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

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.

Travel and Parenting Orders

With the school holidays fast approaching, many parents will be travelling internationally with their children. These experiences are seen as a once in a lifetime opportunity for lots of families and the benefits of international travel on the growth of a child can be intangible. As a separated parent, travelling with children gives rise to additional considerations and planning- on top of the effort which already goes into the trip itself.

This situation becomes complex for separated parents who are involved in current proceedings before the Federal Circuit and Family Court of Australia or where separated parents have already entered into parenting orders restricting their children from international travel. Sections 65Y and 65Z of the Family Law Act 1975 (Cth) specifically set out that if a parent, who is subject to a parenting order or where orders are pending (for example, awaiting the delivery of a judgment on an interim or final basis) removes a child from the jurisdiction of Australia, this parent has committed an offence. This offence carries a penalty of three years imprisonment.

What if I do not have orders in place or I am not in litigation?

A separated parent seeking to travel overseas with their children should approach the other parent and seek their consent for the travel in the first instance. Ideally, the parent seeking to travel would provide all the relevant information and details of the proposed travel- and with as much notice as possible- including duration, destination, method of travel, copies of travel tickets and itinerary, and where possible provide options for maintaining communication between the other parent and the children whilst overseas.

If the other parent refuses consent to the travel, you may need to apply to the Federal Circuit and Family Court of Australia for approval to travel. It is commonplace for this Court to make Orders pertaining to travel and provide for international travel so long as enough notice is provided, and the travel is to a Hague Convention Country, and that they are satisfied that the child will return to Australia at the end of the proposed travel. Often, the Courts order makeup time for the non-travelling parent if time with that parent is affected by the child’s travel.

What if I have concerns about my child’s international travel with the other parent?

In some cases, parents will have genuine concerns about a child travelling internationally for a number of reasons- risks to personal safety and wellbeing; impact on education if the child is missing school for a prolonged period of time; and where the parent holds a genuine concern that the child might be permanently removed from the jurisdiction of Australia. There may be valid reasons for a parent to not provide consent to the travel.

If you hold this concern about your child’s travel, you can make an application to the Federal Circuit and Family Court of Australia to have the child placed on the Australian Federal Police Watchlist. This can only occur via a Court Order and will prevent that child leaving any port of exit from the jurisdiction of Australia. In cases of urgency- where you have a grave concern that your child will be travelling imminently with the other parent- this process can occur very quickly.

It is important for separated parents to balance the benefits of overseas travel for their children with the possible competing interests of ensuring their safety and wellbeing. It is important to seek the other parent’s consent in the first instance when seeking to take your child overseas- and with enough notice where possible. If you are planning a holiday with your children, contact Robinson + McGuinness for specialist family law advice.

Contact Robinson + McGuinness today 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Author: Margot McCabe

Exploring the Proposed Amendments to the Family Law Act 1975

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

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

The Removal of the Presumption of Equal Shared Parental Responsibility

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

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

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

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

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

Restricting the Filing of Potentially Harmful Applications

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

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

Author: Hannah Gibson

Can I Change My Child’s Surname?

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

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

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

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

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

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

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

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

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

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

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

Author: Margot McCabe

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

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

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

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

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

The Full Court said:

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

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

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

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

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

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

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

Author: Ellen Russell

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

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

Expert evidence is frequently obtained in the following circumstances:

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

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

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

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

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

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

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

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

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

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

Author: Margot McCabe

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

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

What is spousal maintenance?

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

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

Why does the Court make Orders for spousal maintenance?

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

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

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

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

3. Any other adequate reason.

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

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

2. The length of their relationship;

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

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

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

When can the Court order spousal maintenance?

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

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

Where can an order for spousal maintenance be made?

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

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

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

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

Adult child maintenance

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

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

Author: Margot McCabe

Multi-purpose documents? Harman Undertakings & sharing the evidence

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

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

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

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

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

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

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

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

Author: Anika Buckley

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

Fairbairn v Radecki [2022] HCA 18

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

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

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

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

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

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

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

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

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

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

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

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

Author: Ellen Russell

What are the risks of a poorly prepared Family Violence Order

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

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

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

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

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

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

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

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

How does Family Law treat pets?

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

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

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

This means the following will be considered:

• Who purchased the pet;

• Who is the registered owner;

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

• Who is in possession of the pet?

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

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

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

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

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

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

Application for Consent Orders – Registrar Notification / Requisition

In the event you and your former partner agree in relation to the division of your property, or the care arrangements for your children, you can seek Consent Orders from the Federal Circuit and Family Court of Australia formalising the agreement. To do this, you need to file an Application for Consent Orders and Minute of Consent Orders with the Court.

Once filed, a Registrar of the Federal Circuit and Family Court of Australia will review your application and decide whether the Orders that you seek can be made by the Court. In making this decision, the Registrar will want to be satisfied that:

1. You have completed the Application for Consent Orders correctly, including all relevant sections have been completed and any mathematical (property only) calculations have been accurately carried out;

2. The Orders you seek have been appropriately drafted and are capable of being carried out;

3. The Orders you seek are appropriate for the Court to make (for example, the Court is unlikely to make a self-executing cost order);

4. If you seek property Orders, that the Orders you seek are just and equitable; and

5. If you seek parenting Orders, the Orders you seek are in the best interests of the children.

In the event the Registrar is not satisfied with one or more of the above, it is likely that they will raise a Registrar Notification / Requisition with you and your former partner.   The Notification / Requisition will identify the reasons why the Orders you seek cannot be made and set out the steps that you and your former partner need to take to have the Orders you seek made.  This may include, though is not limited to:

1. Filing an Amended Application for Consent Orders;

2. Filing a further Minute of Consent Orders;

3. Filing an Affidavit with the Court addressing the issues that have been identified by the Registrar.  The Affidavit may need to set out why you say the Orders you seek are just and equitable based upon your financial contributions to the property pool, your income and your financial resources; or the Affidavit may need to set out why you say the Orders you seek are in the children’s best interests; or

4. Filing further information with the Court, such as a letter from the Trustee of your super fund stating that they hold no objection to the proposed superannuation split (if there is one included in the Orders you seek).

The Registrar Notification / Requisition will stipulate a time frame within which you need to complete the requested steps. This is usually 4 weeks.  A failure to comply with the request within the stated timeframe will result in your Application for Consent Orders being dismissed without further notice. 

It is important that you comply with the Registrar Notification / Requisition notice.  You should seek specialist advice from a family law solicitor to make sure you understand the notice and have appropriately complied with the steps outlined therein.

As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to any Registrar Notification / Requisition notice that you may receive.  We can also advise you about your rights and entitlements, no matter where your family law matter is up to, and assist you to finalise your agreements.

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

Author: Peta Sutton

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

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

A parenting order may be in relation to:

1. The allocation of parental responsibility;

2. With whom a child is to live; or

3. With whom a child is to spend time.

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

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

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

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

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

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

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

2. The child to live primarily with the aunt.

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

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

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

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

Who you appear before in the FCFCoA and what they can do?

In Australia, the Federal Circuit and Family Court of Australia (FCFCoA) determine family law disputes. There is now a range of judicial officers who have varying degrees of delegated power in which to support your matter through the case management pathway that now exists in the FCFCoA. They include Judges, Judicial Registrars and Deputy Registrars, just to name a few.

While a Judge of the FCFCoA – in either Division 1 or Division 2 – is appointed, the balance of judicial offers, who have lesser delegated powers, are employed with varying qualifications and are called Registrars. There are now three types of Registrars in the FCFCoA: Senior Judicial Registrar, Judicial Registrar and Deputy Registrar. Each type of Registrar may become involved at one time or another in your matter once you file and commence Court proceedings, and while you may not appear consistently in front of one or another, they each have different roles in managing your matter from filing to finalisation. 

The different roles are as follows:

1.    Deputy Registrars (DR):

a.    These officers have a constrained delegated power, to deal with procedural, consent or dispute resolution applications, such as:            

• Consent Orders, either parenting, property or both, are filed with the Court for review and finalisation.

• Divorce Orders, in undefended proceedings (i.e. proceedings that are not disputed because one party does not respond or get involved).

• Dispute Resolution processes are facilitated by the FCFCoA, namely Family Dispute Resolution Conferences (FDRCs).

• Orders by consent are procedural and managerial orders that are intended to support the case through the management pathway.  

2.    Judicial Registrars (JR):

a.    These officers have the powers of the DR, plus some limited further powers, including:

• The ability to make cost Orders and security for costs (i.e. requiring someone to put up funds in advance of deciding the proceedings).

• The ability to make location Orders.

• The ability to make parenting, property, or both style of Orders, in undefended proceedings (i.e. where one party does not respond or get involved) in a limited set of circumstances.

• The ability to make parenting, property, procedural, or a combination of all three Orders, when by agreement of the parties.

• The ability to make, vary, discharge or suspend spousal maintenance orders in a limited set of circumstances. 

• The ability to appoint an Independent Children’s Lawyer.

• The ability to make Orders in relation to Subpoenas.

• The ability to make Orders that direct parties to attend upon a Court Child Expert. 

3.    Senior Judicial Registrars (SJR):

a.    These officers have substantive delegated powers, with the aim for them to run and determine interim matters. In addition to what the DR and JR have, the SJR can:

• Make interim parenting Orders.

• Make interim property Orders.

• Make Orders for maintenance, location and recovery.

• Summarily Dismiss proceedings.

• Make Orders for enforcement of parenting or property Orders.

• Grant injunctions until further Orders or in undefended proceedings.

It is important to understand which Registrar you appear before, as their powers will limit the extent to which they can deal with the issues at hand. For advice tailored to the stage and type of family law proceedings you may find yourself in, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.