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 are also entitled to ask for the equivalent disclosure of the other party, so long as it is in their possession or control.

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

   1. Take the failure into account when making an order for the alteration of property interests under section 79;

   2. Make any orders concerning disclosure that the court considers appropriate;

   3. Make an order for costs that the court considers just;

   4. Impose sanctions;

   5. Punish a party for contempt; or

   6. 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 a party’s income and any of their 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 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.

Did getting a divorce just get simpler?

There have been some recent amendments made to the Family Law Act 1975 which affect the process for getting a divorce and arguably may make what is likely a hard process, a little easier.

Do you need marriage counselling?

Prior to 10 June 2025, parties who had been married for less than two years could not apply for a divorce without first attempting marriage counselling and obtaining a counselling certificate. The purpose behind this requirement was to encourage parties who have only recently married to work on their relationship and reconsider whether it was time for the marriage to come to an end, a somewhat optimistic inclusion in the Family Law Act. Despite the optimism, most of the time, when you know, you know and there may be little to no utility in marriage counselling.

From 10 June 2025, the Court no longer requires parties who have been married for less than two years to attend marriage counselling. Now, regardless of the length of the marriage, a party to a marriage may apply for a divorce without needing to go to marriage counselling, provided they have been separated for 12 months and one day.

Divorce hearings

Previously, the requirement to attend a divorce hearing depended on the circumstances of the parties/party seeking a divorce. Most of the time, parties did not have to attend a divorce hearing, including:

1. If parties were filing a joint Application for Divorce; or

2. If a party was filing a sole Application for Divorce and there were no children under 18.

However, if a party filed a sole Application for Divorce and there were children under 18, the Applicant would be required to attend the Divorce Hearing before a Registrar of the Court and speak to their Application for Divorce, including whether appropriate arrangements had been made for any children of the relationship.

From 10 June 2025, parties are generally no longer required to attend a Divorce Hearing, regardless of whether there are children under the age of 18 or the Application was made by one party alone. There are exceptions to this, including that the Court may require parties to attend a Divorce Hearing if it is not satisfied that there are appropriate arrangements in place for the care of the children or if one or both of the parties have requested to attend the Divorce Hearing.

Important things to remember about divorce:

1. A party to a marriage cannot apply for a divorce until 12 months and one day after the date of separation. This means that if you separated on 3 April 2025, you are not eligible to apply for a divorce until 4 April 2026;

2. Divorce is separate to your property settlement. Divorce is simply the process of becoming un-married. It does not deal with the division of your property pool or the care arrangements for your children. Divorce does however trigger a 12 month time limit within which parties have to make an application to the Court to formalise their property settlement. This means that if your divorce order became final on 7 July 2025, you have until 8 July 2026 to make an application to the Court seeking orders in relation to property matters.
   Applications in relation to the care arrangements for children under 18 years of age can be made at any time after separation (including any time after divorce). 

3. You do not have to do it alone. If you are considering a divorce and would like some advice, please get in touch with us.

Death of a parent – what happens to a child’s care arrangement?

The death of a parent is an incredibly difficult time for any child and their extended family. While navigating such loss, there are significant legal and practical decisions to be made about what a child’s ongoing care arrangements look like.

When a Parenting Order Is in Place: Section 65K of the Family Law Act 1975

If a parenting order was in place at the time of a parent’s death, the arrangements outlined in that order do not automatically transfer to the surviving parent. Instead, section 65K of the Family Law Act 1975 applies.

Section 65K provides that

• The surviving parent cannot require the child to live with him or her; and

• The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.

This means the existing order becomes ineffective insofar as it relates to the deceased parent. The surviving parent does not automatically assume sole care or decision-making responsibility for the child. In some cases, it may be necessary for the Court reassess the child’s living arrangements to determine what arrangements operate in the child’s best interests.

It is not only open to the surviving parent to seek further orders about the child’s care arrangements. Any individual with a significant connection to the child, such as a grandparent or close family member, can also seek Orders from the Court concerning the child’s ongoing care arrangements.

What if there is no Parenting Order?

Not all parents (including separated parents) have parenting orders for their children (i.e. separated parents who are amicable, parents in an intact relationship, single parents etc). If no parenting order exists at the time of the parent’s death, the situation is more open than that described above. In many cases, if there is a surviving parent, then that parent will assume care of the child. However, this is not always the case.

Under section 65C of the Family Law Act 1975, the following individuals may apply for parenting orders:

• The child’s parents (and in this case the surviving parent);

• Grandparents; and

• Any other person concerned with the care, welfare, or development of the child. This could include step-parents, close relatives, or family friends.

What will the Court consider?

In either of the above situations, the paramount consideration of the Court will be the child’s best interests. In assessing a child’s best interests, the Court is required to consider the matters set out in section 60CC of the Family Law Act 1975, namely:

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

   (ii) each person who has care of the child.

2. any views expressed by the child;

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

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

5. the benefit to the child of being able to have a relationship with the child's parents (and in these cases the surviving parent), and other people who are significant to the child, where it is safe to do so; and

6. any other matters that are relevant to the particular circumstances of the child.

Appointing a Guardian in a Will

Parents can nominate a guardian for their child in their Will. While this nomination is not legally binding, it is an important factor that the Court will consider. The Court may give considerable weight to the deceased parent’s wishes, particularly if the nominated guardian has an established relationship with the child.

Robinson + McGuinness can assist you in preparing your Will, including provision for the care of minor children in the event of your death.

Seeking Legal Advice

Care arrangements after the death of a parent are legally complex and can be highly emotional. Whether or not a parenting order already exists, it is important that decisions are made promptly concerning a child’s care arrangements and that they are in the child’s best interests. Regardless of whether you are the surviving parent or another person who has an established relationship with the child and who is concerned for the care, welfare and development of the child, you must obtain prompt 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.

The Courts’ new approach to Property Settlements and Spousal Maintenance

The process for determining property settlements and spousal maintenance has changed as of 10 June 2025. This is a result of amendments made to the Family Law Act 1975 by the Family Law Amendment Act 2024.

Spousal Maintenance

The court now has greater flexibility and discretion in determining whether a party is eligible for spousal maintenance under sections 75(2) (or section 90SF(2) in the case of de facto relationships).

The court must now refer to a non-exhaustive list of matters when considering spousal maintenance, including new subsections (aa), (c) and (r).

• (aa) The effect of any family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned elsewhere in this subsection.

  Subsection (aa) allows the court to consider the impact of family violence when determining whether to make provision for the maintenance of parties to a relationship. The intention behind subsection (aa) is not punitive or compensatory but to consider the financial and economic impact family violence has had on a party to a relationship. Examples include where one party was prevented from accessing funds or having their own bank account.

• (c) The extent to which either party has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child.

  Subsection (c) allows the court to consider the housing needs of a child of the relationship and acknowledges the importance of children having stable housing which is often a key issue that arises during separation.

• (r) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

  Subsection (r) has given the court even more flexibility and discretion in determining whether a party should receive maintenance.

Property Framework

The court’s four step approach to property settlements under common law, known as the “Standford pathway”, has now been codified under the new sections 79(3) and 90SM(3).

This change was intended to make it easier for self-represented parties to navigate the process. It is intended that self-represented parties will now more easily be able to understand the Court’s approach to making and deciding what orders altering the property interests of parties are appropriate.

The four steps the Court must take are now codified under sections 79(2) and (3) and section 90SM(2) and (3) and are explained below.

1. Firstly, the Court must identify the existing legal and equitable rights and interests in any property of the parties to the marriage and any existing liabilities

2. Secondly, the Court must take into account the considerations relating to parties’ contributions under section 79(4).

3. Thirdly, the Court must take into account the considerations relating to the parties’ current and future circumstances under subsection 79(5).

Section 79(5)/90SM(5) replaces the reference to subsection 75(2)/90SF(2), which often confused self-represented parties as it referred to spousal maintenance but was also considered during the property process.

Section 79(5)/90SM(5) also contains different considerations than those under sections 75(2)/90S (2) including:

• (a) The effect of family violence

  This means that the Court can consider how exposure to family violence has impacted on the ability of a party to make contributions to the relationship whether that be financial, non-financial, parenting or homemaking. This change is intended to codify the case law established in Kennon v Kennon [1997] FamCA 27.

• (d) The effect of wastage

  This inclusion was intended to limit parties’ abilities to make trivial claims of wastage and references wastage “caused intentionally or recklessly”.

  Examples of wastage may include gambling, allowing a third party to have access to an asset or resource for free i.e. living at a property that could be producing rental income or damaging the reputation of a business, thereby reducing profits.

• (e) Liabilities

  It is intended this amendment will protect vulnerable parties who may have a liability in their name but who have not had the benefit of the liability or full awareness of a liability they have taken on (i.e. a gambling debt or tax debt).

Finally, the Court must decide whether it is just and equitable to make the Order, notwithstanding consideration taken in Steps 1 to 3.

If you or someone you know has separated and is negotiating a property settlement, our specialist family lawyers at Robinson + McGuinness can provide specialist advice about the new reforms. 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 Court proceedings: the Interim Hearing

If you are involved in or looking to commence Court proceedings, you may want to know more about the process and what each Court event entails.  If you are looking for more information about the first Court event, click here to read our blog about the first return.

Today, we will be focusing on the ‘interim hearing’.

Not all parties in litigation will proceed to an interim hearing.  If you have commenced proceedings and are seeking ‘interim’ orders, it is likely that your matter will be listed for an interim hearing if you and the other party cannot reach an agreement.

What happens at an interim hearing?

Usually, an interim hearing is listed before a Senior Judicial Registrar, or in certain circumstances, before a Judge.  The purpose of an interim hearing is for the Court to determine any issues that need to be determined prior to a final hearing.   

For example, suppose you and your former spouse cannot agree about whether your jointly owned property should be sold, and one of you is living in the property but defaulting on loan repayments. In that case, there may be an argument about what happens with that joint property.

Interim hearings can also be directed to determine whether one party requires financial support (in the form of spousal maintenance) or to restrain one or both parties from selling joint assets.

In parenting matters, interim hearings can be directed to resolving disputes about temporary care arrangements, arguments about various testing (such as alcohol or drug testing of a parent) or whether it is necessary to obtain further evidence (for example, in the form of a family report). 

Depending on the urgency and complexity of the matter, your matter will often be listed alongside some other matters.  The judicial officer will conduct a ‘call over’ of sorts, to see whether any matters are likely to resolve and consider the priority in which each matter should be heard.

Usually, the judicial officer will ask the parties whether there is any scope for resolution.  At this juncture, parties may negotiate to see if any agreement can be reached.  Sometimes, a judicial officer will give a preliminary opinion about the issue in dispute, which can assist parties in resolving.

If you cannot reach an agreement about all or some of the issues in dispute, your matter will then proceed, or be given a ‘marking’ (or a time at which it will be heard later that day).

What happens in the lead-up to an interim hearing?

At the first return, it is likely that the Court will make directions for you and your former spouse to file any necessary Court documents to prepare the matter for an interim hearing.  This may include updated consolidated affidavits; orders to obtain further evidence (such as material from the police and/or child protection agencies); and an outline of the case document.

You should expect there to be negotiation in the lead up to the interim hearing, to see if you and your former spouse can resolve the issues in dispute (or narrow them).

How long does a decision take?

It depends on the complexity of the issues in dispute.  Sometimes an interim decision is made on the same day; sometimes the judicial officer requires more time to consider the issues in dispute.  More complex matters can take time. Often, judgment will be reserved and handed down on a later date, with written reasons given.

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.

An overview of upcoming changes to the Family Law Act 1975: Property, Spousal Maintenance, Companion Animals, Family Violence and Disclosure

Changes made by the Family Law Amendment Act 2024 to the Family Law Act 1975 came into effect on 10 June 2025. These include changes to how the Court considers companion animals, family violence, disclosure and the process for determining property settlements and spousal maintenance.

This article provides a summary of important things to know about these changes and their potential impacts:

• Spousal Maintenance

Under the current framework, the court will have greater flexibility and discretion in determining whether a party is eligible for spousal maintenance under sections 75(2) and section 90SF(2).

The Court has previously referred to an exhaustive list of matters when considering spousal maintenance. This list will be updated to a non-exhaustive list, including two additional factors. These are family violence and housing needs of any children of a relationship under the age of 18.

• Property Framework

The current approach the Court uses to determine property settlements will be specifically referenced under the new sections 79(3) and 90SM(3) making it easier for self-represented parties to navigate the process.

Sections 79 and section 90SM empower the Court to make orders altering the property interests of parties as it considers appropriate.

Under the previous framework, when considering what orders should be made, the court was required to take into account factors listed under section 79(4) or section 90SM, which included the matters referred to in subsections 75(2) or 90SF(2) relating to spousal maintenance.

Under the 10 June 2025 amendments, many of the considerations under section 79(4)/90SM(4) will remain, but the new section 79(5)/90SM(5) will be the court’s new reference point for assessing the current and future needs of the parties. This is intended to replace the reference to subsection 75(2)/90SF(2) which often causes confusion to self-represented parties as it refers to spousal maintenance but is also considered during the property process.

Section 79(5)/90SM(5) contains different considerations than those under sections 75(2)/90S (2). Sections 79(5) and 90SM(5) will include reference to family violence, wastage, liabilities and housing needs of any children of the relationship under the age of 18. This means that the Court can consider family violence in their contributions assessment including how exposure to family violence has impacted on the ability of a party to make contributions to the relationship.

• Companion Animals – sections 79 and 90SM

Pets were previously treated as property under the Act. However, from 10 June 2025, family pets or companion animals are now considered under their own individual framework contained in sections 79(6) and 90SM(6).

The animal in question will need to meet the definition of a companion animal under section 4(1). The court will then be able to make orders about any pets taking into account the factors under section 79(7) or 90SM(7).

• Family Violence – Section 4AB

The definition of Family Violence within 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 them into a single detailed provision (subsection 2A) which provides a non-exhaustive list of examples of economic and financial abuse.

• Disclosure – Section 71B

The duty of disclosure contained under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 has been incorporated into the Act under section 71B. This amendment is intended to confirm the importance of the duty of disclosure. These sections will oblige practitioners to advise clients about their duty of disclosure and encourage compliance.

Should you wish to know more about the 10 June 2025 changes, keep an eye out for further articles to come from us or book an appointment with our specialist team online or via phone on 02 6225 7040.

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.

Who gets to keep the family pet in a property settlement?

Family pets that meet the definition of a companion animal will be considered a separate form of property under the framework of the Family Law Act 1975 (“the Act”) from 10 June 2025. While companion animals will still be regarded as a form of property, this change implemented by the Family Law Amendment Act 2024 aims to recognise the unique qualities of pets as property by elevating their status to reflect the emotional attachment that many owners have with their pets.

A family pet is considered by many to be synonymous with a child, and parties to family law disputes will often seek that their family pet be subject to care arrangements similar to those of children. However, this only works if parties are amicable and is not something that the court will make orders about. The new amendments confirm that it is not open for the court to make orders for shared care of a companion animal.

Relevant Legislation

The process for determining who keeps the family pet from 10 June 2025 will be as follows:

1.    An animal or pet must first meet the definition of a companion animal under section 4(1) of the Act.

Companion animal means an animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for companionship, but does not include:

• An assistance animal within the meaning of the Disability Discrimination Act 1992; or

• An animal kept as part of a business; or

• An animal kept for agricultural purposes; or

• An animal kept for use in laboratory tests or experiments.

2.    The Court may only make one of three orders about companion animals under section 79(6) (or section 90SM(6) in the case of de facto relationships).

These include:

• That only one party, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or

• That the companion animal be transferred to another person who has consented to the transfer;

• The companion animal be sold.

This means that the court cannot make orders for the shared care of a pet or companion animal.

3.    The court must refer to a non-exhaustive list of considerations under section 79(7) (or section 90SM(7) in de facto relationships) in determining what order to make about a pet or a companion animal.

These considerations are:

• The circumstances in which the companion animal was acquired;

• Who has ownership or possession of the companion animal;

• The extent to which each party cared for, and paid for the maintenance of, the companion animal;

• Any family violence to which one party has subjected or exposed the other party;

• Any history of actual or threatened cruelty or abuse by a party towards the companion animal;

• Any attachment by a party, or a child of the marriage, to the companion animal;

• The demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party;

• Any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

This new framework also aims to support survivors of family violence in retaining their companion animal and recognises that pets can often be used by a perpetrator of family violence as a tool to coerce or control a victim.

If you or someone you know is considering what to do with their pet as part of a separation, 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.

Estate Litigation: who pays the costs?

Estate litigation can be complex, emotional and expensive. Estate litigation includes challenges to wills (including over their validity or a family provision claim); disputes over the administration of estates; and applications for Court directions. These proceedings often involve executors, beneficiaries, and other interested parties.

Unlike ordinary civil litigation, estate disputes frequently involve questions about the deceased’s intentions and the proper administration of their estate; this means that there are some circumstances where the Court’s assistance is required, even when no wrongdoing by any party is alleged.

It is therefore important to understand how the Court will approach the matter of legal costs before commencing estate litigation.

Unlike civil litigation, where costs usually “follow the event” – i.e. the losing party pays the costs of both parties, estate litigation applies a more nuanced approach to the issue of costs and considers the nature of the dispute and the conduct of the parties.

One of the primary cases that the Court will consider when dealing with costs in estate litigation is Buckton v Buckton [1907] 2 Ch 406. The case of Buckton v Buckton sets out three broad categories to guide Courts in determining whether the costs of estate litigation should be paid from the estate or be borne by the parties themselves. The categories are as follows:

1.    Necessary Guidance on Will Construction

Where a trustee or executor applies to the Court to obtain direction on how to administer a will or trust, the costs are generally paid out of the estate. This is because the application is seen as being in the interests of all beneficiaries, and it is necessary for the proper administration of the deceased’s wishes.

For example, If a written will is ambiguous and the executor seeks the Court’s guidance on how to interpret it, all parties will benefit from the Court’s decision. Therefore, the estate typically bears the legal costs of all parties.

2.    Reasonable Disputes Among Beneficiaries

In cases where there is a genuine dispute amongst beneficiaries about the interpretation of a will or the rights of parties, and the parties bring the matter before the Court in good faith, the Court may order that costs be paid from the estate. However, this is subject to judicial discretion and the reasonableness of the parties’ conduct.

For example, If beneficiaries disagree about whether a clause in the will gives a life interest or an absolute gift, and they go to Court for clarity, the costs may still be shared by the estate if the dispute was not without merit.

3.    Contested Litigation

If a party initiates contested litigation, especially to challenge the validity of the will or for personal gain (i.e. a family provision claim) and the challenge is unsuccessful, the Court is less likely to order that their costs be paid from the estate. In these cases, the unsuccessful party may have to bear their costs and potentially those, or a portion of those, of the other parties.

For example, A disgruntled family member challenges the will, seeking additional provisions to be made for them without a strong basis and loses. The Court may see this as an unnecessary expense for the estate and decline to reimburse their legal fees. It is possible that the Court also requires the losing party to pay the estate’s costs (as the estate will have been required to participate to some extent in the proceedings).

While the case of Buckton v Buckton is over 100 years old, it remains a foundational case in the consideration of estate litigation costs. Courts routinely rely on the above categories to exercise their discretion fairly and equitably.

In exercising their discretion, the Court is also likely to consider matters such as:

• The conduct of the parties;

• Whether litigation could have been avoided through mediation, and

• The impact of any costs order on the estate’s assets and the beneficiaries.

If you are involved in estate litigation, whether as an executor, beneficiary, or other interested party, it is essential to understand the rules governing costs.  Legal fees can quickly accumulate and/or erode the value of the estate, particularly in contentious disputes. 

The above summary is a guide only and should not be taken as legal advice.  Each matter is unique, and it is essential to seek specialist legal advice early to understand how costs in the matter will likely be addressed.

 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 estate lawyers.

Guiding you through Court proceedings: the first return

If you are involved in Court proceedings, or are considering whether to commence proceedings, you will learn that there are a number of Court events that all serve different purposes and will occur at different stages of the proceedings in a Court matter.

This blog post is designed to walk you through common Court events and shed light on at what stage of the proceedings they are likely to occur.  Today, we will focus on the ‘first return’.

What will happen at the first return?

The first return is usually the first time your matter comes before the Court. The purpose of this listing is to determine what needs to happen next to progress the matter, including making orders for any procedural steps that need to take place.

What if my matter is urgent?

For urgent issues that require the Court’s determination, the matter might be listed for an interim hearing, either on a different day or on the same day.  The Court can also make procedural orders to prepare the matter for an interim hearing, which might include ensuring that both parties have filed their Court documents, and making orders for the preparation of any additional material necessary to assist the Court to make an interim decision.

An interim decision is a short-term, temporary decision, usually made pending a final decision.

What type of procedural orders will the Court make?

The Court can make procedural orders to assist with any evidence that will be required for the Court to make a determination.  For example, in financial matters, the Court may make orders for the appointment of Single Experts to prepare valuations of certain assets (such as a business interest, real property or personal property such as vintage motor vehicles or artwork). The Court can also make orders for the provision of certain disclosure, where a party is non-compliant.

In parenting matters, the Court can make orders for the appointment of a private Single Expert to prepare a report, or appoint a Court-based expert to prepare a report.  The Court will also consider whether it is necessary to make orders compelling certain agencies (such as police or child protection agencies) to provide to the Court any material they hold about parents and/or children in a matter. 

In particularly high conflict matters or if other conditions are met, such as serious risk issues, the Court may consider the appointment of an Independent Children’s Lawyer for any children the subject of the proceedings.

What if an interim hearing isn’t required?

If an interim hearing is not necessary, the Court can also make orders for the parties to engage in dispute resolution, such as a mediation, a family dispute resolution conference or a conciliation conference.

Who attends the first return?

Typically, the matter is listed before a Judicial Registrar with delegated powers which are more limited than a Judge’s powers. 

You will need to attend, as will the other party.  Your respective lawyers will also attend.  If you have a lawyer, they can speak on your behalf and make submissions about what they say needs to happen next in your matter. 

Whilst various States and Territories differ, the listing may occur in person or by videoconference.

What do I wear?

You should wear business attire or smart casual clothes.  Most people will be wearing a jacket at the Court too. 

Why should I have a lawyer at the first return?

Whilst it is not compulsory to have a lawyer act for you at the first Court event, it can have a significant impact on the future progression of your matter.  For example, in an urgent parenting matter, it can be extremely important to ensure that a matter is progressing quickly to reduce the potential impact of delays, which could cause prejudice to your case. 

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 by email on info@rmfamilylaw.com.au, or get started now online.

The importance of objectivity in your family law matter

Being involved in a family law matter is difficult. It can be emotional, stressful, and costly. For these reasons, it can be easy for an individual to lose sight of the ‘big picture’ when they are involved in Court proceedings or prolonged negotiations.

Family law matters involve sensitive issues, such as care arrangements for your children or the division of matrimonial property. These issues can also extend to family violence matters, which can impact other areas such as your employment and future opportunities.

If you are engaged in Court proceedings, you will be asking that the Court make orders in your favour (rather than in favour of your former partner).

Whilst it is important to place necessary evidence before the Court in support of your application, you should be mindful that your former partner will read this evidence. If you are in parenting proceedings, you will want to ensure that you frame any allegations against your former partner in a nuanced and considered way.

It is crucial to remember that after the Court proceedings have concluded, you and your former partner are still the parents, and you will likely need to work together to co-parent any children you have together.

When negotiating agreements about children, and particularly if you are entering into final consent orders, you should be aware that orders are final and viewed as the arrangements that will remain in place until the children reach 18. Final orders are difficult to vary without the consent of the other parent.

If you share joint decision-making responsibility, you will need to consult with your former partner to reach agreed-upon positions about long-term decisions for your children, including matters like what school they will go to, what religion they may practice, and medical treatment options.

You may need to work together on a day-to-day basis, for example, if the children leave something at the other parent’s house and vice versa, or if the children participate in extra-curricular activities and you cannot be in two places at once.

You should also give some thought to the coparenting relationship you want your children to see.

Similarly, in property matters, the Court is not interested in making moral judgements. Your evidence is often much more effective and persuasive when it is directed to the relevant facts.

When you are involved in a contested matter – and whilst easier said than done – it is useful to focus on the bigger picture and try to look at the situation objectively. Our family lawyers are highly specialised and experienced in remaining settlement-focused and will discuss with you options to resolve your matter in a way that limits damage to your co-parenting relationship. Here at Robinson + McGuinness, we can guide you through your family law matter with an objective lens, whilst remaining focused on ensuring that you secure a desirable outcome.

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 to consider when applying for an airport watchlist order

Some parents may have concerns about their children being taken overseas, without consent or a Court Order permitting such travel. In these serious circumstances, parents can apply to the Federal Circuit and Family Court of Australia seeking that their child be placed on the Airport Watchlist.

The Airport Watchlist is managed by the Australian Federal Police, and places an alert on a child’s name, date of birth and passport. When trying to leave the country, an alert will be issued that the child is not permitted to leave.

To apply to have a child’s name placed on the Airport Watchlist, a parent must file an Initiating Application with the Federal Circuit and Family Court of Australia seeking such orders. Once filed, a request form with the sealed Initiating Application can be sent to the AFP, and the child will be placed on the Watchlist within a few hours.

In making such an application, it is important to consider the following:

1. How urgent is your application?
If you are concerned about an imminent risk of a child being taken unlawfully from Australia, you can make an urgent, after hours application to the Court for an Order, rather than filing an Initiating Application. It is important that you seek legal advice as soon as possible if you are concerned about a serious, imminent risk.

2. Why are you concerned about the other parent travelling overseas?
You need to have a good reason to seek that a child is placed on the Airport Watchlist. For example, in a situation where the other parent has connections to another country, they have packed up or sold their house, they have quit their job and the child has a passport, this may be sufficient to cause reasonable concern that the other parent will take the child overseas, and warrant an Airport Watchlist application.

3. Does the child have a passport or any way of travelling overseas?
You need to consider whether the other parent has access to the child’s passport, or whether they can make a sole application for a passport if the child does not have one.

4. Do you want to travel overseas in the future?
If you make an application seeking that a child be placed on the Airport Watchlist, you need to be aware that this means the child will not be able to travel, even if they are travelling with you. This is called an “absolute” order. You can instead make an application for a “conditional” order, which would permit you or the other parent to travel if you have written consent. It is very important to notify the AFP if you intend to travel with a child where there are “conditional” orders requiring the child to be placed on the Airport Watchlist.

If you are concerned that your child has already been taken overseas, you may be able to make an application seeking the return of the child under the Hague Convention.

You should seek legal advice from a family law specialist if you are considering making an application to place your child on the Airport Watchlist. Please contact Robinson + McGuinness Family Law on (02) 6225 7040, email info@rmfamilylaw.com.au, or get started online with one of our experienced family lawyers.

What Is a Testamentary Trust?

A testamentary trust can be a powerful tool for protecting assets and providing for beneficiaries of a deceased estate.  

What Is a Testamentary Trust?

A testamentary trust is a type of trust that is created by a person’s Will and comes into effect only after their death. It does not exist while the person is alive. A testamentary trust sets out how the deceased’s assets are to be managed and distributed for the benefit of specific beneficiaries.

The executor of the Will will oversee the establishment of the testamentary trust, and a trustee is appointed to manage the trust assets according to the terms set out in the Will.

A testamentary trust can last for many years.  The exact duration will be set out in the terms of the trust; often, a testamentary trust will have a vesting date which is some decades after it comes into effect or upon the beneficiaries of the trust reaching a certain age.

Types of Testamentary Trusts

There are two common forms of Testamentary Trust:

1. Discretionary Testamentary Trust: The trustee has discretion over how and when to distribute income and capital among the beneficiaries. This allows for flexibility and potential tax minimisation.

2. Protective Testamentary Trust: Designed to protect vulnerable beneficiaries, such as those with disabilities or those who may not manage money responsibly. These trusts may be very prescriptive about how the trust assets can be applied and when.

Benefits of a Testamentary Trust

There are some benefits to a testamentary trust, including but not limited to:

• Asset protection: The trust's assets can potentially be protected from claims by creditors or financially irresponsible beneficiaries. There may also be some protection from estranged spouses of a beneficiary; however, this will be case-by-case dependent and not guaranteed.

• Tax advantages: Income distributed from a testamentary trust to minor children is taxed at adult rates, not at the higher penalty rates that typically apply to income distributed to children. This can result in tax savings for families. Please note that this is not financial/taxation advice, and a person seeking to establish a testamentary trust should also consult with and obtain specialist taxation advice.

• Control over distribution: Through a testamentary trust, a person can specify when and how beneficiaries receive assets, which is useful if it’s not intended that young or vulnerable individuals have access to lump sum assets immediately.

• Estate planning flexibility: Testamentary trusts allow for the ongoing management of wealth throughout multiple generations.  This can be helpful if a person wants to try to retain assets within the family.

While testamentary trusts offer many benefits, they also come with responsibilities and potential complexities. Trustees of a testamentary trust have legal obligations and may need to file tax returns for the trust. When identifying who the trustee will be, a person needs to carefully consider who will be able to carry out the role.  It is also important to seek independent legal advice from an experienced estate planning lawyer when establishing a testamentary trust; it’s important that the terms of the trust (which are contained in a person’s Will) correctly reflect the deceased’s intentions, or there can be long-ranging consequences. 

 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.

I have been appointed as an Executor in a Will; what now?

An Executor is the primary person responsible for the administration of a deceased estate. Appointed by the deceased in their Will, the Executor is responsible for ensuring that the deceased’s wishes are carried out in accordance with the Will and that the estate is distributed properly. This role can be complex and demanding, involving legal, financial, and practical tasks. Understanding the full scope of an Executor’s responsibilities is essential for anyone considering taking on this role or for those identifying who they wish to appoint as the Executor of their Will.

What Does an Executor Do?

An Executor has a fiduciary duty to act in the best interests of the beneficiaries of the estate. This means they must carry out their responsibilities with honesty, integrity, and due diligence. Their primary goal is to ensure that the deceased’s estate is administered according to the Will, and if the Will is unclear or doesn’t cover all assets, the executor must follow the laws of intestacy.

Key Responsibilities of an Executor

1. Locating the Will and Applying for Probate

The first task of an Executor is to locate the deceased’s last Will and confirm the document’s validity. If the Will is valid, the Executor will then apply to the Supreme Court for Probate. Probate is a legal order that confirms the Executor’s authority to manage the estate.

2. Notifying Beneficiaries and Creditors

Once Probate has been granted, the Executor is responsible for notifying all beneficiaries of the Will. The Executor must also inform creditors of the estate, giving them an opportunity to make claims for debts owed by the deceased. The Executor must ensure that the debts are settled before distributing the estate.

3. Managing and Protecting Estate Assets

Once Probate has been granted, the Executor must take control of the deceased’s assets, which may include property, bank accounts, investments, and personal possessions. It is the Executors duty to protect the estate assets until they can be properly distributed. In some cases, this may involve insuring property, paying bills, or managing investments to preserve the estate’s value.

4. Paying Debts and Taxes

Before distributing the estate’s assets among beneficiaries, the Executor must pay the deceased’s debts. This may include mortgages, credit card bills, loans, and outstanding medical expenses. The Executor is also responsible for filing the deceased’s final tax return and ensuring any taxes owed by the estate are paid.

5. Distributing the Estate

After all debts, taxes, and expenses are paid, the Executor can then distribute the remaining assets to the beneficiaries as per the terms of the Will. If any assets are sold, the proceeds must be divided according to the Will. If the Will is unclear or a dispute arises, the Executor may need to seek legal advice or Court intervention. In the ACT, an executor must wait 6 months from the date of the deceased’s death prior to distributing the estate to the beneficiaries; this is to protect the executor from personal liability should a claim be made on the estate.

6. Keeping Accurate Records

Throughout the process, the Executor must keep detailed records of all transactions, including payments, asset distributions, and correspondence with beneficiaries and creditors. This documentation is essential to demonstrate that the Executor has fulfilled their duties and complied with legal requirements.

Being an Executor comes with significant legal and ethical obligations. If the Executor fails in their duties, then they may be held personally liable for any losses or damages to the estate or beneficiaries. Executors should seek professional advice (including but not limited to legal, financial and taxation advice) where necessary to ensure they meet their obligations, and they must always act in the best interests of the beneficiaries.

If you have been appointed as an Executor, it is prudent for you to obtain legal advice early. Robinson + McGuinness can assist you in understanding the role of Executor, apply for Probate, and subsequently administer the estate. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started online with one of our experienced lawyers.

Mediation in family law: what is it and should I do it?

Mediation is a dispute resolution process which you can participate in to resolve your dispute.  The mediator (a neutral third party) will usually be specialised in family law and works with parties and lawyers to try to reach an agreement. 

Following a separation, you may receive legal advice about resolving parenting or property matters.  Undoubtedly this will include advice about how best to resolve your dispute and the various processes to achieve an outcome.

Participating in mediation is an effective tool at almost all stages of a dispute.  For example:

1] Mediation can be an effective tool to resolve interim issues where emotions are high.  In a property settlement matter, this can include who remains living in the former matrimonial home and who will be responsible for joint liabilities (such as mortgage repayments and insurances).

2] You can also participate in a mediation at an early stage, which can be a good way to keep your matter out of Court, reducing the stress and other costs of contested litigation.  In a property matter, you will ideally be able to come to the mediation with a balance sheet setting out the values of the assets, liabilities and superannuation in your property pool.  If some valuation issues remain, you can still participate in mediation and reach agreement to value those items after the mediation.

3] If you are involved in Court proceedings, mediation is still a helpful tool to assist you and your former partner to reach agreement.  Dispute resolution is encouraged by the Court at all stages in the process.  Even if you do not reach agreement about all matters on a final basis, mediation can assist you to narrow the issues in dispute.

There are a number of different styles of mediation – some mediators like to use a conciliatory approach and will offer their opinions; whilst other mediators remain neutral and do not offer any opinions. 

There are a number of different mediation processes -  you can participate in a private mediation (funded by you and/or your former partner); a Family Dispute Resolution Conference convened by Legal Aid ACT (if you or your former partner meet certain requirements); or if you are involved in Court proceedings, you may be able to participate in a Court-based dispute resolution process.

Where family violence considerations exist, you can still engage in mediation however the mediator (and any lawyers) will likely put in place safeguards to ensure there is no undue pressure on a party participating in the mediation.

Some mediators will facilitate a mediation without lawyers, however it is usually recommended that you obtain advice prior to engaging in mediation to ensure you are aware of your rights and obligations under the law. 

If you are considering participating in a mediation and would like to some advice about your strategy and position; or if you seek representation to participate in a mediation, our experienced family lawyers at Robinson + McGuinness can provide you with further assistance, tailored to your particular circumstances. Contact us today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online.

Family Court proceedings - why am I in the “Evatt List”?

The Evatt list is a specialist list in the Federal Circuit and Family Court of Australia that has been implemented to provide specialised support and management from the Court in matters involving family violence. The purpose of the Evatt list is to provide parties who are in vulnerable situations with limited resources to allow their matter to be heard in a timely manner, and decided by specially trained registrars and judges. Matters that are involved in the Evatt list only include those that involve applications relating to children, and not matters involving only property or child support.

Parties do not make applications to be placed in the Evatt list. When a party files an Initiating Application they will receive an email from the Court asking them to complete an optional questionnaire. Upon completion of that questionnaire the Court will triage the matter. Similarly, when filing a Response to Initiating Application, the responding party will also receive a similar questionnaire.

All information that is provided to the Court in response to the questionnaire is confidential. This means that it cannot be subpoenaed or used as evidence during Court proceedings. The questionnaire is a screening tool for the Court to determine whether or not a matter is appropriate to be transferred into this list. Neither party will be advised as to who completed the questionnaire, or why their matter has been deemed suitable to be transferred into the Evatt list.

The Court will usually make a decision to transfer a matter into the Evatt list prior to the first Court date. If the Court makes the decision to transfer the matter into the Evatt list you will receive an email from the Court notifying you that you have been transferred into the list, and Orders will be made in chambers (meaning you do not need to attend Court for those Orders to be made).

These Orders may include requiring police or a child welfare authority to produce documents to the Court pursuant to section 67ZBE of the Family Law Act in relation to the parties and children and any family violence incidences. The Orders may also result in your matter being listed earlier than your original Court date. In terms of more available resources, those matters that are in the Evatt list can receive Child Impact Report interview dates more quickly in some circumstances. Matters in the Evatt list will often be case managed very carefully by the Court. This can mean multiple appearances before a Registrar to ensure compliance with Orders, and to ensure the matter is meaningfully progressing.

Your matter being transferred into this list does not mean that the Court has accepted either party’s allegations of family violence. Rather, the list allows for appropriate case management in matters where family violence has been alleged. The Court is still required to decide matters in the same manner as any other matter involving children.

If your matter has been transferred into the Evatt list, or you would like more information about the Evatt list, please contact Robinson + McGuinness, top Family Law today to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

The intersection of Family Violence Orders and parenting matters in the ACT

When separating, parents often face a number of issues to consider, including their finances; who remains in the house; and importantly, what care arrangements will be in place for the children. Navigating these issues can be particularly challenging where family violence considerations are involved.

Family violence orders, whether interim or final, can include both adult and children protected persons.

A parent may seek a family violence order which includes any children of the relationship, or on behalf of the children. In doing so, the affected person (or applicant) will need to provide evidence to the Magistrates Court about why they say the children should be included on the order.

The Magistrates Court must consider if there are any Court Orders in place about the care arrangements for the children. In making any order, the Court will usually be interested in the current care arrangements for the children; whether there is a signed Parenting Plan and/or whether there are any family law proceedings on foot.

In deciding whether to make a family violence order, the Court must give paramount consideration to the ‘safety and protection of the affected person and any child … affected by the respondent’s alleged conduct’.

In applying this test, the Court must ensure that the conditions are the ‘least restrictive of the personal rights and liberties of the respondent as possible’, provided they still afford the affected person and any children safety and protection (and achieve the objects of the Family Violence Act 2016 (ACT)).

If a family violence order is granted, the Court may include conditions which relate only to the adult protected person, or only the child protected person. The Court can also make orders preventing a respondent from communicating with or spending time with a child; notwithstanding the existence of family law Orders.

You should ensure you understand the conditions of the family violence order, to ensure what you can and cannot do whilst the order is in place.

If you are the respondent to a family violence order, you should also obtain legal advice about the possibility of making an application to amend or revoke the protection order.

Where there are family violence issues and you are considering what care arrangements should be in place, you should obtain family law advice. A family lawyer will be able to advise you about what arrangements best promote the safety of you and your children; or what you can do to ensure the children have a relationship with you notwithstanding a family violence order has been made against you.

Whether you are negotiating care arrangements where family violence issues exist, or if you have been served with a family violence order which impacts on your relationship with the children; it is important that you obtain advice quickly, as you can prejudice your position if you delay seeking advice and acting in accordance with the best interests of your children.

Our experienced family lawyers at Robinson + McGuinness can provide you with further assistance, tailored to your particular circumstances. Contact us today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online.

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

If you are concerned for your immediate safety, contact 000. If you require safety planning, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

What is a Statutory Will?

A statutory Will is a Will made on behalf of an individual who lacks the mental capacity to make a valid Will themselves. In these situations, the Supreme Court may grant approval for the creation of a Will that reflects what the person would have likely wanted if they were capable of making the decision. Statutory Wills are typically used when a person has lost the ability to understand or make decisions due to a cognitive disability or diagnosis (i.e. dementia, brain injury etc). They can also be used for person under the age of 18 who have assets in their personal name (i.e. because they have inherited assets/funds from another person).

The primary purpose of a statutory Will is to ensure that an individual’s estate is managed according to their wishes, even when they cannot express those wishes directly.

When is a Statutory Will Needed?

A statutory Will is necessary in the following situations:

1. If an individual is no longer deemed to have testamentary capacity, and they have not made a valid will prior to their incapacity, a statutory Will may be applied for by a family member or another interested party;

2. If someone has lost testamentary capacity and has never made a Will, it is important to have one in place for the distribution of their estate upon their death; if they don’t, then the laws of intestacy will apply. The Court can appoint a statutory Will to reflect the person’s presumed wishes; and

3. In cases where there is an existing Will but doubts or disputes arise about its validity or intentions, a statutory Will can help resolve conflicts between the surviving family members and beneficiaries and provide clarity.

How Does the Statutory Will Process Work?

Statutory Wills in the ACT are made in accordance with Part 3A of the Wills Act 1968 (ACT).

The following steps apply:

1] Court Application: An interested party, usually a family member, a partner, or a legal representative is required to make an application to the ACT Supreme Court for leave to apply for a statutory Will. The evidence provided by the interested person should include evidence of the person’s lack of testamentary capacity, the person’s personal circumstances, and their known or presumed wishes. Expert medical or psychological evidence may be required to satisfy the Court the person lacks testamentary capacity.

2] A Hearing: The Court will conduct a hearing wherein the Court will review the evidence presented and determine whether a statutory Will is appropriate. The Court may also consider the views of interested parties, such as family members, to help assess what the person would have wanted. To be satisfied that a statutory Will is required, the Court must be satisfied of the following:

• There is reason to believe that the asserted individual who lacks testamentary capacity is incapable of making a Will; and

• The proposed Will is, or is reasonably likely to be, one that the person would have made had they had testamentary capacity; and

• It is or may be appropriate to make the Order for a statutory Will; and

• The interested person applying for leave is an appropriate person to make the application; and

• Adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person who lacks testamentary capacity.

3] Approval and Creation of the Will: If the Court agrees that a statutory Will is necessary, leave will be granted for the interested person to apply for an Order for a statutory Will to be created. Once the Order has been made, the Will will be created and signed by the Registrar of the Court.

4] Implementation: Once the statutory Will is approved, it will be treated as a legally binding document, just like any other Will.

Who Can Apply for a Statutory Will?

People who can apply for a Statutory Will include:

• Family members: A spouse, children, or other close relatives of the individual may apply;

• Legal representatives: A person acting under power of attorney or a guardian appointed to care for the individual may also apply; and

• Executors of the estate: If a person has previously nominated an executor, they may apply on behalf of the individual, particularly if there are doubts or disputes arise about its validity or intentions; and

• Beneficiaries: People who stand to inherit from the estate may also have standing to apply.

What Should a Statutory Will include?

A statutory Will should reflect the individuals’ likely intentions regarding the distribution of their estate. This can include:

• The distribution of assets: How property, money, and other assets should be divided among beneficiaries;

• Appointment of executors: Who will be responsible for managing the estate and ensuring the Will is carried out; and

• Provision for dependents, including any spouse or children.

What happens when there is no statutory Will?

If there is no valid Will, and no Statutory Will in place at the time an individual dies, then that person’s estate will be distributed in accordance with the laws of intestacy. You can read more about intestacy in the ACT here.

If you have a loved one who you think has lost testamentary capacity, or is on their way to losing testamentary capacity, it is important that you seek legal advice to understand what options are available to put their affairs in order. 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.

Radecki & Radecki: what does this mean for my Final Family Law Orders?

In May 2024, significant changes were made to the Family Law Act in relation to how the Court determines arrangements for children. One of the significant changes to the Family Law Act involved codifying the principle espoused in the well-known case of Rice & Asplund. In this case, the Court decided the reasons why a Court could reconsider final family law orders. It has generally been seen not to be in the best interests of children for litigation to continue, or be ongoing. The Court found that there had to be a significant change in circumstances since the making of the final Orders.

The 2024 amendments to the Family Law Act codified this principle in section 65DAAA.

Since these amendments, there have been several judgments that deliberate exactly how section 65DAAA is to operate. The section states that the Court must not reconsider the final orders unless the court has considered whether there has been a significant change in circumstances. There is no part of section 65DAAA that states what the Court is to do once it has “considered” this question. The Court, in various judgments, was divided as to whether the section required to the Court to then go a further step and make a finding one way or another as to whether a significant change of circumstances had occurred, or a “consideration” of this issue was sufficient.

In the case of Radecki & Radecki, the Full Court of the Federal Circuit and Family Court of Australia, contemplated this question. The case involved a 12 year old child, whose parents had been separated for about 10 years. Final Orders had been made when the child was 2 years old, on an undefended basis, given that the father had not participated in the proceedings. There was a notation in the Final Orders that included that the parties intended to review the orders three months after the child started primary school. The parties had a good relationship at the time of the making of the orders, and it was submitted to the Court that they could work together to agree on the time arrangements for the child once they went to school.

The Father brought an application to re-open the proceedings approximately 8 years later, citing that the co-parenting relationship had broken down, and seeking substantially more time with the child. The trial judge declined to re-open the proceeding. However, the trial judge did not come to any conclusion as to whether or not a significant change in circumstances had occurred. Ultimately, the Full Court upheld the appeal, finding that the trial judge had not properly “considered” whether there had been a significant change in circumstances.

The case of Radecki & Radecki clarifies for parties and legal professionals how the Court should approach the application of section 65DAAA. The Court must consider whether there has been a significant change of circumstances since the making of the final orders, and make a finding accordingly. If the Court finds there is no change, then the matter is finalised. If the Court does find that there has been a significant change of circumstances then the Court will need to consider the second limb of whether reconsideration of the final orders is in the child’s best interests.

You should seek legal advice about your options in relation to seeking advice to make an application pursuant to section 65DAAA of the Family Law Act. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

A sham marriage: happily ever after?

In January 2025, multiple news sources published a curious story about a woman who successfully annulled her marriage. She sought a declaration of nullity on the basis that she was not aware she was entering a legal marriage.

A brief summary of the facts are as follows:

1. The parties met on an online dating platform around September 2023 and commenced a relationship (the extent of which was in dispute).

2. The applicant believed that the respondent was a social media influencer.

3. The applicant told the Court that in December 2023, she and the respondent visited Sydney together. The respondent told her to bring a white dress, as they would be attending a ‘white party’.

4. The night before the white party, the respondent gave the applicant a diamond ring and proposed to her.

5. The next day, she was surprised that the ‘white party’ was actually a wedding organised by the respondent. This was described as a ‘prank’ to the applicant, to promote the respondent’s social media.

6. The ceremony was filmed, and the parties participated in a seemingly traditional ceremony.

7. Later, the respondent asked the applicant to include him in her application for permanent residency on the basis that they were spouses. The applicant asserts that the respondent said he had organised the marriage to help him.

8. The applicant subsequently obtained a copy of the marriage certificate; and applied to the Court seeking to void the marriage.

The Court ultimately accepted the woman’s evidence that her consent to marry was not real consent, on the basis that she was mistaken as to the nature of the ceremony performed. The applicant believed that she was participating as an actor in a video of a marriage ceremony for the respondent to use on his social media.

The Federal Circuit and Family Court of Australia has the power to determine whether a marriage was legal, or whether the marriage was invalid.

The Court is only able to grant a decree of nullity in limited circumstances. Section 23 of the Marriage Act 1961 (Cth) sets out the grounds on which a marriage is void, which includes:

1. If a party to the marriage was already lawfully married to another person at the time of marriage;

2. If the parties are in a prohibited relationship (i.e. the parties are siblings); or

3. If a party to the marriage did not provide real consent, because:

a. The consent was obtained by duress or fraud;

b. That party was mistaken as to the identity of the other party or the nature of the ceremony performed;

c. That party was mentally incapable of understanding the nature and effect of the marriage ceremony; or

d. Either of the parties was not of a marriageable age.

To seek a declaration of nullity, you must file an Initiating Application setting out the orders you seek, and an Affidavit setting out the facts you rely on to annul the marriage and the details of the type of marriage ceremony performed.

Should the Court accept that the marriage is void, it will issue a decree of nullity. This is an order which establishes that there was no legal marriage between the parties, notwithstanding the possibility that a marriage ceremony took place.

The decree of nullity becomes effective immediately, once granted.

If you are concerned that you may have entered into a legal marriage but one of the circumstances set out above applies to you, you should seek legal advice from a lawyer who specialises in family law. You can make an appointment with one of our experienced family lawyers at Robinson + McGuinness. To arrange an appointment by email contact us at info@rmfamilylaw.com.au or call us on 02 6225 7040 or get started now online.

To read the case, click here.

Why should I have a Will?

Preparing a Will is often something people delay or avoid; however, it is one of the most important things that a person can do to ensure that their wishes are followed once they die. This post sets out why you need a Will and how it will benefit your family once you are no longer with them.

1. Your Will Determines How Your Assets are Distributed

Your Will can clearly identify who you would like to leave your assets to. Without a Will, the laws of intestacy will decide who inherits your property and assets; for further information on intestacy click here. These laws may not align with your intentions (i.e. if you have a blended family). By preparing a Will, your assets will be distributed in accordance with your wishes.

2. Minimise Family Conflict

Grief and loss can sometimes bring out the worst in families, and disputes over assets are sadly common when someone dies without a valid Will. In the absence of a valid Will, there is room for disagreements over the division of your estate, which can lead to prolonged legal battles and emotional stress. Having a well-thought-out Will helps reduce the chance of family disputes, giving your loved ones clear guidance on your wishes.

3. Protect Your Children

If you have dependent children, a Will allows you to nominate a guardian who you would like to take care of your children in the event something happens to you.

In the event there is disagreement between your loved ones after your death about who should care for your dependent children, the intentions set out in your Will will be important.

4. Appoint an Executor You Trust

When preparing your Will, you will appoint someone you know and trust to be the executor of your Will. This person will be responsible for ensuring your estate is administered according to your wishes. Your executor will manage everything from paying off debts to distributing assets. Choosing someone you trust is crucial, as they will be navigating both legal and financial matters during an emotional time.

5. Avoid the Intestacy Process

If you die without a valid Will, your estate must go through a legal process known as intestacy. The process can be time-consuming, costly, and emotionally draining for your family. It often involves the Public Trustee and Guardian stepping in to determine the distribution of your assets, which could result in a distribution that doesn’t reflect your wishes or the needs of your loved ones.

6. Update Your Will to Reflect Life Changes

As your circumstances change, i.e. in the event of marriage, divorce, the birth of children, or a significant change in your financial situation, it is important to review your Will and make sure it reflects your wishes. A Will isn’t a one-time task; it’s something that should evolve as your life does, ensuring it always reflects your current situation.

7. A Simple Process That Brings Peace of Mind

Preparing your Will does not need to be complicated or overly expensive. We believe that all individuals should have a Will in place. A Will will give you peace of mind, knowing that your wishes are clear, and your family is looked after.

If you would like to 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.