Stages of your Property Settlement

If you are recently separated, it is advisable to become informed about your property settlement, particularly if you wish to reach an amicable agreement and avoid litigation. Unfortunately, there is no set timeframe as to how long a property settlement negotiation may take, there are however common stages in almost every property settlement:

Disclosure and information gathering stage

Before providing comprehensive advice about the range of potential outcomes in your property settlement, your family lawyer will first need to know about the values of all assets, liabilities and superannuation that you and your former spouse or partner have an interest in.

Parties have an obligation to provide full and frank financial disclosure of their financial circumstances to the other. This might extend to exchanging personal financial documents (such as taxation returns, bank statements, payslips), or a more informal exchange of disclosure whereby parties provide estimated values of their assets, or a screenshot of their bank account balances.

In order to determine the values of assets such as real properties, businesses, defined benefit superannuation or other significant assets, parties will generally obtain joint valuations from suitably qualified experts.

Your lawyer may also recommend that you seek advice from other professionals before you begin negotiating your property settlement, such as financial or accounting advice.

Obtaining advice

Once your family lawyer has received all of the necessary information about the asset pool, they will be able to provide you with advice about the potential range of outcomes in your property settlement, based on your instructions.

Your family lawyer should provide advice about your likely entitlement with reference to the “four step process”, which is (generally):

1.  Identify and value assets, liabilities and superannuation owned by each party or in which they have an interest;

2.  Assess the contributions made by the parties, including financial contributions, contributions made as homemaker and parent and non-financial contributions;

3.  Identify matters relevant to the future needs of the parties, such as whether there may be a basis for an adjustment in favour of either party, having regard to matters such as age, health, income and income earning capacity;

4.  Consider the effect of the above steps and to determine a just and equitable outcome overall.

Negotiating

Negotiating your property settlement can be the most difficult stage in your property settlement. Unfortunately, for some, they are not able to negotiate their property settlement either directly with their former spouse or partner, or with the assistance of a lawyer, and they will need to litigate in order to have a judge determine the outcome.

Negotiations may also occur through more traditional forms of negotiation, such as making written offers of settlement.  Negotiating may involve participating in forms of dispute resolution such as mediation or conferences, to attempt to reach agreement.

Formalising your agreement

Once you have negotiated your property settlement, it is usually advisable to formalise your agreement.

The options to formalise your property settlement are to enter into Consent Orders or a Binding Financial Agreement. The most common and cost-effective option to formalise your property settlement is by entering into Consent Orders. Consent Orders are lodged with the Federal Circuit and Family Court of Australia, and will become approved by the Court, if the Court is satisfied that the outcome of the property settlement is just and equitable.

You should obtain specialist advice early, to understand your options and in order to be able to make an informed decision about your particular circumstances.

For advice in relation to your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Protection and Separation

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

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

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

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

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

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

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

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

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

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

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

For advice in relation to your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

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

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

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

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

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

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

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

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

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

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

What does this mean for you?

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

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced family lawyers.

Author: Margot McCabe

Distribution of a Deceased Estate: When can this occur?

As an executor of a deceased estate one of the biggest questions you might have is “when can I distribute the estate?”.  You’ve gone through the motions of obtaining the Grant of Probate and have taken steps to call in all of the assets. There is money sitting in a bank account, and you have beneficiaries enquiring of you as to when they can have access to the funds.

As tempting as it might be to wrap the process up as soon as possible, it is important that you continue to follow your obligations as an executor and take steps to act in the best interest of the estate.

Executors of a deceased estate in the ACT will need to have regard to and follow the Administration and Probate Act 1929 (ACT).

Section 64 of the Administration and Probate Act 1929 (ACT) outlines that an executor can only distribute the estate once:

1. 6 months have passed since the date of the deceased’s death; and

2. That the executor has published a Notice of Intention to Distribute the Estate (a published document that puts all creditors and interested parties on notice that the executor intends to distribute the estate in accordance with the deceased’s Will after the passing of a further specified number of days); and

3.  All debts of the estate have been paid.

You may be thinking “I already put creditors on notice when I filed my Notice of Intention to Apply for Probate”.  While that is correct, it is important to do so again before distributing the estate; a failure to do so could have significant ramifications for you as the executor.  The period of 6 months following the deceased death is seen to be a reasonable period of time for creditors to raise a debt with the estate.

Further, the Notice of Intention to Distribute will place any potential family provision claimants on notice of your intentions to distribute the estate; those potential claimants have a period of 6 months from the date the Grant of Probate was issued to challenge the Will.

In the event an executor fails to comply with section 64 of the Administration and Probate Act 1929 (ACT), there is a risk that the executor will be personally liable to repay funds into the estate in the event a creditor files a debt with the estate, or a family provision claim is made (in this regard costs will likely be incurred in responding/defending the claim regardless of whether the claim is successful).   

If you are unsure of your obligations as an executor, or what you need to do to ensure compliance with section 64 of the Administration and Probate Act 1929 (ACT), you should seek specialist legal advice from an estate lawyer.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Co-parenting after Separation: Medical Decisions

When you and your partner separate, there can be a big shift in how you care for the children in both the day-to-day routine and in the long-term.  In some families, one parent can be predominantly responsible for arranging and taking the children to appointments, such as dentist check-ups and routine GP visits.  In other families, parents share the responsibility for arranging and taking the children to these appointments.

When presented with a medical issue, it can be difficult when you and your former spouse do not agree about the proposed treatment or care for your child. Where no Court Orders exist or setting out who has parental responsibility, there is a presumption that you and your former spouse have ‘equal shared parental responsibility’ (“ESPR”) for the children. This means that you must consult with each other and endeavour to reach agreement about any long-term decisions, such as schooling, religious practices or medical treatment.

The presumption of ESPR may not apply if the Court has reasonable grounds to believe that a parent has engaged in the abuse of a child or engaged in family violence.  The presumption can also be rebutted if the Court deems it would not be in the child’s best interests for parental responsibility to be shared between parents.

When treating a child, medical professionals generally require the consent of a parent (or someone who has parental responsibility for that child). In some instances, where a medical professional considers that a child understands the nature and consequences of a proposed treatment, that child can proceed with the proposed treatment or procedure. The medical professional would take into account matters including the child’s age and maturity, their ability to understand the medical advice provided, and the implications of undergoing the proposed treatment.

It is important to note that in some instances, a child is not able to make their own decision about treatment and a Court Order could override their decision.

In the case of an emergency, you are able to provide consent for your child’s treatment if you present to an emergency department with that child.  If a medical emergency occurs whilst a child is in your care, you should still endeavour to consult the other parent (to the extent that you can) and keep them informed about what is happening and the next steps.

Where there is no medical emergency, decisions about long-term medical care should be made jointly where there is a presumption of ESPR (or a Parenting Plan or Court Order which states you have ESPR).  Where you cannot agree about proposed treatment and there are no circumstances of urgency, you should consider attending dispute resolution (or if that is unsuccessful, you may need to consider applying to the Court).

If you are concerned about a proposed treatment for your child or if you are worried that your former spouse is not following reasonable medical advice or recommendations, you should seek legal advice to understand your rights.  Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley 

Administration of Deceased Estates

Administering a deceased estate comes with a wide range of responsibilities. This includes managing the deceased’s assets, notifying institutions, paying debts and distributing the estate in accordance with the will or applicable law.

1. Obtaining the Death Certificate

   The first step in administering a deceased estate is to obtain the death certificate. This is required for various legal and administrative purposes, including to notify banks and other institutions, and to apply for a grant of probate or letters of administration.

2.  Identifying the Executor or Administrator

   If the deceased left a valid will, they will have appointed an executor. The executor's role is to ensure that the deceased's wishes are carried out in accordance with the will. In cases where there is no will or appointed executor, the court may appoint an administrator. The executor or administrator is responsible for managing the estate's assets, paying debts and distributing the estate.

3.  Applying for a Grant of Probate or Letters of Administration

   A grant of probate or letters of administration is obtained by filing documents with the Supreme Court of the state or territory where the deceased held the majority of their assets. You may need to file in multiple states/territories, which is known as obtaining a reseal of the grant.

4. Collecting and Managing Assets

   Once a grant of probate or letters of administration is obtained, the executor or administrator can begin collecting and managing the deceased's assets. This includes identifying bank accounts, shares, property and personal belongings. The executor or administrator should ensure they maintain accurate records of all financial transactions and estate related activities.

5. Paying Debts and Distributing the Estate

   Before distributing the estate to the beneficiaries, the executor or administrator must settle any outstanding debts and liabilities of the deceased. This may include paying debts owed to creditors, outstanding bills and tax obligations. Once this has been completed, the remaining assets can be distributed to beneficiaries in accordance with the will or the laws of intestacy if no will exists.

You may wish to seek professional advice and assistance with administering a deceased estate. Robinson + McGuinness offer fixed fees for an application for probate or letters of administration. If you would like to discuss your situation and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

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

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

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

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

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

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

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

What will be considered when determining a costs application?

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

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

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

3. The conduct of the parties to the proceedings;

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

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

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

7. Any other relevant matter.

Will I be reimbursed all of my costs?

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

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

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

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

What does this mean for me?

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

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

Author: Margot McCabe

Choosing your family lawyer

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

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

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

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

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

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

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

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

Author: Anika Buckley 

Applying for Probate and Letters of Administration

Losing a loved one is an emotionally challenging experience and the responsibility of administering their estate can feel overwhelming. There are a number of financial and legal processes involved in managing a deceased person’s assets and liabilities, and this may include applying for a grant of probate or letters of administration.

What is an executor?

An executor is a person appointed by the deceased to manage their estate after they pass away. The executor is responsible for collecting assets, paying debts and distributing assets to beneficiaries in accordance with the deceased’s wishes.   

What is probate?

A grant of probate authorises an executor to manage the estate of a deceased person in accordance with their will. To apply for probate, the executor will need to gather documents relating to the estate, including the original will, death certificate, and supporting documents regarding the deceased person’s assets and liabilities.

There are a number of steps involved in applying for a grant of probate in the ACT, including:

1. Advertising your notice of intention to apply for probate with the ACT Supreme Court;

2. Executing an affidavit in support of your application detailing the deceased’s assets and liabilities; and

3. Conducting a search of the Court Registry to see whether a previous grant has been made or any caveats have been lodged.

The details required for the application will vary depending on your circumstances and the complexity of the estate. If the Court is satisfied with the application, a grant of probate will be issued and the executor will then have authority to transfer or release assets to the executor or beneficiaries.

Letters of Administration

When there is no valid will, an application may need to be made to the ACT Supreme Court for letters of administration. This is an order of the Court that authorises an ‘administrator’ to manage the deceased person’s estate. The administrator's role is similar to that of an executor, but they are bound by intestacy laws, which dictate how an estate should be distributed when someone dies without a valid will.

The process for applying for letters of administration is similar to that of probate, however beneficiaries of the estate will need to be notified of the application. The affidavit in support of the application will also require some additional information, including details of the beneficiaries of the estate.  

Navigating these legal processes can be an overwhelming task in an already difficult time. Robinson + McGuinness are able to assist you with this process and offer fixed fees for preparing an application for probate or letters of administration. If you would like to discuss your situation and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

Applications for an Appeal filed Out Of Time

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

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

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

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

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

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

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

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

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

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

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

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

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

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

d. The need for finality to the ongoing litigation.

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

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

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4.  In what order were the proceedings instituted?

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

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

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

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

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

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

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

Issues of forum can be complex.  It is important that the issue of forum is raised early, and without delay.  If you think this issue is applicable to your family law matter, you should seek advice from a specialist family lawyer without delay. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Formalising your Property Matter: How to do it and is it necessary?

When you separate, you will often hear stories from family, friends or even friends of friends of their experience going through a separation or divorce. These stories are sometimes the ‘worst case’ scenario, involving lengthy litigation and long paths to resolution. However, this is not the only way. Where you have reached an agreement, you are not always required to enter the Court system.

Whilst some matters require the Court’s intervention, there are many matters which can resolve by direct negotiation, through correspondence via lawyers or at private mediation. Once you and your former partner have reached an agreement as to how to divide your assets, liabilities and superannuation, you will likely want to formalise that agreement as there are benefits in doing so. To do so, you have a number of options.

The most common approach is the ‘consent orders’ process. You and your former partner ( or your lawyers) complete an Application for Consent Orders (which provides the Court with some information about what you each own and the proposed property settlement), along with the Orders you seek that the Court makes to ‘effect’ your property settlement. The Court then sets a date to review the documents and if approved, will grant the Orders that you are seeking. If the Court does not consider that the outcome is ‘just and equitable’, the Court may decline to make the Orders you seek and request you to provide the Court with further information.

Another option is to enter into a Binding Financial Agreement. This is a private agreement which requires you and your former partner to each obtain independent legal advice from a lawyer. The Court does not review the agreement reached between you and you remain outside of the Court system. Due to the requirements of a Binding Financial Agreement, this option can be more expensive however it can be preferable in certain circumstances, and more private.

In some instances, you and your former partner may decide that you are willing to part ways without formalising your agreement. Any agreement reached should at least be communicated between you and your former partner in writing. This option may only be suitable in limited circumstances.

It is important to seek legal advice from a specialist family lawyer as to the most appropriate way to formalise the agreement reached between you. For example, there may be stamp duty exemptions applicable if you transfer property pursuant to a Court Order or a Binding Financial Agreement. If your property settlement involves a superannuation split, there are extra steps that you must take to ensure the Trustee of your super fund has been accorded ‘procedural fairness’ so they can (and will)  implement the superannuation agreement you have reached.

Robinson + McGuinness can provide advice on whether the agreement you have reached is a ‘just and equitable’ outcome, as well as the best way to formalise the agreement based on your individual circumstances. Contact 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.

Author: Anika Buckley

Family Law and financial disclosure: What you need to know

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

What information do I need to provide?

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

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

Do I need to comply with all requests?

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

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

Is it sufficient to provide information about my financial circumstances?

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

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

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

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

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

What does this mean for you?

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

It is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Digital Assets in Estate Planning

Technology has become an integral part of our lives and it is important to consider how you wish for your digital assets to be dealt with when making an estate plan.

In absence of a digital estate plan, your loved ones may find it difficult to manage your information after you pass away. Online accounts may be overlooked and funds held financial accounts may not become available to your beneficiaries. This could give rise to litigation due to inaccessibility or disputes about how they should be administered. Leaving accounts open indefinitely can also increase the risk of identity theft. 

Digital assets include the following:

1. Online bank accounts, cryptocurrency and e-wallets (eg. PayPal, Apple Pay)

2. Intellectual property

3. Social media accounts (eg. email, Facebook, LinkedIn)

4. Subscriptions (eg. Netflix, Spotify, Audible)

5. Loyalty programs (eg. Everyday Rewards, Flybuys, Qantas Frequent Flyer)

6. Online shopping accounts (eg. Amazon, eBay)

7. Photos (eg. phone or iCloud)

How to make a digital estate plan

Creating a digital estate plan involves leaving a clear system for your executor to manage your digital assets after you pass away. You should prepare a list of all of your online accounts, including your usernames and passwords, and determine what you would like to be done with each account. The list should be stored in a secure place and updated when your account details change.

You may wish to consider a password storage tool to manage your account information, such as 1Password, Lastpass and Bitwarden. These are secure and effective tools for managing your passwords and provide your executor with easier access to your accounts. They also reduce the risk of security concerns if you were to write your passwords down on paper.

You will need to appoint a trusted person to act as your digital executor. This person will be responsible for managing your digital assets, distributing funds to beneficiaries and closing your accounts. A digital executor should be appointed as part of your Will, which deals with your real and personal property.

It is open to you to leave instructions about who you would like to receive your digital assets and how you would like your accounts to be dealt with. For example, you may wish for your social media accounts to be memorialised, or for someone to continue managing a particular account. You should ensure your instructions are consistent with the service agreements of each digital asset as some platforms place restrictions on how your accounts are managed after you die. For example, Qantas Frequent Flyer points are automatically cancelled on death and cannot be transferred.  

It is important to create a digital estate plan along with your Will and Power of Attorney, however your digital estate plan should be separate to your Will. Your Will becomes public after you die so including detailed information in your Will can raise security risks. Having a separate document for your digital estate plan also means you can continue to update your plan as necessary without having to formally re-execute your Will. 

We offer fixed fees to review your estate planning and can assist you with preparing your digital estate plan along with your Will and Power of Attorney. If you would like further information or wish to update your estate planning with us, please contact us today on (02) 6225 7040 or by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

Your guide to Parenting Communication Apps

Co-parenting can be difficult at the best of times. When you are separated and no longer have the daily contact that comes with living together, it becomes even harder to coordinate busy schedules and keep everyone informed about the latest events in the children’s lives. It can also be hard to manage finances, such as paying half of the children’s sports uniforms and registration fees for soccer next term.

Many of our clients find benefits in using a parenting-focused communication app. There are a number of communication apps out there in the market and today, we shed light on the most popular apps.

Talking Parents

Talking Parents, as the name suggests, is a good option for a parenting communication app.

The free version of the Talking Parents app can be accessed on their website only. Talking Parents allows you to send and receive messages and create shared calendar events.

The paid subscription services have more features, including recorded video calls (phone calls can only occur in the US), access to call transcripts and recordings and sharing and storing documents in the app.

It is worth noting, as Talking Parents is US-based, some features are not available in Australia (such as recorded voice calls and payment features). Talking Parents does not allow you to add a third party to view your account (and communications).

Current pricing: free, $9.99/month or $24.99 per month

What stands out: there is a free version, if you only want the standard features

For more information, visit: https://talkingparents.com/home

Our Family Wizard

Also created in the US, OurFamilyWizard has a number of great features, including:

• a shared calendar;

• message board;

•  journal (where you can share photos or documents);

• an expense log (which allows you to attach receipts); and

• an ‘info bank’ to store emergency contacts, vaccination records etc.

OurFamilyWizard is a paid subscription, which allows you to add third party accounts (such as including additional parents, grandparents and extended family members). Third parties are then able to access the family calendar and receive updates.

OurFamilyWizard also has a feature which allows your lawyer or mental health practitioner to ‘view’ your account as you would, meaning they can keep abreast of the issues you are experiencing and assist you in managing any conflict.

Current pricing: $154 for a 12-month subscription ($12.8/month) or $270 for a 2-year subscription ($11.25/month), 30-day ‘money back guarantee’ offered   

What stands out: this app has a number of great features, including ‘ToneMeter’ which identifies potentially emotionally charged comments which are worth thinking about before you send

For more information, see: https://www.ourfamilywizard.com.au/

2houses

Created in Europe, 2houses has an interactive calendar (which allows you to initiate a schedule change request, and the other parent can offer an alternate date for make-up time). The 2houses app synchronises with your usual calendar (i.e. iCal, Outlook or Google).

You can also manage your expenses on 2houses and communicate with the other parent. 2houses offers an information bank, with document storage and a summary of your child’s information (such as clothing size, useful contact details and more).

You can also request access for your lawyer so they can view your account, including schedules and communication.

Current pricing: $159 for a 12-month subscription ($13.25 per month), free 14-day trial

For more information, see: https://www.2houses.com/en

AppClose

AppClose has a shared calendar which also has ‘request’ features to manage any make-up time. There is a messaging feature which allows you to see whether your message has been viewed and when. There is an audio and video call feature (which can be disabled). You can send requests with documentation, such as a receipt. You can also export records if you need to share documents or records with yourself (or your lawyer).

Current pricing: free

For more information, see: https://appclose.com/

Other parenting apps available

There are a number of other parenting apps out there. Some include:

Ø  Cozi (a free app with a calendar + shared lists/notes, in-app purchases available)

Ø  FamCal (another free app with a calendar + shared lists/notes); and

Ø  WeParent (a paid subscription app with calendar and messaging features)

Whether you are engaged in a family law matter and need advice about which parenting app is most suitable for your circumstances, or if you need advice on negotiating arrangements with your former spouse, 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: Anika Buckley

Reopening parenting proceedings: What is a material change in circumstances?

A commonly referred to parenting case, Rice & Asplund 179 FLC, set an important precedent that a finalised parenting case ought not be reopened unless the Court is satisfied that there has been a significant change in circumstances. The change does not need to be so significant that it would clearly result in a change to the orders, however the change or fresh circumstances must demonstrate a real likelihood of change being made to the orders.

So, in what circumstances has the Court found that there has been a significant change of circumstances?

• The relocation, or proposed relocation of a parent is a common basis upon which the Court will permit reopening of proceedings. In the case of Stern & Colli [2022] FedCFam C1A 95, at the time that final orders had been made by the (then) Federal Circuit Court of Australia in 2017, the Father had been living approximately four hours from the child, who lived primarily with the mother. He sought to reopen proceedings in 2020, after he had relocated such that the distance between the Father and the child was reduced to a 40-minute drive. The Father’s application to reopen was dismissed, however on appeal, the Full Court of the Federal Circuit and Family Court found that the Father had demonstrated sufficient reasons to reopen the parenting case. The matter was remitted for hearing.

• In the case of Shan & Prasad (2020) FLC, the Court at first instance dismissed the Father’s application to reopen proceedings. The Father had relied on new psychiatric evidence demonstrating the improvement in his mental health. On appeal, it was found that the evidence adduced by the Husband was sufficient to warrant the reopening of proceedings.

•   In the case of Westlake & Westlake [2019] FamCA 563, the Father’s application to reopen proceedings was dismissed. Final Orders had been made providing for the Father to have only supervised time with the children. He subsequently relied on evidence obtained from a psychologist, asserting that such evidence demonstrated an improvement in his mental health such that a reopening of proceedings was warranted. The Father’s application was dismissed, with reference to other expert evidence which showed the Father’s “personality with obsessional and narcissistic traits which are very well developed which do not equate to being a mental illness which can be treated”. Those findings satisfied the Court that there was no change in the Father’s fixed views of the Mother to justify reopening the proceedings.

• The change resulting from passage of time has been a circumstance in which the Court will consider reopening proceedings. A common example of this would be when orders are made for an infant, such that there is no provision for the child to have overnight time with one parent. Of course, over time, those orders become restrictive and no longer support the best interests of the child.

• If there are allegations of physical or emotional harm or abuse, sufficient for the Court to be satisfied that there is risk of harm, the Court has reopened proceedings.

• Parties may also make Orders by consent in recognition of a change in circumstance, however it remains open to the Court to refuse to reopen proceedings, or make further orders by consent, if there is not a sufficient change in circumstances.

Ultimately, the Court needs to determine whether it is appropriate to reopen a case based on the particular facts in each case. A change in a party’s geographical location or simply the passage of time may or may not demonstrate a change in circumstances adequate to justify the reopening of parenting proceedings.                                                                                                

For this reason, it is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to 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

Exploring the Proposed Amendments to the Family Law Act 1975

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

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

The Removal of the Presumption of Equal Shared Parental Responsibility

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

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

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

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

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

Restricting the Filing of Potentially Harmful Applications

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

Notwithstanding these proposed changes, navigating the family law system can be complex and confusing. To make an appointment with one of our experienced family lawyers please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Hannah Gibson

Steps to Consider Before Taking the Next Step.

It is an exciting milestone in a relationship to move in with your partner. Your partner may be moving in to your property, or you might be thinking about renting a property together.  

Whilst seeing a family lawyer can seem less romantic than picking out a new lounge, it can be useful to understand your rights in the event of relationship breakdown, particularly if you own a property or have significant savings or assets such as a share portfolio. 

People often have a misconception that if you own your property prior to living with your partner, you will automatically “lose” 50% of your property when you break up or that you will be able to “quarantine” it in the event of a separation. No relationship is the same and there is no hard and fast rule which entitles your partner to half of your property in the event of a relationship breakdown. Nor may your property interests be protected from a claim by your partner if you separate. 

When dealing with a claim for property settlement following the breakdown of a relationship (whether you are ‘de facto’ or married), the Court will first look at whether it is ‘just and equitable’ to make any alteration of your property interests. The Court then assesses contributions and future needs. 

For example, say you own a property in Canberra with your partner. You bought it 3 years prior to moving in together. During your relationship, you and your partner share finances and your partner starts to help you in repaying the mortgage. You decide to renovate the property and each contribute $100,000 towards improving the property (i.e. your partner is making financial contributions to the property). Each weekend, your partner spends hours out in the garden and does landscaping (they may be considered as non-financial contributions). You then split from your partner 20 years later. 

In this scenario, it may be ‘just and equitable’ to divide your interests in the property and your partner is likely to be entitled to a ‘share’ in your property as a result of their contributions (both financial and non-financial). 

Take another scenario where you owned your property outright prior to the relationship, having inherited it from your parents. Your partner moves in and you live together for 3 years. Throughout your relationship, you and your partner maintain separate finances and your partner makes no contributions towards your property. You ultimately break up after 3 years. In this alternate scenario, the Court may not consider it ‘just and equitable’ to alter your interests in that property as your partner may not have been seen to have made any contributions to it. 

There are a number of factors that may impact on the outcome of these scenarios, including what other assets, liabilities or superannuation are in the ‘property pool’, whether you have children together and each of your ages, health and other future needs. 

Whether you have been dating for 3 months or for a few years, if you are considering cohabitation, it would be beneficial to see a family lawyer to understand how the law operates and the impact moving in together may have on you / your assets.  You can 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: Anika Buckley

How Long is Too Long? Court Dismisses Property Settlement Application After 30 Years

In the case of Estes & Holmes [2022] FedCFamC1F 267, the court summarily dismissed an application by the wife for an adjustment of property interests.  

The parties had separated 1985 after a 14 year marriage. The parties were involved in family law proceedings in 1988 and in 1989 a hearing occurred without the husband being present. Orders were made adjourning the property settlement proceedings until such time as the husband received his superannuation entitlements, which were the only property of any value at the time of those proceedings. At the time, it was anticipated that the husband may receive his superannuation entitlements in or about 2006. 

The Wife sought to commence proceedings in 2020 seeking orders for an adjustment of property interests. At that time, the parties had been divorced for 31 years. 

The Wife’s application was summarily dismissed, as a result of:

1. The delay in bringing the application. The Wife could have sought to have the 1989 proceedings relisted at an earlier time;

2. The Wife did not offer an explanation for the delay in bringing a fresh application for property settlement (or explaining her reasons for not having sought to relist the 1989 proceedings);

3. The Husband’s superannuation in 1989 was approximately $150,000 but he was now in receipt of the age pension and had minimal property in his name;

4. The Wife was not able to demonstrate that the Husband had been served with the Orders made in 1989 adjourning the proceedings, noting that he was not present at Court on that date, and was not legally represented. 

Although the Court has the ability to grant leave to parties who have applied for a property settlement “out of time”, there is no guarantee that any such application would be successful. In any event, bringing an application out of time results in increased legal costs whilst the Court determines the threshold issue of whether a party should be granted leave to bring such an application. In the case of Skelton & Lindop [2022] FedCFamC1A 47, the de facto wife applied to the Court when the parties had been separated for 2 years and 9 months (9 months “out of time”). 

At first instance, the primary judge dismissed the de facto wife’s application. On appeal however, the first instance decision was set aside, and the Court granted leave for the de facto Wife’s application to proceed out of time. Notably, it had taken over three years for the Wife’s application to be determined, by which time the parties had been separated for 5 years and incurred considerable legal costs, and the outcome of the property settlement itself had not yet been determined. 

What does this mean for you?

 The above cases demonstrate the risks associated with delay in formalising property settlements.

 It is important to know that there are time limits which impact your ability to seek an adjustment of property interests after separation or divorce.   

1. If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests.

2. If you are married (or divorced), you have 12 months from the date that a divorce order comes into effect to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests. 

If you are a party to dormant family law proceedings which have been adjourned pending the retirement of one party, or until such time as a superannuation split can be effected, you should seek urgent advice in relation to your circumstances. 

It is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

What Happens to Your Superannuation When You Die?

Superannuation is considered separate to your estate, which means special arrangements need to be made if you want to decide where your super will be paid. 

You can nominate beneficiaries for your super by a completing a death benefit nomination, which can be binding or non-binding. Binding death benefit nominations are written directions to a superannuation trustee which set out how you wish for your super to be distributed. If you have a valid nomination at the time of your death, the trustee is bound to follow it. Non-binding death benefit nominations are a written guide as to how you would like your super to be distributed, however the nomination is not binding on the trustee, who has ultimate discretion as to how to distribute your super.

Completing a binding death benefit nomination gives you greater certainty as to how your super will be distributed in the event of your death. If you don’t have a valid nomination in place, the trustee will need to make a decision as to how your super will be distributed, which generally involves investigating your relationships at the time of your death. Each super fund is different, and the decision will need to be made in accordance with the rules of the fund, as well as superannuation law. This can be a lengthy process, so having a valid nomination in place can also reduce delay in making payment to beneficiaries.

Who can I leave my superannuation to?

The Superannuation Industry (Supervision) Act (“SIS Act”) provides that death benefit nominations can only be made to your legal personal representative or a dependant. Dependants include children, spouses and people you have an interdependency relationship with (e.g. close personal relationships where you live together and one or each of you provide the other with financial and domestic support). A number of factors are taken into account when determining whether an interdependency relationship exists.

Parents and siblings generally do not satisfy the requirements of the SIS Act, meaning if you want your parents or siblings to receive your super, you should nominate your legal personal representative as your beneficiary to ensure your super benefit is paid into your estate. The funds can then be distributed in accordance with the terms of your will. 

Death benefit nominations generally lapse after a period of three years, so you should make sure you review your nomination if necessary. Some super funds offer non-lapsing death benefit nominations which do not lapse until you update or cancel the nomination.

It is recommended to review your estate planning arrangements every few years to ensure they still reflect your wishes. You should also consider reviewing your estate planning if there has been a change in your personal circumstances or financial situation. We offer fixed fees to review your estate planning arrangements and can assist you with preparing Wills, Powers of Attorney, and binding death benefit nominations. If you would like to discuss your circumstances 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