Can ChatGPT be my family lawyer?

As the world becomes more dependent on the use of artificial intelligence (“AI”), it is getting hard to go a day in 2026 without using AI in some way. Some of us are using it without even knowing that we are!

The use of AI platforms is on the rise for all sorts of things, including making meal plans, organising overseas holidays, diagnosing illnesses (one would want to be particularly circumspect about this), and seeking free legal advice.

People wonder whether AI will take over the roles of many professional services one day in the (perhaps not too distant) future. So it begs the question, can AI replace your family lawyer?

We decided to put AI to the test and see if it could draft a set of property consent orders that may be agreed between a couple and submitted to the Family Court. This is what we got:

MINUTE OF PROPOSED CONSENT ORDERS

The Court orders by consent that:

1. Real Property
   1.1. The property situated at Macgregor in the Australian Capital Territory presently valued at approximately $500,000 and subject to a mortgage in favour of National Australia Bank in the approximate sum of $300,000 (“the Property”) shall be transferred to the Respondent.
   1.2. Within 90 days of these Orders, the Respondent shall:
   a) Take all necessary steps to refinance and discharge the Applicant from any liability under the mortgage with National Australia Bank; and
   b) Pay to the Applicant the sum of $100,000.
   1.3. Contemporaneously with the payment referred to in Order 1.2(b), the Applicant shall sign all documents and do all things necessary to transfer his right, title and interest in the Property to the Respondent.
   1.4. The Respondent shall be solely responsible for all mortgage repayments, rates, taxes, insurance and other outgoings associated with the Property from the date of these Orders.

2. Motor Vehicles
   2.1. The Applicant shall retain as his sole property the motor vehicle Volkswagen Polo, currently in his possession and valued at approximately $20,000.
   2.2. Within 28 days of these Orders, the Applicant shall transfer to the Respondent all of his right, title and interest in the motor vehicle Mazda 3, valued at approximately $18,000.
   2.3. The Respondent shall do all acts and sign all documents necessary to register the Mazda 3 into her sole name and shall be responsible for any transfer or registration costs.

3. Joint Bank Account
   3.1. The parties hold a joint bank account with Commonwealth Bank of Australia.
   3.2. Within 14 days of these Orders:
   3.3. The funds standing to the credit of the joint account shall be divided equally between the parties; and
   3.4. The joint account shall be closed.

4. Retention of Other Property
   4.1. Except as otherwise provided for in these Orders:
   a) The Applicant shall retain rm, assets, liabilities and financial resources presently in his name or possession; and
   b) The Respondent shall retain all property, assets, liabilities and financial resources presently in her name or possession.

5. Implementation
   5.1. Each party shall sign all documents and do all acts necessary to give effect to these Orders.
   5.2. In the event that either party refuses or neglects to sign any document necessary to give effect to these Orders within 7 days of written request, a Registrar of the Federal Circuit and Family Court of Australia is authorised to sign such documents on behalf of that party.

On the face of it, the orders may not look too bad. To a non-lawyer, they might look adequate and easy to follow and a much cheaper option than engaging a lawyer. However, as lawyers, the deficiencies in the orders are clear to us, concerning and could cause significant issues when it comes to implementing the orders, especially if one party does not comply. For example:

1. Who is going to pay for the transfers of the Macgregor property and the Mazda 3?

2. Do the orders actually require anyone to do anything about the joint bank account?

3. What happens if the Respondent does not make the payment to the Applicant on time, or at all?

Whilst it may be instant and free to attempt to draft your property settlement documents using AI, there are significant risks involved. If the orders are not drafted properly the Court may not accept them at all. If the Court does accept the orders, the parties may run into strife when it comes time to implementing them, especially if there is a disagreement.

The costs of engaging a family lawyer to fix an issue that may arise from improperly drafted orders could end up being more than the cost of having a lawyer draft them in the first place.

In addition to problems with the wording of the orders, the Court needs to be satisfied that the agreement reached by the parties is a just and equitable outcome. There is only so much information that ChatGPT can gather from the prompts it is given. ChatGPT may be able to give some broadbrush and general ‘advice’ but an AI platform cannot understand the nuance that comes with family law matters in a particular jurisdiction.

A family lawyer is trained to take detailed instructions from a client about the matters that are actually relevant and apply the law to those facts to ensure that their client achieves the outcome that they are looking for (in terms of enforceable orders) and a result that is just and equitable. 

If you have reached an agreement with your former spouse, or you are considering your options following a separation, please get in touch with us. Our specialist family lawyers here at R + M Law can guide you through the relevant processes. 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.

Child support and newly announced reforms

Separated parents are often faced with the question of how to share the costs of raising children of the relationship.

In some instances, parents can reach agreement to share children’s costs.  That agreement might provide for each parent to meet day-to-day expenses in their own care, and share larger expenses (such as medical or dentist appointments, private school fees or extra-curricular activities).  

Parents can also agree to meet these costs in proportion to their respective incomes, for example a higher income earning parent may agree to meet a greater percentage of the children’s expenses.

Where you agree, you can have an informal agreement (which is less enforceable) or you can enter into a Binding Child Support Agreement or Limited Child Support Agreement to formalise that arrangement.

Generally if parents cannot reach agreement, one parent can apply for an ‘administrative child support assessment’, which is an amount determined by Australian law.  An administrative assessment is based on a formula which includes each parent’s income, the relevant child’s care arrangements, the child’s age and any other child support assessment (i.e. if you have children from another relationship).  

You can also apply to vary your child support assessment under special circumstances, for example some of the reasons include:

·       if the costs of raising your child are impacted by high expenses to spend time with or communicate with your child, such as travel expenses;

• if a child has special needs;

• if a child is attending a private school and both parents intended that the child would attend a private school; and

• if you have significant other expenses such as high medical needs which impact your ability to support your child.

The child support scheme in Australia is managed by Services Australia.  Services Australia can enforce overdue child support payments, or management repayments if an assessment changes and a parent has overpaid.

Child support can be paid through ‘private collect’ or self management, which does not involve Services Australia in the payment process.  Alternatively, child support can be collected through Services Australia via a number of different payment methods including through debit or credit card, employer deductions, through your bank or otherwise.

A number of significant reforms to the child support scheme were announced in the 2026-27 Federal Budget, with a view to addressing non-compliance and protecting parents from financial abuse.  It was announced that $183 million would be invested in the child support system.

1. Some of those reforms include as follows:

2. Online support and guidance for parents entering the child support system, including assistance about best ‘collection’ method;

3. Improved ways to change your collection method;

4. Expanding the use of ‘employer withholding’ as a default payment method;

5. Greater international travel restrictions on parents who owe significant child support debts (by way of Departure Prohibition Orders), involving a need to agree to payment arrangements prior to travelling overseas;

6. Stronger powers for Services Australia to collect unpaid child support from private collection arrangements where those parents shift to the Agency Collect system;  

7. Income data sharing between Services Australia and the ATO to increase the accuracy of income estimates upon lodgment of tax returns; and

8. Additional funding to support the Australian Taxation Office to prosecute parents who repeatedly fail to submit their tax returns (thereby impacting the amount of child support they pay).

It is expected that the first legislative amendments will be introduced to parliament in 2026.

Child support is an important but technical area of law. If you are seeking further information or advice about the costs of your child and how these can be shared, or if you are seeking to challenge a child support assessment due to special circumstances, or you would like to enter into a child support agreement, we recommend that you obtain legal advice from a specialist family lawyer.

Contact R+M LAW today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.

You’ve been served! The process of serving documents in Family Law Matters

Service is a fundamental step in family law proceedings to ensure that all parties receive court documents. Generally, any application or document that is filed with the Federal Circuit and Family Court of Australia must be served on all parties to the proceedings, so they have knowledge of any claim on foot. There are different types of service and timeframes for service depending on the type of proceeding or document. When service is not conducted properly, it can lead to proceedings being delayed or even set aside.

Types of Service

Documents are most commonly served by way of personal service or ordinary service in family law proceedings. The general requirements for service of documents are set out in Rule 2.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).

Personal service involves the documents being physically given to the person served, often by a process server who charges a fee. Documents can only be served by a person over the age of 18, who is not a party to the proceedings. If a party is legally represented and their legal representative is willing to accept service, documents can be sent to them in any manner as agreed with the legal representative, including via email or post. Initiating applications and subpoenas are examples of documents that must be served personally. Rules 2.35 and 2.36 of the Rules set out the requirements for personal service.

Ordinary service involves serving parties at their address for service. This can be found on any of their Court Applications or if they have filed a Notice of Address for Service. If the person does not have a known address for service, documents can be sent to their last known email address or home address either by delivering a sealed envelope or by post.

When documents have to be served

Best practice is for documents to be served as soon as practicable after they have been filed with the Court. Sealed copies of documents must be served within the timeframes prescribed by the Rules.

Any application must be served at least 7 days before a hearing of the application or 3 days before the hearing of an interim application pursuant to Rule 2.31 of the Rules.

Proof of Service

Documents proving service must be filed with the Court prior to any first court event.

In the case of personal service, the server must complete an affidavit of service and attach a copy of an acknowledgement of service if signed by the individual served wherever possible, and any documents such as photographs used to identify the individual served.

Proof of service can also be obtained by a party filing a notice of address for service or response, or by a lawyer signing an acknowledgement of service if service was conducted by giving the application to a lawyer.

What happens if I cannot serve the documents?

It is possible to make an application to the court seeking orders for substituted service or dispensing with service if you have difficulty serving the documents as required by the Rules. Often this is necessary where a party has been evading service.

You must provide evidence in the form of an affidavit outlining the steps you have taken to attempt to serve the documents, and other possible ways the documents could be served i.e. by email or Facebook.

The court has discretion to make orders for service by another method or dispensing with service requirements pursuant Rule 2.33 having regard to the factors listed under Rule 2.34.

If you need help serving documents or have been served with documents and are unsure about what to do next, R + M Law can provide you with specialist family law advice. 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.

How to obtain information about Superannuation Interests in Family Law Property Proceedings

Most parties in family law matters will have a superannuation interest or a pension in the payment phase. These interests will often be treated as assets that form part of the property pool that is available for division, although in some cases, parties will seek to argue that a pension is a financial resource, not an asset.

If your spouse does not disclose what type of superannuation interest or pension entitlement they have, or it is not clear what the value of their interest is, there are different ways to obtain this information. How you go about obtaining this information depends on what information you currently have, what type of interest your spouse has and whether there are court proceedings on foot.

Types of superannuation interests

There are lots of different types of superannuation interests, including but not limited to:

1. Accumulation interests;

2. Defined Benefit interests; and

3. Self-Managed Superannuation Funds.

The most commonly held interests are accumulation interests, which includes most industry funds and some commonwealth schemes such as PSSap. The value of these interests can be found in statements which are issued to the member at the end of each financial year by their superannuation fund, or from accessing their superannuation account online.

If you have an idea of what sort of interest your partner holds but they have not disclosed any statements or screenshots of balances from their fund account, you may be able to write directly to the relevant fund, often by filling out a Form 6 or “request for superannuation form” which can be found on many funds’ websites, and paying a fee.

When superannuation interests need to be valued and how to do so

Defined Benefit interests, such as the CSS, PSS and MSBS will often need to be valued. This is because often the balance contained on member statements does not accurately reflect the value of these interests to the member, for family law purposes.

Values for these types of interests are obtained through using either a member statement or through first completing a Form 6 or “request for superannuation information form”. The fund will then provide a response, and this response can be provided to an actuary to complete a family law valuation. This family law valuation is the relevant value to be attributed to the parties’ interest for the purpose of family law matters, at a specific date.

What to do if the other party will not provide disclosure of their superannuation interest

If you have no idea what sort of superannuation interest your spouse has an interest in and there are court proceedings on foot, it is possible to apply to the court to obtain this information through completing a Superannuation Information Request Form using the Commonwealth Courts Portal.

If you need help obtaining information about a superannuation interest and are unsure about how to do so, R + M Law can provide you with assistance. 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.

Thinking of separating? Why you should see a family lawyer early

When you separate, you will likely receive advice from family, friends and colleagues – whether you have asked for that advice or not.  People will tell you what you should or should not be doing, ranging from opening a new bank account to parenting your children.

Often, this advice comes from a place of love and support.  Where the advice delves into legal matters, there is a risk that the information you receive is generic and not actually applicable to your specific situation.

Your former partner may have views about how your separation should work and how you should each approach the next stages of dividing finances or working out the children’s arrangements.  For example, your former partner may say to you something along the lines of “let’s work it out between us and not get lawyers involved”.  They may propose that you divide everything equally, or that the children should live with you in a week-about arrangement because it is “only fair”.  

Whilst it is beneficial to remain amicable and co-operate with your former partner upon separating (if you can and if it is safe), this does not always mean that they are looking out for your best interests.  Sometimes, an outcome which seems ‘fair’ might actually be completely inappropriate for your children depending on their age and specific needs, or it might leave you financially disadvantaged if you do not understand your legal rights and entitlements.

It is not unusual for us to see individuals who have been told not to see a lawyer; and for them to subsequently find out that their former partner has actually seen a lawyer themselves.

At the initial stages of a separation, or even if you are contemplating whether to separate from your partner, you should enter the ‘information gathering’ phase.  This includes finding out what assets, liabilities, superannuation and financial resources you and your former partner have.  You should also think about what specific needs your children have and whether you can each respond to those needs.  Seemingly innocent requests can sometimes leave you in a difficult situation, for example with respect to who moves out of the home or how you meet ongoing expenses.

Seeing a lawyer, even for a one-off meeting, can be helpful to better understand your rights and obligations when separating. A lawyer can advise you about the information you are entitled to and what you should be considering when you are negotiating a property settlement or parenting arrangements. A specialist family lawyer can also advise you about how the Courts approach a property settlement or parenting arrangements, which can inform any agreement you ultimately reach.

Importantly, seeing a lawyer does not mean that you are bound to engage that lawyer on an ongoing basis or that you are going to go to Court. There are many alternatives to Court and it should usually be a last resort. Mediation is compulsory before going to Court in many instances, including in parenting matters (where there is not urgency or safety concerns).  

If you are at the initial stages of separation, or if you are contemplating your next steps prior to separating, we recommend seeing a specialist family lawyer to understand more about the process, your rights, entitlements and obligations. All information is kept confidential and your lawyer will advise you about recommended next steps. To arrange an appointment with one of our experienced 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.

Jurisdictional Differences between Family Law, Care & Protection, Family Violence, Adoption & Surrogacy Matters

Family lawyers often practice across different areas of the law, including family violence, care and protection, adoption and fertility and family creation matters, including surrogacy. While many people may think of this as “family law”, the term family law is usually used to refer to legal matters relating to the breakdown of a relationship. Without the benefit of legal advice, it may be difficult to figure out which law governs the “family law” issue you may be dealing with. At R + M Law, we are able to assist you in relation to several different family law matters.

This article will provide a brief overview of the legislation that covers the different areas a “family lawyer” may practice in and be able to assist you with.

Family Law

Following separation, parties may wish to get divorced, enter into a property settlement or formalise care arrangements for their children. These different matters all fall under the umbrella of “family law” matters. Family law matters are primarily governed by the Family Law Act 1975 (Cth).

The Family Law Act 1975 is a federal law which applies across Australia. Family law matters are heard in the Federal Circuit and Family Court of Australia (“FCFCOA”) which sits across the country. The FCFCOA also deals with matters including spousal maintenance and child support.

However, if you are based in Western Australia, family law matters are heard in the Family Court of Western Australia.  This is because Western Australia has not referred its family law powers to the Commonwealth. In WA, the Court applies the Family Law Act 1975 (Cth) to matters relating to married couples and the Family Law Act 1997 (WA) to de facto couples.

Care and Protection

Child protection matters, which differ from parenting matters in the Federal Circuit and Family Court, refer to matters where child welfare authorities intervene as a result of a parent being unwilling or unable to adequately care for a child or children. Each state and territory has its own child protection body as this area of the law is governed by state and territory-based legislation. 

In the ACT, child protection matters are governed by the Children and Young People Act 2008 and are primarily dealt with by the ACT Children’s Court.

Family Violence

Whilst family violence is often a consideration in general family law matters, a person in need of protection can make an application for a protection order under state and territory based legislation.

In the ACT, these applications are made under  the Family Violence Act 2016 and are known as Family Violence Orders. Whereas in New South Wales, these types of Orders are governed by the Crimes (Domestic and Personal Violence) Act 2007 and are known as Apprehended Domestic Violence Orders. The process of obtaining these Orders also differs between states and territories.

Adoption and Fertility and Family Creation Matters

Adoption and fertility and family creation matters (such as surrogacy arrangements, donor agreements)are also governed by state and territory-based legislation. In the ACT, adoption matters are governed by the Adoption Act 1993 and surrogacy and fertility and family creation matters are dealt with under a number of different acts of legislation, including the Parentage Act 2004 and Assisted Reproductive Technology Act 2024.

R+ M Law are able to assist and advise you about family law, family violence, care and protection, adoption and fertility and family creation matters. 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.

The Lighthouse Project and the Family DOORS Triage risk screen

In December 2020, the Federal Circuit and Family Court of Australia launched a pilot program called the Lighthouse Project. It has since been expanded and rolled out nationally to 15 registries across Australia.  So what is it?

The Lighthouse Project is the court's approach to screening and managing risk in family law matters, with a focus on improving outcomes for those involved in the court system.

If a party has filed an application seeking parenting orders (either parenting only or both parenting and property orders), they will be invited to complete a ‘Family DOORS Triage’ risk screening via a confidential online platform. This risk screening tool has been prepared specifically for use in the courts to identify the likelihood of harm or exposure to harm, either by a party or a child involved in the proceedings.

The risk screen takes approximately 15 minutes to complete; requires ‘yes’ or ‘no’ answers; and touches on possible safety risks, including family violence, mental health issues, child abuse or neglect, and drug and/or alcohol misuse.

Your answers to the risk screen cannot be used as evidence in your matter or used by your former spouse against you in the proceedings.

The court has a dedicated team that directs cases into the appropriate case management pathway, based on their assessment of risk in a matter. This team consists of specialised judicial registrars, triage counsellors (acting in the role of a family counsellor) and support staff trained in family violence and family safety risks.

If a matter is assessed as ‘high risk’, a Triage Counsellor may contact an individual in the matter for a telephone interview. The Triage Counsellor can also provide a tailored follow-up which may include a risk assessment, safety and wellbeing plans and referrals to support services. Again, this process is completely confidential, and the Judicial Officer presiding over your matter does not see this.

Where a matter is assessed as ‘lower’ or ‘medium’ risk, an individual may be offered safety planning and referrals to support services. 

Important things to know:

You cannot be asked to disclose whether or not you have undertaken the risk screening.

Your responses to the risk screen, the classification of your matter and any subsequent referrals are not used as evidence in a proceeding.

·        Information shared or provided by you to a Triage Counsellor in the course of conducting the risk screen cannot be disclosed or used as evidence.

Where one or both parties have completed the Family DOORS Triage and the matter is classified as ‘high risk’, the matter will be referred to an ‘Evatt’ Judicial Registrar who will consider whether the matter should be transferred to the Evatt list.

The Evatt list is a specialised list, to assist families who are deemed to be at high risk of family violence or other safety concerns.  In the Evatt list, the Court often engages in early case management intervention and information gathering at an early stage.  The Evatt list consists of a team of Judges, Senior Judicial Registrars and Judicial Registrars who are specially trained in working with families where significant or ‘high risk’ safety issues are identified.

If your matter involves ‘high risk’ features such as serious family violence; serious child abuse or a risk of serious abuse; significant alcohol or drug misuse; mental health issues which have caused harm or pose a serious risk of harm to others; or where there have been recent threats or attempts to abduct a child, it is worth obtaining advice from a lawyer about the conduct of your matter. Matters involving ‘high risk’ features are often complex and require a nuanced and strategic approach.

Our lawyers here at R+M Law are experienced in providing tailored advice to individuals with ‘high risk’ features; and have regularly run matters in the Evatt List. Contact R+M LAW today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.

Alcohol use/misuse and how it impacts care arrangements

When you are separating, you will need to consider arrangements for your children. In determining what arrangements are appropriate, lawyers will often refer to ‘the best interests of the child’, as this is the paramount consideration for the court. Section 60CC of the Family Law Act 1975 (Cth) sets out how a court determines what is in a child’s best interests and includes factors such as what arrangements would promote the safety of a child or children.

Unfortunately, it is not uncommon for a parent to suffer from alcohol abuse or misuse. Whether this arose in the context of the separation or was an issue during the relationship, alcohol abuse and/or misuse give rise to safety concerns where that parent proposes to care for the children. If a parent is caring for a child under the influence of alcohol (or other substances), this can significantly impair their ability to respond to the child’s needs, including in the event of an emergency. A parent being under the influence of alcohol may also place children at risk of serious injury, for example, where the parent then drives with the children in the car whilst under the influence.

A parent with alcohol issues does not automatically result in that parent not having any relationship with the children; however, it is important to ensure that there are appropriate safety measures in place to protect the children from being exposed to harm resulting from that use.

When faced with a parent who struggles with alcohol use and/or misuse, a Court will likely assess the risk posed (including an assessment of the behaviour and consumption to date), and look at what, if any, protective regime can be put in place to address any alcohol use issues. 

Examples of protective measures may include:

1. Orders restraining a parent from consuming alcohol for 24 hours prior to the children spending time with them and whilst the children are in their care.

2. To establish that the parent is not under the influence of alcohol, a parent may need to undertake blood alcohol content readings on a breathalyser and provide the results to the other parent prior to the children coming into their care.  In the event the parent returns a blood alcohol reading higher than 0.00%, the children may not be made available.

3. Placing an ignition interlock device in the parent’s motor vehicle, to ensure that the motor vehicle is not operated whilst a parent is under the influence of alcohol.

4. To undertake testing, such as a carbohydrate-deficient transferrin test and/or liver function test.

5. To undergo a psychiatric assessment directed to alcohol dependency and/or alcohol use disorder.

When faced with the issue of what time children should spend with a parent who struggles with alcohol issues and/or misuse, the Court will ultimately make findings about any allegations and/or admissions that have been made; and make an assessment as to future risk of harm.

The Court is likely to consider whether the parent still consumes alcohol or other substances, and whether this consumption occurs in the context of that parent caring for the children.  Where a parent has ceased alcohol consumption or use of substances, the Court will look at making orders to monitor and guard against a possible relapse into alcohol or substance use, to protect the children from any harm resulting from such a relapse.

If you would like advice about appropriate care arrangements or protective measures where alcohol use is an issue, please get in touch with us. Our specialist family lawyers here at R + M Law can guide and support you to put in place safeguards and arrangements to best suit your individual situation. 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.

Evidence in family violence proceedings

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

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

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

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

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

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

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

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

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

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

What is the property pool in family law?

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

Identifying the property pool

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

This means that the joint property pool can include:

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

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

• A lottery win by one party;

• A redundancy payment received by one party;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1.Consent judgments

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

2.Post-Separation BFA

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

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

But which option?

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

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

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

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

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

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

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

Protecting Confidential Communications in Family Law and Care and Protection Proceedings

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

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

Family Law Proceedings

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

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

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

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

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

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

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

Care and Protection – Children’s Court proceedings

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

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

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

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

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

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

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

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

What do I need to disclose?

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

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

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

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

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

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

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

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

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

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

If you are unsure about your legal obligations in relation to the provision of financial disclosure, you should seek specialist legal advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

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

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

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

Children’s Charter

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

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

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

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

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

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

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

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

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

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

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

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

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

Kid’s Corner

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

Kid’s Corner includes:

• Frequently asked questions;

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

• Information to help children express their emotions; and

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

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

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

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

Guiding you through Court proceedings: Final Hearing

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

1. The first return;

2. An interim hearing;

3. Dispute resolution processes; and

4. A compliance and readiness hearing.

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

What is a final hearing?

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

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

How long is a final hearing?

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

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

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

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

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

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

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

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 which provide for how foreign property is to be dealt with, it is often prudent to obtain advice from a family lawyer practicing in all jurisdictions where the property is located.

Complexity can arise when you hold assets in multiple different 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 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 deal with 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 2024 contain a list of countries under Schedule 1 which Australia has agreements with to register foreign parenting orders in Australia. You can apply to register parenting orders in Australia pursuant to Regulation 37 of the Family Law Regulations 2024 by sending required documentation to the International Family Law Section of the Attorney-General’s Department.

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 are 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 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 an ordinary 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 us at 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.

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.