Circumstances warranting recusal of a Judicial Officer based on Apprehended Bias

In the event of apprehended bias by the ongoing involvement of a judicial officer, a party may seek that the judicial officer (most commonly a judge) recuse themselves of any further involvement in the proceedings. The failure of a judge to recuse themselves may lead to judicial error that forms grounds for an appeal.

In the decision Johnson v Johnson [2000] HCA 48, the Court found that the test to be adopted in determining the existence of judicial prejudice or apprehended bias was “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

This test is objective to ensure that the public can have confidence in the outcomes of litigation. In the decision of Henley & Bestari [2024] FedCFamC1A 12, the Court emphasised the need for the “fair-minded lay observer” to be reasonable in their assessment of the existence of bias or impartiality, noting the test requires “an observer who is neither complacent nor unduly sensitive or suspicious, who is also taken to be reasonable, is all too aware of the reality that the judge is human, is not conceived of as a lawyer but a member of the public served by the courts and is not to be assumed to have a detailed knowledge of the law, or the character or ability of a particular judge.”

What circumstances may give rise to a recusal application?

In the case of Silva & Phoenix [2018] FamCAFC 41, the trial judge was exposed to proposed final consent orders. The trial judge declined to make those Orders on the basis that they were not satisfied that the outcome was just and equitable. The Court found that having been privy to the parties’ in principle agreement which deviated from their respective applications, the trial judge should have recused himself.

In the similar case of Henley & Bestari [2024], the trial judge declined to make orders by consent agreed upon by the parties, due to his concern that the effect of the Orders was so unclear as to prevent the Court from determining whether the outcome was just and equitable. His Honour refused a recusal application after having received into evidence draft orders, a balance sheet and submissions addressing why the outcome of the agreement was just and equitable. On appeal, the Court found that having knowledge of the in-principle agreement and balance sheet may reasonably impact the trial judge’s ability to determine the matter impartially.

In the case of Charisteas v Charisteas [2021] HCA 29, the Court found that the social interactions between Counsel for the Wife and the judge throughout a two week trial, including an exchange of text messages during the course of the trial, would cause a lay observer to form the view that the judge was not able to impartiality determine the outcome of the matter.

If this issue has arisen in your matter, or you are concerned that a judicial officer is not acting impartially, you should seek specialist family law advice.  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 and Best Interests Explained

The passing of the Family Law Amendment Act 2023 has codified considerable changes to the concept of parental responsibility. Parental responsibility has been a central concept in family law matters for some time. It is the responsibility parents have in relation to major long-term decisions about the welfare and development of their child/ren, for example where they live, the school they attend, medical decisions, their name, and religious and/or cultural upbringings.

In 2006, changes to the Family Law legislation saw the introduction of the concept of equal shared parental responsibility, and provided that unless there were reasonable grounds to believe that a parent of the child has engaged in family violence that it would not be in the best interests of the child, that a presumption of equal shared parental responsibility applied. The Australian Law Reform Commission found in its 2019 report that the presumption that separated parents have equal shared parental responsibility for their child/ren was too frequently misinterpreted as a presumption of an equal shared care arrangement. The occurrences of misinterpretation of the law is said to have created a risk of harm to children.

The Family Law Amendment Act 2023 removes this presumption such that each parenting case before the Court will be evaluated on the matter’s specific merits, primarily focusing on the child/ren’s best interests. The Amended Act simplifies the objects of Part VII of the Family Law Act 1975 (Cth) as follows:

1.       To ensure that the best interests of the child are met, including by ensuring their safety; and

2.       To give effect to the Convention on the Rights of the Child.

The Amended Act simplifies the section 60CC factors  - those factors that the Court considers to decide what parenting arrangements will be in the best interests of the child – from the previous and hierarchical primary and secondary factors, to the-now six factors of general considerations and two further considerations if the child is Aboriginal or Torres Strait Islander. These six factors of general consideration are:

1)      What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

a)       the child;

b)      and each person who has care of the child (whether or not a person has parental responsibility of the child); 

2)      Any views expressed by the child;

3)      The developmental, psychological, emotional and cultural needs of the child;

4)      The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

5)      The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

6)      Anything else that is relevant to the circumstances of the child.

These simplified and streamlined factors are intended to provide the Court with wide discretion to make decisions which posit the safety of children at the forefront of any arrangement. Parents at all stages of the separation process will need to consider these changes. An understanding of who is able to exercise parental responsibility in relation to what issues, and how and when joint decisions are to be made in relation to children, is an important yardstick to achieving successful parenting outcomes.

The practical impacts of these changes are yet to be seen, and our team of family law experts at Robinson + McGuinness will be closely following the development of jurisprudence in relation to parental responsibility from decisions in both Division 1 and 2 of the Federal Circuit and Family Court of Australia. If you need clarification regarding these latest amendments to the Family Law Act 1975 (Cth) or you would like advice on how they may impact your situation, please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Lauran Clifton

All About Conciliation Conferences, Dispute Resolution Conferences, and Judicial Settlement Conferences

As part of your family law proceedings, the Federal Circuit and Family Court of Australia has the option to order that you, and any other parties in your matter, attend a Conciliation Conference (for property matters), a Dispute Resolution Conference (for parenting matters) or a Judicial Settlement Conference. The purpose of these conferences is to assist parties in resolving their matter without being put to the costs or stress of the matter progressing to a hearing.

The three types of conference all adopt a similar method and procedure. Their key differences are that Conciliation Conferences and Dispute Resolution Conferences are convened by a Judicial Registrar, and often occur earlier in the ligation process. Further, a Court Child Expert may also attend the Dispute Resolution Conference to provide their perspective and assistance to the parties. Contrastingly, a Judicial Settlement Conference is convened by a Judge, and is typically utilised as a ‘last resort’ option prior to the parties participating in a Final Hearing.

These conferences are a form of dispute resolution, in which the Deputy Registrar or Judge acts as mediator between the parties. You do not have to be legally represented to attend one of these conferences, however it is generally beneficial to engage a lawyer who can then provide you guidance and advocate for you to receive the best possible outcome. The expertise and experience of the convening Deputy Registrar or Judge can contribute to the quality of negotiation which occurs between you and the other party. 

Attending a conference organised by the Court provides parties with the opportunity to negotiate in a safe and controlled environment. Additionally, any final orders resulting from the conference will be made by consent.  This means that the final outcome of your matter is one you have agreed to, even if you have made some concessions from your original position, and you will likely feel a greater sense of control over the result than if you had proceeded to Final Hearing. Additionally, if your matter does settle during or after the conference, you will be able to avoid the significant costs and time associated with your matter remaining in the Court system.

If you have been ordered to attend a court-based conference, or it is an option you would like to know more about, we recommend you seek legal advice. 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.

When your former partner resists a Property Settlement

Dealing with the breakdown of a relationship is difficult.  If you have intermingled your finances, you must also consider how to ‘sever’ your financial relationship.  This can be especially complicated if your former partner is not on the same page as you with respect to how you progress your separation.   For example, your former partner may not ‘accept’ your separation and put their ‘head in the sand’ by choosing to ignore communications from you.  Your former partner may also be unable to progress matters as a result of mental incapacity, such as due to cognitive decline or poor mental health, or physical disability.

If you have done some research on what happens after separation, you will be aware that the Court usually adopts a ‘4-step approach’, being to determine what the property ‘pool’ is (through understanding the assets, liabilities and superannuation), to assess contributions (including initial, during the relationship and post-separation), future needs and whether the outcome is ‘just and equitable’.  For more information, you can review our blog post about the 4-step process.

Notwithstanding which step you are at in the property settlement process, if you experience difficulties in engaging with your former partner, there are options available to you to ensure that your matter progresses.  

You can engage a lawyer to communicate with your former partner.  This can help to take the heat out of communications and to focus your communications on progressing your matter.  Your lawyer can also advise you about whether you need to commence Court proceedings.

If your former partner refuses to respond or is unable to progress matters, you may need to commence Court proceedings.  Once you are involved in Court proceedings, you are still able to continue negotiations outside of the Court process. 

Once in Court, if your former partner continues to refuse to engage and there is no evidence about any incapacity to make decisions, your matter might progress to an undefended hearing.  This would mean that the Court ultimately makes a decision about how any property should be divided, based on the evidence before it, in the absence of your former partner.

If there is evidence that your former partner may be unable to progress matters due to some incapacity, the Court may appoint a litigation guardian as a last resort.  A litigation guardian acts on behalf of a party and ‘stands in the place’ of a party, including making decisions about the conduct of the proceedings. 

A litigation guardian is usually a third party with no adverse interests to the person in need of a litigation guardian, such as a close friend or in some instances, a family member.  The public trustee can also be appointed as a last resort.

If you are concerned about the progress of your matter, you should contact a family lawyer to obtain advice.  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

Harman Undertaking: What is it and what does it mean for you?

In the recent decision of Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, Justice Michael Lee commented on Bruce Lehrmann’s likely breach of the implied Harman undertaking, arising as a result of Lehrmann releasing to Channel 7 documents obtained by him through the ACT Supreme Court proceedings. So, what is the Harman Undertaking and what does it mean for your family law matter?

What is the Harman Undertaking?

The Harman Undertaking is an implied undertaking by parties to litigation that they will not release information or documents which they have obtained during the course of litigation for an improper purpose.

Does the Harman Undertaking apply in family law matters?

Parties are prevented from using information obtained in family law proceedings for a purpose which does not relate to those proceedings, without seeking leave of the Court. For example, a party seeking to rely upon Subpoenaed documents in family law matters in support of an application for a protection order in the ACT Supreme Court.

In the case of Pedrana & Pedrana [2012] FamCA 348, the Wife was attempting to rely upon evidence obtained in family law proceedings as to the Husband’s income, in order to increase the child support payable by the Husband. Ultimately, the Court found that the documents could be considered by the Child Support Registrar, saying “It could not be viewed as an appropriate outcome that … the carer entitled to child support was unable to draw to the Registrar’s attention the fact that the liable parent had not given [relevant] disclosure because the carer entitled to child support was constrained from doing so because of the Harman obligation and was required to go back to court to get permission to do so”  Although approved in this matter, parties should exercise caution and seek legal advice if considering releasing documents obtained in family law proceedings.

Who is bound by the Harman Undertaking?

Parties to litigation are bound by the Harman Undertaking. It also extends to parties’ solicitors, and other third parties in possession of documents relating to family law proceedings.

What are the consequences of breaching the Harman Undertaking?

The Court in which the confidential information was obtained has the discretion to determine consequences of a breach of the Harman Undertaking. The consequences may include the non-compliant party being held in Contempt of Court, or the Court ordering that the non-compliant party meet the costs of the other party or parties.

What does it mean for your family law matter?

1.      You should keep confidential information or documents obtained in the course of family law proceedings, in order to comply with the Harman Undertaking, and also to comply with Section 121 of the Family Law Act 1975 which prevents publication of information relating to family law proceedings;

2.      If you wish to use information or documents obtained in family law proceedings for another purpose, you need to seek permission of the Federal Circuit and Family Court of Australia before providing the confidential information;

3.      You should be aware that the Harman Undertaking doesn’t only apply to litigants. It also applies to solicitors or other third parties who are made aware of the confidential information;

4.      You should seek independent legal advice about your obligations in relation to confidentiality in family law proceedings.

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

Author: Margot McCabe

Child Inclusive Mediation: Can my child have a say?

The time of separation can be associated with complex feelings of loss and grief. It is usually at this exact time that parents are expected to make very important decisions about parenting moving forward. What household will our children live in? How much time will they spend with me and with the other parent? How are our children expected to transition into this completely novel arrangement? The resolution of parenting arrangements after separation can often be a complex process, not least of which because the idea of having to give up any time with a child can be an extremely daunting prospect when a person is already experiencing the grief and loss associated with the breakdown of their relationship with their former partner.

Separated parents usually attempt to organise their parenting arrangements via discussion, compromise and through participation in dispute resolution, such as mediation. Of course, this is a requirement under Part VII of the Family Law Act 1975 (Cth) (the Act), save for a handful of exceptions outlined at section 60i(9) of the Act. Where parents can reach agreement, these are usually documented through a parenting plan or a binding agreement made by the Court (known as Consent Orders).

Fundamental to the dispute resolution process in relation to parenting, is the ability for separated parents to put aside what their individual wishes might be in relation to the care arrangements of the child, and to put the child’s best interests and developmental needs above their own. Sometimes traditional models of family dispute resolution and mediation do not fit the needs of separated parents and their children. It might be that Child Inclusive Mediation would be a more suitable process for these families to partake in.  A Child Inclusive Mediation provides the opportunity for the child to express their views to an independent third party- views which might not otherwise be expressed within the confines of the family dynamic.

A Child Inclusive Mediation usually involves you and the other parent, and the child (or children) separately attending upon a qualified child expert or specialist for the purpose of an interview. This child expert is usually someone who has tertiary qualifications in child psychology and oftentimes will be dually qualified in family law. They will ask subtle and non-confrontational questions to adduce the child’s views on the arrangements and ascertain any effects of the separation on the child/children.

The parents will then attend a mediation separately. It is important that parents understand the child (or children) will not attend this aspect of the Child Inclusive Mediation. The child expert may act as mediator as well, provided they have the requisite qualifications, or will remain in attendance with the mediator to provide insight into the children’s views throughout the mediation process. The child expert will usually convey what the children have told them in their private sessions, provide an expert opinion on this, and identify any potential pathways forward. It is hopeful that the parents can then come to a parenting arrangement which takes into account the child’s views, in a very safe and child focussed manner.

Not every family dynamic is suitable for Child Inclusive Mediation. The Family Law Act provides that the Court can have regard to any views expressed by the children when determining what Orders to make. However, for really young children, how much weight can the Court attach to their views? For adolescents or late teens, the weight the Court would attach to their views would likely be much higher. A Child Inclusive Mediation, might be very helpful if you have children who are of an age where they can clearly express their views and wishes. If you believe your family may benefit from Child Inclusive Mediation, or you are considering whether this is a suitable process for you, do not hesitate to reach out to our team of experienced family lawyers here at Robinson + McGuinness Family Law.

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

Author: Lauran Clifton

Reconsideration of Final Parenting Orders – the new section 65DAAA of the Family Law Act codifies the long-standing rule set out in Rice & Asplund.

Final parenting Orders are made every day, either by consent, or following protracted litigation in the Federal Circuit and Family Court of Australia. It is intended that final parenting Orders apply and operate until the children turn 18 years old. However, it is sometimes necessary for final parenting Orders to be reconsidered prior to their expiry to ensure that the Orders continue to operate in the best interests of the children.

Commencing 6 May 2024, the Family Law Act 1975 will be amended to insert a new section 65DAAA into the Act; this new section of the Act will specifically deal with the reconsideration of final parenting Orders (something which previously has only been dealt with by case law).

The new section 65DAAA will state:

If a final parenting Order is in force in relation to a child, a court must not reconsider the final parenting order unless:

1. The Court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

2. The Court is satisfied that, in all circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

The new section 65DAAA will apply to all matters before the Court from 6 May 2024.

The new section 65DAAA is a codification of the principle set out in the case of Rice & Asplund, which provides that the Court should only hear an application to alter an earlier parenting Order if the Court is satisfied that there has been a material change in circumstances such that a rehearing of what is in the children’s best interests is warranted.

When deciding whether there has been a significant change in circumstances, such to justify the reopening of the proceedings, the judicial officer is required to make a discretionary decision about whether the Applicant’s evidence demonstrates a prima facie change in circumstances and weigh the significance of that change, against the potential benefit or detriment to the children caused by the reopening of the proceedings.

What is a significant change in circumstances?

With the amendments not due to come into effect until 6 May 2024, there is no current case law outlining what the Court considers to be a significant change in circumstances. However, until such case law exists, it is expected that the Court will have regard to previous case law which has dealt with the principle set out in Rice & Asplund.

Rice & Asplund considers material changes in circumstances; examples of which include:

• A decision by one of the parties to relocate which was not contemplated at the time of the final parenting Orders being made;

• The views of a child in circumstances where time has elapsed since the making of the final Orders; and

• A change in a parent’s mental health and wellbeing.

A further discussion about what is classified as a material change in circumstances can be found here.

The Court does not entertain applications to amend or set aside an earlier parenting Order lightly. If you are considering such an application it is important that you obtain specialist family law advice. 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.

Financial resources and how they impact property settlements

The definition of “property” in the context of a property settlement in Australia is outlined in section 4 of the Family Law Act 1975 (“FLA”). It defines the “property" as:

(a) in relation to the parties to a marriage or either of them--means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or

(b) in relation to the parties to a de facto relationship or either of them--means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.

The property pool that is considered available for division between separated couples usually includes assets such as cash in bank accounts, real properties, shares, investments, superannuation, motor vehicles, furniture, jewelry, business interests, etc.

While the definition of financial resources differs from assets when considering a property settlement, the FLA does not provide a specific definition for it. In the High Court case of Hall & Hall [2016] HCA 23 defined a financial resource as “a source of financial support which a party can reasonably suspect to be available to him or her to supply a financial need or deficiency”.

A financial resource may have the potential to generate future income or to give access to capital, which may not be immediately divisible but can influence the financial situation of a party in the future.

The Court may take into account financial resources of the parties and may adjust the division of the property pool having regard to those financial resources. Such adjustments will usually be based on the future needs of each party, ensuring a fair distribution that accounts for both current assets and future financial prospects.

Financial resources may include:

• Future Inheritances: Expecting to receive an inheritance even if not in the near future, can still be considered a potential financial resource. It can significantly impact a party's future financial security/position.

• Trust Beneficiaries: Interests in trusts, especially where an individual is a discretionary beneficiary, may not provide immediate financial benefits but can be regarded as a potential future income stream or cash flow, depending on what has happened in the past.

• Superannuation Interests: A superannuation interest is generally treated as property and can be available for spitting if necessary. However, the defined benefit superannuation schemes, known for their (at times, generous) pension phase, may generate significant income for one party upon retirement. Therefore, this entitlement is considered more as a valuable financial resource than mere property, especially in the long term. Consideration must be given to the nature of the interest at the time (i.e. whether it is in the growth phase or payment phase).

• Employment Leave: Significant periods of leave, such as long service leave may be seen as financial resources. This perspective was supported by Baker J in the Whitehead case (1979), where it was concluded that accrued long-service leave entitlements constitute a financial resource rather than an asset.

• Pending Legal Claims: An anticipated payout from litigation, such as a personal injury claim or other litigation where a financial settlement is expected, are likely to be included as they represent a future financial benefit.

• Loan Repayments: The expected repayment of loans owed to an individual can improve their financial position once received, and therefore be taken into account.

• Business Goodwill: The value associated with a business’s reputation and client relationships, particularly if it could generate financial gain beyond tangible assets, can also be considered as a financial resource.

• Tax Losses: Tax losses that can be used to offset future taxable income, therefore improving financial status, can also be seen as a financial resource.

• Support from Family Members: Regular or reliable financial support or expected support from family members, while not a formal asset, can be considered a financial resource due to its potential effect on an individual's financial position.

In summary, the consideration of relevant financial resources is essential for achieving a fair and equitable property settlement when negotiating a property settlement with a former spouse. The identification of these resources is important and should not be overlooked.

If you are exploring a property settlement and you need family law advice it is beneficial to see a specialist. To make an appointment with a member of our team please contact us today at (02) 6225 7040 or by email info@rmfamilylaw.com.au.

After Separation: what to do with the Matrimonial Home

The family home, which used to be a shared space, filled with joy, sorrow, and countless memories, becomes a complex asset to address when it comes to separation.

The decision of whether to sell, keep, or consider other options requires careful thought and consideration between you and your former partner. It is a decision that should ideally be made jointly if possible.

Here, we explore the various paths you may consider and the implications of each. There can be creative solutions to suit the unique dynamics and needs of different families.

Selling the property

Selling the matrimonial home is a common choice for many separating couples. It is a way to say goodbye to one chapter of life, split the proceeds, and embark on a new chapter of life. Both of you must agree on key decisions of sale if the property is jointly owned, such as choosing a conveyancer, real estate agent, setting the listing price, etc.

While in a fluctuating market, you may want to make sure the sale is profitable after paying off the mortgage and related expenses to ensure there will be a profit to be divided. If the sale potentially leads to debt, retaining the property as an investment or considering alternative options as introduced below, may be more prudent.

Co-owing the property

Some couples opt to continue jointly owning the house for a period of time post-separation. This arrangement can be temporary and allow children to live in a stable familiar environment until they finish school or another period of time as agreed, or until the market has improved for selling, for example.

It requires cooperation and detailed arrangements should be discussed as to the mortgage repayments, and outgoings including rates, utilities, and eventual sale terms. This option may be suitable for families with school-aged children where you and your partner are amicable and can communicate well about decisions.

Keeping the home

One partner may wish to retain the home, often due to the emotional attachment or if they are the primary carer of the children. This typically involves one partner buying out the other’s share and transferring the property’s title from joint to a single name. The challenge here is ensuring the serviceability of the mortgage, as it will need to be refinanced from a joint name to a single name, only relying on that individual’s income.

This process can be challenging and requires the individual to have an adequate and stable income. It could be a concern for a lot of families especially under the current high-interest rate environment. You may need to consult a financial planner and/or a broker who can assess if this option is open in your financial situation. Child support can be considered an income source in some circumstances, depending on whether there is an administrative assessment in place and how long child support has consistently been paid for.

If there is a court order in place requiring the property transfer, our team is equipped to assist with the process.

Renting out the home

Another option is to keep the family home as an investment property, which may offer an alternative income stream. This arrangement involves both of you moving out and renting the property, with the income potentially covering the expenses. This could be a beneficial temporary arrangement when the market is down or if both of you want to keep it as an investment.

It also requires the communication between both of you to be effective and amicable, as you will be handling the tenants, and liaising with the agent. You also need to agree on how the rental income will be applied and expenses paid, as well as allocating who the property management responsibility will fall to.

Making a decision about the family home during or after a separation is never easy. It can require input from third parties such as accountants, financial planners, mortgage brokers, and, for navigating property settlement matters, experienced family lawyers. The team at R+M is here to assist you.
If you have questions about how the family home should be dealt with post-separation, you should obtain specialist family law advice early on. 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.

Valuations and the Asset Pool

One of the first questions when completing a property settlement is “What is the asset pool?” By quantifying the assets, liabilities, superannuation, and financial resources of the parties, parties can then start to think about how the asset pool will be divided between them, having regard to their respective contributions and future needs.

It is important that the asset pool is identified before any settlement negotiations take place, the parties attend a mediation/conciliation conference, or the matter proceeds to a hearing.

The value of some assets, such as bank accounts, shares, and accumulation superannuation interests, are usually easily identified by obtaining the most recent account statement. The value of other assets however can be more difficult to identify, examples of such assets include:

• Motor vehicles;

• Collectable items, including antiques and vehicles;

• Real estate;

• Businesses; and

• Defined benefit superannuation interests.

If parties can agree on the value of the above types of assets, the agreed value can be adopted for the purposes of the balance sheet and the property settlement. For example, parties may agree upon the value of a car by obtaining a RedBook valuation, or the value of real estate by obtaining a market appraisal from a real estate agent.

If there is no agreement as to the value of a certain asset, the parties will need to engage an independent expert to value the items. When obtaining a valuation, it is important to:

• Agree upon who will carry out the valuation – the valuer should be appropriately qualified to carry out the valuation;

• Agree upon who will pay for the valuation – it is common for valuation fees to be shared equally between parties;

• Jointly instruct the valuer in writing – it is inappropriate for parties to individually speak with/instruct the valuer; and

• Request that the valuer provide their valuation in writing.

If no agreement can be reached about the appointment of a valuer, and the matter is in Court, the Court has the power to appoint a valuer (known as a Single Expert).

If the matter is in Court, once a joint valuation has been obtained, the parties are bound by the value unless otherwise agreed or ordered by the Court. If one party does not accept the valuation, they can ask questions of the valuer in accordance with Division 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; obtain a second valuation and/or seek permission from the Court to rely upon a second valuation (known as an Adversarial Expert Report); this is not a straightforward process, and specialist family law advice should be sought prior to making an application to rely upon an Adversarial Expert Report.

If you have questions about valuations and your property settlement you should obtain specialist family law advice. 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, Senior Associate

Dying without a will in the ACT

If a person passes away without a valid will, or a will that does not adequately dispose of their assets, their estate will be distributed in accordance with the rules of intestacy. 

Intestacy is governed by the Administration and Probate Act 1929 (“the Act”) in the ACT. The Act determines who is eligible to inherit from the estate and the order in which assets are to be distributed. 

Who inherits an intestate estate? 

The primary beneficiaries of an intestate estate are typically the partner and children of the deceased. The Act provides for intestate estates to be distributed as follows: 

• If the value of the estate is less than $200,000, the partner of the deceased inherits the whole estate. 

• If the value of the estate is higher than $200,000, the partner is entitled to the first $200,000, plus 8% interest per annum calculated from the date of death until the date the partner is paid. 

• Any remaining balance is distributed between the partner and any children (or grandchildren) of the deceased. If there is one child, the partner receives half of the remainder and the child the other half. If there are multiple children, the partner receives one third of the remainder and the children receive equal shares of the balance. 

• If the deceased has children and no partner, the estate will be divided equally between the children.  

• If the deceased died without a partner or children, the parents of the deceased are entitled to the estate in equal shares. 

• If the deceased died without a partner, children or parents, their next of kin are entitled to the estate. Next of kin are defined as brothers and sisters, grandparents, uncles and aunts, and nieces and nephews. 

• In the event a deceased leaves behind no family, the ACT government is entitled to the estate. 

Who is considered a partner?

A partner can be a party to a marriage or to a de facto relationship. The Act defines a partner as either:

1. The spouse, civil partner or civil union partner of the intestate: or

2. An eligible partner of the intestate. 

An eligible partner is someone who was the domestic partner of the deceased at the time of their death and was either in a continuous relationship with the deceased for at least 2 years, or is the parent of a child of the deceased. 

If the deceased was separated from their partner but not yet divorced, the partner will still be entitled to inherit from the estate. As such, it is important to update your estate planning arrangements to ensure they reflect your wishes, particularly after major life events such as separation. 

It is highly recommended to seek legal advice before administering a deceased estate. 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

How is an inheritance dealt with in a property settlement?

When completing a property settlement, one of the considerations made is “what contributions were made by the parties?” Contributions come in all shapes and sizes, and can include inheritances which were received prior to the relationship, during the relationship, and following the breakdown of the relationship. When the inheritance was received, its quantum, and how the inheritance was applied will impact how much weight/credit is given to the contribution. It is common for an adjustment of the property settlement to be made in favour of the party who received the inheritance, however there is no set formula, and the weight/credit applied is at the discretion of the judicial officer hearing the case.

Another consideration in a property settlement is the future needs of the parties, including any changes to their financial circumstances by way of impending inheritance. If a party is a beneficiary of a deceased estate and awaiting distribution of the estate, the nature and quantum of the inheritance could be relevant to the outcome of the property settlement. If there is going to be a discrepancy in the parties’ financial circumstances as a result, it may be appropriate for an adjustment of the property settlement to be made in favour of the party who is not receiving the inheritance; again, there is no set formula, and the adjustment applied (if any) is at the discretion of the judicial officer hearing the case.

What is not as clear is what weight/credit, if any, should be applied to the possibility of a party receiving an inheritance. For example, this question arises where one party has an elderly parent and can expect to receive an inheritance upon their parent’s passing. Consideration needs to go beyond the possibility of a party receiving the inheritance and consider the probability of the party receiving the inheritance. If the party’s parents are elderly, but otherwise healthy, well and have testamentary capacity (meaning they have the capacity to amend the terms of their Will at any point in time) then the fact that the party is to receive an inheritance at some time in the future will likely only be deemed a mere expectancy; a mere expectancy will have little if any weight in a property settlement. However, if that party’s elderly parent is unwell and has lost capacity (meaning they are unable to amend the terms of their Will), the fact that the party to the property settlement is due to receive an inheritance at some point is likely to be seen as a relevant factor when considering the parties future needs.

If you need advice about how any inheritances, received or due, may be dealt with in your property settlement you should obtain specialist family law advice. 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

Caveats in Family Law

When a relationship ends, figuring out who gets to keep certain property can be a cause of concern, especially if you have been contributing to mortgage repayments on a property owned solely in your former partner’s name. What happens if you break up? Can your partner just sell the house without telling you? This is where a caveat may assist, in certain circumstances.

What is a caveat?

A caveat is like a public record indicating an interest in real property. If you lodge a caveat on a property, it means that the registered proprietor is unable to sell or deal with the property without the caveat being removed from the title.

Why and when to lodge a caveat?

In certain circumstances, including where you can establish an equitable interest in a property, a caveat may be used to protect your interest, or to delay certain dealings with a property that you may not know about or consent to. The Family Court has dealt with cases involving caveats in the past and has determined that a mere interest in a property as a result of an arguable case for an adjustment of property interests between separated parties may not (of itself) be a caveatable interest. Care must accordingly be taken when exercising such a right or taking such a step to lodge a caveat over a property not legally owned by you.

How to lodge a caveat?

To lodge a caveat, you must be able to demonstrate that you have a legal or equitable interest in the property. This may include by having made financial contributions towards the acquisition or improvement of the property. The application process involves completing specific forms and submitting them to the land titles office, as well as paying a fee. It is very important to seek legal advice before you do so, as lodging a caveat without a proper basis can have consequences, including in some circumstances financial penalties.

Does a caveat expire?

In jurisdictions like the ACT, a caveat remains on the title of a property once registered, until the caveator takes steps to remove it or the registered proprietor of the property applies for the lapsing of the caveat. If a caveat is disputed, the issue may need to be resolved in the Supreme Court, where a judicial officer decides whether the caveat is valid based on the evidence presented to the Court.

If you have a query about lodging a caveat and you are separated or considering separating, you should seek specialist family law advice.

Our team at Robinson + McGuinness is ready to guide you to ensure your rights and interests are prioritised. Contact us today 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.

Sorting out the children’s care arrangements

If you have separated from your partner and you share children together, life will (of course) be different. This is especially so if you are no longer residing in the same property. Where you have moved out, or your spouse has, it is important to establish arrangements for care of the children as early as possible.

In discussing the children’s care arrangements, you can decide whether you will implement an ‘interim’ arrangement (say for a few weeks, months or even a year), or you may already have a good idea about what your ‘final’ arrangements might look like (i.e. until the children turn 18).

Generally, you and your former spouse should agree as to any care arrangements together rather than one parent unilaterally imposing the arrangements on the other parent.

To formalise any agreement reached:

1. parents can enter into a ‘parenting plan’ which can be as simple as writing down your arrangements on a piece of paper, then signing and dating the document; or

2. you might also decide to formalise the arrangements in consent orders that the Court approves and ‘stamps’, however this is generally only done when you have agreement about final arrangements.

If you do not reach agreement, you may wish to engage a mediator, who is an independent third party who can assist you in finding an outcome that is mutually suitable (even if you do not consider it to be your best-case scenario).

Important things to think about when you are considering entering into a parenting plan include:

1. What will the arrangements look like during the school term;

2. Will the arrangements change during the school holidays, and what will you do over the longer Christmas/summer school holiday period;

3. Will there be set times for the children to communicate with the other parent;

4. How will you share special occasions, such as religious holidays and birthdays;

5. Which special occasions are important to celebrate - either for you or the other parent;

6. Are there any ground rules you want to establish for travel, whether that be domestic travel or international travel;

7. How will you share important information, such as the details about children’s health or medical treatment;

8. How you and the other parent will communicate, i.e. by email, text, Whatsapp or via parenting communication app.

Before negotiating care arrangements, you should also consider where you will both be residing and your working arrangements, including whether either parent has access to flexible working arrangements.

Ultimately, in deciding which arrangements you put in place for the children, you should think about whether those arrangements will work for the children. This in turn will influence whether the arrangements are in the ‘best interests’ of the children. Whilst some parents consider that an ‘equal time’ or 50/50 arrangement is ‘fair’, this is not always appropriate particularly where the children are young and have an established primary carer. You should also consider the children’s typical routine and whether the children can maintain this routine with the proposed arrangements.

If you are thinking about discussing care arrangements for the children, or if you are concerned that the care arrangements are not working, you should seek advice from a specialist family 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: Anika Buckley

Property Settlements: The death of a party

When one party of a breakdown relationship is terminally ill, it can have significant implications to the distribution of their property, if the party passes away. Whilst a morbid and uncomfortable topic, it is an extremely important one to consider, as it can have serious consequences on a party’s assets, and how they are dealt with after a party’s death.

Death prior to commencing proceedings

Where neither party has commenced court proceedings in the Family Law jurisdiction, the matter will be dealt with under the estate law of the applicable state or territory of Australia. This might mean that if the terminally ill party did not update their will after separation, their former spouse (if provided for in the deceased’s will) may inherit from their estate. This may or may not be the intention of the deceased party.

Seeking legal advice becomes even more pertinent in family law matters when one party is terminally ill. Generally most parties will attempt to resolve their matter outside of the Court system, through independent negotiation and sometimes formal mediation. These pre-action procedures still apply despite the ill-health of a party.

However, if the matter is unable to be resolved through these means, sometimes the only alternative course of action is to make an application to the Federal Circuit and Family Court of Australia to resolve the matter.

Death after commencing proceedings

So, what happens when a party dies prior to a matter being resolved, but after filing an application? Where proceedings have commenced in the Family Law jurisdiction, and a party dies, Section 79(8) of the Family Law Act 1975 (Cth) and Rule 3.19 of the Family Law Rules 2021 apply. The Court may allow for the substitution of the deceased party by their legal personal representative - usually the executor of their estate, or another appropriate party - to ensure the legal proceedings can continue.

The personal legal representative will usually engage in Family Law proceedings with the view of recovering the deceased’s share of the matrimonial property pool for distribution according to their will. However, it is important to remember that the Orders that the Court will ultimately make are likely to be significantly different to the Orders the Court would have made if the party had not died. One example of how such a difference in outcome occurs is that the Court cannot consider the future needs of a party if they have passed away.

Family law and the death of a party can be complex and nuanced. In the event you are faced with this circumstance, you should obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on 02 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Lauran Clifton

Married Overseas and Divorcing in Australia?

It can be difficult to navigate the complexities of an international marriage or divorce for foreigners or residents of Australia. If you’ve been married overseas and are considering a divorce in Australia, this blog may shed light on the process for you.

Are Overseas Marriages Valid in Australia?

The key question many face is the validity of overseas marriages in Australia. The good news is that Australia generally acknowledges marriages conducted abroad, as long as they were legal in the country of marriage and would be considered legal under Australian laws. This means if you legally married in Paris or Beijing, it holds the same validity as if you married in a city of Australia like Sydney.

Residency and Jurisdiction: The Gateway to Divorce proceedings in Australia

The primary prerequisite for filing for divorce in Australia is not the location of the marriage, but the parties' residency status, which requires:

• Either spouse must consider Australia as their home and intend to live here indefinitely, or

• Be an Australian citizen (by birth decent, or grant of citizenship), or

• Live in Australia and have done so for 12 months immediately before filling the Application for divorce.

Grounds for Divorce: Irretrievable Breakdown of Marriage

The only ground for divorce is that the marriage has irretrievably broken down and there is no reasonable chance that you will get back together. To apply for a divorce, you must have been separated for a continuous period of at least 12 months. The period can include time living under one roof, but additional evidence is required in such cases. The 12 months starts from the day one or both parties ends the marriage.

It does not matter who was ‘at fault’ or whether both parties want a divorce.

Legal Maze of international Divorce: More Than just Dissolving a Marriage

While the process of applying for a divorce is usually relatively straightforward, it isn’t the only thing you should be thinking about if you are a separating. You may also need to consider addressing property division, parenting arrangements, and possibly spousal maintenance. These aspects can be particularly intricate when international marriages or relationships are concerned.

Seek Legal Advice

At Robinson + McGuinness we have experienced family lawyers that can guide you through the process of separation and divorce, offering fixed-fee divorce applications. We aim to protect your rights and interests, offering a supportive and knowledgeable guiding hand through this challenging time.

Please contact us to make an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

There is no valid Will: what happens now?

When a loved one passes away, there are many things to organise, including the administration and distribution of their assets in accordance with their Will.  However, sometimes there is no valid Will; this may be because the deceased did not make a Will (either by choice or because they were mentally incapable of doing so), the Will does not meet the validity requirements set out in the Wills Act 1968 (ACT), the Will has been revoked, or because the deceased failed to update their Will as circumstances in their life changed such that that the gifts contained therein have lapsed or fail.  When this happens, the deceased is known as intestate, and rather than their estate being distributed in accordance with their wishes, it will be distributed in accordance with the intestacy laws set out in the Administration and Probate Act 1929 (ACT). 

The Administration and Probate Act 1929 (ACT) provides for a intestate estate to be distributed in the following manner and priority: 

1. In the event the deceased is survived only by a spouse (husband, wife, de facto partner), then the spouse will receive the entirety of the deceased’s estate;

2. If the deceased is survived by a spouse and children, then the spouse will receive the first $200,000 (or as much thereof) of the deceased’s estate plus interest at 8% and thereafter share the balance with the deceased’s children - the exact division of the balance of the estate will depend upon the number of children that survive the deceased;

3. If the deceased has no spouse, but is survived by children, then the children equally share in the deceased’s estate; 

4. If the deceased has no spouse, or children, then the estate will be paid to the following categories of people:

   1. Parents of the deceased; 

   2. Brothers and sisters of the deceased; 

   3. Grandparents of the deceased; 

   4. Aunts and uncles of the deceased; and 

   5. In the event there is no person from the above mentioned categories who survives the deceased, then the Australian Capital Territory Government will be entitled to the deceased’s estate. 

Further to the above, if the deceased’s estate comprises of a house, which the spouse of the deceased was residing in at the time of the deceased’s death, then it is possible for the spouse to elect to have the house transferred to them in or towards satisfaction of their interest in the deceased’s estate.

Distribution of an estate in accordance with the laws of intestacy may not achieve the testamentary intentions of the deceased.  For example, if it’s important that friends or charities receive a portion of a person’s estate, such is not possible following the laws of intestacy; this can only be achieved by preparing a valid Will. It is therefore important that individuals prepare a Will and review it every 2-3 years to ensure that it fulfils their intentions. 

If a person does die intestate, it will still be necessary to apply to the ACT Supreme Court for Letters of Administration; this grant will enable the administrator (who applies for and is appointed under the grant) to administer and distribute the estate. 

If you are navigating an intestate estate, or simply want to ensure your estate is distributed in a specific manner, you should obtain specialist legal advice. 

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

Living arrangements post separation

If you have just separated from your partner, you might be wondering what happens next. For example, how do you decide who gets to stay in the house? What do you do with all of your belongings?  

Some couples decide to separate but remain under one roof.  For example, a couple may live together but no longer act as though they are in a genuine domestic relationship (i.e. you might sleep in separate rooms and stop socialising as a couple). Couples may decide to remain under one roof due to a number of factors, such as their financial circumstances or to provide stability for the children.  The arrangements may be temporary or they may last years.

If you are not comfortable remaining separated under one roof, you will likely need to have a discussion with your partner about who will remain in the property.  This decision may be impacted by multiple factors including:

1.  Whether there are children and who is the primary carer of those children;

2.  Who is on the lease if it is a rental property;

3.  Who is on the title of the property if you are owner occupiers;

4.  Whether either of you can meet the outgoings for the property;

5.  Whether either of you are able to obtain suitable accommodation elsewhere; and

6.  Whether there are any safety considerations.

It is important to discuss and establish boundaries around each of you accessing the property and for what purpose.

In the event you do not agree about who remains living in the property, you can also make an application to the Court to determine who will have sole occupation of the property and who shall meet the outgoings in relation to that property.  See the following blog post for more information about what a Court considers in an application for sole occupation: Who gets to stay in the house after we separate)

If you remain in the property, you will also need to think about how to divide the household contents.  You may not agree about how to divide big ticket items, such as whitegoods, furniture and valuable artwork.  It is useful to keep track of how you divide your household contents, particularly if you have valuable assets as this will generally form part of your property settlement.

It is generally reasonable to allow the other party to collect their belongings and in particular, items which are not in dispute such as personal documentation, clothing and personal effects.  If you are concerned about your former partner collecting their belongings, you can seek advice on establishing a process for them to collect their belongings. For example, a lawyer can advise on safety measures to employ to ensure there is no conflict when they collect their personal effects.

As with anyone moving house, you should also think about whether you need to redirect your mail, update any account details (for example, your electricity and gas) and make sure your home insurance is up to date.

If you would like to discuss your accommodation options in the context of a separation, or if you would like to understand your rights and obligations when it comes to the division of your household contents, you can book an initial appointment with one of our specialist family lawyers by contacting us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online  to obtain advice.

Author: Anika Buckley

Should I appoint an Enduring Power of Attorney?

An Enduring Power of Attorney allows you to choose who can make decisions on your behalf in the event you lose capacity.

What is the difference between an Enduring Power of Attorney and a General Power of Attorney?

An Enduring Power of Attorney is a legal document that appoints a person (or multiple people) to make decisions on your behalf if you become a person with impaired decision-making capacity. An Enduring Power of Attorney is an important aspect of any estate plan.

A General Power of Attorney is a document that operates while you have decision-making capacity and appoints someone to act on your behalf in relation to financial matters if for example, you are overseas or unable to do so. A General Power of Attorney ends if you lose decision-making capacity.

What is impaired decision-making capacity?

The Powers of Attorney Act 2006 (ACT) provides that a person has impaired decision-making capacity if they cannot make decisions in relation to their affairs or do not understand the nature and effect of their decisions. In some circumstances, an independent medical assessment is required to determine whether someone has decision-making capacity.

What powers does my Enduring Power of Attorney have?

In the ACT, you can appoint an Enduring Power of Attorney to make decisions about the following:

1. Property matters – this includes managing your finances by paying bills and outgoings, accessing bank accounts, and buying, selling, and investing assets on your behalf.

2. Personal care matters – this includes decisions about where you live, whether you work or study and your daily care needs such as dress and diet.

3. Health care matters – this includes consenting to and withdrawing medical treatment.

4. Medical research matters – this includes consenting to your participation in approved medical research or low-risk research.

You can specify in your Enduring Power of Attorney which powers you wish for your attorney to have and give directions and limitations about the exercise of their powers.

Your attorney must agree to act as your attorney by signing an acceptance on your Enduring Power of Attorney document. Your Enduring Power of Attorney will only be effective in relation to attorneys who have accepted their appointment by signing the document.

We offer fixed fees and package deals in relation to Wills and Enduring Powers of Attorney. If you would like to discuss your situation and how we can assist you, please contact us today at (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

Contesting a Will – Family Provision Claims in the ACT

The Family Provision Act (ACT) 1969 provides the pathway for certain individuals to contest a Will (or the laws of intestacy in the event there was no valid Will) if the individual feels that inadequate provision for the proper maintenance, education or advancement of life has been made for them under the Will (or by the laws of intestacy). For the Family Provision Act (ACT) 1969 to apply, the deceased must have left property in the ACT, or have died in the ACT.

It is not as simple as saying “I didn’t receive anything” or “I want more”; rather, the applicant needs to be eligible to make a claim and be able to show that they were financially dependent upon the deceased before the deceased’s death.

The following people can make an application to contest a Will in the ACT:

• A current or former partner of the deceased – this includes the deceased’s spouse, de facto partner (having been in a relationship for at least 2 continuous years), or being the parent of a child of the deceased person;

• A child of the deceased;

• A stepchild of the deceased – but only if they were maintained by the deceased immediately before the deceased’s death;

• A grandchild of the deceased – but only if that person’s parent died before the deceased, or if the child is not maintained by their parent immediately before the deceased’s death; or

• A parent of the deceased – but only if the parent was maintained by the deceased immediately before their death, or the deceased is not survived by a partner or children.

An eligible applicant can challenge the Will by making an Application to the Supreme Court of the ACT within 6 months of the date of a Grant of Probate or Letters of Administration being granted.

The Supreme Court will consider the following in deciding whether they are satisfied that in-adequate provision for the proper maintenance, education or advancement of life of the Applicant was made in the deceased’s Will (or by the laws of intestacy):

• The character and conduct of the applicant;

• The nature and duration of the relationship between the applicant and the deceased;

• Any financial or non-financial contributions made by both the applicant and deceased to the acquisition, conservation or improvement of property of either person (if applicable);

• Parent and homemaker contributions of the applicant and deceased (if applicable);

• The income, property and financial resources of the applicant and the deceased;

• The applicant’s capacity to gain meaningful employment – the Court will also consider that of the deceased while they were alive;

• The financial needs and obligations of both the applicant and the deceased while they were alive;

• The applicant and deceased’s respective obligations to support any other person;

• The terms of any orders concerning the payment of maintenance (both spousal maintenance and child maintenance) relating to the applicant and/or the deceased; and

• Any other matters the Supreme Court considers relevant.

In the event the Supreme Court is satisfied that inadequate provision has been made for the applicant, it has the power to make orders that it thinks fit out of the estate. The Supreme Court is not restricted to dealing with the residue of the estate (i.e. anything that has not otherwise been specifically gifted), but rather can make orders concerning all property of the estate, including property specifically gifted to other individuals.

Two examples of the type of Orders that the Court may make are, the transfer of ownership of property to the applicant and a lump sum payment to the applicant. To achieve the latter, it may be necessary for the Court to order the sale of specific property.

Family provision claims can be complex and nuanced. In the event you are considering filing a family provision application you should first obtain specialist advice in relation to the evidence that you can give in support of your application, and the prospects of your application being successful.

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