SUPERANNUATION SPLITTING | NOW AND THEN

Throughout the course of your life, and your marriage or de facto relationship, most people accumulate superannuation through their employment. You cannot usually access your superannuation until you reach preservation age, or other limited circumstances, such as if you sustain an injury and are unable to return to work.  However, notwithstanding this, superannuation entitlements are treated as assets of a matrimonial property pool and can be split between two parties following the breakdown of a relationship.

Under the Family Law Act 1975 (Cth), superannuation can be split in two ways:

1) By identifying a specific dollar amount; this is known as a “base amount” split; or

2) By identify a specific percentage; this is known as a “percentage” split.

Regardless of the type of superannuation split, following service of a sealed copy of the Court Orders that detail the superannuation split, the amount identified (plus/minus earnings/losses incurred since the operative date, and any applicable administration fees) is usually deducted from the member’s balance and deposited into a new account for the non-member. The non-member’s new superannuation interest will operate completely separately from the member’s interest.

However, this has not always been the case. Amendments were made to the Family Law Act 1975 (Cth) in 2001 for married couples, and in 2008 for de facto couples introducing and permitting the division of superannuation between two parties. Prior to these amendments, while superannuation was an asset of a matrimonial property pool, it was not capable of being “split” or “divided” between two parties.  

This meant that there was often one party who retained most of the superannuation in a property settlement.  In recognition of this, notwithstanding a property settlement could be, and often was completed, it may be that the superannuation aspect of the property settlement was adjourned until at time upon which one or both parties were entitled to receive their superannuation entitlements. If this occurred in your property settlement, then keep reading!

If the original orders (which would have been entered into prior to the changes to the Family Law Act 1975 (Cth)) adjourn the superannuation aspect of the property settlement, the Court will need to determine a just and equitable resolution of the issue now, notwithstanding all other assets will have been dealt with, and many years will have passed.

The Court has been required to navigate these matters.  In the Full Court case of Gabel and Yardley [2008] FamCAFC 162 the Court found that:

- It has power to make more than one set of Orders with respect to property settlement matters provided its power to do so is not exhausted by the original orders;

- The original orders can be varied or reversed without a party making an application to set aside the Orders, as “the power to make such Orders not having been “spent” or “exhausted”’; and

- Each case is unique, and the Court’s decision to vary or alter the original orders will depend upon the circumstances of each case and whether it is just and equitable for the Court to do so.   

If you completed your property settlement prior to the superannuation splitting legislation coming into effect, and your Orders adjourn a superannuation split until a later date, you should seek specialist advice from a family law solicitor.   As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to your rights and entitlements and assist you to finalise your property settlement.

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

Author: Peta Sutton, Associate

Adult child maintenance – what is it, and can I get it?

Child support usually continues from when a child is born until they turn 18, though it can stop earlier in some cases, for example if a child is adopted, marries or becomes self-sufficient. If a child is still completing their final year of secondary school, it is also possible for the parent receiving child support to apply to extend child support until the end of the school year.  

However, lots of young adults (dare we say, most?) do not magically become financially self-supporting at the stroke of midnight on their 18th birthday, or as they are walking out of their final year 12 exam. This is particularly the case if they are about to embark on a new course of study instead of heading straight into the workforce.

Section 66L of Family Law Act provides for the payment of “adult child maintenance” if it is necessary to enable an adult child to complete their education, or because of a mental or physical disability. This means that a child, or a parent on their behalf, may be able to make an application to the Court to compel their parent or parents to continue contributing to their financial upkeep into adulthood.

How much maintenance is paid depends on a number of factors, including the child’s necessary expenses, each parent’s financial position, and the amount each parent needs to support themselves and other people they have an obligation to support. Necessary expenses can include food and housing, medical needs, and costs to do with study like books and laptops. The court will also consider whether the course the child is pursuing will help the child earn an income, and whether the child can work part time to contribute to their own costs.

If you are being asked to pay child support for an over 18 year old, or you want to apply for child support for a child who is over 18, the first step is usually to try to work it out within the family. If that does not work, or you want to understand your rights and obligations before that discussion takes place, you may wish to seek legal advice from a specialist family lawyer.

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

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA NATIONAL CONTRAVENTION LIST

A common complaint made by clients who are in the middle of a family law dispute, or have already have Court Orders in place, is that the other party is breaching, or not complying with the Orders.

When Orders are made by a Court, whether by consent, or by the Court after a defended hearing, the Orders are binding on the parties and must be complied with. There are serious consequences for a party who fails, without a reasonable excuse, to comply with Orders of the Court. Consequences include: requiring the arrangements under the previous order to resume; varying the existing order; requiring the person who has contravened the orders to pay the other parties’ costs; imposition of a fine; and, in the most extreme circumstances, a term of imprisonment.

A person is considered to have contravened an Order if they have:

1. Intentionally failed to comply with the Order;

2. Have made no reasonable attempt to comply with the Order;

3. Intentionally prevented compliance with the order by a person who is bound by it; or

4. Aided and abetted a contravention of the order, by a person who is bound by it.

In recent times however, it has been difficult to prosecute these breaches in the already overwhelmed family law system.

On 1 September 2021, with the creation of the Federal Circuit and Family Court of Australia, the National Contravention List was established. The National Contravention List will hear all contravention applications in an efficient manner, ensuring that all breaches of court orders are taken seriously, The key objectives of the National Contravention List include:

1. to ensure applications are dealt with in a timely, cost effective and safe way;

2. for applications to be listed before the Court within 14 days of filing;

3. to ensure and increase compliance with court orders; and

4. impose appropriate penalties or sanctions where a contravention has been proved and there is not a reasonable excuse;

5. to proactively facilitate the resolution of underlying issues in disputes that leads to the filing of such applications;

6. to triage appropriate matters to dispute resolution; and

7. to be responsive to a party’s wishes to resolve matters without recourse to additional litigation.

The National Contravention List also seeks to make lawyers more accountable for their role in making and/or defending contravention applications. As a result, legal practitioners appearing in the Contravention List may be subject to personal costs orders if the application or defence is determined to be frivolous, or without merit, or where non-compliance with the Rules of the Court is demonstrated.

The Court hopes that improving the way contravention applications are dealt with will ensure and improve compliance with Court Orders. If you would like advice in relation to the contravention of court orders or filing an application in the National Contravention List, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.  

Author: Ellen Russell, Associate

Can I seek the Court dismiss the other party’s application?

Generally, the Court cannot dismiss a party’s application without giving the party an opportunity for the application to be properly heard. Even if an application appears weak and unlikely to be unsuccessful, the Court is reluctant to deny parties an opportunity to prosecute their case and seek a determination of their application by the Court.

However, the Court may summarily dismiss all or part of the application (without the need for a full hearing) if:

· The applicant has no reasonable prospect of successfully prosecuting (or defending) the proceeding; or

· The proceeding is frivolous or vexatious; or

· The proceeding is an abuse of process of the court.

The application does not need to be ‘hopeless’ or ‘bound to fail’ to be summarily dismissed by the Court. Nonetheless, the Court must proceed cautiously and should not lightly use the power to summarily dismiss an application.

In considering whether or not to dismiss the application, the Court must only consider the material put forward by the party seeking to bring the application and consider it ‘at its highest’. This does not mean, however, that the party can mislead the Court and make unfounded allegations in their material to satisfy the Court that their application should proceed: the Court does not have to take the party’s evidence at its highest if their version is ‘inherently incredible or unreliable.’

In Ritter & Ritter and Anor (2020) FamCAFC 86, the husband sought to re-open the family law proceedings because he said his consent to the orders was obtained through deception. The Full Court of the Family Court found that instead of considering the husband’s case ‘at its highest’, the trial judge had been distracted by addressing what orders might ultimately be made by the Court. The Full Court also said that given the seriousness of the husband’s allegations, ‘very little evidence’ was needed to satisfy the Court that the husband should have an opportunity to pursue his application.

If a Court summarily dismisses the application, the Court can make an order for costs if it considers appropriate, such as that the applicant pay the respondents costs of the proceedings.

The respondent to the application can apply to the Court seeking an Order that the application be dismissed, or the Court can dismiss the application on its own initiative.

The Court can also, on its own initiative, dismiss all or part of the proceedings if a party has failed to progress the proceedings for a period of six months. The Court must provide the parties with 14 days’ notice if it intends to consider dismissing the proceedings and cannot do so if there is a future Court date, an interim application that has not yet been determined, or if a party satisfies the Court that the proceedings should not be dismissed.

In rare cases, the Court can also issue ‘summary judgment’, for example to make final orders about the issues in dispute.

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

Obligations to resolve disputes prior to commencing Court Proceedings

Following separation there are many decisions to be made including who will continue to live in the family home and who will move out, what arrangements will be in place for the children, what the property settlement will look like and who gets to keep the dog.

For some couples, these matters can be agreed upon quickly and without too much stress, however sometimes people require assistance from a lawyer, mediator or the Court to resolve disputes following a separation.

On 1 September 2021 the Federal Circuit and Family Court Rules 2021 came into effect.  These rules have created an overarching principle and obligation upon litigants to ensure that they use their best endeavours to negotiate an agreement before commencing Court proceedings.  This includes attendance at a dispute resolution process, such as mediation or conciliation.

These obligations are known as pre-action procedures and must be complied with before Court proceedings are commenced. The pre-action procedures require parties to attend to the following:

1. If it safe to do so, provide the other party with a copy of the pre-action procedures (found here parenting or property), make enquiries with respect to dispute resolution processes (such as mediation), and invite the other party to participate in dispute resolution;

2. Attend a dispute resolution process and make a genuine effort to resolve the dispute. If an agreement is reached at dispute resolution, steps can be taken to formalise the agreement. Parties should seek advice from a specialist family lawyer to assist them in formalising agreements to ensure that it is understood and can be implemented.

3. If an agreement cannot be reached at dispute resolution and it is intended that Court proceedings will be commenced, the first step is to place the other party on notice, in writing, of the intention to go to Court.  The notice should set out:

a. The issues in dispute;

b. The Orders that will be sought from the Court;

c. A genuine offer to resolve the issues in dispute; and

d. A timeframe in which a response is to be provided.  This should not be less than 14 days.

If the other party responds, it is expected by the Court that a reasonable attempt will be made to engage in a discussion and negotiation prior to commencing Court proceedings.  

4. Where an agreement cannot be reached, and proceedings are commenced, a Genuine Steps Certificate will need to be filed outlining that the pre-action procedures have been complied with.

A failure to comply with the pre-action procedures will be taken seriously by the Court and places litigants at risk of their application being dismissed and/or a costs order being made against them.

It is important that you have attended to the above before you commence Court proceedings, unless you meet one of the limited exemptions. There are some circumstances where it would not be appropriate to comply with the pre-action procedures, such as if it is unsafe for parties to attend dispute resolution, or if Court proceedings are required to be commenced urgently.  Advice should be sought from a specialist family law solicitor before seeking to dispense with (or ignore) the pre-action procedures.

As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to your rights and entitlements and assist you to finalise matters following separation. We will also be able to assist you to ensure that you have met your obligations to comply with the pre-action procedures prior to commencing Court proceedings.

Divorce and separation can be incredibly stressful and you should obtain expert advice early to point you in the right direction.

Author: Peta Sutton, Associate

Types of Family Violence Orders in the ACT

When considering whether to apply for a Family Violence Order (FVO) you should be aware of the options available to you:

1. After-Hours FVO: Intended to be a “stop-gap” measure to ensure safety in the most serious and urgent circumstances, this FVO is brought by police outside of the ACT Magistrate Court hours of operation. It is in effect for a period of two business days and is generally used to ensure the safety of the victim until they can make a fulsome application to the Court for an Interim FVO.

2. Interim FVO: May be granted the same day it is applied for, an Interim FVO is in effect once served and up until it is withdrawn or a Final FVO is determined. While it usually is in effect for less than 12 months, there are circumstances where it may be extended, such as where service upon the respondent is difficult, or where complexities in the matter has seen the listing for a hearing as to the Final FVO get pushed out. An Interim FVO is intended to ensure the protection of person(s) and their property in circumstances where such is needed prior to the Court being able to determine the application for a Final FVO.

3. Special FVO: Where there are related criminal charges, a Special Interim FVO may be made by the Court or convert an existing Interim FVO between the parties. A Special FVO is in effect until such time as it is revoked, the application for a Final FVO is discontinued or dismissed or a Final FVO is made. A Special FVO cannot proceed to hearing of the Final FVO until the related criminal charges have resolved, and so may often remain in effect longer than a Interim FVO to ensure the safety of the protected person(s) as the related criminal matter proceeds.

4. Final FVO: A Final FVO is what the Court determines at a final hearing but can also be consented to between the applicant and the respondent throughout the FVO process. While generally in effect for a period of two years, there are special circumstances that may warrant the Court ordering a FVO be in place for a longer period. Parties usually cannot consent to a Final FVO that is in effect for longer than two years. A Final FVO may also be extended, so long as the application for extension is made prior to the expiry of the existing Final FVO. If the Final FVO has expired, an applicant will need to make a fresh application for a FVO, including seeking an Interim FVO if they require protection in place prior to the Court being able to determine the fresh application.

5. Non-ACT FVO: Obtained in another state, territory or New Zealand, there is often no need for an existing Non-ACT FVO to be registered in the ACT for it to operate. If the Non-ACT FVO was made after 25 November 2017 (excl. Victoria), it will automatically be recognised in the ACT without the need to register it. For a FVO issued in Victoria, such automatic recognition applies to any order made on or after 25 November 2017. All other Non-ACT FVO will however need to be registered to ensure their effect within the ACT. Both automatically recognised Non-ACT FVO, and registered Non-ACT FVO, can be amended or extended in the ACT without the need to return to the issuing jurisdiction.  

Your circumstances and the level of protection you and others may require may impact upon which FVO is available to you. If you feel you need to urgently address your safety, you should call 000 or DVCS on (02) 6280 0900.

Getting detailed family violence advice may be the difference in ensuring you receive a FVO with the right protections to ensure your safety and the safety of others. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

What happens at the Preliminary Conference?

Whether or not an Interim Family Violence Order (FVO) was granted, the application for a Final FVO will be listed and given a date for a Preliminary Conference. Previously known as a Return Conference, this is an opportunity for the parties to resolve their family violence matter by agreement. The Preliminary Conference is convened by a Deputy Registrar of the ACT Magistrates Court, and generally runs for a period of a few hours, though some of this may include waiting while the Deputy Registrar goes between the parties and endeavours to broker a resolution of the matter. The parties are in separate meeting rooms and are unlikely to see each other at the Preliminary Conference.

If the matter does not resolve at the Preliminary Conference, and an Interim FVO is in place, it will continue to operate until the application for a Final FVO is determined. At the conclusion of the Preliminary Conference, the parties will be given further dates to attend the Court for:

1. Pre-Hearing call-overs to allocate the matter to hearing; and / or  

2. Pre-Hearing mention the morning on the same day of the hearing of the application for a final FVO; and

3. Hearing date on the same day as the Pre-Hearing mention.

You should ensure you or your legal representation attend the Preliminary Conference. During the current Covid19 lockdown in the Australian Capital Territory, Preliminary Conferences are occurring by teleconference. In the event you do not attend the Preliminary Conference, and you do not seek the Court adjourn the Preliminary Conference, the Court may make a decision as to the matter without further notice to you. If you are the applicant, this may mean your application for a Final FVO is dismissed, along with any Interim FVO in place for your protection. Should this occur, you will then be required to restart the application again in its entirety should you wish to continue. There is also a risk that you may be liable for legal costs incurred by the respondent if they have legal representation. Should you be the respondent, this may mean a Final FVO may be made against you, in the terms as sought by the applicant, such as the inclusion of children as protected persons, without further notice to you. It is crucial if you are unable to attend the Preliminary Conference for any reason you make contact with the Court as soon as possible prior to the listing.

If you attend the Preliminary Conference without legal representation, and your matter does not resolve, it is a good idea to obtain legal advice at its conclusion. Preparing for a hearing of the Final FVO may involve the calling of witnesses, the obtaining of evidence to support your case, issuing of Subpoenas, or requests for information or disclosure from the other party. Each of these elements have certain processes and forms that must be completed correctly and in required time periods. It is unlikely the Court may allow you to adjourn the hearing on the day if you then realise you require further information or evidence to best argue your case.

In the event you feel you need to urgently address your safety; you should call 000 or DVCS on (02) 6280 0900.

While you will not see the other party at Court, negotiating a legal process about family or domestic violence is a stressful situation for anyone. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

I’ve been served with a Family Violence Order, now what?

Service of a Family Violence Order (FVO) or application for a FVO is generally served by the Australian Federal Police (AFP). They may attend without notice to your home, place of residence, or a place you usually attend, or may contact you on your telephone for a suitable place to serve you. If it is an Interim FVO, it is in effect and must be complied with once it is served upon you. If it is an application for a Final FVO, or an application for an extension or amendment of a FVO currently in place, this does not mean that the application is in effect. You should however continue to comply with a FVO that is already in place. It is important to listen to the AFP when they are serving the documents, as they will outline any obligations or requirements that must be met by you.

It is best to remember while a FVO is in place for the protected person(s) safety, it should be treated as a two-way street. The protected person(s) are prohibited from engaging in behaviour that may be contrary to the terms of the FVO. An example of this is where parties agree to alter changeover arrangements for children to a location that is prohibited within the terms of the FVO. Unless there is a term in the FVO that permits such changes, you should not agree to any such arrangements. If you are unsure of your obligations while a FVO is in effect, you should seek advice. It is also important to record any circumstances where a protected person(s) may be acting contrary to the terms of their own FVO, as this may be considered by the Court in any application to extend, amend or make final an FVO.

If you are served with an Interim FVO, you will also be given a document that has a date to attend the ACT Magistrates Court for what is known as a Preliminary Conference. Both you and the applicant, and your legal representatives if you have them, are required to attend. If you fail to attend the Preliminary Conference, a Final FVO may be made in favour of the applicant, in the terms as sought by them, without further notice to you. It is crucial if you are unable to attend the Preliminary Conference for any reason you make contact with the Court as soon as possible. During the current Covid19 lockdown in the Australian Capital Territory, Preliminary Conferences are occurring by teleconference.

While a FVO is not a criminal conviction, it does impact certain credentials such as a security clearance or Working With Vulnerable People (WWVP) certification. Once you are served with a FVO, it is important you seek advice on its impact upon your employment or relevant credentials as soon as possible.  

What you can and cannot do under a FVO may feel confusing and overwhelming. If you would like to discuss your options and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Family Violence Orders in the ACT

An Order made for the protection of an individual against a family member, intimate partner or relative is known as a Family Violence Order (FVO) in the Australian Capital Territory. You may also know them as a Personal Safety Intervention Order (PSIO) in Victoria, or as an Apprehended Violence Order in New South Wales.

In the Australian Capital Territory alone, it is unfortunate that on a regular day, police will attend numerous call outs for assistance in relation to complaints of a family or domestic violence nature. These may range from complaints about compliance with an existing FVO, a request for an Interim FVO to be made, incidents that may have family violence elements, referrals from associated agencies for welfare checks and actual incidents of family or domestic violence which may range from actual physical violence to threats of violence.

Unlike other jurisdictions, the majority of FVO in the Australian Capital Territory are brought by the victim themselves. An FVO brought by police may be in circumstances where there is significant risk to the victim if they apply for an FVO themselves, or where the FVO is applied for outside of usual Court hours (known as an After-Hours FVO). An After-Hours FVO is intended to provide immediate and urgent protection, to give the victim an opportunity to attend the ACT Magistrates Court and make a formal application for an Interim FVO should they wish to. An After-Hours FVO is only in effect for a maximum of two business days.

The person applying for the FVO is called the “applicant”, with any children who are sought to be included known as “the protected persons”. The person who the FVO is against is known as the “respondent”. While children may be put on the FVO of a parent or legal guardian, it is not uncommon for a child to seek their own FVO, such as against a parent or care giver.

When making an application for a FVO, a person will be required to fill out and file three forms with the ACT Magistrates Court. There is no fee associated with filing for a FVO. These forms include:

1. The application for a FVO in their favour, this form covers the application for both an Interim FVO for their immediate safety (if necessary), and a FVO made on a final basis; and  

2. The contact details the applicant is agreeable for the Court to know to ensure the smooth progress of their FVO application, but which can be kept confidential from the respondent; and

3. The contact details and information about the respondent that will assist the police in serving the FVO application, and Interim FVO if granted, upon the respondent.

Regardless of whether you are granted an Interim FVO or not, the respondent will receive a copy of your application, and is entitled to seek a copy of the evidence that you give to the Court in the process of applying for the FVO.

Your circumstances and the level of protection you and others may require may impact upon which FVO is available to you. If you feel you need to urgently address your safety, you should call 000 or DVCS on (02) 6280 0900.

The process for a FVO may feel overwhelming, and it is crucial that the right documents are filed with the right details. Getting detailed family violence advice may be the difference in ensuring you receive an Interim FVO with the right protections to ensure your safety and the safety of others. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Making an application for a Family Violence Order

In applying for a Family Violence Order (FVO), you should consider whether your safety needs will be met with a Final FVO, or whether you also need an Interim FVO. An Interim FVO is made in circumstances where protection is needed to ensure the safety of the victim(s) and / or their personal property before the Court has the time to consider the application for a Final FVO. Often when an Interim FVO is discussed, the circumstances are considered “urgent” or especially volatile. An Interim FVO may be sought at the conclusion of a relationship, where leaving safely is unlikely to occur unless an Interim FVO is in place, or where the whereabouts or circumstances of the respondent are unknown or unpredictable and elevate the risk to the victim(s).

Both FVO are applied for with the one set of forms, however when applying for an Interim FVO you will be required to give evidence to the Court on the day you make the application. While the respondent is not given notice of the application, or usually an opportunity to appear at the Interim hearing, they are entitled to seek a copy of the evidence you give to the Court following the Interim hearing by way of request for the transcript. They will also be given a copy of the application, regardless of whether the Interim FVO is granted.

During the current Covid19 lockdown in the Australian Capital Territory, you can still apply for a Family Violence Order (FVO). You are able to fill in and file the three forms required electronically or in-person with the ACT Magistrates Court. The forms are readily available on the ACT Magistrates Court website, and there is no fee associated with making the application. When filing them you should ensure you keep a copy of the forms yourself to refer to later on. If you have applied for an Interim FVO, you will be contacted by the Court to attend your Interim Hearing by way of teleconference. You should ensure you are able to attend the teleconference in a quiet space that is free of any distractions or interruptions. The Court officer who will hear the Interim FVO application is often a Deputy Registrar. They will have read the application filed by you, and will have you swear or affirm to the truth of its contents and of any further evidence you may give on the telephone. They may ask you a range of questions which are aimed at determining the extent of the family violence alleged and whether it meets the test for you to be granted an Interim FVO.

Following the Interim Hearing, you may or may not be granted an Interim FVO. If an Interim FVO is granted, it may not always be in the exact terms that you sought. At the conclusion of the Interim Hearing, you will be given a date by the Deputy Registrar to return to Court to attend a Preliminary Conference, the respondent will also be required to attend the Preliminary Conference in relation to your application for a final FVO.

The Australian Federal Police (AFP) will then serve a copy of your application (but not the form that includes your contact details) upon the respondent. If you were granted an Interim FVO, they will also serve a copy of it upon the respondent. Once the Interim FVO is served upon the respondent, it is in effect, and you will be notified of this by the AFP. Any conduct by the respondent that is contrary to the terms of the Interim FVO following service may give rise to a breach of the Interim FVO, and you may contact AFP to report these.

It is best to remember while a FVO is in place for your safety, and the safety of others, it should be treated as a two-way street. While you are the applicant, or the protected person, you should not engage in behaviour that is prohibited by the terms of the FVO. If you are unsure of your obligations while a FVO is in effect, you should seek legal advice.

Attending Court to make an application for an Interim FVO is a lawful exception to the lockdown restrictions. If you feel you need to urgently address your safety, you should call 000 or DVCS on (02) 6280 0900.

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

Parentage Testing in Family Law Matters - Can I be Ordered to take a test?

What can you do if you think you are a parent of a child, but the other parent does not agree? Or if someone is telling you they think you are a parent of a child, but you do not think you are? These situations can be incredibly stressful for everyone involved, especially if one person asks the other to take a parentage test – and the request is refused.

When parentage of a child is an issue in a family law matter, the Court does have the power in certain circumstances to make orders requiring that a person undertake parentage testing. That power is not just limited to asking potential fathers to take a test, the Court can also order essentially any person that it believes will assist in determining the parentage of a child to take a test, including the mother and other relatives of the child

Parentage testing is only appropriate in cases where the person asking for the test has an honest and reasonable belief to doubt the assumptions about paternity, and where there is evidence that places doubt on the parentage of that child. The Court cannot make the order just to satisfy the doubts of a parent. There must be more than a mere suspicion that a person is not that child’s parent, and what evidence is necessary to satisfy it is appropriate to make parentage testing orders will depend on the circumstances of each case.

The Family Law Act 1975 has very specific provisions dealing with the procedures that must be followed, the kind of reports that are permitted, and how they are admitted into evidence. It is a technical area of law. If you find yourself in a situation where you might want to take a test, or someone is asking you to, it is important that you seek advice from a specialist family lawyer.

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

Capital gains tax and why it’s important for your property settlement

If you are negotiating a property settlement with a former partner, it is important that you are alert to the risk of any future taxation consequences of the settlement, so you can make informed decisions accordingly.

Why is capital gains tax relevant for my property settlement?

The first step to determining the outcome of a property settlement is to identify and value all property, liabilities, superannuation and financial resources in which each party has an interest.

A capital gains tax liability may be treated by the Court as a liability to be deducted from the net asset pool as part of your property settlement, in the same way that the Court would treat a secured mortgage.

Capital gains or other taxation liabilities may need to be shared by you and your former partner, if there is an intention to sell an asset which will trigger a capital gains tax event. It may impact only one party, depending on how the relevant real property is held/owned.

The Court will not however have regard to a potential capital gains tax liability that may be incurred by one party at some point in the future, if they have no present intention to dispose of the property.

This means that the Court will usually take into account any current or anticipated capital gains tax liability if there is an intention to sell property, or the property has already been sold but the CGT trigger has not yet occurred. For example, an investment property has been held jointly for a period of 5 years during a marriage. One party intends on retaining that investment property, as part of the property settlement to rely on it as a future income stream. That party will not receive an adjustment for any future capital gains tax liability, despite the fact that the property was jointly owned for a period.

In what circumstances might I need to consider obtaining advice in relation to capital gains tax?

In a family law context, capital gains tax commonly arises when there is a sale of an investment property or shares.  You should obtain accounting advice in relation to your eligibility for CGT roll-over relief and any taxation consequences (including stamp duty) associated with your property settlement, and ideally, supplement that with financial advice. We are proud to work with a range of reputable Canberra financial advisors and accountants who we often recommend our clients to, for financial or accounting advice.

How do I ensure that a capital gains tax liability is taken into account as part of my property settlement?

In the same way that the Court requires valuations of real property, the Court must have independent and reliable evidence as to the value (or anticipated value) of a capital gains tax liability. This evidence would need to come from a suitably qualified accountant. 

You should obtain family law advice when negotiating and finalising the terms of your property settlement, to ensure that liabilities such as capital gains tax are appropriately taken into account as part of Court Orders or a Binding Financial Agreement. As specialist family lawyers, we see where things go wrong and the importance of doing things properly the first time around!

If you would like to make an appointment to discuss your circumstances with a member of our team, please contact us on (02) 6225 7040, via email at info@rmfamilylaw.com.au or get started online here.

By Margot McCabe 

Can I apply to have a Care and Protection Order revoked?

The ACT Children’s Court can make a care and protection order for a child or young person if the Court is satisfied that the child or young person is in need of care and protection, that the Order is necessary to ensure their care and protection, and that the Order is in the best interests of the child or young person.

Often, care and protection orders are made where there are risks (or allegations of risk) to the child or young person arising from parental drug use, family violence or mental health issues, resulting in circumstances where there is no parent ‘willing and able’ to care for the child or young person.

Depending on the circumstances of the case and the alleged risks to the child or young person, the Court may make orders that enable the ACT Child and Youth Protection Services (‘CYPS’) to decide where the child or young person should live, and who they should have contact with. Often, the child or young person is placed with another family member, or with foster careers.

These orders can be made on an interim basis, or on a longer-term basis. Depending on the circumstances, the final orders may provide an opportunity for the parent to address the issues that led to an order being put in place, and for the child to be gradually returned to their care (for example over a 12 or 24 month period).

The Court may be satisfied, however, that the Order should be made on a ‘final’ basis, until the child or young person turns 18. Often this means that CYPS will determine where the child lives, and who they have contact with, including how often (and in what way) they have contact with their parents: which may be limited to a few occasions each year.  

There may be grounds, however, for a person to apply for the care and protection order to be revoked (i.e. for the order to be removed/dismissed by the Court). The Court may decide to revoke the order (or a provision of the order) if satisfied that:

- The child or young person would not be in need of care and protection if the order were revoked. For example, if an order was made because the parent caring for the children was experiencing serious illicit substance abuse, and the parent is now clean of illicit drug use, they could argue that the order is no longer necessary to ensure the protection of the child or young person;

- The child or young person is persistently refusing to comply with a residence provision. For example, a decision may have been made by CYPS for the child or young person to live with foster carers, but the child or young person may be insisting on returning to the care of their parent (even if the Court has formed the view that that parent is not willing and able to care for them); or

- If it is otherwise in the best interests of the child or young person to revoke the order.

In making a decision about whether or not the order should be revoked, the Court also needs to consider the child or young person’s age, maturity, views, wishes and the risk of harm if the order is revoked.

A person seeking to revoke a care and protection order will need to file with their Application an Affidavit which addresses the basis on which they say the Court should revoke the Order, including any necessary supporting evidence, such as drug test results or a letter from a psychologist, and addresses the other factors the Court needs to consider, such as the age of the child and their wishes.

To obtain further information or book an initial appointment please contact us on 02 6225 7040, by email info@rmfamilylaw.com.au or get started online now by clicking here.

I need help meeting my expenses – what can I do?

It is not unusual in relationships for one person to earn more than the other, or for one person to be financially dependent on the other because they are home caring for the family instead of being in paid employment. While this dynamic can work well while a couple remains together, it can cause serious problems during a separation or when someone is thinking about separating. 

When one person holds all the purse strings, the thought of what is going to happen financially in the short term can be overwhelming and frightening for the other person. Financial inequality can also prevent people leaving relationships as it can be cripplingly difficult to make the decision to leave when you have nowhere to go, or don’t have access to enough money to pay for housing, groceries or petrol on your own.

If you find yourself in a situation where you are considering leaving a relationship, or have already left, and cannot meet your own expenses by yourself, you may be able to ask the Court to make an Order that compels your former partner to chip in funds to assist you. These kinds of Orders are called ‘spouse maintenance’ or ‘de facto spouse maintenance’ Orders and can be made regardless of whether you were married or not, and can be made on an urgent, interim or final basis.

The Court must answer two questions when determining whether or not to make a maintenance Order. Firstly, the Court must decide whether the person asking for maintenance has a need for maintenance because they cannot meet some or all of their own reasonable expenses, and secondly, whether the other person has the capacity to meet that need. The Court will consider many different factors when answering these questions, including assessing each person’s income capacity and their actual income (which can be quite different), their property and financial resources, their age and health, care of children, and what is a suitable standard of living in all the circumstances. If successful, the maintenance can be paid in different ways, including a weekly or monthly amount, or a lump sum amount. The exact amount paid depends on the specific circumstances of each case.

This is a complex area of family law and it is important that you obtain specialist family law advice if you find yourself in a situation where you think you need help meeting your own expenses or are worried about your ability to meet expenses after you separate. There is also a criteria to be met (about the nature of your relationship) and time limits to be considered.

Please call our team on (02) 6225 7040 or email info@rmfamilylaw.com.au for an obligation free discussion and fee estimate. 

Arbitration: is it the way to resolve your family law matter?

As a result of the long delays which families are experiencing in resolving disputes in the family law courts, there has been an increased push towards alternative forms of dispute resolution, such as mediation or arbitration, to enable parties to obtain finality.

So, what is arbitration?

Arbitration is a form of dispute resolution. It has similarities to the Court process, however instead of having the dispute determined by a Judge, it would be determined by an accredited arbitrator. Each party participating in an arbitration will give evidence to the arbitrator, and make arguments in support of their application.

The arbitrator must follow the legislative pathway and case law when coming to their final decision, in the same way that a Judge or Registrar of the Court would.

What issues can be determined at arbitration?

In some cases, it may be necessary for a preliminary or a “threshold” issue to be determined at the early stages of Court proceedings, such as valuation issues or applications for partial property settlement.

Parties can agree to participate in arbitration for such interim or discrete issues, but arbitration can also be used to finally determine family law property disputes, in preference to conducting a final hearing.

Arbitration cannot be used to resolve parenting proceedings.  

Is the outcome of the arbitration enforceable?

The outcome of an arbitration is referred to as an “award”. The arbitrator will provide reasons for their decision, just as a Judge or Registrar of the Court would if the matter were determined through the Courts. When the outcome of arbitration has been determined, a party may apply to the Court to register the award, so that the award is treated as an enforceable order of the Court.

Can the arbitration award be appealed?

In the first instance, one party must seek to register the award with the Court before it becomes enforceable. If however one or more parties seek to appeal the decision, there are some limited circumstances in which the award may be set aside, such as if there was a lack of procedural fairness in the arbitration, or if the award was obtained by fraud (such as a party failing to provide disclosure in relation to their financial circumstances).

What are the benefits of arbitration?

There are many benefits to participating in arbitration. The primary benefit is significantly reducing the time that parties are involved in litigation. Some families can wait years for their matter to proceed to a final hearing, and then must also wait for the decision to be delivered. The other benefit of arbitration is to reduce the overall costs incurred by parties to resolve their family law dispute, as a flow on effect of reducing the length of litigation, or by avoiding the Court process all together.

As well as the ability to have the outcome determined quickly, an arbitration gives the parties the benefit of determining how the process is conducted. The parties will choose the arbitrator that they will jointly engage. The parties will also be able to determine whether the arbitrator makes their decision based on oral arguments, written submissions, hearing evidence of both parties, or a combination of these.

Arbitrations are also confidential, whereas family law courts are open to the public.

Is arbitration suitable for your family law matter?

You should obtain specialised advice in relation to your family law matter, tailored to your particular circumstances. For further information regarding arbitration, or your family law matter generally, contact our office for an initial appointment on info@rmfamilylaw.com.au or call us on (02) 6225 7040.

By Margot McCabe

What is a De facto Relationship?

You have been seeing the same person for an extended period of time, though you are not married and you do not have an intention to marry.  You may be living together, own a house together, and may even have children together.  So, what does this mean? If you are not married, what type of relationship are you in?

In this scenario, it is likely that you and your partner will be in a de facto relationship.  But what is a de facto relationship?  

The Family Law Act 1975 defines a de facto relationship as two persons who:

1. Are not legally married to each other; and

2. Are not related by family; and

3. That in having regard to the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.

A de facto relationship can exist between a couple in a heterosexual relationship, or in a same sex relationship.

The Court has discretion under the Family Law Act 1975 to make findings about whether two people are living together as a couple on a genuine domestic basis.  The matters they will consider are as follows:

· The length of the relationship;

· The nature and extent of any common residence (i.e. were you living together on a genuine domestic basis);

· Whether a sexual relationship existed;

· The degree of financial dependence or interdependence the two people had;

· The degree of a mutual commitment to life;

· Whether the relationship was registered;

· Whether there are children of the relationship;

· Whether the people own property together, and how that property was used;

· The reputation and public aspects of the relationship; and

· Any other matters that the Court considers relevant.

If your de facto relationship breaks down, subject to meeting a criteria, you will be entitled to apply for a family law property settlement under the Family Law Act 1975.

There are time limits that apply following the breakdown of a de facto relationship to apply to the Court for a property settlement. People who were in a de facto relationship have 2 years from the date of separation to apply to the Court (either by consent or to commence family law proceedings).  If you miss this time limit, you will need leave of the Court to apply for a property settlement.  If you are out of time, you should see a family law solicitor immediately.

If you are not sure if you were in a de facto relationship, or you would like to know more about your rights and entitlements under the Family Law Act 1975 in relation to parenting and property matters, you should seek advice from a family law solicitor.

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

By Peta Sutton

When is a grant of probate needed?

Many of us know what a Will is.  We know that it is the document that tells people who the deceased chose as their executors, trustees and the beneficiaries of their estate.  But how does an executor use the Will to transfer the deceased assets to the beneficiaries?

If the deceased held assets in their sole name, including bank accounts and real estate, an executor will need to apply for a Grant of Probate from the Supreme Court of the state or Territory in which the deceased held the majority of their assets. A Grant of Probate is a Court Order that provides for an executor to call in, deal with and distribute the assets of the deceased estate in accordance with the terms of the deceased’s Will.

Without a Grant of Probate an executor is unable to deal with the deceased’s real property (including the sale of real estate), distribute funds held in the deceased’s bank accounts or sell / transfer any shares held by the deceased.

To apply for a Grant of Probate, the executor must first publish a Notice of Intention to Apply for Probate.  If you are applying for a Grant of Probate in the ACT, this notice is usually published in the Canberra Times.  An executor can then apply for a Grant of Probate 2 weeks after the notice is published, and no later than three months after it was published.

There are a number of documents that need to be prepared on behalf of the executor when applying for a Grant of Probate, including the Grant, an Application and an Affidavit.  It is important that these documents are prepared correctly.  If they are not, it is possible that the Court will requisition the documents and ask you to amend them.

When is a Grant of Probate not required?

There are some circumstances where a Grant of Probate may not be required.  These include:

- If the deceased jointly owned real estate, bank accounts or other real property with another person.  If this is the case, the right of survivorship will apply, and the assets can be transferred to the surviving person once the death certificate has issued;

- If the deceased held relatively small amounts of money with a financial institution.  All financial institutions have different rules, however many will allow the executor to call in and distribute funds of $50,000 or less without a grant of probate; and

- If the majority of the deceased’s assets were held in superannuation.  Superannuation is not automatically an estate asset and therefore a grant of probate is often not required in order for it to be dealt with.  

Most people will not have held the role of executor before. If you have been appointed as an executor you might be feeling overwhelmed and unsure where to start.   

Robinson + McGuinness Family Law is able to assist you in applying for a Grant of Probate and subsequently administering the estate.  Robinson + McGuinness Family Law offers fixed fees to prepare and file an Application for Probate.  

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

By Peta Sutton

Who can apply to the Court for parenting orders?

Someone other than a parent of a child may bring an application seeking parenting orders in relation to a child. It is not uncommon for a child to be cared for by a person other than one of their parents, such as a grandparent, sibling, relative, or family friend. The Family Law Act recognizes that children can be raised outside of traditional familial relationships.

Under 65C of the Family Law Act, any of the following people can bring an application to the Court seeking parenting orders:

1. Parents;

2. The child;

3. Grandparents; or

4. A person concerned with the care welfare and development of a child.

The first three categories are self-explanatory, however, the third requires the Court to make a decision about whether the person bringing the application meets a particular threshold, being whether they are a person concerned with the care, welfare, and development of a child.

There are no set criteria that the Court uses to determine who is a person concerned with the care, welfare, and development of a child. In one case, a step-parent or an aunt or uncle may be declared to have leave to bring an application, in other cases, a great-grandparent’s application to bring proceedings has been refused. Each case will depend on the set of facts before the Court at the time, and the strength of the persons’ concern with the care and welfare of the child. For example, the Court is more likely to declare that a person is concerned with the care, welfare, and development of a child if they have been the primary carer of the child, or spent significant time with them throughout their lives, or if they have brought the application due to concerns about the risk of harm to a child.

Although parents and grandparents already have standing to bring an application for a parenting order, the case law confirms that there is no “hierarchy of applicant”. This means that an application brought by a parent or grandparent, will not be considered with any greater weight or priority than an application brought by someone concerned with the care, welfare, and development of a child. The Court must consider each application with regard to the legislative framework, in particular, with the best interests of the child as the paramount consideration. Any person seeking that the Court make parenting orders must have a proper basis to bring the application, irrespective of what their relationship is to the child the subject of the proceedings.

It is important to seek specialized advice from a family law solicitor about whether you have the standing to bring an application seeking parenting orders, and to obtain general advice in relation to your family law matter.

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

By Margot McCabe

What do I do if the other party won’t engage?

Following a separation, parties usually work together to negotiate and resolve their family law property and parenting disputes. What do you do, however, if the other party puts their head in the sand and won’t respond to your attempts to negotiate?

 Family law solicitor

Engaging a family law solicitor to write to the other party on your behalf can be a good way to get the other party’s attention and let them know you’re serious about progressing the matter. It can also help to place them on notice about the consequences of failing to properly engage, including the matter ending up in Court.

If there are aspects of your dispute that need immediate action, such as a child being at risk or a property that is about to be repossessed by the bank, you may need to make an urgent Application to the Court, rather than trying to engage with the other party through correspondence. If this applies to you, it is important that you get family law advice as soon as possible.

Application to the Court

If the other party continues to refuse to engage with you, you can then make an Application to the family law courts setting out the Orders you seek to resolve the matter, and seeking the matter proceed on an ‘undefended’ basis if the other party doesn’t engage. This means that you are asking the Court to make a final decision without the other party’s evidence or input.

You will need to satisfy the Court that the other party has been served with your Application and is on notice about the proceedings. You will also need to give evidence to the Court about your attempts to engage the other party, and their refusal to engage with you.

The Court will not want to make Orders without hearing both parties’ side of the story, and (depending on the dispute) will make sure the other party is given ample opportunity to respond and file documents setting out the Orders they seek, and why.

Final Undefended Orders

If the Court is satisfied that the other party is on notice about your Application, and that they are refusing to engage with the process, the Court will still need to be satisfied that the Final Orders you seek are in the best interests of the children (parenting matters) or just and equitable (property matters). You can’t win ‘by default’ because the other party isn’t engaging.

Failing to put all of the relevant evidence before the Court may mean the Judge is unable to be satisfied that the outcome you are seeking is fair and appropriate, and may result in further delays in reaching a final outcome. Sometimes, the Judge will require you to give oral evidence in Court as part of their consideration of the matter.

Getting detailed family law advice and assistance in filing your Application will help ensure that all of the relevant evidence, such as expert evidence about property values or about the history of the children’s care arrangements, is put before the Court and explained to the Judge.

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

Allegations of Risk to Children in Family Law Matters

Family law cases that involve allegations of risk to children can be difficult for everyone involved, particularly because of the broad range of issues which can arise. Children can be at risk of sexual or physical abuse, or at risk because a parent’s mental health, alcohol or substance abuse impacts on their parenting capacity. They can be at risk of harm by neglect, or a ‘flight risk’ if one parent is seeking to relocate overseas without the other parent’s consent. They can be at risk of emotional harm by being exposed to family violence, or of emotional harm arising in some other way.

When an allegation of risk is made, the Court must carefully consider what Orders are necessary (if any) to protect that child from that risk. The Court must consider the level of risk and the type of harm, and then look at those factors along with all of the other considerations that must be taken into account when determining what outcome will be in a particular child’s best interests. The Court might make Orders requiring that one parent be supervised when spending time with a child, or that they undergo drug or psychological testing. What is appropriate will vary depending on the specific circumstances of each case, and every case is different.

Sometimes allegations of risk in family law matters turn out to be nothing but mere allegations, but it can take time for a Court to sort through whether or not a child really is at risk or not. This can be incredibly frustrating for the parent against whom the allegation is made, particularly if their time with the children is stopped or curtailed while the allegations are being examined. In other cases, the risk of harm ultimately proves to be real and Orders will be made either trying to manage that risk, or to prevent the risk entirely by stopping a child from spending any time with that parent.

In the recent case of Syms & Syms (2021) FLC 94-010, the Mother made allegations that the Father was sexually abusing their three children. She refused to allow him to spend any time with them, and so the Father commenced Court proceedings in the Family Court. The matter went on for several years and the trial Judge ultimately formed the view that Father was not a risk to the children, but that they were at risk – from the Mother’s unshakeable view that they were being abused. The Judge was concerned that if the children stayed living with the Mother, they would not only lose their relationship with their Father, but they would also come to accept their Mother’s belief that they were being sexually abused. This represented an unacceptable risk of emotional harm, and accordingly Orders were made of the children to live with their Father. They were prevented from spending any time at all with the Mother for four months, and were then permitted to spend supervised time with the Mother until the Father decided the supervision requirement was no longer necessary. The Mother appealed the decision and was ultimately unsuccessful. This case serves as a reminder that risk and harm can exist in many different forms, and that sometimes where a family law matter starts out can be very different from where it ends.

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