What are the risks of a poorly prepared Family Violence Order

Being involved in a family violence matter, be it in place for your protection or against you, is a complicated and emotional process. In the ACT, an applicant is able to obtain an interim Family Violence Order, for their immediate protection, the protection of certain personal property, and / or for the protection of children in their care, without any notice to the person against which the orders applies. They are often obtained without the benefit of legal advice about their impact on the specific circumstances of that particular relationship.

This can often lead to clauses within an interim FVO that are ineffective, or clauses omitted that should have been included to ensure Police are able to properly pursue any allegations of breach. While there is the ability to amend an interim FVO, unless it is particularly urgent, the amendment is often dealt with when the Court considers whether or not to make a final Family Violence Order. This can be months after the interim FVO was applied for and granted.

An ineffective family violence order may not only fail to do what was intended, which is ensure the protected person’s safety, it can also impact on related criminal or family law proceedings. For example, a family violence order that provides for no exceptions for contact, where the applicant and respondent share children. While no contact family violence orders can and are made, commonly, there are strict exceptions included in a family violence order to ensure a child’s continue relationship with both parents subject to that relationship being free of a risk of harm to that child. If these factors are not considered, or acknowledged by exceptions that permit safe contact, the solutions are:

1. Applying to amend the family violence order in the ACT Magistrates Court – unless it is urgent, there is a risk the amendment will be tacked onto the final hearing, which means there could be a substantial gap in contact between a child and a parent spending time until that amendment application is determined; or

2. Applying to amend, suspend or discharge part or all of the family violence order in the Federal Circuit and Family Court of Australia. While this process may be more effective on an interim (immediate) basis, the cost of filing, the effort in preparing the documents necessary to file, and whether you have complied with the strict pre-action process (subject to any limited exceptions) can turn a simple issue into an expensive one.

While a family violence order is often obtained quickly, with the priority ensuring the safety of the protected person, it is crucial not to forget that they are legally binding and enforceable orders issued by a Court. A poorly drafted or proposed family violence order may end up costing more in time and money than it provided by way of resolving or de-escalating the conflict or safety issues that may be experienced. It is worthwhile obtaining advice prior to applying for a family violence order, or consider engaging a lawyer to prepare for or defend you against a family violence order.  

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

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. 

Separation essentials: 9 things to know after separation

9 THINGS TO KNOW AFTER SEPARATION

1. Timeframes are important! If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement. If you are married, you have 12 months from the date of divorce to formalise your property settlement. You must be separated for 12 months before applying for divorce.

2. Divorce proceedings are separate to Court proceedings relating to parenting and property matters. The divorce application process is generally a relatively quick and simple process.

3. Delay is risky. It is advisable to formalise a property settlement as soon as reasonably practicable after separation, to ensure that there is not any significant change in the financial circumstances of parties from that which existed during the relationship.

There are also risks associated with delay in parenting matters. For example, if there are unsatisfactory parenting arrangements in place, it can become increasingly difficult to change any “status quo” which may come about, the longer that those arrangements are in place.

4. Transparency is required regarding your respective finances while negotiating a property settlement. All parties are required to provide full and frank disclosure of their financial circumstances, including income, property in their name or possession, and any financial resource available to them. If a party has failed to provide disclosure, there could be scope for the other party to have any Binding Financial Agreement or Court Orders set aside, on the basis of that non-disclosure.

5. You are entitled to obtain independent legal advice, and should do so. Each party ought to obtain legal advice from different lawyers. Your solicitor’s job is to give objective and realistic advice to assist you in resolving any dispute. Anything that you discuss with your solicitor is confidential.

6. Children should not be involved in discussions regarding property or parenting arrangements. It is important for children to be protected from conflict, and not placed in a position where they are exposed to any unkind comments made about a parent or other family member.

7. There are a range of alternative dispute resolution options available to parties, including collaborative law, mediations, arbitration. These alternative options of dispute resolution are aimed at reducing the conflict, delay, and cost which can be associated with more traditional methods of dispute resolution, and of course to avoid Court where possible.

8. Most matters resolve without litigating. Those who have recently gone through a separation are sometimes understandably concerned about the risk of being involved in stressful and costly litigation. The vast majority of people reach agreement without being involved in Court proceedings, and only approximately 5% of matters before the Court progress all the way to a final hearing. Litigation is a last resort, and should be treated as such, unless there are safety issues or in matters of urgency.

9. You, and your loved ones, are entitled to feel safe and if you have any concerns about your safety you should urgently obtain advice, including in relation to the possibility of obtaining a protection order to cease or limit contact with another party.

To obtain specialist family law advice in relation to your separation, contact Robinson + McGuinness to arrange an initial appointment. 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: Margot McCabe

International prenuptial agreements in Australia

A prenuptial agreement or Binding Financial Agreement (BFA) as they are known in Australia, is a document that sets out how your assets and liabilities will be divided in the event of a separation. A BFA can be entered into before, during or after a relationship.

Prenuptial agreements are common in many different countries and are tailored to the law of each country. If you entered into a prenuptial agreement overseas, you should be aware that it will not automatically be recognised if you are separating in Australia.

For a financial agreement to be binding in Australia, it must comply with the requirements of the Family Law Act 1975.

Part VIIA of the Family Law Act sets out the requirements of a BFA, including:

1. That the agreement be in writing and signed by both parties;

2. That each party obtain independent legal advice prior to signing the agreement;

3. That each party is provided with a signed statement by the legal practitioner who provided them with independent legal advice; and

4. That the signed statement is provided to the other party under the agreement.

Even if an agreement is binding in the country of origin, it may not be enforceable in Australia if it does not comply with the above requirements. In absence of an agreement, the division of property between married couples is governed by section 79 of the Family Law Act 1975, which takes into account the contributions and future needs of each party, among other things. You may wish to inform your lawyer or the Court that a prenuptial agreement exists, but the Court is not bound to follow the terms of the agreement. The Court may, however, take the agreement into account in determining whether orders are just and equitable.

If you would like the terms of your international agreement to apply in Australia, you should enter into a BFA that complies with Australian law. If you have assets overseas, or are a citizen of another country, it is also important to consider the laws of the respective countries to determine how those assets may be dealt with if you separate with your partner. You should obtain specialist family law advice to help you understand how the law applies to your situation.

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.

Author: Amy Davis

I don’t understand what my family violence matter is listed for: the case management pathway in ACT family violence proceedings

There has been a significant streamlining of the family violence process in the ACT. Where previously a matter usually ran through a three step process: application, negotiation, hearing; there have been some changes to the pathway that require you to be familiar with, and understand where, the matter is up to.

The current pathway is broadly:

1. Application: A person files an application with the ACT Magistrates Court for a family violence order. If the application includes for immediate protection, known as an interim Family Violence Order, that part of the application is generally listed the same day it is filed. Whether or not the interim Family Violence Order is granted, the matter is then listed for what is called a preliminary conference, which is a form of negotiation. The preliminary conference is usually 4 – 6 weeks from the date of application, to enable the AFP to serve the respondent and make them aware of the proceedings.

2. Negotiation: After the AFP serve the application and interim FVO (if granted) upon the respondent, the parties are required to attend a preliminary conference at the ACT Magistrates Court. This is the respondent’s first involvement in the family violence process. For the applicant, it will be their second or third, depending on whether their interim application, if applied for, was heard on the same day it was filed. The parties will use the preliminary conference to try to negotiate a final settlement of the dispute, failing which, the matter will be listed for a pre-hearing directions. The pre-hearing directions is usually 6 – 8 weeks from the preliminary conference, to enable people to engage lawyers, get legal advice, or start preparing their case for hearing.

3. Pre-Hearing: this is a purely procedural listing, that helps the Court determine how much time and what level of resources need to be allocated to your hearing. There will be an expectation on the parties to know what may assist in resolving their dispute, what Subpoenas or witnesses need to be arranged, how much time the Court needs to allocate to the matter, and whether there is anything relevant the Court needs to be aware of. It could be there are interrelated matters, or mutual applications, that are best dealt with on the same listing date. These are things the Court should be told at the directions, as it may impact when each of the cases are listed for hearing.

4. Hearing: this is the day where the application will be determined and resolved. While the Court will have allocated time for your matter from what it knows at the pre-hearing directions, there will be time allocated to have further negotiations if they will help. You will need to come prepared to run your case. It is important that if you are thinking of engaging a lawyer, and counsel (known as a barrister), you have done so either prior to the pre-hearing or shortly after it occurred. It is not enough time to engage a lawyer the week or the day before. If you realise the day of the hearing that you need further evidence, or there is a witness who you didn’t properly inform to attend, your matter will run that day without them.

There is an expectation on participants, regardless of whether they have legal representation, or have had the benefit of legal advice, to know where their matter is up to, and what they need to do at that stage. A failure to properly prepare your family violence matter could see an order being made, or refused, against your wishes. Given the lead in time to the hearing in the current pathway, it is no longer enough to turn up to the date of hearing having only just worked out a Subpoena needs to issue, or a witness should have been called. There will be several matters listed with yours at any stage of the process, and the Registrar or Magistrate will only have a limited amount of time in which to hear your dispute. While family violence is a distressing and highly personal area of the law, it is still an element of the judicial process and needs to be respected as part of that process.

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

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. 

Child Impact Reports

The Court has made an Order for you to participate in a child impact report, so what is a child impact report?

A child impact report is a report ordered by the Court, that provides information bout the needs of the children involved in Court proceedings. The purpose of the report is to provide the Court and the parents with information about the children, their experiences, and their needs, in the context of the dispute before the Court.

The report is prepared by a Court Child Expert, who is a qualified psychologist or social worker. Court Child Experts are employed by the Court and have significant experience working within the Court system and with children from separated families.

The child impact report interviews generally occur in 2 parts over separate days. Part 1 includes interviews with each of the parents, and Part 2 includes an interview of the child or children, so long as the children are of an appropriate age and stage of development. The interviews are fully reportable, which means that nothing that you raise with the Court Child Expert is confidential.

When the Court Child Expert meets with parents and children, they may explore issues including:

1. The current care arrangements for the children;

2. The proposed care arrangements;

3. The child’s relationships with their parents, siblings, and other family members;

4. The presence or risk factors, including family violence, drug or alcohol use;

5. The presence of any mental health issues;

6. The child/dren’s age and development needs; and

7. Any other factor that the Court Child Expert identifies as important, given the circumstances.

Following the interviews, the Court Child Expert will prepare a report. The report will be provided to the Court and then released to the parties. Once the report is released, it is not to be shared or shown to any other person, without the Court’s permission. Its contents will be considered by the Judicial Officer hearing the case and it will form one of the parts of evidence in the case at a Final Hearing.

If you are involved in parenting litigation it is important to obtain specialist advice from those qualified to assist you.

To make an appointment with a member of our team please 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 

Am I eligible for an annulment?

People sometimes use the words ‘divorce’ and ‘annulment’ interchangeably, but they are separate processes with different requirements. Regretting a decision to marry, not consummating the marriage, or realising that one of you is actually in a different financial situation to what you thought may all be good reasons to seek a divorce, but they do not qualify as reasons to seek an annulment.

To obtain a divorce your must first demonstrate that you have entered into a valid marriage that you now wish to end. In contrast, to obtain an annulment you must demonstrate that the marriage you have entered into was never valid at all.

The requirements for a valid marriage are as follows:

- Neither party can be married to another person;

- Both parties have to be over 18, although they can be given leave by the Court to marry at age 16 in certain circumstances;

- It cannot be a prohibited relationship, like brother and sister;

- There must have been real consent to the marriage that took place in a real ceremony, and that consent must not obtained by duress, fraud, or mistaken identity, or take place when a person was incapable of understanding what they were entering into.

The case of Nagri & Chapal [2012] FamCA 464 is a good example of where the Court granted an annulment due to duress. In that case, the parties entered into an arranged marriage that was set up by the applicant’s uncle. The applicant did not want to marry the respondent, but the uncle put the applicant under immense pressure to comply with his ‘family duties’, ignoring the applicant’s objections. The applicant went along with the civil ceremony, but ultimately refused to go through the religious marriage ceremony and applied for an annulment.

The Court found that the applicant was subjected to such “strong feelings of family loyalty” and “religious and cultural beliefs” that he “believed his uncle was entitled to demand his obedience”. He was economically dependent on his uncle and felt that he owed his uncle a debt because of the support his uncle previously provided. The Court ultimately found that these factors taken together meant that the applicant was under duress because his will was “overborne to the extent he was not acting of his own free will”, and granted him the annulment.

Annulments can be a tricky business and applying for one is a much more difficult process than obtaining a divorce. If you are considering seeking an annulment, you should obtain specialist family law advice.

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 If I Can’t Serve My Divorce Application?

If you have filed a sole Application for Divorce, you will need to serve the application on your spouse. The application and supporting documents can be served by hand or by post.  If your spouse lives in Australia, you must serve the documents at least 28 days before the divorce hearing. If they live overseas, you must serve the documents at least 42 days before the hearing.

If you are no longer in contact with your spouse, it can be difficult to serve your divorce application. They may have changed their contact details or moved interstate or overseas. If you are unable to locate your spouse, you should make attempts to contact them or locate them in other ways, such as through their family, friends or employer. You should also try searching the electoral roll if possible.

If you are still unable to locate your spouse despite making all reasonable enquiries, you can make an Application in a Proceeding seeking:

1. Substituted service; or

2. Dispensation of service.

It is important from the Court’s perspective that your spouse has an opportunity to respond to your Divorce Application if they wish to.

Substituted service

Order for substituted service allows you to serve your spouse in another way. For example, if you are aware of your spouse’s email address, you could seek an order that allows you to serve the application by email. You can also seek an order that you be permitted to serve the documents to a third party, such as a relative, who can pass the documents on to them. You must be sure that the method of substituted service will be successful.

Dispensation of service

An order to dispense with service means that service is no longer required. This order can be made with or without conditions. The Court must be satisfied that you have taken all reasonable steps to serve your application and that the requirements for divorce have otherwise been met.

Procedural requirements

An application for substituted service or dispensation of service requires an Application in a Proceeding and a supporting Affidavit. Your Affidavit should set out the attempts you have made to serve your spouse, including:

1. Your attempts to contact and locate your spouse, including copies of any messages/emails;

2. The last known address of your spouse and details of your last communication with them;

3. Enquiries you have made of your spouse’s family or friends and any replies received;

4. Enquiries you have made with your spouse’s employer and any replies received;

5. Details of any child support or maintenance orders, including any correspondence with government departments;

6. Details of any jointly owned property;

7. The costs you have incurred trying to serve your spouse and whether further costs would create financial hardship for you;

8. If you are seeking substituted service, details of the way you propose to serve documents and the basis upon which you believe it will be successful; and

9. Any other relevant information.

The application will generally be heard at the same time as your divorce hearing. You should attend the hearing as the presiding Court Officer may ask you to provide further information.  

You may wish to seek specialist family law advice before applying for substituted service or dispensation of service. If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 by email at info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

How Does Family Law Treat Pets?

Pets are classified as the property of their owners, rather than creatures with consequential rights. Pets, particularly in the wake of COVID-19 and the various lockdowns since 2020 have become more and more popular. The rise of “COVID puppies” for instance is a prime example of human needs and the value they place on companionship.

In the case of Downey & Beale [2017] FCCA 316, Judge Harman highlighted the way in which the law treats pets:

The law describes the manner in which this case is to be determined. [the pet] is a chattel and his ownership is to be determined by the Court as an issue of ownership of property.

This means the following will be considered:

• Who purchased the pet;

• Who is the registered owner;

• Who was responsible for maintaining the pet (i.e. walking, feeding, paying for vet bills); and

• Who is in possession of the pet?

It is important to consider the above factors together, as payment for purchase alone does not by itself determine ownership. Ownership must be determined before the Court can make any order for adjustment of interests. It is difficult to ascertain the value of a pet, when its worth for many is not considered monetary but, in the love, and affection, they have for it.

“Shared custody” of a pet, is sometimes considered between ex-partners. Whilst this is an agreement that parties can come to informally between themselves when they are amicable, at law this is not something that will be adjudicated by Courts. In Davenport v Davenport (No. 2) [2020] FCCA 2766, Judge Tonkin confirmed that:

Even if the court did have jurisdiction to make the order sought by [party] for shared custody of the dog, it would not be appropriate to exercise that jurisdiction on an interim basis given the significant conflict between the parties. [The party’s] application for shared custody also does not fall within Part VII of the Family Law Act.

Part VII of the Family Law Act deals with children, their best interests and how the Court approaches parenting orders. There is no reference to pets within the Family Law Act.

If you or someone you know is considering what to do with their pet between an ex-spouse or partner, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.

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

Family Law as a Team Sport?

While some family law matters resolve relatively quickly with only the assistance of a family lawyer, if your matter is more complex you may find that a team of different specialists and individuals is required to help you achieve the best outcome. In those more complex matters, it is important that you have the right team by your side, as it is crucial that these different individuals work together and towards the same goal.

The first person on your team is your family lawyer. It is important that you feel confident and comfortable with your lawyer because in addition to the vital role they play in managing your case and advising you, they are also the person who will help you pick the other players, and help you identify when another player is necessary. If complexity or the volume of work requires it, more than one family lawyer may be working on your case to ensure that work is done efficiently and effectively.

If your matter progresses to Court or is particularly complex, the next person on your team may be a family law barrister. Barristers are specialist advocates whose bread and butter is courtroom advocacy, and they will usually be retained to argue your case in Court or at an earlier stage to assist with strategy. Your family lawyer will help you choose the right barrister for you, and will work closely with them to provide them with the information they need to represent you in Court.

Other than your legal team, you may also need to engage with other professionals such as forensic and clinical psychologists, accountants, property valuers, business valuers, taxation specialists, mortgage brokers, and conveyancers. These individuals must be instructed appropriately, provided with the relevant information, and the information they provide either shared or not shared with their former partner as is appropriate in the circumstances. In some situations, these individuals are engaged jointly with your former partner, and in other situations, they are engaged by you alone.

If this feels a bit overwhelming, don’t worry. It is your family lawyer’s job to help you navigate this process and to explain when and why you might need some additional support.

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

Can I Record My Ex-Partner: the Use of Secret Recordings in Family Law

Oftentimes in a person’s everyday life, they are on camera: the camera on their phone, the dash cam in their car, the security camera as they walk in and out of a shopping centre. In a family law dispute, a person may seek to use their camera to record contacts with their former partner, they may record conversations with family members or friends, or record children before or after time with the other parent. While people may think they are acting protectively in a low conflict manner, there are risks that flow from secretly recording another person and using that recording.

In each state and territory in Australia, there are recording and surveillance laws. Some jurisdictions permit the use of recordings in certain circumstances. For example, in Queensland, a recording is legal if made with only one party’s consent. The person consenting to the recording can be the same person who takes the recording. In the Australian Capital Territory, however, there is no such exception. In the ACT, it is illegal to record another person without their consent, including an audio recording. It is also a criminal offence to transmit that recording, for example, providing it to family and friends, or to a lawyer for advice.

At its basic, this means that generally, it is illegal to record another person or retain such a recording, in the ACT. There are exceptions that apply in certain circumstances. The Court does not permit the use of such recordings, except in certain limited circumstances. Those circumstances may include where, notwithstanding the recording was made contrary to the relevant law, the desirability of admitting the recording into evidence before the Court outweighs the undesirability of admitting such evidence. In simple terms, the information obtained by a secret recording, and the relevance of that information to the circumstances of the particular case, may outweigh the issue of relying on a secret recording that was improperly obtained.

There is no hard and fast rule about the acceptance or rejection of secret recordings in family law. It is dependent on the circumstances of the case and the admissibility (or lack thereof) of the secret recordings. The Court is particularly critical of secret recordings where the evidence could be obtained by other means:

• By the making of diary entries, on a note’s app or in hard copy, at the time of each incident or event;

• By the making of complaints to police, counselling, domestic violence or child welfare services, which can later be obtained by Subpoena;

• By making written contact with family, friends or services, where contacts can be later produced. 

There are often other ways to gather evidence to support your position that is safe, respectful, and within the bounds of the law. If you intend to use recordings that you have, you should seek legal advice on whether or not these recordings can and should be used. To understand how the law applies to your particular circumstances, contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Assets and Financial Resources You May Not Be Considering in a Property Settlement

Each party negotiating a property settlement has a duty to the Court and to each other to give full and frank disclosure of all information relevant to their financial circumstances in a timely manner. When identifying assets that form part of a property pool with your former spouse or partner, it is typically categorised by any interest held in:

• Real property;

• Bank accounts and cash;

• Cryptocurrency;

• Shares;

• Trusts interests;

• Mortgages and/or loans/lines of credit;

• Motor vehicles;

• Superannuation interests; and

• Inheritances.

Beyond these, there are further assets and financial resources that often fail to be considered by parties which may be relevant in determining the entire property pool available for division. These may include:

• Loyalty point programs such as:

1. Frequent Flyer Points; and

2. Hotel points.

• Long service leave entitlements;

• Windfalls such as lottery winnings and/or personal injury compensation payouts;

• House contents such as:

1. Furniture;

2. Electronics;

3. Artwork;

• Pets; and

• Debts such as gambling or personal loans through friends or family.

Some of these items can be difficult to value, given subjectivity, depreciation, or their assumed nil cash value. Whilst frequent flyer points and hotel points may have nil cash value, they still hold a value and they can usually be transferred between parties.

Long service leaves accrued during a relationship may be considered valuable and relevant to the property pool, particularly if it has been accrued over a number of years.

Household contents and furniture are typically valued by their second-hand sale worth, with artwork and other sentimental items often having a higher value to a party, depending on when or how they were acquired (or if for example, they were inherited).

Pets are a complicated ‘asset’ and may have a significant emotional value between parties. This can include the pet’s monetary value from a breeding perspective to a simply strong emotional attachment. ‘Custody’ issues can also arise about jointly owned pets.

Personal loans through family or friends or gambling debts may have been hidden by a spouse from their partner. It is important to identify if these exist so that the entire property pool can be accurate determined and dealt with as part of any settlement.

It is important to note that the above information is relevant to family law and may not be accurate under other areas of law, such as in cases of bankruptcy.

If you or someone you know is considering your assets and financial resources between an ex-spouse or partner, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, no matter how complex.

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

Author: Emily Nicholls

Interim Property Orders - Do I Have to Wait Until the Final Hearing to Ask the Court to Sell the House?

The Family Law Act 1975 gives the Court power to make Orders dividing up your and your ex-partner’s assets, liabilities, and superannuation entitlements after you separate. As with all family law issues, what Orders will be made (if any) will turn on the specific facts of each case.

Generally speaking, the Court will exercise its power to make these types of Orders on a final basis. This means that once any necessary transfers have been made, bank accounts closed and superannuation split, you will have your separate ‘pool’ of assets that you can do whatever you want with, your ex has theirs, and you each then go your separate ways with the matter finalised and behind you.

In some cases, however, people simply cannot wait years for a final hearing to determine what will happen to their assets on a final basis. The asset pool might be diminishing because the parties cannot pay the mortgage, or a party may need access to funds that are locked up in a frozen bank account to pay a tax debt or other liability, or legal costs. In those cases, the Court may be asked to step in and make interim or ‘partial’ property Orders.

The Full Court in the matter of Strahan (2011) set out the two-step process that the Court will generally follow when asked to consider these types of applications.

Firstly, the Court must consider whether the interests of justice require the exercise of its power on an interim basis and whether it would be ‘appropriate’ to make that Order, with the interests of justice being the overarching consideration. Though an applicant does not need to show “compelling” circumstances, the Court will have regard to the fact that usually property orders are made after a final hearing. 

In the second stage, the Court must turn its mind to making a conservative assessment of what the range of possible outcomes may be on a final basis so that whatever property is left over after the interim order is made will still be enough to meet the ‘legitimate expectations of both parties. In other words, what one person is given on an interim basis must be less than what they could possibly be entitled to on a final basis, or the order must be capable of being reversed so that the Court does not wind up deciding that the other person is entitled to more than what is then left available (and is appropriate) for the division at the end of the hearing.

Successfully applying to sell a house on an interim basis is, therefore, possible, but of course, will depend on the facts of your own case. You should seek specialist family law advice before going ahead with an interim application. 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.

My Ex Is Selling Our House – Can I Lodge a Caveat?

To lodge a caveat you must have an equitable interest in the property. A caveat acts like an Injunction, which is a Court order directing a person to not do a specific thing. This can stop the sale of land or property. You must have reasonable grounds to lodge a caveat, together with meeting the requirements of the Land Titles Act 1925.

Reasonable Grounds

Examples of reasonable grounds include:

• There is a Constructive Trust: where you are not on the title or mortgage but you can prove that you have made financial contributions to the property either through:

1. Mortgage repayments; or

2. Contribution to the purchase of the property; or

3. Contribution to the maintenance or improvements of the property.

• A declaration has been made by the Courts that an equitable interest exists.

In proving that there is a constructive trust, you must have proof in writing between you and your ex-partner that these financial contributions are contributions towards the property. This can be difficult to prove if you are simply transferring money for the purpose of your share of the mortgage to the personal account of your ex-partner.

Despite the above, a caveat cannot stop the registration of a Writ; the registration of another caveat; the registration of a document executed by the property owner whose interest was registered before the lodgement of your caveat or a correction or alteration of the registered by the registrar-general.

The caveat will require your full name and address, and a sufficient description to identify the land and the interest that you seek to claim. This is different to caveats lodged by order of the Court or by the registrar-general.

Unreasonable Grounds

Examples of unreasonable grounds include:

• Simply being in a personal relationship with the owner of the land or property; or

• An interest under the Family Law Act 1975 or the Property (Relationships) Act; or

• An interest in the sale proceeds of the property expected to be included in a property settlement; or

• A simple debt owed to a person by the person selling the property; or

• You and your partner simply “agreeing” that you have an interest.

This means:

You are not able to justify a caveatable interest under the Acts if it has not been declared by the Courts. The interest must be an interest in land, not to protect a contractual or personal right or a statutorily based right that does not confer any interest in the land. This means it is not enough to have a verbal agreement between you and your ex-partner that you have an interest in the property, nor is an interest found in your non-financial contributions to the property, such as caring for the property and/or the other person.

You are also not able to lodge a caveat for an interest that will arise in the future, such as an expected property settlement. This means if you have an interest in the proceeds of the future sale of land or property, you do not have a right to lodge a caveat. This is different to a right to enforce the sale of the land or property, which can come into force once you have formalised your property settlement either by Consent Orders or a Binding Financial Agreement.  

What can I do if I didn’t financially contribute to the property?

If you do not have reasonable grounds to lodge a caveat, you can file an injunction with the Federal Circuit and Family Court of Australia and seek a declaration from the Courts that you have an equitable interest.

If you or someone you know is considering your rights and interests to their property, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters.

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

Application for Consent Orders – Registrar Notification / Requisition

In the event you and your former partner agree in relation to the division of your property, or the care arrangements for your children, you can seek Consent Orders from the Federal Circuit and Family Court of Australia formalising the agreement. To do this, you need to file an Application for Consent Orders and Minute of Consent Orders with the Court.

Once filed, a Registrar of the Federal Circuit and Family Court of Australia will review your application and decide whether the Orders that you seek can be made by the Court. In making this decision, the Registrar will want to be satisfied that:

1. You have completed the Application for Consent Orders correctly, including all relevant sections have been completed and any mathematical (property only) calculations have been accurately carried out;

2. The Orders you seek have been appropriately drafted and are capable of being carried out;

3. The Orders you seek are appropriate for the Court to make (for example, the Court is unlikely to make a self-executing cost order);

4. If you seek property Orders, that the Orders you seek are just and equitable; and

5. If you seek parenting Orders, the Orders you seek are in the best interests of the children.

In the event the Registrar is not satisfied with one or more of the above, it is likely that they will raise a Registrar Notification / Requisition with you and your former partner.   The Notification / Requisition will identify the reasons why the Orders you seek cannot be made and set out the steps that you and your former partner need to take to have the Orders you seek made.  This may include, though is not limited to:

1. Filing an Amended Application for Consent Orders;

2. Filing a further Minute of Consent Orders;

3. Filing an Affidavit with the Court addressing the issues that have been identified by the Registrar.  The Affidavit may need to set out why you say the Orders you seek are just and equitable based upon your financial contributions to the property pool, your income and your financial resources; or the Affidavit may need to set out why you say the Orders you seek are in the children’s best interests; or

4. Filing further information with the Court, such as a letter from the Trustee of your super fund stating that they hold no objection to the proposed superannuation split (if there is one included in the Orders you seek).

The Registrar Notification / Requisition will stipulate a time frame within which you need to complete the requested steps. This is usually 4 weeks.  A failure to comply with the request within the stated timeframe will result in your Application for Consent Orders being dismissed without further notice. 

It is important that you comply with the Registrar Notification / Requisition notice.  You should seek specialist advice from a family law solicitor to make sure you understand the notice and have appropriately complied with the steps outlined therein.

As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to any Registrar Notification / Requisition notice that you may receive.  We can also advise you about your rights and entitlements, no matter where your family law matter is up to, and assist you to finalise your agreements.

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

Author: Peta Sutton

Why do I need to formalise my property settlement?

The division of assets, including superannuation, is something that most couples negotiate after separation.  Sometimes this negotiation is amicable, and parties are able to reach an agreement between themselves, and sometimes parties require the assistance of a family lawyer.

Regardless of how you reach an agreement, it is important that you formalise your property settlement.  There are substantial risks associated with a failure to formalise a property settlement by way of Consent Orders or a Financial Agreement. If you do not enter into one of these documents, and simply divide up your assets and liabilities, you are completing an informal property settlement.

An informal property settlement carries many risks and is not legally binding or enforceable upon you or your former spouse.  This means that:

1. Should a party fail to do something that was agreed, for example, make a cash payment to you or sell a property, there is no way of compelling that party to act in accordance with the agreement; and

2. You may be open to a later claim from your former spouse, and the claim may be bigger than that which you are exposed to at the time of separation.  This is because the Court considers the assets, liabilities and superannuation at the date it makes a decision; therefore, any growth in your assets (including superannuation) and any new assets that you have acquired between separation and the later claim will likely be included in the asset pool available for division.

There are time limits that apply to point (2) above.  Parties to a marriage have 12 months to make a claim upon their former spouse following a divorce order taking effect, and parties to a de facto relationship have 2 years from the date of separation to make a claim.  Claims brought after this time will need to be considered by the Court on a case-by-case basis.

There are two ways to formalise your property settlement:

1. By way of Consent Orders - this is a relatively straightforward process and neither party is required to receive legal advice.  In saying this, it is beneficial to engage a family lawyer to advise you on the property settlement that you have reached, whether it is just and equitable and within the range of outcomes that could be expected from the Court, and to assist you with the preparation of the Consent Orders and accompanying application.  A failure to complete the documents correctly gives rise to a risk of a requisition being issued by the Court, or the Consent Orders being incapable of being implemented; and

2. By way of Financial Agreement – this document is often more complex and requires both parties to have received independent legal advice prior to the document being entered into.  Unlike Consent Orders, a Financial Agreement is not subject to the Court’s approval.  It is often used when parties are entering into a property settlement that may not be approved by the Court.

Regardless of which document you choose, formalising your property settlement will give you peace of mind that no further claim can be brought against you by your former spouse except in very limited circumstances.  The documents will also allow you to “split” superannuation and may provide stamp duty relief to a party who retains real property or assets such as motor vehicles.

No matter where your property settlement is up to, 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 in an efficient and cost-effective way.

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

Author: Peta Sutton

Litigation Guardian in Family Law Proceedings

Family law disputes can arise in the lives of people from all walks of life, and all ranges of ability and disability. Sometimes a person who is a party to a family law dispute will be unable to conduct their family law matter because of a mental or physical disability, and in those circumstances, a ‘litigation guardian’ can be appointed to represent that person’s interests. 

Simply having a disability or impairment does not mean that person needs a litigation guardian. The Court starts with the presumption that adults do not need litigation guardians, and that children do, and so there must be the evidence put before the Court that proves that is not the case for a particular person. Litigation guardians will only be appointed for adults when their incapacity or disability means they are unable to understand the nature and possible consequences of their proceedings or are not capable of conducting their own matter or giving adequate instructions to their lawyers to conduct the proceedings.

Once the Court had determined that it is appropriate for a litigation guardian to be appointed, the question arises of who will act. A litigation guardian must be an adult who has no interest in the proceedings that are adverse to the interests of the person they will be representing. They must also be capable of fairly and competently conduct the proceedings on that person’s behalf. Litigation guardians are often friends or family members, and where there is no one available, the Attorney General can be asked to appoint an independent person.

Acting as a litigation guardian is an important role, and often a difficult one. The role comes with serious legal obligations, as once appointed, a litigation guardian must comply with all the Court rules and do everything that must be done by a party to the proceedings. This includes engaging in alternate dispute resolution where required and meeting all filing deadlines. In the case of friends or family members, there can be the added layer of difficulty of making decisions that may not be what the person you are representing would like you to do.

If you find yourself in a situation where you require advice about appointing (or being) a litigation guardian, contact us for an initial appointment at (02)62257040 or email info@rmfamilylaw.com.au or get started now online.

Parents V Grandparents V Carers: Who Does the Court Prioritise in a Parenting Dispute?

In Australia, there is a myriad of formations of who may act in the role of a parent: the traditional two-parent household, the common single-parent household, or where an extended family member (like a grandparent, aunt or uncle) acts in the role of a parent. Relevantly to the Family Law Act 1975 (Cth), all of these parties can possibly seek parenting orders from a Court subject to their particular circumstances.

A parenting order may be in relation to:

1. The allocation of parental responsibility;

2. With whom a child is to live; or

3. With whom a child is to spend time.

The Court must regard the best interests of the child as the paramount consideration. In determining this, the primary considerations are:

1. The benefit to the child of having a meaningful relationship – being one of positivity and benefit – with each of their parents; and

2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is required to give greater weight to the second consideration. There is also a range of additional considerations the Court must take into account when seeking to make parenting orders.

The Court has no pathway as to how to prioritise the “parent” over that of a grandparent, aunt or uncle, or a person “otherwise concerned with the care, welfare or development” of the child. Put simply, there is no such priority. What is an unconditional right, is the standing of a parent, a child or a grandparent, to apply for parenting orders. The aunt, uncle or say, the step-parent of a child, must first establish themselves as a person so concerned with the care, welfare or development of the child, and once established, may then proceed to seek parenting orders.

An example of this was Winship & Wrays [2019] FamCAFC 225, where the Full Court of the Family Court of Australia upheld a decision that:

1. The aunt of the subject child is granted sole parental responsibility.  

2. The child to live primarily with the aunt.

3. The child to spend significant and substantial time with the father, being alternate weekends in the school term and half of school holidays and special occasions.   

Relevantly in Winship, the child had been in the care of the mother, who unfortunately passed away due to breast cancer. The aunt cohabitated with the mother and father to provide support and care for the mother in her illness, and in the care of the child, who had their own health needs. The mother passed away after the parties separated, with the aunt remaining with the child in the mother’s home, the father having moved out. There were circumstances of family violence as between the father and the mother, and a particularly fraught incident involving the father, the mother, and the child, that led both the mother and the child to fear for their safety from the father.

Following the mother’s passing and failing resolution of an agreed parenting arrangement between the father and the aunt, the father brought proceedings to the Family Court of Australia. The trial judge ultimately determined orders in favour of the aunt as against the father, relevantly as it was in the best interests of the child to live with the aunt over the father. The fact the father perhaps had a “better” standing to seek orders about the child, made no difference to how the Court regarded what was in the child’s best interests.  

While the Court may give regard to previous decisions, it is not in any way bound by them. The Court will apply the relevant law to the facts in your particular circumstances at the time. To know what options are available to you, it is important to get advice tailored to you. If you would like to discuss your matter and how we can assist you, contact us today on, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

I’ve Been Served a Family Violence Order That Includes My Children, Now What?

In the Australian Capital Territory, an order that is made for the safety and protection of a person, against a former partner or family member, is known as a Family Violence Order or FVO. Children can be included on an FVO of a parent. They can be included as a “protected person”, which means generally they are considered in all terms set out in the FVO, or they may be specifically referred to in one or some of the terms, such as to not commit acts of family violence towards them or in front of them.

It is important to carefully review the entire FVO when you are served by police, and to understand how the children are named, and to what extent they are covered by the prohibitions of the FVO. Often, there are exceptions contained within the FVO, for example, there may be a restriction on the respondent coming within 100 metres of the applicant, except at a Court or tribunal proceeding, for the purpose of mediation; or where children are involved, when attending changeover, where the distance may be reduced to a range that ensures the safe handover of the children appropriate to their age.  Each FVO will contain different prohibitions, set to the evidence given in the application filed by the applicant and their evidence given before a Deputy Registrar at the interim hearing.

In the event there are no exceptions in the FVO that permit contact between the respondent and children, including in person or by telephone, the respondent is entitled to:

1. Make an application to vary the FVO in the ACT Magistrates Court. An application in the ACT Magistrates Court focuses on not adversely affecting the safety of the protected person/s.

2. Make an application to vary the FVO in the Federal Circuit and Family Court of Australia (FCFCoA). An application to vary the FVO in the FCFCoA focuses on what is in the children’s best interests.

3. Negotiate a variation by the agreement at the Preliminary Conference, usually the first Court event in the family violence proceedings a respondent attends, to include the ability to communicate with and spend time with the children.

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. It is important to ensure you comply with the terms of the FVO while they are in effect. While a FVO is a civil order, it has criminal ramifications in the event it is breached. A breach of the FVO, no matter how trivial or minor, may also be used as a basis to amend, extend, or seek an interim FVO be made final.

In the event you are concerned for your immediate safety, you should contact the police on 000. In the event you require safety planning or guidance on non-urgent family violence matters, you should contact the AFP on 131 444 or DVCS at (02) 6280 0900.

Determining how to vary, or whether to vary an FVO, can be a difficult process. Depending on the circumstances of your situation, such as whether there are related family law, criminal law or child welfare proceedings, will assist in determining which pathway is more suitable for you. If you would like to discuss your options and how we can assist you, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Adopting a Child from Overseas: What Do I Need to Know

Adopting a child from overseas is known as an intercountry adoption. There are partner countries with Australia who assist in facilitating overseas adoptions under the Hague Convention, which aims to protect children from trafficking, and illegal and ill-prepared adoptions. It remains a foremost principle that the adoption of a child from overseas must be in the child’s best interests. Adoptions must also be approved by your state and territory central authority.

Currently, Australians can adopt within the following partner countries:

• Bulgaria

• Chile

• China

• Colombia

• Hong Kong

• India

• Latvia

• Poland

• South Africa

• South Korea

• Sri Lanka

• Taiwan

• Thailand

You must meet the eligible criteria of the state or territory you live in, together with the eligibility criteria of your chosen partner country. This includes whether you are married or single, same-sex, de facto and in some countries, whether you are male or female (as a single).

Other considerations are the ages of the children and the difference in age between you as the adoptor and the child and your mental and physical health. There are fees associated with intercountry adoption which vary from country to country. This can include program fees, translation fees, travel and accommodation and incidentals.

The adoption of a child or young person from overseas is recognised provided:

• The adoption is granted by the central authority of the convention country (the country from where the child is being adopted);

• Arrangements for the adoption of the child or young person have been made by the director-general or a private adoption agency; and

• An adoption compliance certificate issued in the convention country is in force for the adoption.

Having this recognition means that the legal relationship between the child or young person and the pre-adopted parents or legal guardians is now terminated provided the law of the convention country provides that. If the convention country declares that it does not recognise the adoption, it has no effect on the law of the state or territory in which you live. Should they not recognise the termination, you may be able to apply to the court to terminate the relationship between the child or young person and the pre-adoption parents or guardians.

It is dependent on the country as to who finalises the adoption order, whether it be in the country of birth or Australia. Should it be Australia, the adoption order will need to be finalised in an Australian court after your child arrives in Australia. If the above has been complied with, your child will be eligible to become an Australian citizen. You may also be able to register your adopted child’s birth through your local Registry of Births, Deaths and Marriages and then apply for the birth certificate.

If you or someone you know is considering overseas adoption, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.

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

Why Should I Formalise My Property Settlement?

The Family Law Act 1975 (the Act) provides two enforceable ways of formalising a property agreement after the breakdown of a marriage or de-facto relationship: Consent Orders (CO) or a Binding Financial Agreement (BFA). While it may seem easier or cheaper to simply divide what you have with your former partner, and go your separate ways, there are many benefits in formalising the agreement, and equally, many risks in not doing so.

Why should I?

Deciding on how to formalise your property settlement will depend on a range of factors: the complexity of your agreement, what is within the property pool, and what your pathway forward may look like.

Consent Orders are prepared with or without lawyers involved and are filed with the Court for a nominal filing fee. They can generally take from six-eight weeks to be reviewed by the Court. Once reviewed, the Court may approve them and issue you with sealed Consent Orders, or they may write asking for matters to be explained or parts of the proposed Consent Orders to be amended. The agreement the parties come to must fall within a permissible range of what is a just and equitable division of the pool as set out in the Act. Once issued, they are enforceable and binding upon the parties. They can only be set aside in very limited circumstances.

Binding Financial Agreements must be prepared where each party has had the benefit of prior independent legal advice and is an agreement that effectively seeks to deviate from the rights and protections under the Act. It is not reviewed by the Court like Consent Orders are, and it can be an agreement that does not fall within what a just and equitable division of the pool may look like. It must be precisely prepared, otherwise, it can be set aside for failure to comply with the strict requirements of the Act. 

Both sets of documents, once completed and issued in final, have the benefit of:

1. Bringing your property dispute to a close with certainty. Unless a very limited set of circumstances apply, the agreement is final and prevents either party from seeking to make further claims against the other.

2. It is enforceable, meaning either party can seek the other to comply with the agreement, even if they decide they no longer want to, by way of Court enforcement mechanisms.

3. It can offer tax benefits, such as the transfer of some assets such as property and motor vehicles under a stamp duty exemption.

What if I don’t

While it is ultimately your decision whether you choose to formalise your agreement or not, you need to be aware of the risks of not formalising, including:

• If your ex-partner decides not to comply with any of the terms of your agreement, you have little in the way of “enforcing” the agreement be complied with.

• You cannot split superannuation entitlements.

• You expose yourself to the risk of your ex-partner coming back for “more”, particularly if you have re-established yourself, such as buying further property, pooling assets and resources with a new partner, or paying down debts / paying a higher rate of superannuation. 

• They may be entitled to make a claim upon your estate and may continue to be considered a beneficiary.

If you intend to proceed with an informal property settlement, you should seek accounting, tax and estate law advice to properly inform yourself of the risks that this may expose you to. While it may seem like a convenient and cheap option, informal property settlements are likely to cause you more trouble down the track. To understand what may apply in your particular circumstances, contact our office at (02) 6225 7040 or info@rmfamilylaw.com.au.