loans through family or friends or gambling debts may have been hidden by a spouse from their partner. It is important to identify if these exist so that the entire property pool can be accurate determined and dealt with as part of any settlement.

It is important to note that the above information is relevant to family law and may not be accurate under other areas of law, such as in cases of bankruptcy.

If you or someone you know is considering your assets and financial resources between an ex-spouse or partner, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, no matter how complex.

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.

Author: Emily Nicholls