Evidence in family violence proceedings

In family violence proceedings, there are multiple stages at which evidence can be given in support of an application for a family violence order.

The first stage is when someone makes an application for a family violence order. The evidence set out in your application is directed to supporting why an interim family violence order is necessary. Once filed, the application is typically listed before a Registrar of the Magistrates’ Court for consideration. This is called an interim hearing.

If the Registrar has any questions about your evidence or application, you may need to provide additional evidence at the interim hearing.

As the matter progresses, an application for a final family violence order will be listed for directions. At the directions hearing, orders will be made for both the applicant and the respondent to provide further evidence in support of (or to defend) the application. For the applicant, you will prepare a timeline and chronology of events. The respondent will prepare a notice of grounds of defence.

Directions will likely also be made for each party to issue subpoenas to produce documents; or subpoenas for a witness to attend Court to give evidence.

Subpoenas can be useful to obtain objective evidence from third parties, for example in family violence proceedings involving children, you may wish to issue a subpoena to the children’s school or extracurricular activity provider (as long as they will likely have relevant information).

You may also consider issuing a subpoena to child protection services or a psychologist. This information is highly sensitive and attracts additional protection under certain pieces of legislation in the ACT, including the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and the Children and Young People Act 2008 (Cth). The process for obtaining the release of this sensitive information can be costly and complex, however in certain cases, it can be highly relevant to support an application for a final family violence order.

The final stage at which you give evidence during a family violence proceeding is the final hearing. At the final hearing, an applicant will first give their evidence and then can be cross-examined about their evidence (usually by the respondent’s solicitor or barrister). Similarly, the respondent then has an opportunity to give evidence and then can be cross-examined by a solicitor or barrister on behalf of the applicant.

If you are considering making an application for sensitive information in support of your application, or if you want support at any stage of your family violence proceedings about giving evidence or the kind of evidence you should collate, we recommend that you speak to a specialist family lawyer to assist you.

To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

What is the property pool in family law?

Sometimes, clients seeking advice in family law cases can be surprised as to what the law expects to be included in the joint property pool of a separating couple.

Identifying the property pool

The starting presumption under the Family Law Act 1975 is that all property owned by the parties, either jointly or individually, whether acquired before, during or after the relationship, forms part of the joint property pool. In fact the Federal Circuit and Family Court of Australia (FCFCOA) has repeatedly referred to its power under the Family Law Act “to alter the parties’ interests in all their property, regardless of when or how it was acquired and in whose name it is owned”. This information can sometimes be jarring to clients with little familiarity with family law.

This means that the joint property pool can include:

• Pre-marital property owned by a party – including both ‘real’ property (i.e. the family home and any investment properties), and other personal property owned by the respective parties;

• A bequest received by a party during the marriage, or after;

• A lottery win by one party;

• A redundancy payment received by one party;

In other words, the default position is that all assets that were brought into the relationship by each party, as well as any assets accumulated during the relationship, form part of the property pool.

Note that once the extent of the joint property pool is ascertained, the law requires it be divided in a way that is “just and equitable”. For example, where a party has brought significant property and other assets to the relationship, it will often be the case that this results in a greater share of the pool apportioned to them to account for this.

Moreover, the family law system places considerable emphasis on encouraging parties to a family law dispute to settle by consent, and in these circumstances, parties often (though not always) will commence by each seeking to quarantine the pre-marital assets that they accumulated (if any).

Nevertheless, the point remains that the Family Law Act’s approach to the property pool is all-encompassing – there are no assets which are automatically excluded from the joint property pool and, by implication, from the jurisdiction of the Court. The parties’ respective contributions and future needs (among other things) are relevant to how the property pool will be divided, but they cannot, without consent from both parties, automatically act as a pretext to exclude any property from the joint pool. 

Knowing this information upfront may assist clients in demystifying the asset division process in family law—and it may help you make decisions about when to pursue (or formalise) a property settlement with a former partner.

To arrange an appointment with one of our specialist family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

Child Support: Departure Orders and Non-periodic payment orders

Departure Orders and Non-Periodic Payment Orders are orders the Court can make during parenting proceedings to require one party to make payments in addition to a current child support assessment. Both types of orders are governed by Division 5, Part 7 of the Child Support Assessment Act 1989 and are often made when a child has special needs or a parent has limited capacity to provide financial support for their child.

Certain criteria must be met before a party can make an application for either order and even then, the Court may determine that it is not appropriate for such an order to be made.

Departure Orders

Departure orders can be made under section 116(1) of the Child Support Assessment Act 1989 in two circumstances:

(a)  The Registrar refused to make a determination to administratively change an assessment under Part 6A and an objection to that refusal has been disallowed; or

(b)  Either party has an application pending before the court, and the court is satisfied that it would be in their interest for the court to consider making such an order.

An application can be made under subsection (b) even if a Part 6A administrative review has not been conducted, parties are best to seek advice to determine whether all other administrative remedies have been exhausted first. This is because the Court may regard an application as an abuse of process if parties are applying through numerous avenues to increase their child support payments.

The Court may make a departure order if they are satisfied that one or more of the grounds for departure exist under section 117(2) and it would be just and equitable for the children, carer and liable parent, and it is otherwise proper for the court to make a departure order.

The grounds for making a departure order are the same as those for making an application for administrative review. Many of these grounds refer to “special circumstances” which has been defined as “special or out of the ordinary” in case law.

Non-Periodic Child Support Order

A non-periodic child support order can be made under section 123(1) for third party or lump sum payments. Third-party payments may include for school fees, health insurance, or medical expenses, whereas lump sum payments are credited against the existing child support assessment and may reduce the annual rate of child support payable.

Applications can only be made where there is an administrative assessment in place.

Like in the case for departure orders, in the case of non-periodic orders, the court must be satisfied that it would be just and equitable for the children and parties, and it is otherwise proper for the court to make an order.

Factors that are considered by the Court for a non-periodic payment include:

• Any current assessment in place;

• Any Part 6A departure determination;

• Any departure order;

• Any pensions, allowances or benefits; and

• The same factors as the Court must consider when making a departure order.

Non-periodic orders are often appropriate where one party has difficulty complying with their payment obligations or where parties wish to sever their financial ties.

If you are wish to speak to someone about your current child support situation, our specialist family lawyers at Robinson + McGuinness can provide you with assistance. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.

Can you ‘share care’ of your pet?

For many people, pets are family. So it’s no surprise that, for some couples, one of the most difficult parts of a separation is deciding who acquires the family pet.

The reality, however, is that while pets may feel like children to some, they are treated very differently to children under the Family Law Act 1975 (Cth).

If separating parties can agree on what will happen with their pet, they are free to put in place whatever arrangement works for them, including a shared care arrangement. But where there is no agreement, the options available through the Court are very limited.

The Court’s power to deal with pets under the Family Law Act

Amendments to the Family Law Act that commenced in June 2025 expanded the way Courts consider pets (now referred to as “companion animals”) in family law matters.

Before these amendments, pets were treated as chattels, akin to the family car or the Thermomix. The focus was often on practical factors, such as who paid for the pet, who the registered owner was, and what the microchip records showed.

The June 2025 amendments introduced a new framework which contains qualitative considerations, setting the laws around companion animals apart from other types of property. The Act now defines what a “companion animal” is and sets out a list of factors the Court must consider when making orders about them. These include:

1. the extent to which each party cared for the companion animal;

2. any history of threatened or actual abuse of the companion animal;

3. the attachment of a party, or a child of the relationship, to the companion animal; and

4. the ability of each party to care for the companion animal in the future.

These changes allow the Court to look behind the practical factors and take a more nuanced approach when deciding what should happen to a pet after separation.

What orders can the Court actually make?

Despite the Court now being able to exercise it’s discretion and consider the nature of parties’ relationships with pets, the Court’s power to deal with a pet following the 2025 amendments did not really change. The Court can only make the following types of orders:

1. that one party retain ownership of the family pet;

2. that ownership of the family pet be transferred from one party to the other; or

3. that the family pet be sold.

These are essentially the same orders that can be made in relation to any other item of property. The difference now is that the Court must take additional factors into account when deciding which of those orders is appropriate.

Can the Court order shared care of a pet?

In parenting matters, the Court has broad powers to make orders about care arrangements for children. Some parties have tried to apply this same concept to pets, seeking orders that animals move between households.

This issue has been considered by the Court on a number of occasions. Recently, in Wright & Berger [2025] FedCFamC2F 1315, a party sought orders that the family pet live between both households in the same arrangement as the children. Ultimately, the Court found that these were not orders it had the power to make.

The decision by Judge Forbes stated, among other things, that whilst the amendments to the Act introduce special considerations to take into account when making orders about the ownership of pets, they “do not alter the fundamental status of companion animals as property” or “mandate the application of parenting considerations” when dealing with pets.

The Court has also expressed concerns about the practical consequences of shared care arrhttps://www.rmfamilylaw.com.au/angements for pets, particularly where those arrangements mirror children’s changeovers. In Arena & Arena (No 4) [2024] FedCFamC1F 22, Curran J considered a proposed shared care arrangement for an animal whose handover coincided with that of the child of the relationship. In her judgment, her Honour observed that:

“the tension such an order may create in my view, and the potential parental conflict that the children would be exposed to, outweighs any benefit to a child of such an order.”

These decisions highlight that, even aside from the limits on the Court’s power, there is a real concern that shared care arrangements for pets can increase conflict between separated parents and may expose children to unnecessary tension at changeover times.

So what does this mean in practice?

The Court cannot make orders for shared care of a pet.

However, there is nothing in the Family Law Act that prevents parties from reaching a private agreement to share the care of their pet if that is what they both want. Where agreement is possible, shared care can work well. Where it isn’t, the Court’s role is limited to deciding who owns the pet, not how time with the pet is shared.

If you’re navigating this issue after separation, early advice can help you understand both your legal position and your practical options. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.

Using the right form of protection: family violence orders or injunctions

If you need protection for your safety, you may have considered applying for a family violence order in your local state or territory. A family violence order (FVO) is made under state or Territory law. In the Australian Capital Territory, an FVO is granted under the Family Violence Act 2016 being ACT legislation.  For more information about an FVO, you may wish to review some of our previous blogs, including this one.

Pending final determination of the family violence proceedings, an interim FVO may be granted for your immediate protection.

Unless there are exceptional circumstances, an FVO can be granted for a period of 2 years.  Prior to its expiry, you can apply to the Court seeking to extend the order.

What you may not know is that you can also seek protection under the Family Law Act 1975 (Cth), in the form of an injunction pursuant to section 68B: see here. The Court can grant a section 68B injunction for the protection of a child, or for the protection of someone who is connected to the child (including a person with whom the child lives, spends time with or communicates with the child).

An injunction can restrain a person from entering or remaining in a place where the child or protected person may be, such as their home, their place of employment or a school or day-care facility.

An injunction may be granted unconditionally or on terms and conditions deemed appropriate by the Court.

The Court can also grant an injunction under section 114 of the Act.  Under this section, the Court may grant an injunction for the personal protection of a party to a marriage or de facto relationship.  Section 114 injunctions are broader and can also be directed to the protection of property or to the use or occupancy of a property.

It is generally a lengthier process to obtain injunctive orders, an injunction can be granted for a lengthier period (meaning you are not required to apply to extend the protective order).

Importantly, if you have a FVO in place for your protection (or for the protection of your child), the Federal Circuit and Family Court of Australia may not have the power to make an injunction where the terms of the FVO conflict or overlap with the proposed injunction.  This is because an injunction is not intended to ‘exclude or limit’ the operation of State or Territory laws which may be operating.  

Where the Court does make an injunction where an FVO is in place, this may be an appellable legal error (which means that your former partner may appeal the orders made, leading to costly and ongoing litigation).   

You may be able to apply for an injunction where the FVO has expired, or where family violence proceedings have been discontinued or dismissed.  However, it is prudent to seek advice about the appropriateness of applying for a FVO or an injunction in the Federal Circuit and Family Court of Australia. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.

For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.

Do parent/child relationships still have to be “meaningful” under the family law act?

Prior to 2023, the Family Law Act (the Act) provided that one of the factors to be considered when determining what is in the best interests of children was that the children have the benefit of having a “meaningful relationship” with both parents. Despite the word “meaningful” being included in the act three times, there was no definition in the Act of what “meaningful” actually meant. This required decision makers to turn to the case law to understand the meaning of “meaningful relationship”. Generally, it was considered that a “meaningful relationship” was one that was important, significant and valuable to the child.

Following amendments to the Act in 2023, the word “meaningful” does not appear in the Act at all. Now, Section 60CC of the Act includes a consideration about “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.” In relation to the change of this section of the Act, the 2023 Explanatory Memorandum stated that “This consideration recognises the importance of parental relationships and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child's wellbeing.  Parenting orders, where appropriate and safe, should ensure children benefit from a close and nurturing relationship with their parents.

Proponents of the reform argued that it simplified the law and removed ambiguous or subjective terminology. In addition to this, it was argued that the existing framework around “meaningful relationships” disadvantaged victims of family violence by promoting a “pro-contact” culture.

Conversely, opponents to the reform were concerned that the removal of the word “meaningful” may mean that any relationship could be considered acceptable. Another concern is that parents who spend less time with their children and are seeking meaningful involvement may be disadvantaged.

The topic was recently raised in Joustra & Schuman [2025] FedCFamC2F 1478. In this case, Judge Suthers provided a summary of the type of relationship that was required under section 60CC following the removal of the reference to “meaningful relationship”. In short, it was decided that:

1] The simplification of the Act and removal of the word “meaningful” did not limit the Court’s discretion in relation to the application of section 60CC, nor does it diminish the case law informing the definition of “meaningful relationship”;

2] In assessing the whether or not there is a benefit to children in maintaining or establishing a relationship with their parents, the Court is still required to undertake an assessment of the nature and quality of the relationship the child currently has with their parents, and if no relationship exists, the benefit to the child being able to develop a relationship with their parent or another person of significance; and

3] Even if the removal of the word “meaningful” meant that decision makers would no longer rely on the existing case law which defines “meaningful relationship”, then relationships that children have with parents and other significant people would be informed by the child finding value in those relationships because those relationships “embrace the child’s own individual personality traits and developmental needs in a child-focussed and loving manner that is capable of being found to be close and nurturing.”

The Act's change raises the question: "Do parent/child relationships still need to be meaningful?"

For many, the removal of the requirement for a relationship to be “meaningful” may be worrying. However it is important to keep in mind that the paramount consideration in determining parenting matters is the best interests of the children and ensuring children’s safety takes precedence.

It appears from the recent case law that the Courts are still referring to previous case law and conducting a form of qualitative assessment to ensure that the relationship is one that is in the best interest of and valuable to a child. After all, the legislation provides that the courts must consider the benefit to the child of having a relationship with a parent or other person. Where there is no benefit, or it is not in the children’s best interests, the Court can exercise its discretion appropriately.  

If you would like advice about parenting matters, including about applying to the Court for Orders about your children, please get in touch with us. Our specialist family lawyers here at Robinson + McGuinness can guide and support you through your separation, from start to finish. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

Formalising a property settlement with your ex – Are Court Orders or a Financial Agreement the way to go?

Australia’s family law system encourages litigants, wherever possible, to reach an agreement between themselves rather than having the Family Court adjudicate every dispute.

Following separation, where parties have reached an “in principle” agreement between themselves about the post-separation division of their asset pool, there are two ways in which this may be formalised legally:

• A post-separation “Binding Financial Agreement” (BFA) or

• A Consent Judgement, also known as “Consent Orders”.

For non-lawyers, the difference can seem a little academic, but it can nevertheless help clients to be aware of the two types of documents, as either may be referenced by family law professionals throughout your negotiation.

1.Consent judgments

A Consent judgment occurs where parties to a dispute jointly apply to the Court for binding (sealed) orders that ratify the terms of an agreement made between themselves. Essentially, the parties ask for the Court’s (literal) ‘seal of approval’. The Court will review the agreement to satisfy itself that any Consent Orders made would be ‘just and equitable’. If so satisfied, the Court will apply its seal to the Consent orders, which then have the same force legally as any other judgment or orders made in a contested dispute.

2.Post-Separation BFA

A post separation BFA (sometimes termed a ‘post-nup’) is a private agreement signed by both parties, but not lodged with the Court. There are a number of formalities that must be adhered to, the most important of which is that each party must have had its own independent legal advice about the implications of its terms prior to entering into it. Section 90C of the Family Law Act 1975 governs these agreements.

A post separation BFA is not lodged with the Court, although each party’s solicitors will typically keep a copy in their safe custody indefinitely. Once a BFA is finalised, the Family Court will generally not have any further jurisdiction, although it does retain its power to set aside such an agreement, in limited circumstances.

But which option?

Choosing one document over another involves considerations of cost, flexibility, and client requirements. There is no “one-size-fits-all” answer, and careful legal advice should always be sought and tailored to a client’s particular circumstances.

There was for some time a school of thought that preferred Consent Orders in almost all separations, as they gave finality to proceedings, whereas a post-separation BFA was at risk of subsequently being set aside by a court. In recent years however, these concerns have abated somewhat, and such instances have become quite rare. Typically only fraud (such as non-disclosure of financial assets) or unconscionable conduct (taking advantage of the other party) will be sufficient for a Court to order an agreement be set aside.

Nevertheless, obtaining Consent Orders remains a viable option in most cases for couples separating amicably. Crucially, for example, a post-separation BFA cannot deal with parenting matters, so where these require a resolution, a Consent Judgement can be more appropriate (and more cost-effective).  

A financial agreement is not explicitly required under the Family Law Act to be assessed by a third-party observer as fair, whereas the Act does require any Consent Judgment to be approved only if it is “just and equitable”. This may or may not be a desirable threshold; for example, where a separating couple wants to include a particularly unusual, unique or bespoke term in their agreement which may be queried or disallowed by a Court.   

A post separation BFA can be useful where the separation involves separating ownership in family businesses, for example, or where complicated trust and asset structures are involved. In some instances, it may be argued that reaching a private agreement can be more cost-effective than putting the relevant evidence before a Court Registrar.

Robinson + McGuinness has extensive experience in resolving and finalising all types of family law matters and can assist you in finding the best path to a fair and efficient outcome.

Our specialist family lawyers here at Robinson + McGuinness can guide and support you through your Court proceedings, from start to finish. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

Protecting Confidential Communications in Family Law and Care and Protection Proceedings

In both family law matters conducted in the Federal Circuit and Family Court of Australia (FCFCOA), and care and protection matters conducted in the Children’s Court in the ACT, entities or individuals may be subpoenaed to produce sensitive, confidential communications which might be categorised as “protected confidences”. The concept of protected confidences recognises that the right to confidential counselling should be preserved, but is not absolute.

This article outlines what a protected confidence is and how it is dealt with by the court in both the context of family law and care and protection proceedings.

Family Law Proceedings

The concept of protected confidences was introduced into the Family Law (Amendment) Act 2024 and came into force on 10 June 2025, under Division 1B of the Family Law Act 1975 (Cth) titled “protecting sensitive information”.

Section 102BA of the Family Law Act 1975 defines a protected confidence as a communication made:

1. in the course of, or in connection with, a relationship in which one person (the confidant) is acting in a professional capacity to provide a professional service to another person (the protected confider); and

2. in circumstances in which the confidant is under an obligation not to disclose communications made to them by, or in relation to, the protected confider (whether the obligation is express or inferred from the nature of the relationship).

This includes communications by an individual to a professional as part of a health service, family violence service, or sexual violence service.

The Federal Circuit and Family Court of Australia now has the power to order that evidence be excluded if classified as a protected confidence where it is likely to cause harm to the confider or child. The court must weigh up and balance the likely harm caused to the confider or child versus the probative value of the evidence in the proceedings.

While material may be relevant, the disclosure of protected confidences may cause unnecessary distress to parties involved. The introduction of the concept of protected confidences in the family law space helps ensure parties feel safe and comfortable making disclosures to professionals and emphasises the importance of preserving therapeutic relationships.

Care and Protection – Children’s Court proceedings

Protected confidences in the care and protection space are dealt with by the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (“EMPA”), specifically under Part 4.4.

Section 79A(1) of the EMPA defines a protected confidence as “a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person)”.

The process for determining whether protected confidences should be disclosed during care and protection proceedings is as follows:

Firstly, an application for leave to disclose the protected confidences must be made. The application must identify a legitimate forensic purpose for seeking leave to disclose and satisfy the Court that there is an arguable case that the evidence would materially assist the case. The nature of the proceedings and concerns raised may show that the protected confidences might have substantial probative value. This is certainly in the case where there may be a substantial risk that a proceeding may miscarry if the material is not produced before the Court.

Secondly, the Court must conduct a preliminary examination of the subpoena material pursuant to section 79G of the EMPA to determine whether the material contains protected confidences. Magistrates in the Children's Court often take different approaches to the interpretation of protected confidences. One approach is to give the party to whom the protected confidences relate to an opportunity to review the material first and raise objections in accordance with the usual subpoena process. This means that even if the Court has taken an overly expansive or liberal interpretation of the definition, granting leave to disclose can still correct the interpretation by allowing parties to access some of the material.

If the Court concludes the material contains protected confidences, the Court may only grant leave if they can be satisfied that the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence.

Even when material does not contain a protected confidence, it may still be appropriate for the Court to put in safeguards around the release and disclosure of material.

If you are involved in a family law or care and protection matter that may give rise to issues surrounding protected confidences, our specialist family lawyers at Robinson + McGuinness can provide you with assistance. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

What do I need to disclose?

Changes to the duty of financial disclosure under the Family Law Act 1975

During family law negotiations and proceedings, all parties have an ongoing obligation to provide full and frank financial disclosure.

From 10 June 2025, the importance of the duty of financial disclosure has been elevated. The Family Law Amendment Act 2024 has codified the duty of disclosure by inserting new disclosure provisions in the Family Law Act 1975.  This new framework provides parties and practitioners with clarity about the scope of the duty and the consequences of failing to comply with the duty.

The duty of disclosure is now part of the Family Law Act 1975 under sections 71B (in the case of marriages) and 90RI (in the case of de facto relationships). The new sections confirm the following:

1. Parties have a duty to both the court and each other to provide ongoing full and frank disclosure on time.
   If you receive a reasonable request for financial disclosure from the other party, it should be answered in a reasonable timeframe. You can also ask the other party for the same disclosure if they have it.
   

2. The duty applies for the entirety of the duration of the proceedings.
   This includes from when negotiations commence until final orders or a financial agreement is made.
   

3. The Court has the power to impose consequences on a party if they do not comply with its duty of disclosure.
   The Court may:

   a] Take the failure into account when making an order for the alteration of property interests under section 79.
   b] Make any orders with respect to disclosure that the court considers appropriate;
   c] Make an order for costs that the court considers just;
   d] Impose sanctions;
   e] Push a party for contempt; or
   f] Stay or dismiss all or part of the proceedings.
   

4. The duty extends to information known to the party and documents that have been in their possession or control as well as information and documents prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
   This includes information and documents relating to your income and any of your financial resources, assets, liabilities and superannuation. Some documents that are often requested or exchanged are bank statements, tax returns, superannuation statements, share statements and online car valuations.
   

5. There is now a higher standard expected of legal practitioners when advising clients about their duty of disclosure.
   Legal practitioners must provide their clients with information about their duty of disclosure and the consequences of non-compliance with their duty of disclosure. Legal practitioners must also encourage clients to take all necessary steps to comply with their duty of disclosure.

If you are unsure about your legal obligations in relation to the provision of financial disclosure, you should seek 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.

Putting children first – The Children’s Charter and Kid’s Corner initiatives

For many families, separation is a deeply emotional time, particularly when they are involved in Court proceedings. Children who are the subject of parenting proceedings may get caught in the middle, and the uncertainty and conflict associated with parenting proceedings can cause children to feel stressed, confused and overwhelmed; powerless to what is happening and the big decisions being made about them.

In recognition of this, last month, the Federal Circuit and Family Court of Australia (FCFCOA) launched its Children’s Charter and Kid’s Corner initiatives. These initiatives have been designed to support and educate children who are the subject of parenting proceedings. They aim to make the family law process more transparent, child-focused and safer for the children involved.

Children’s Charter

The Children’s Charter outlines the FCFCOA’s commitment to supporting the rights of children whose parents are separating or otherwise involved in family law matters. The charter contains 10 principles which guide the way children are to be spoken to, supported and considered throughout parenting proceedings, and when decisions are being made. Those principles are:

1. A child is at the centre of all decision-making.

2. When making decisions about a child in family law disputes, the child’s best interest is the primary consideration.

3. Ensuring the safety and wellbeing of a child is the highest priority.

4. A child has a right to express a view about what is happening in their lives and what they would like to happen, but also has a right not to express a view.

5. A child should be given the opportunity to express their view, and when doing so should be informed about whether or not their views can be kept confidential.

6. A child must be treated with dignity and respect at all times and their views must be listened to and respectfully considered.

7. A child must be provided with all the information that is relevant and appropriate in a way that is suitable for the child’s age, maturity, abilities, gender and culture.

8. All physical and online environments provided to a child must be child focussed and promote their safety and well-being.

9. All professionals who have direct contact with children must have the necessary skills and expertise to play their role.

10. A child should have access to appropriate mechanisms to give feedback about the professionals and services they encounter.

Consideration of children’s safety has always been at the forefront of the parenting decisions made by the Court. When a judge makes a decision about parenting arrangements, they do so with the children’s best interests as the paramount consideration. Section 60CC of the Family Law Act 1975 (Cth) sets out what is to be considered in determining what arrangements are in the children’s best interests.

While many of the Children’s Charter principles have a direct correlation to the considerations set out at Section 60CC, the purpose of the principles is not to be limited to the way in which a case is ultimately decided. The Children’s Charter extends beyond the final decision making. It is to be used as a guide throughout the entire proceedings, not only for the judge, parties and lawyers, but to all people and services interacting with children involved in parenting proceedings.

Kid’s Corner

The FCFCOA website now contains a dedicated Kid’s Corner. This is an online space created specifically for children who are the subject of family law parenting proceedings. The Kid’s Corner website provides children with a resource that they can use to obtain information about what they may be experiencing in a child friendly and supportive way. There are resources to assist children to understand the family law process, as well as supports for their emotional wellbeing.

Kid’s Corner includes:

• Frequently asked questions;

• Information about what happens at Court and how decisions are made;

• Information to help children express their emotions; and

• Stories from children who have experienced the effects of parenting proceedings.

We advise our clients to keep their children sheltered from the conflict, however that does not mean that children should not be informed about what is going on, so long as it is age appropriate etc. Keeping information away from children may add to the uncertainty that they are feeling. By providing children with an age appropriate explanation about the family law process, it can help reduce their fear and increase their understanding so that they feel more secure and informed during what can be an uncertain period in their lives.

These initiatives are a welcomed step that strengthens the focus on children’s wellbeing. By implementing these initiatives, the FCFCOA is showing its commitment to ensuring that children are better informed, protected and supported throughout the family law process.

If you would like advice about parenting proceedings or negotiating care arrangements for your children with your former partner, our specialist family lawyers at Robinson + McGuinness can provide you with assistance. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

Guiding you through Court proceedings: Final Hearing

For more information about the initial stages of a matter involved in Court proceedings, we invite you to review our previous blogs about:

1. The first return;

2. An interim hearing;

3. Dispute resolution processes; and

4. A compliance and readiness hearing.

At a compliance and readiness hearing, your matter will likely be set down for a final hearing (provided that your matter is ready to proceed to a hearing).

What is a final hearing?

Whilst an interim hearing is a curtailed hearing, in that the Court cannot make findings of fact and takes each party’s evidence at face value, in a final hearing, the Court can make findings of fact and will assess each party’s credit.

At a final hearing, a judge makes a decision that determines your matter on a final basis.  This decision is intended to be full and final. For example, in a parenting matter, the Judge often makes a decision about the care arrangements for a child until they reach 18 years of age.  In a property matter, this is usually a decision about your final property settlement.

How long is a final hearing?

The length of a final hearing will depend upon a number of factors, including the complexity of the matter, the issues to be canvassed and the number of witnesses.  Dates are allocated by the Court, based on the urgency of the issues for the Court to determine and how long the matter has been before the Court.

What do I need to do to prepare for a final hearing?

In preparation for a final hearing, you will be required to prepare a final application setting out the orders you seek the Court makes. In support of your application, you will also file a trial affidavit which contains your evidence.  This is usually much more comprehensive than any affidavit you would have prepared for an interim hearing (which is limited to 10 pages and 5 annexures in a Division 2 matter; or 20 pages and 10 annexures in a Division 1 matter).

Usually in advance of preparing your trial affidavit, you can issue subpoenas which can assist you to determine what evidence will be available to the Court (and therefore whether your final position before the Court is backed by evidence).

Prior to a final hearing, you should ensure that any other Court documents are up to date. For example, in a parenting matter, you would likely also file an updated notice of family violence, child abuse or risk document to take into account what has occurred since the filing of your original Court documents.  In a financial matter, you would file an updated financial statement to set out your current financial circumstances.

To avoid the necessity of a final hearing, you can enter into negotiations with a view to reaching agreement or narrowing the issues in dispute. As many matters settle prior to a final hearing, the Court often ‘overlists’ matters, which means that multiple matters may be listed at the same time before the same Judge.  If this occurs, the Court will likely make an assessment as to urgency and estimated length and decide which matter should proceed first.

Preparing for a final hearing can be complex and time-consuming. It is best to prepare early, and obtain specialist legal advice about the merits of your application and what evidence you need to place before the Court in support of the orders that you seek.  Our specialist family lawyers here at Robinson + McGuinness can guide and support you through your Court proceedings, from start to finish. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

Collaborative Family Law: What is it and is it suitable for me?

What is Collaboration?

Collaborative law is an alternative form of dispute resolution that can be used in place of traditional approaches to family law negotiations. Most parties follow the path of exchanging offers via correspondence, attending mediation or litigation. However, collaborative law is an option for those who do not wish to engage in the adversarial court system.

Collaboration involves all parties and their respective lawyers working together to reach an agreement without proceeding to court. The focus of collaboration is often on achieving a good outcome for all parties and/or the family, rather than there being a “winner” and “loser” as is often the case in family law negotiations and proceedings.

The benefits of collaboration, if both parties are on the same page, are as follows:

1. Efficiency: Collaboration allows for parties to directly and openly communicate about all matters.

2. Allows for creative solutions that may not otherwise be achieved through conventional negotiation methods;

3. Gives parties the ability to control the outcome;

4. Reduces conflict by encouraging cooperation;

5. Receiving/hearing the same legal advice during meetings from each of their solicitors.

The aim of collaborative law is to reach an agreement that is then formalised by entering into consent orders, a binding financial agreement or a parenting plan. It can be used to negotiate other issues also, such as child support.

When is Collaboration suitable?

1. When parties are amicable or at least willing to cooperate and engage in good faith;

2. When parties are litigation adverse;

3. When parties want to pool their resources to come up with a cost-efficient, effective and creative solution;

4. When parties want to preserve a positive relationship, including a co-parenting relationship;

5. Where parties want to ensure their privacy and avoid a public setting like Court to argue about their personal affairs.

When is Collaboration often not suitable?

1. When parties cannot communicate effectively or their relationship is volatile;

2. Where there are allegations or findings of family violence or there is a power imbalance between the parties;

3. When either party is not committed to negotiating in good faith.

How does Collaboration work in practice?

All parties must sign a participation agreement before commencing a collaboration. This agreement is a contract confirming that the parties will engage in the collaborative process and abide by the principles and rules of collaboration.

Both parties’ solicitors must be trained in collaborative law. The solicitors (or a jointly selected collaborative law coach) are tasked with facilitating meetings for all parties to attend to attempt to resolve, with clear agendas set for each meeting. At the end of each meeting, parties (and lawyers) will be tasked with “homework” or preparation before the next meeting to assist with progressing the matter efficiently.

If either party decides to withdraw from the collaborative process, both lawyers are no longer able to act for their respective parties, and the parties each must engage new legal representation.

Parties may also choose to involve other experts and professionals, such as a neutral third-party mediator/coach to assist with keeping meetings on track, and advisors such as accountants, financial planners, psychologists, counsellors and therapists.

If you would like to know more about collaborative law or would like to engage in a collaborative process, our specialist family lawyers at Robinson + McGuinness can provide you with advice about this process (as compared to other processes) so you may make an informed decision about the process option that is right for you.

To arrange an appointment with one of our specialist family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

All Around the World: Will Australia recognise my orders from overseas and how will Australia treat foreign assets as part of my property settlement?

Whether you are in the process of negotiating a property settlement or parenting orders, or already have property or parenting orders, it is important to consider whether your orders will be recognised and enforceable in all potentially relevant jurisdictions.

This article gives a brief overview of important things to consider when it comes to entering into a property settlement with your spouse where there are assets overseas; the recognition and enforceability of parenting orders and child maintenance; and the recognition and treatment of overseas decrees, such as marriages and divorces in Australia.

Property

If you are entering into consent orders that provide for how foreign property is to be dealt with, it is often prudent to obtain advice from a family lawyer practising in all jurisdictions where the property is located.

Complexity can arise when you hold assets in multiple countries. There may be strategic advantages to filing in one country over the other. The process for finalising your property settlement might be more efficient, cost-effective, or likely to have a more favourable outcome in a particular jurisdiction.

It is important to ensure that any settlement is enforceable in each jurisdiction, which can often be dealt with by obtaining “mirror orders” in each country. While Australian orders can address how overseas assets are to be dealt with, they may not be enforceable in another country.

Registration of Parenting Orders

Overseas child orders are defined by section 4 of the Family Law Act 1975. Sections 70G to 70L of the Family Law Act 1975 provide for registration of overseas orders in Australia.

The Family Law Regulations 1984 contain a list of countries under Schedule 1A with which Australia has agreements to register foreign parenting orders in Australia. You can apply to register parenting orders in Australia pursuant to Regulation 23 of the Family Law Regulations 1984 by sending the required documentation to the Secretary of the Attorney-General’s Department. If the Secretary is satisfied that documents meet the requirements, then they must send them to the Registrar of the Court to register the Order.

Alternatively, parties may make an application for consent orders in Australia, to do away with the need of registering any overseas orders.

The transmission of Australian parenting orders to overseas jurisdictions is briefly acknowledged in sections 70M and 70N of the Family Law Act 1975.

Child Maintenance

It is important to check whether there are agreements in place between jurisdictions and to seek legal advice about enforcement and registration if you are looking to apply for child support or enter into a Binding Child Support Agreement. Australia has agreements with countries such as the United States and New Zealand when it comes to the enforcement of child maintenance/support orders.

The agreement for enforcement between the United States and Australia is noted under section 111AB of the Family Law Act 1975. The Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations came into force on 12 December 2002 and provides for the enforcement of court orders and administrative assessments, such as child support assessments, as well as a framework for information sharing between central authorities being the Child Support Registrar (Australia) and the Office of Child Support Enforcement in the Department of Health and Human Services (United States).

New Zealand and Australia have an agreement to enforce child support payments whereby the country in which the party who is assessed to make a payment resides is responsible for collection. In Australia, that is either the Registrar or Services Australia, and in New Zealand, it is the responsibility of New Zealand Inland Revenue.

Divorce

Section 104 of the Family Law Act 1975 deals with the recognition and treatment of overseas decrees such as marriages, annulment and divorce in Australia. Section 104 lays out the criteria that must be met for a foreign marriage/order to be recognised as valid in Australia. This criteria includes that at the date of instituting proceedings which resulted in the divorce, annulment or separation:

1.    The Respondent was ordinarily resident overseas or;

2.    The applicant was ordinarily resident overseas for at least 12 months before making an application;

3.    The parties last cohabitated overseas; or

4.    Either or both parties were domiciled or citizens from overseas countries.

If you or someone you know is dealing with a family law matter that has international considerations, our specialist family lawyers at Robinson + McGuinness can provide you with assistance. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

Guiding you through family law Court proceedings: Compliance and Readiness Hearing

For further information about a first return, we encourage you to read our earlier blog here.  We also have a blog on interim hearings here and about dispute resolution here.

If your matter is at the stage of a Compliance and Readiness Hearing, you have likely progressed through a number of Court events.  The Court aims to list a matter for a Compliance and Readiness Hearing (a ‘C&R hearing’) approximately 6 months after the commencement of proceedings.

The purpose of a C&R hearing is procedural in nature and designed to determine whether a matter is ready to be listed for final hearing.  Your matter will be listed before a Judge, although not necessarily the Judge before whom the final hearing will proceed.

In the lead-up to a C&R hearing, directions are usually made for parties to file any updated Initiating Application and/or Response; a Certificate of Readiness; and an Undertaking as to Disclosure (if a party has not already done so).

No less than 7 days before a C&R hearing, parties are required to file a Certificate of Readiness.  In your Certificate, you must certify whether you have complied with all orders made by the Court; whether updated disclosure has been provided and whether there are any matters which would prevent the matter from being listed for hearing.

The Certificate also sets out the issues for determination by the Court, and any central findings of fact necessary to be made.

In a parenting matter, you should be able to address the Court about any family reports (and the recommendations contained within that report); or if no report is available, the likely timeframe for the preparation and release of such a report.

In a property matter, you should be able to address the Court on the net value of the asset pool, including superannuation; any contributions adjustment you seek; any adjustment for future circumstances (whether in your favour or in the other party’s favour); and whether all valuations and expert reports have been obtained.

In all matters, it is important that you are able to address the Court as to the number of hearing dates needed, and all proposed witnesses.  Where you propose to call an expert witness (such as a family report writer or valuer), you should be in a position to advise the Court as to any dates that expert is unavailable.

It is also important to consider whether any party requires an interpreter.

In your Certificate, you will also need to advise the Court about the total legal costs and disbursements incurred in the proceedings to date, and the anticipated costs and disbursements associated with preparing for and attending the final hearing.

It is important to have your ‘ducks in a row’ in advance of the C&R hearing, as you will need to address the Court about whether the matter is ready to be set down for a final hearing.  In advance of the C&R hearing, you should engage with the other side to discuss what matters remain outstanding and ideally reach agreement about a proposed procedural pathway moving forward.

In the event you have not previously sought legal advice at this stage of a proceeding, it is important that you do so as a family lawyer will be in a position to assist you to distil the issues in dispute and advise you about any procedural matters which should be addressed prior to your matter being listed for a final hearing. A family lawyer can also provide representation for you and appear on your behalf at the C&R hearing.

Our specialist family lawyers here at Robinson + McGuinness can guide and support you through your Court proceedings, from start to finish. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.

Tips for a successful family law mediation: preparation is key

Mediation can be an effective process for resolving a dispute. It is a mutual decision to dedicate time and resources to exploring issues in dispute and possible resolutions, or at least ways to narrow the dispute.

However, a mediation requires preparation. This blog is designed to identify key aspects of preparing for a mediation, to assist you and ensure you are ready to mediate.

Mediations are much more successful where a matter is ‘ready’ to mediate. For example -

• In a property matter, this may mean that you have exchanged disclosure documents and you can determine the ‘matrimonial pool’ of assets, liabilities and superannuation. You should have had time to obtain valuations (if values are not agreed) and time to consider those valuations.

• In a parenting matter, this may mean that you have exchanged any relevant information (for example, when parents discuss possible schooling options, enrollment information, and school results, this can be helpful information to consider).

• In some cases, it can be helpful to mediate when interim arrangements have been in place for a period of time, to determine the most suitable arrangements for the future, or after a parent has fulfilled certain requirements, such as completing a parenting course or undergoing necessary testing (for alcohol or other substances).

If you are missing salient information or disclosure, it may be wise to reschedule mediation to a date after which that information is made available. Short or half-day mediations can be useful to narrow issues in dispute or determine an interim pathway forward to obtaining the information necessary to resolve a matter on a final basis.

Another aspect of preparing for a mediation relates to your mindset, which may be surprising but can be crucial to achieve a successful outcome at mediation. For example -

•  On the day of the mediation, you might need to make decisions in the heat of the moment and under pressure. For this reason, it is important to consider possible outcomes in the weeks or days leading up to mediation. You should consider the best possible outcome, and also your ‘worst’ possible outcome. This will provide you with a framework within which you can make decisions. Mediators often say that the best outcome is an outcome that you and your former spouse can ‘live with’.

• Try to think creatively. What are the key outcomes for you? What will the key outcomes be for your former spouse? Whilst a good mediator will identify these and work to find unique solutions, if you have thought about outcomes before the mediation takes place, you might be more open to negotiating a settlement which you might not consider if you are only thinking about settlement options on the day of mediation.

• Think about what may support you on the day, including the little things. Do you need a support person to be present with you, or a friend or family member you can phone to calm your nerves? Do you need a water bottle and snacks? Do you need a specific type of tea or a fidget/sensory toy?

Even if you do not ultimately attend your mediation with a lawyer, it is prudent to obtain legal advice prior to any mediation. This can help you to take stock of the issues in dispute and consider possible outcomes. Your lawyer will be a sage sounding board, providing you with honest and tailored advice having regard to the Family Law Act 1975 and matters similar to yours. You will know where you stand and hopefully be able to avoid making a decision that you may regret later.

If you are considering how best to prepare for a mediation, wondering whether your matter is ready for mediation, or if you would like advice about settlement options and a range of outcomes, our specialist family lawyers are here to guide you. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

Legal title – Does it really matter in family law?

Clients often ask us, “If the house is in their name, does that mean that I don’t get anything?”

The short answer? Not necessarily. This is because, unlike some other areas of law, family law looks behind the legal ownership of particular assets and liabilities and instead considers the assets and liabilities that each party has (whether held jointly or otherwise) and the contributions that each party made to the assets and liabilities and the relationship as a whole.

Why assets might be in one name only

There are many reasons a home or asset might be held in one party’s name:

• They owned it before the relationship

• The couple kept finances separate

• It was purchased that way for tax or asset protection reasons

But in family law, these reasons don’t necessarily protect an asset from being included in the property pool, or being available for division between a separating couple.

Why legal ownership isn’t everything

In family law, other factors are taken into account when deciding how to divide property, not just ownership.

For example, even if one person legally owns the home, the other person might have made contributions to the home or to the relationship. These contributions might be financial or non-financial. They may have contributed directly to the value of the assets or indirectly. Some common contributions are:

• Payment towards the mortgage, bills, or for groceries;

• Caring for children while the other person was at work;

• Doing housework;

• Renovating the home, or

• Maintaining the gardens and/or upkeep of the property.

The Court recognises that relationships involve teamwork, and contributions can take many forms.

The Court’s role in property division

After a separation, either party can apply to the Federal Circuit and Family Court of Australia (“the Court”) for a property settlement.

Under the Family Law Act 1975, the Court has the power to alter the legal interests of the parties in the property to be divided if it determines it is just and equitable to do so.

That means the Court can:

• Transfer house ownership from one person to another;

• Order one person to pay the other a cash sum; and/or

• Divide superannuation.

When dividing assets after a separation, the Court looks at everything each person owns or owes, regardless of whose name it’s in. This is known as the “property pool” and includes things like:

• Real property and home loans;

• Cars;

• Investments;

• Savings;

• Personal loans;

• Tax liabilities;

• Business or trust interests; and

• Superannuation.

In the same way that any asset owned by either party forms part of the property pool, so too does any liability. This means that if one person has a credit card in their sole name, even if the other party doesn’t use it, it may be considered a liability of the relationship.

The bottom line: Does legal title matter?

Well, not as much as you might think.

In family law, the Court looks behind the legal ownership. Whether an asset is in your name, your partner’s name, or held jointly, it may still be included in the pool of property to be divided.

So there may be some truth to the old saying: “What’s mine is yours, and what’s yours is mine.”

It is important to remember that, in addition to looking at what property is there, the Court will look at the contributions of each party (financial and non-financial) and their future circumstances (income, age, health and care of children, among other things) when determining what a just and equitable outcome might be.

Need advice?

If you would like some advice in relation to your legal entitlements following a separation, please get in touch with us.

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.

What is a Deed of Family Arrangement and When Is It Appropriate to Use?

Estate planning doesn’t always go as smoothly as intended. Sometimes, after a loved one passes away, the terms of their Will (or the rules of intestacy if the deceased left no valid Will) don’t reflect the family’s wishes or circumstances. In these situations, a Deed of Family Arrangement can be a practical solution to help families move forward without the stress and cost of legal proceedings.

What is a Deed of Family Arrangement?

A Deed of Family Arrangement is a legal agreement that allows beneficiaries of an estate to change the way the estate assets are distributed. Instead of following the strict terms of the Will (or the rules of intestacy if there is no will) the beneficiaries can agree to a different division of assets that better suits their needs.

A Deed of Family Arrangement is binding, provided all parties with an interest in the estate consent to it, and it can help preserve family relationships by avoiding litigation.

When is a Deed of Family Arrangement Appropriate?

There are many scenarios where a Deed of Family Arrangement might be appropriate.

1. To Avoid a Family Provision Claim

   If one or more family members feel they’ve been unfairly left out or inadequately provided for in a Will, they may consider challenging the estate. A Deed of Family Arrangement allows beneficiaries to negotiate a settlement upfront, often saving time, money, delay and emotional strain associated with Court proceedings.

2. Correcting Mistakes or Oversights in a Will

   Sometimes a Will may not reflect the deceased's true intentions due to errors or outdated instructions; this is especially likely if the deceased has not reviewed their estate planning for some time. A Deed of Family Arrangement provides a way to correct this without Court proceedings.

3. Balancing Fairness Among Beneficiaries

   Situations can arise where the strict legal distribution of the terms of the deceased’s Will doesn’t feel fair. For example, one child may have received significantly more financial support during the parents’ lifetimes than their siblings, or certain assets may hold sentimental value for specific family members. A Deed of Family Arrangement allows families to redistribute assets in a way that feels equitable to them.

4. Tax benefits

   For some, it may be beneficial to rearrange the distribution of the estate assets through a Deed of Family Arrangement to optimise tax concessions amongst the beneficiaries, including Capital Gains Tax rollover relief.  Accounting advice must be obtained in this regard.

5.  Simplify the Asset Distribution

   Commonly, a Will will provide for the deceased’s assets to be divided equally amongst their children; while this creates a fair distribution, it can sometimes be impractical.  For example, in this situation, the deceased’s home would likely be transferred to all of the children in equal shares. This can create problems if one beneficiary seeks to retain the home, while the others wish for it to be sold.  A Deed of Family Arrangement can help restructure the estate in a way that makes administration simpler and more practical for the beneficiaries (i.e party A retains the house and makes a cash payment to the other beneficiaries).

A Deed of Family Arrangement can be a powerful tool to resolve disputes, correct oversights, and achieve fairer outcomes between beneficiaries, provided there is agreement amongst the beneficiaries; it is typically a more flexible, cost-effective, and amicable manner of resolving disputes amongst beneficiaries.

This is not to say that litigation can be avoided in all situations.  Where there is no agreement, often litigation will be the only option available to progress a dispute.

Further, where there are beneficiaries under the age of 18 years, or a beneficiary lacks legal capacity, the Deed of Family Arrangement would likely need to be approved by the Court; this is simply a safety mechanism to ensure vulnerable beneficiaries are not taken advantage of.

If your family is facing issues with a Will or an estate, seeking timely advice from an experienced estate planning lawyer can help determine whether A Deed of Family Arrangement is suitable for 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 lawyers.

Freeze! How a Mareva Injunction could prevent a party from disposing of assets during a property settlement.

When going through a separation, it is often a concern of one party that the other may sell, transfer, dispose of or conceal assets prior to a final settlement being reached. This can ultimately affect what assets are available for division at the time of a final property settlement and prevent a fair outcome. In extreme circumstances, it may be open to a party to apply for a Mareva injunction, otherwise known as a freezing order, to preserve the property pool pending settlement.

What is a Mareva injunction/freezing order?

A Mareva injunction is an order that restrains a party from selling property or disposing of assets to ensure either performance of an obligation or to preserve the state of a property pool. This application can be made ex parte or without notice to the party upon whom the order is intended to apply.

In what circumstances can a Mareva injunction be made?

Mareva Orders are an extreme remedy available to the Family Court under section 114 of the Family Law Act 1975 (Cth). To be granted a Mareva injunction, you need to have strong evidence that there is a real risk that assets may be dissipated and that the benefit of the Mareva injunction to one party will outweigh the harm caused to the other. This is partly because applications are often heard ex-parte or without notice, meaning the other party does not have an opportunity to put forward evidence to the contrary.

A Mareva injunction might be granted when a party is from overseas or is looking to move overseas (along with any Australian assets) or if there are concerns that one party might misappropriate funds.

How do I get a Mareva injunction?

In the family law space, a Mareva injunction can be sought as part of an Initiating Application or as an Application in a Proceeding. A party may also choose to apply for a Mareva injunction as an interim or a final order.

An Affidavit would need to be filed in tandem with any Court application for a Mareva injunction. Pursuant to rule 5.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, any affidavit would need to include evidence as follows:

1. A description of the nature and value of the respondent's property, so far as it is known to the applicant, in and outside Australia;

2. The reason why the applicant believes:
   a] property of the respondent may be removed from Australia or may be dealt with in or outside Australia; and
   b]  removing or dealing with the property should be restrained by order;

3.  A statement about the damage the applicant is likely to suffer if the order is not made;

4.  A statement about the identity of anyone, other than the respondent, who may be affected by the order and how the person may be affected.

If you have concerns that your partner might sell, transfer, dispose of or conceal assets, and you are going through a separation, Robinson + McGuinness can provide you with assistance.

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.

Family law in plain English

Sometimes people may feel like their family lawyer is speaking a different language. As family lawyers, we sometimes use words or phrases that are new to clients. Here is a list of some commonly used terms and a brief definition:

• Property pool – The pool of assets, liabilities and superannuation of both parties to a relationship, either owned by both of them jointly, or individually as at the current date. A property pool will include assets, liabilities and superannuation acquired before or during the relationship, or after separation. A property pool may include real property, cars, credit cards, bank accounts, personal loans, home loans, shares, business interests and superannuation, among other things.

• Property settlement – The formalisation of the division of the property between two parties following the breakdown of their relationship. Property settlements between married couples are guided by section 79 of The Family Law Act 1975 (Cth). For a property settlement to be legally binding, it needs to be formalised in one of two ways, being by Consent Orders or a Binding Financial Agreement.

• Consent Orders – Orders made by the Federal Circuit and Family Court of Australia (or a Court will delegate jurisdiction to make the Orders, such as the Local Court) by consent between the parties. These Orders can be obtained by filing an Application for Consent Orders or by resolving family law proceedings before the Court by consent, as opposed to having orders made by a judge for you, after a hearing.

• Binding Financial Agreement (BFA) – A contract made between two parties under The Family Law Act 1975 (Cth), which sets out how assets are to be divided following a separation. In the United States of America, these agreements are commonly referred to as “pre-nups”. Despite what the American term might suggest, a Binding Financial Agreement or BFA can be entered into before or during a relationship or after separation, in Australia.

• Divorce – The process of legally ending a marriage. The divorce process does not deal with property division or care arrangements for any children. It is simply the process of becoming legally unmarried. To obtain a Divorce Order, a party, or both of them, must file an Application for Divorce with the Federal Circuit and Family Court of Australia and pay a filing fee, which is currently $1,125.

• Just and equitable – When a property matter is resolved either by consent or decision by the Court, the Court must consider whether the outcome is “just and equitable” having regard to the specific circumstances of the case. The principle allows for some fluidity in circumstances where a strict application of the law may not necessarily result in a fair and reasonable outcome for one or more of the parties involved. It is a consideration to be made by the Court, not by either of the parties.

• Spousal maintenance – Payments made by one party to another to assist the receiving party in meeting their living expenses. Spousal maintenance payments can be paid as periodic payments for a specified period of time or as a lump sum. In determining whether spousal maintenance payments are appropriate, the Court will assess what each of the parties reasonable living expenses are and what their income is and come to a decision about whether one party needs additional funds, and the other party has the capacity to pay the other. This is separate from a property settlement.

• Best interests of the children – When determining parenting matters, the paramount consideration is the best interests of the child/ren. Section 60CC of the Family Law Act 1975 sets out what the Court needs to consider when determining what is in the child/ren’s best interests. This includes:

  1] the safety of the children;

  2] the children’s views;

  3] the developmental, psychological, emotional and cultural needs of the children and the ability of parents and/or caregivers to meet those needs;

  4] the benefit of children having relationships with their parents and other significant people; and

  5] anything else that is relevant.

• Care/parenting arrangements – This refers to the arrangements that are in place for the children. They include who makes the major long-term decisions for the children, where the children live, what time they spend with each of their parents, the school holiday arrangements, telephone/FaceTime contact between the children and their parents, and what the arrangements are for special occasions such as Father’s and Mother’s Days and Christmas, etc.

• Decision making/parental responsibility – Decision making is the authority to make major long-term decisions in relation to the care and welfare of the children. This includes decisions made in relation to where children go to school, their religion, their name and their health. A court may make an order that one or both parents have the ability to make decisions about the children.  Parental responsibility is the power, duties and responsibilities that one or both parents have in relation to the children. Absent an order to the contrary, both parents have parental responsibility for their child/ren.

• FCFCOA – The Federal Circuit and Family Court of Australia. This is the Court that has jurisdiction to deal with family law matters and determine issues in accordance with the Family Law Act 1975 (Cth). The FCFCOA deals with both parenting and property family law matters in Australia.

• Independent Children’s Lawyer (ICL) – A lawyer appointed by the Court to represent the children’s best interests independently from either of the parents. They do not act on the children’s instructions, but rather give an independent and impartial perspective to the court based on evidence provided by the parents and/or other experts, such as a psychologist.

You can find additional information about any of the terms referred to in our other blogs.

If you would like to discuss how any of the matters raised in this blog impact you, or your family law matter more generally, please get in touch with us.

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.

Understanding Powers of Attorney and Enduring Guardianship

Planning ahead for a time when you may not be able to make decisions for yourself is an important part of any estate plan. An Enduring Power of Attorney and Appointment of Enduring Guardian allows you to appoint someone you trust to make decisions on your behalf if you lose capacity.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney allows you to appoint someone to manage your affairs in the event you lose decision-making capacity. The document can come into effect either before or after you have lost decision-making capacity and ceases to have effect after you pass away.

In the ACT, Enduring Powers of Attorney are regulated by the Powers of Attorney Act 2006, which allows you to authorise your attorney to make decisions in relation to financial, health care, personal care and medical research matters.

In NSW, Enduring Powers of Attorney fall under the Powers of Attorney Act 2003. An Enduring Power of Attorney in NSW allows you to appoint an attorney in relation to financial and legal matters only.

What is an Appointment of Enduring Guardian?

An Appointment of Enduring Guardian is made under the Guardianship Act 1987 in NSW and allows you to nominate someone to make health and personal care decisions on your behalf if you become incapacitated. This is a separate document in NSW, but the function is incorporated within an Enduring Power of Attorney in the ACT.

Why are these documents important?

Without an Attorney or Enduring Guardian, your loved ones may need to apply to a tribunal (such as NCAT or ACAT) for authority to make decisions on your behalf if you lose capacity. This can be time-consuming, costly and emotionally draining. If no suitable person is identified, the tribunal may appoint the Public Trustee and Guardian.

Completing an Enduring Power of Attorney, and Appointment of Enduring Guardian where necessary, allows you to control who will act on your behalf if you lose capacity and can give you and your family peace of mind for the future. 

Things to consider

Before completing an Enduring Power of Attorney and Appointment of Enduring Guardian, it is important to consider the following:

1. Appointing someone you trust – Choose someone who will act in your best interests and with whom you feel comfortable discussing your values, preferences and future wishes.  

2. Naming a substitute decision-maker – Consider appointing an alternative Attorney or Enduring Guardian who can step in if your primary decision-maker is unwilling or unable to act, or has passed away.

3. Setting conditions and directions – You may wish to limit the powers of your Attorney or Enduring Guardian or include directions about how decisions should be made.

4. Determining when the documents take effect – Decide whether you want your Attorney to begin assisting you immediately, if, for example, you are going overseas, or only once you lose decision-making capacity.  

If you would like to prepare an Enduring Power of Attorney or Appointment of Enduring Guardian, 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. We offer fixed fees for most estate planning services.