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.

Important changes to Divorce Applications

On 10 June 2025, amendments were made to the Family Law Act 1975 (Cth).  Many of the changes have been directed to increasing the safety of children and families, particularly where family violence impacts that family, and to improve the efficiency of the Court system.

Prior to the amendments coming into effect, couples married for less than two years seeking to divorce were required to attend counselling and provide a certificate to the Court.  This requirement has been removed.  Accordingly, you are now able to apply for a divorce once you have been separated for at least 12 months, without the need to attend counselling regardless of the length of your marriage. 

Another change includes the need for attendance at a divorce hearing.  Prior to 10 June 2025, a sole applicant to a divorce application was required to appear at a divorce hearing where the parties had children under the age of 18 years.  With recent changes to the legislation, a sole applicant is no longer required to appear at the divorce hearing as long as the respondent does not request to attend the hearing.

The Court filing fees for a divorce – whether a sole or joint application – are now uniform.  As at 1 July 2025, for an application for divorce, the filing fee is now $1,125.  Where you are eligible for a reduced fee (i.e. if you can demonstrate financial hardship or hold certain Government concession cards), the filing fee will be $375.

Importantly, the following has not changed with respect to divorce proceedings:

1. Australia has a ‘no fault’ divorce system.  This means you can apply for a divorce as long as at least one of you is of the view that your marriage has irretrievably broken down.  You must state that there is no reasonable chance that you and your former spouse will reconcile. 

2. You do not require mutual consent to separate.  Separation occurs if you have communicated to your former spouse that you regard the relationship as over and you do not wish to reconcile.

3. You can be separated under the one roof, or where you are living separately.  Where you have been separated under the one roof, you will need to provide the Court with further information to establish the ‘change’ to your relationship by way of affidavits in support of your divorce application. This includes information about changes to sleeping arrangements and routines, division of finances, care of children, outward appearance to social circles etc.
   If filing for a joint application, both parties to the marriage will need to file an affidavit. If filing for a sole application, the party making the application will need to ask someone to file an affidavit in support of their application in addition to their own affidavit. Your support person will need to provide as much information as they can about the separation including any direct observations about you and your partner living separate lives and any conversations that you have had about your separation. It is important they provide this evidence independently of you and your partner.

4. An application for divorce is separate to your property settlement.  You can commence the property settlement process prior to making an application for divorce.  Once your divorce has been granted, you have 12 months to commence proceedings in relation to financial matters or lodge an application for consent orders.

5. You can make arrangements for any children prior to any application for divorce.  Again, this is separate to an application for divorce.  If you have children under 18, you will be required to detail any arrangements for them in your divorce application.

If you are considering applying for a divorce or if you have recently separated, you should consider seeking independent legal advice from a family lawyer.  Our lawyers here at Robinson + McGuinness Family Law can provide you with tailored advice about divorce, parenting arrangements and property settlements. 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.

Supporting Victims and Survivors of Family Violence after Separation: Property Settlements and Spousal Maintenance

The Family Court’s approach to acknowledging family violence in property settlements and spousal maintenance claims under the Family Law Act 1975 has changed as of 10 June 2025.

Why the change?

There is increasing recognition of the prevalence of family violence within the community and the risks posed to parties going through separation.

Changes to the Family Law Act 1975 were made to help address the economic consequences that victims and survivors of family violence experience during and following separation.

These changes are intended to provide the Family Court with broader discretion to consider the economic impact of family violence to ensure settlement outcomes are just and equitable and that parties are provided with proper financial maintenance following separation.

Key changes

1] The definition of Family Violence under section 4AB of the Act has been amended to encapsulate a broader range of economic and financial abuse.

This has been done by repealing the existing references to economic and financial abuse and placing examples of economic and financial abuse into their own separate provision.  Examples of behaviour that may constitute economic and financial abuse include:

1. unreasonably denying a family member the financial autonomy that the family member would otherwise have had, such as by;

   a] forcibly controlling the family member's money or assets, including superannuation; or

   b] sabotaging the family member's employment or income, or potential employment or income; or

   c] forcing the family member to take on a financial or legal liability, or status; or

   d] forcibly or without the family member's knowledge, accumulating debt in the family member's name;

2. unreasonably withholding financial support needed to meet the reasonable living expenses of a family member, or a family member's child;

3. coercing a family member (including by use of threats, physical abuse or emotional or psychological abuse):
   a] to give or seek money, assets or other items as dowry; or

   b] to do or agree to things in connection with a practice of dowry;

4. hiding or falsely denying things done or agreed to by a family member, including hiding or falsely denying the receipt of money, assets or other items, in connection with a practice of dowry.

2] Family violence is a factor that may be considered in spousal maintenance claims under section 75(2).

The effect of any family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned in section 75(2) (such as the health of a party) must now be considered by the Family Court when considering spousal maintenance claims.

This amendment recognises that family violence may impact a party’s need for spousal maintenance. For example, a party may not be able to leave the family home because they cannot afford the expense of alternative accommodation or because they have been restrained from having their own bank account or access to their own funds.

This amendment is intended to ensure parties are provided with sufficient maintenance at the end of a relationship, and it is not intended to be punitive or compensatory.

3] Family violence is also a relevant consideration under the property settlement framework under section 79.

Family violence can be considered by the Family Court when assessing parties’ contributions to the relationship, as well as any future needs of the parties, when determining a property settlement.

This acknowledges that family violence may have impacted a party’s ability to contribute to the relationship and also their future circumstances. For example, one party may have prevented the other from engaging in employment during the relationship, thereby limiting their financial contributions. This act of family violence, in turn, may impact a party’s ability to gain meaningful employment in the future.

If you would like confidential and specialist advice about your particular circumstances, contact us today to arrange an appointment by email at info@rmfamilylaw.com.au or call 02 6225 7040 or get started now online.

When should I update my will?

A will should be regularly reviewed and updated to ensure it reflects your current circumstances. Outdated wills can create confusion, result in unintended outcomes, and in some cases, lead to conflict between family members. It is recommended to update your will in the following circumstances:  

1. Marriage – A will is automatically revoked upon marriage, unless the will was made in contemplation of marriage. After your marriage, it is important to prepare a new will to ensure your estate is still distributed in accordance with your wishes.

2. De facto relationships – De facto relationships may give rise to an expectation that you look after your partner in your will, depending on how long you have been together and the circumstances of your relationship. If you have been married before or have a blended family, you should make sure your wishes are clearly reflected in your will.

3. Separation – Separation alone does not invalidate your will; however, a divorce will revoke any gift to your former spouse or appointment as an executor, trustee or guardian. If you pass away while separated but not divorced, your former spouse may still inherit from your estate or be entitled to superannuation.

4. Starting a family – You may wish to update your estate plan to ensure your children are provided for and to appoint a guardian in the event you and your partner pass away. This can help make your intentions clear in the event of a dispute between families; however, the appointment of a guardian is not binding.

5. Disposal and acquisition of assets – If you make a specific gift of property in your will but sell the asset before you pass away, you should update your will to ensure this is reflected in your estate plan. You cannot gift assets that you do not own and an outdated will may cause confusion and conflict between your loved ones. It is also important to update your will if your financial circumstances change significantly. 

If you’re unsure whether it’s time for an update, speaking with an estate planning lawyer can help clarify your next steps. If you would like to update a Will or prepare a Will, 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 simple* estate planning.

Before undertaking any work, we will discuss your instructions and confirm whether your Will is able to be prepared for a fixed fee.

Addbacks in Property Settlements: Shinohara v Shinohara [2025] FedCFamC1A 126

The Full Court of the Federal Circuit and Family Court of Australia recently confirmed in Shinohara v Shinohara [2025] FedCFamC1A 126 that 'addbacks' are to no longer form part of the balance sheet in property proceedings. This results from the Family Law Amendment Act 2024, which came into effect in June 2025.

Previously, Courts could notionally “add back” assets that no longer existed at the time of a hearing, for example, money that has been wasted or spent by one party on legal fees. Even though the asset no longer existed, its value could still be included in the asset pool for division.

The Court has now confirmed that only existing property at the time of trial is to be included in the balance sheet for division. Williams, Altobelli and Campton JJ state at [121] “The text of s 79(3)(a)(i) is clear. Only the existing property of the parties is to be identified, and only that existing property is to be divided or adjusted.”

Notwithstanding the above, the principles underpinning the existence of addbacks have not been disregarded entirely. Williams, Altobelli and Campton JJ continue at [125]: “s79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage.”

The Full Court further noted: “The holistic approach in assessing and determining contributions and adjustments thereto…remains applicable. Each of the considerations, by either s 79(4) or s 79(5), requires engagement with the circumstances of the disposal of property, the value it achieved, and its use and application being considered and weighed to achieve the mandate of justice and equity that permeates s 79 of the Act” [126].

The conclusion reached by the Court in Shinohara suggests the approach taken to the disposal of assets in property proceedings will need to change. Parties can no longer rely on assets being notionally added back to the property pool and will instead need to seek that these matters form part of the Court’s holistic assessment of the parties’ current and future circumstances.

You may wish to seek specialist family law advice about your circumstances, particularly if you are concerned your ex-partner is reducing your combined property pool. If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Costs Orders in Estate Litigation – What happens once an Order has been made?

When a Court makes a costs Order, it typically means that one party (usually the unsuccessful party) must pay some or all of the legal costs of the other. However, in most situations, the Order for costs doesn’t set out the amount to be paid, or when it has to be paid.

This post explains what happens after a costs Order is made in estate litigation in NSW or the ACT, and how parties can move from the Court’s decision to actual payment or enforcement of legal costs.

What Does a Costs Order Mean?

A costs Order generally sets out who must pay legal costs, but not how much. Common forms of orders include:

• “Costs as agreed or assessed” – The parties should attempt to agree on an amount; if not, the costs must be formally assessed.

• “Costs on the indemnity basis” – Requires the paying party to cover nearly all legal costs of the other, including some that might not be strictly necessary.

• “Costs in the cause” or “Costs reserved” – These orders defer responsibility until a later stage or depend on the case’s outcome.

Both in NSW and the ACT, the actual amount payable must be worked out through negotiation or, failing that, costs assessment (NSW) or taxation of costs (ACT).

First Step: Try to Reach an Agreement

Before entering formal processes, the parties usually try to negotiate a cost figure. This often involves:

• Exchanging invoices or itemised bills of costs;

• Informal discussions between legal representatives; and

• Offers to settle for a reduced or rounded amount.

If parties agree, payment can be made directly—there’s no need for court involvement or further paperwork or costs associated with any assessment, or delay.

There is no Agreement - Formal Assessment or Taxation of Costs

In NSW, if parties can’t agree on costs, the party entitled to payment can apply for a costs assessment under the Legal Profession Uniform Law (NSW) and associated rules.  Any application must be made within 12 months of a costs order being made.

This is an administrative, not judicial, process managed by the Supreme Court’s Costs Assessment Scheme. An independent Costs Assessor will review the bill and determine what is fair and reasonable.

In the ACT, the equivalent process is referred to as taxation of costs, as outlined in the Court Procedures Rules 2006 (ACT).  An application for taxation of costs must be made within 3 months of a costs order being made.

In the ACT, costs are assessed (or “taxed”) by a Registrar of the Supreme Court, who examines the bill, hears objections, and determines what is payable.

In both jurisdictions:

• The process begins with a bill of costs served on the other party.

• That party may respond with objections, and

• The assessor (NSW) or registrar (ACT) decides.

What Happens After Costs Are Assessed or Taxed?

Once the amount is determined, the matter can go one of two ways.

In the event payment is made, the matter finalises. The paying party should pay the amount promptly, as interest may accrue on unpaid costs from the date of the original court order.

In the event that no payment is made, the party owed costs may commence enforcement action. The following is important to keep in mind:

In NSW, the party who is owed costs:

1. Must register the certificate of determination as a judgment of the Supreme Court under the Uniform Civil Procedure Rules 2005 (NSW); and

2. Thereafter, it can be enforced like any other judgment through garnishee orders, writs, or bankruptcy/insolvency.

In the ACT, the party who is owed costs:

1. Must apply for a certificate of taxed costs; and

2. Thereafter, file the certificate in the Supreme Court and enforce it as a judgment debt under the Court Procedures Rules 2006 (ACT).

Important considerations

If you have been ordered to pay costs, you should act proactively and seek an itemised bill from the other party, if you haven’t already received one.  In the absence of a costs assessment/taxation, it is open to the parties to reach an agreement as to the amount that should be paid.  If an agreement can be reached, payment should be made promptly to avoid interest and enforcement costs.

If you are entitled to costs, you must serve a bill of costs promptly and keep detailed records of your fees and disbursements paid.  Don’t delay the filing of an enforcement application in the event you’ve not received payment.

A costs order is just the first step. Whether you’re paying or recovering legal costs, understanding the correct procedures in NSW or the ACT is essential to avoid unnecessary delay, expense, or enforcement proceedings.

If you’re unsure how to proceed—whether you need to assess, negotiate, or enforce—it’s important to seek legal advice to understand how to best proceed.  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.

Guiding you through Family Court proceedings – Dispute Resolution

If your matter is already in Court, you may be wondering what happens next. Whilst you may be aware of the initial steps, the procedural pathway isn’t always clear to parties involved in Court proceedings.

The first time that your matter comes before the Court is usually the first return (see our blog post about the first return here if you have not already). If there are issues in dispute which require immediate determination, it may be necessary for your matter to be listed for an interim hearing (see also here for our blog post about the interim hearing).

After your matter has been listed for a first return and/or interim hearing, the next time your matter comes before the Court will likely be for a further directions hearing where a Judicial Registrar is likely to make orders about the future progression of your matter. This can occur at a further directions hearing; orders can be made at the conclusion of an Interim Hearing; or judicial officers will often grant leave to parties to provide consent orders for the Court’s consideration if the parties reach agreement about procedural matters (on an interim or final basis about any issues in dispute).

After any necessary interim hearing and prior to your matter being listed for a final hearing, it is likely that a judicial officer (such as a Judicial Registrar, a Senior Judicial Registrar or a Judge) will require parties in a matter to participate in dispute resolution. Dispute resolution can include a mediation, a family dispute resolution conference or a conciliation conference. The dispute resolution process can be Court-based or external, such as a private provider or through Legal Aid.

In a property matter where both parties have funds and financial resources available to them, parties may choose to participate in a private mediation whereby they select their preferred mediator. Orders providing for the parties to participate in a private mediation can usually be reached by agreement.  If there is disagreement about the proposed mediator and/or payment of the mediator’s fees, a Judicial Registrar can make orders to determine these issues.

Alternatively, the Court can make orders providing for the parties to participate in a Court-based dispute resolution process, on the basis the Court is satisfied that this is appropriate, having regard to the means and resources available to the parties.

In a property matter, parties may be ordered to participate in a Conciliation Conference with a judicial registrar. A significant benefit to participating in this dispute resolution process is that if you reach a final agreement on the day, orders can be made to finalise your matter, and you can exit the Court system.

Parties are expected to engage in good-faith negotiations and make a genuine effort to resolve issues in dispute. At the conclusion of the dispute resolution process, a dispute resolution certificate is issued by the judicial registrar. If the Court finds that a party has not participated in good faith and/or has not made a genuine effort to resolve the issues in dispute, there can be cost consequences as a result of a party’s actions.

Prior to participating in a dispute resolution event, parties are expected to exchange relevant financial disclosures and, for property matters, obtain updated valuations if necessary. In a parenting matter, it can often be useful to participate in dispute resolution following the release of an expert report, such as a Child Impact Report or a Family Report.

If you are at the stage of your matter where you are considering participating in a dispute resolution process, it is worthwhile to engage a family lawyer to advise and guide you. A family lawyer will be able to identify any steps that need to be taken before participating in a dispute resolution process, and provide you with guidance as to possible settlement outcomes. They can also make sure you have the best possible chance of success in a dispute resolution process.

Our specialist family lawyers here at Robinson + McGuinness can assist you at any stage of your matter, including at the dispute resolution process.  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.

What Is an Informal Will?

A properly drafted and executed Will ensures that a deceased individual’s assets are distributed according to their wishes after they pass away. But what happens if someone leaves a note, a voice memo, or even a text message outlining their intentions—these documents may not meet the formal legal requirements and may be considered an informal Will.

What Is an Informal Will?

An informal Will is a document or recording that expresses a person’s wishes about the distribution of their estate after death, but doesn’t meet the formal requirements set out in the Wills Act 1968 (ACT).

To be considered a formal Will in the ACT, a document must:

• Be in writing;

• Be signed by the testator (the person making the Will); and

• Be witnessed by two people present at the same time.

If any of these elements are missing, the document may still be admitted as a valid Will—but only if the Supreme Court of the ACT is satisfied that the deceased intended it to be their Will.

Examples of Informal Wills

Informal Wills may include:

• Unsigned or unwitnessed handwritten documents;

• Typed documents on a computer or phone;

• Video or audio recordings;

• Text messages or emails; and

• Letters expressing testamentary wishes.

Legal Basis in the ACT

Section 11A of the Wills Act 1968 (ACT) gives the ACT Supreme Court what’s known as a dispensing power. This allows the Court to accept a document that doesn’t meet the formal requirements if it is satisfied that:

1. The deceased person intended the document to be their Will, an alteration to their Will, or a revocation of a previous Will; and

2. There is enough evidence of that intention, even if the document is not signed or witnessed.

This is not straightforward.  The Court will need to be persuaded by detailed evidence of the above; such evidence may include oral/written evidence from family members or others close to the deceased about the testator’s expressed intentions; handwriting experts to compare the deceased's handwriting to that contained in the informal Will (if its hand written); and medical information for the deceased to establish capacity.

Why Informal Wills Are Risky

While the law offers some flexibility, informal Wills carry significant risks, including:

• There is no guarantee of validity: The Court may ultimately reject the document.  If this occurs, the laws of intestacy apply.

• There will be increased legal costs: Court proceedings to prove an informal Will are expensive and time-consuming; the estate usually bears such costs.

• Family conflict may arise: Ambiguities in an informal Will often lead to disputes among relatives.

• Delays in administration: Court proceedings are time-consuming; seeking assistance from the Court in relation to whether an informal Will is valid can delay probate and estate distribution significantly.

How to Avoid Informal Wills

To ensure your estate is distributed in accordance with your wishes, and in a timely and cost-effective manner, you must execute a well-drafted Will in accordance with the requirements set out in the Wills Act 1968 (ACT) (or the relevant legislation in your state or territory).

Seeking the assistance of an experienced estate planning lawyer can assist you in ensuring that you record your intentions correctly and avoid any difficulties in having the Court accept your Will as your valid testamentary intention.

You should also regularly review your estate planning documents to ensure they accurately reflect your intentions.  If you have a thought to change your Will, seek the advice of your estate planning lawyer, rather than simply noting down the changes that you want to make; such action may just be the difference between a valid and an informal will.

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.