Trusts & Family Law

Trusts, and specifically discretionary family trusts, are commonly utilised as means of holding income generating assets and distributing that income to beneficiaries, who are often family members. When a relationship breaks down, and one or both of the parties hold assets in a trust, questions often arise as to how the trust, and the property of the trust, will be dealt with in the family law settlement. Trusts can be a complex area in settlements, as sometimes they are used by one party to protect or exclude assets, or to prevent the other party from accessing their share of the property.

There is a misconception that if assets are held in a trust, they are to be excluded from the property settlement. This may or may not be the case depending on the structure, composition and set up of the Trust.

There are two ways trusts are likely to be dealt with by the Court- it can be treated as an asset to be included in the matrimonial asset pool or as a financial resource. Trusts are more likely to be considered an asset for distribution if the Court is satisfied that the Trusts’ assets form part of the property of the parties to the marriage or de facto relationship. Under section 4 of the Family Law Act 1975 (Cth) “property” holds a very broad meaning, and the Court has demonstrated its willingness to include trust assets in a property division where certain factors relating to “control of the trust” exist. Where one party has effective control of the trust (i.e. if one party is the trustee, or an appointor) it is more likely to be included as property to be distributed in a family law settlement (see Kennon v Spry [2008] HCA 56 (3 December 2008)).

The Court has also demonstrated that where trust assets do not fall within the definition of property, the Court can still consider whether the parties have received benefits or distributions from the Trust and whether they are likely to in the future, notwithstanding a lack of control over the trust. In this scenario, the Court is likely to consider Trust property as a financial resource of that party under section 75(2) of the Act when determining the overall settlement.

Trusts are a complex area of family law and can require the input and advice of financial advisors, accountants, and solicitors. Whether a trust asset will form part of the matrimonial asset pool available for distribution and whether it is outside of the reach of a property settlement in the context of family law will depend on the specific circumstances of your matter.

For specialist family law advice, including the effects of trusts in a family law property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Lauran Clifton

Assessing contributions

Assessing contributions is an important step in determining how to arrive at a just and equitable property settlement between separated couples.

What contributions does the Court consider? 

Section 79 and 90SM of the Family Law Act 1975 requires an assessment of the following contributions:

1. Financial contributions towards the acquisition, conservation, and improvement of property. These contributions may include financial contributions received by way of income, inheritances, redundancy payments, compensation awards, and windfalls such as lottery wins;

2. Non-financial contributions made towards the acquisition, conservation, and improvement of property. These contributions may include a party conducting renovations toward real property at no cost; and

3. Contributions made towards the welfare of the family through homemaking and parenting contributions.

When does the Court assess contributions? 

The Court assesses contributions made at the commencement of the relationship (in particular, whether one or both parties had significant assets at the commencement of the relationship), during the relationship, and post-separation (if relevant).

What weight is given to contributions made by either party? 

The weighing of contributions is not a mathematical exercise. Weighing of contributions has been described by the Court as being a holistic assessment of the myriad of contributions that are made by parties throughout the course of their relationship.

Each case is different, and all contributions made by parties are unique to their own circumstances. The Court has the discretion to make an adjustment in favour of either party after assessing those contributions.

The size of the adjustment given to a party based on their contributions will depend on a range of factors including the contribution that was made relative to the asset pool that exists (in the case of a financial contribution) or the passage of time since that contribution was made, and importantly, weighing the relevant contribution against contributions made by the other party to the relationship or marriage.

Do some contributions carry more weight than others?

Historically, the Court placed more weight upon financial contributions (by way of income) over contributions made as homemaker and parent, in cases where it was said that the primary income earner exercised “special skill” in order to make those financial contributions. In traditional relationships at that time, this would advantage the primary breadwinner (often the Husband) and disadvantage the party who had made contributions within the home that prevented them from earning an income (often the Wife). The Court has since disapproved of that approach and “special skills” are no longer recognised as being a particular category of financial contribution.  

For specialist advice regarding 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. The sooner you seek advice the better – so you can make informed decisions about your options.

Author: Margot McCabe

Sole Occupation: Who gets to stay in the house after separation?

Following separation, it is not uncommon that one party may seek to stay in the former matrimonial home, to the exclusion of their former partner or spouse. This is particularly so if there are factors which may limit their ability to obtain alternative accommodation.

The test often referred to in applications for sole occupation is the “balance of convenience” or “balance of hardship”. This exercise requires the Court to weigh and balance the benefits to the spouse seeking to remain in the property versus the hardship that the other party would suffer as a result of being required to leave their home.  

An application for sole occupancy however should not necessarily be determined only with reference to the balance of convenience. In the case of Dean and Dean (1977) FLC 90-213, the Court noted that in order for the Court to grant an application for exclusive occupation of a property, caution should be exercised when making such orders and, “it must not be reasonable or sensible or practical for the parties to the marriage to live in the same house.” 

In the case of Davis and Davis (1976) FLC 90-062, the following criteria were considered by the Court in determining an application for sole occupation:

1. The means and needs of the parties;

2. The needs of any children of the relationship;

3. The hardship to either party or to any children of the relationship; and

4. Whether the conduct of one party may justify the other party leaving the home, or seeking that the first party be excluded from the family home. This does not mean that the removal of one party from the family home is a sufficient basis for a sole occupation application to be granted, in order to enable one party to live more peacefully.

Other factors relevant to the determination of an application for sole occupation have been set out in subsequent decisions, including the following considerations outlined in the case of Plowman v Plowman (1970) 16 FLR 447:

1. Whether a party could be adequately housed elsewhere;

2.Whether there are funds, of either party, that could be used to enable one party to obtain alternative housing;

3. What housing arrangements operate in the best interests of the children;

4. Whether both parties are registered owners of the property;

5. Whether the Court could make an injunction preventing certain conduct from one party, in order to address any concerns raised by the other party regarding the first mentioned party’s conduct.

For advice in relation to your property settlement or obtaining sole occupation of your home, 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

Parental Responsibility Explained

‘Parental responsibility’ refers to the duties, powers and responsibilities that a parent has in relation to a child.  This becomes an important consideration as you navigate the journey of co-parenting after separation.

Parental responsibility determines who makes long-term decisions about a child, such as what school a child attends, where a child lives and whether a child practices a religion. Section 65DAE of the Family Law Act 1975 (Cth) provides that parents are not required to consult on day-to-day issues (or issues that are not major long-term issues) – for example, what a child wears or what type of food a child takes in their lunchbox.

In the absence of a Court Order determining parental responsibility, there is a presumption that both parents have ‘equal shared parental responsibility’ (also referred to as ‘ESPR’).  ESPR requires that parents consult with each other about any long-term decision to be made, and make a genuine effort to come to that decision jointly.

This presumption is set out in section 61DA of the Family Law Act.  The presumption of ESPR does not apply if there are reasonable grounds to believe that a parent of a child has been abusive towards that child (or another child in the family), or if they have engaged in family violence, including towards the other parent.

If there is enough evidence to satisfy a Court that an order for ESPR is not appropriate in the circumstances, the Court may make an order for ‘sole parental responsibility’.  A Court may consider that an order for sole parental responsibility is appropriate if the parents are unable to make decisions jointly, or if the communication between the parents would make an order for ESPR untenable.

On a final basis the Court must disregard any orders made on an interim basis about the allocation of parental responsibility. This means if your matter is in Court and an order has been made for ESPR on an interim basis, the Court may ultimately decide that ESPR is not appropriate on a final basis.

It is also important to understand that parental responsibility does not determine what time a child spends with each parent. An order for ESPR does not automatically mean that a child will spend equal time with each parent. Courts will consider what is in a child’s best interests and whether an equal time arrangement would be reasonably practicable, among other things.

If you are unable to reach a joint decision about a major long-term issue regarding your child, or if you are concerned about sharing parental responsibility with your former spouse, you should contact a family lawyer to better understand your rights and obligations. If you are ready to book an initial appointment with a specialist family lawyer in Canberra, contact us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Anika Buckley

Enforcement of Financial Orders

The Family Law Act sets out options available to parties to seek enforcement of Orders in relation to financial matters. Regrettably, in some cases, it can become necessary to seek enforcement of Orders where a party is not compliant with Orders of the Court.

When can I seek enforcement of Orders?

Enforcement can be sought where pursuant to Orders, maintenance agreements or Binding Financial Agreements made pursuant to the Family Law Act:

1. There is an obligation on a party to pay money;

2. There is an obligation on a party to sign a document;

3. A party is entitled to possession of real property; or

4. A party is entitled to transfer or delivery of personal property.

Although less common, there are other circumstances in which a party can take enforcement action against a non-compliant party, such as there where a party has registered an arbitral award, a child support liability or where there is an overseas maintenance order that has been registered in Australia.

How do I enforce Orders?

Methods of enforcement available to a party seeking compliance with Orders pursuant to the Family Law Act include:

1.  Appointing a Registrar of the Court

   A Registrar of the Court can be appointed to sign documents in place of a non-complaint party, such as Transfer documents in order to progress the transfer of a house, transferring shares or, closing bank accounts.

2. Third Party Debt Notice

   A Third Party Debt Notice requires a third party to discharge a debt by redirecting funds to which the non-compliant party would otherwise be entitled, to the party seeking enforcement. For example, a party seeking enforcement could seek that the non-compliant party’s wage be directed to them instead over a period of time in order to satisfy a debt.

3. Trustee for sale of real property

   If an Enforcement Warrant has been obtained in relation to real property in which the non-compliant party has an interest, a party can seek to be appointed as Trustee for Sale of real property. If a party is appointed as Trustee for sale it will generally be necessary to also seek that a Registrar of the Court be appointed to execute documents on behalf of the non-compliant party (as above).

4. Warrants for possession of property

   A party seeking enforcement of Orders can apply for a warrant for possession of real property, personal property, or for the seizure or detention of property owned by the non-complying party, which can then be sold, for example, to satisfy a debt.

There are other forms of relief available to a party seeking enforcement of Orders, including sequestration of property, receivership and seeking that a non-complaint party be declared bankrupt. It is likely that the Court would only adopt such methods of enforcement if other attempts at enforcement had been exhausted or there were circumstances justifying forms of enforcement that could be considered severe or prejudicial to the non-compliant party.

Can I seek that my legal costs be paid by the non-compliant party?

The Court has general powers of enforcement, including the power to make Orders that one party pay the other party’s costs. Although costs to do always “follow the event” i.e., the winning party does not always get their costs reimbursed, the Court is sometimes more inclined to order that a non-compliant meet the other party’s costs of enforcement, arising out of the non-compliant party’s failure to comply with an Order of the Court, as it has been unfair that the applicant has had to pursue such steps.

For specialist family law advice including about enforcement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Making the most out of your first appointment

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

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

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

1. Consider your assets, liabilities and superannuation

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

2. Think about the outcomes you want to achieve

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

3. Prepare a summary or background of your relationship

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

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

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

3. How you divided any household responsibilities;

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

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

6. Your current employment status and your income; and

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

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

Author: Anika Buckley 

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