Should I appoint an Enduring Power of Attorney?

An Enduring Power of Attorney allows you to choose who can make decisions on your behalf in the event you lose capacity.

What is the difference between an Enduring Power of Attorney and a General Power of Attorney?

An Enduring Power of Attorney is a legal document that appoints a person (or multiple people) to make decisions on your behalf if you become a person with impaired decision-making capacity. An Enduring Power of Attorney is an important aspect of any estate plan.

A General Power of Attorney is a document that operates while you have decision-making capacity and appoints someone to act on your behalf in relation to financial matters if for example, you are overseas or unable to do so. A General Power of Attorney ends if you lose decision-making capacity.

What is impaired decision-making capacity?

The Powers of Attorney Act 2006 (ACT) provides that a person has impaired decision-making capacity if they cannot make decisions in relation to their affairs or do not understand the nature and effect of their decisions. In some circumstances, an independent medical assessment is required to determine whether someone has decision-making capacity.

What powers does my Enduring Power of Attorney have?

In the ACT, you can appoint an Enduring Power of Attorney to make decisions about the following:

1. Property matters – this includes managing your finances by paying bills and outgoings, accessing bank accounts, and buying, selling, and investing assets on your behalf.

2. Personal care matters – this includes decisions about where you live, whether you work or study and your daily care needs such as dress and diet.

3. Health care matters – this includes consenting to and withdrawing medical treatment.

4. Medical research matters – this includes consenting to your participation in approved medical research or low-risk research.

You can specify in your Enduring Power of Attorney which powers you wish for your attorney to have and give directions and limitations about the exercise of their powers.

Your attorney must agree to act as your attorney by signing an acceptance on your Enduring Power of Attorney document. Your Enduring Power of Attorney will only be effective in relation to attorneys who have accepted their appointment by signing the document.

We offer fixed fees and package deals in relation to Wills and Enduring Powers of Attorney. If you would like to discuss your situation and how we can assist you, please contact us today at (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

Contesting a Will – Family Provision Claims in the ACT

The Family Provision Act (ACT) 1969 provides the pathway for certain individuals to contest a Will (or the laws of intestacy in the event there was no valid Will) if the individual feels that inadequate provision for the proper maintenance, education or advancement of life has been made for them under the Will (or by the laws of intestacy). For the Family Provision Act (ACT) 1969 to apply, the deceased must have left property in the ACT, or have died in the ACT.

It is not as simple as saying “I didn’t receive anything” or “I want more”; rather, the applicant needs to be eligible to make a claim and be able to show that they were financially dependent upon the deceased before the deceased’s death.

The following people can make an application to contest a Will in the ACT:

• A current or former partner of the deceased – this includes the deceased’s spouse, de facto partner (having been in a relationship for at least 2 continuous years), or being the parent of a child of the deceased person;

• A child of the deceased;

• A stepchild of the deceased – but only if they were maintained by the deceased immediately before the deceased’s death;

• A grandchild of the deceased – but only if that person’s parent died before the deceased, or if the child is not maintained by their parent immediately before the deceased’s death; or

• A parent of the deceased – but only if the parent was maintained by the deceased immediately before their death, or the deceased is not survived by a partner or children.

An eligible applicant can challenge the Will by making an Application to the Supreme Court of the ACT within 6 months of the date of a Grant of Probate or Letters of Administration being granted.

The Supreme Court will consider the following in deciding whether they are satisfied that in-adequate provision for the proper maintenance, education or advancement of life of the Applicant was made in the deceased’s Will (or by the laws of intestacy):

• The character and conduct of the applicant;

• The nature and duration of the relationship between the applicant and the deceased;

• Any financial or non-financial contributions made by both the applicant and deceased to the acquisition, conservation or improvement of property of either person (if applicable);

• Parent and homemaker contributions of the applicant and deceased (if applicable);

• The income, property and financial resources of the applicant and the deceased;

• The applicant’s capacity to gain meaningful employment – the Court will also consider that of the deceased while they were alive;

• The financial needs and obligations of both the applicant and the deceased while they were alive;

• The applicant and deceased’s respective obligations to support any other person;

• The terms of any orders concerning the payment of maintenance (both spousal maintenance and child maintenance) relating to the applicant and/or the deceased; and

• Any other matters the Supreme Court considers relevant.

In the event the Supreme Court is satisfied that inadequate provision has been made for the applicant, it has the power to make orders that it thinks fit out of the estate. The Supreme Court is not restricted to dealing with the residue of the estate (i.e. anything that has not otherwise been specifically gifted), but rather can make orders concerning all property of the estate, including property specifically gifted to other individuals.

Two examples of the type of Orders that the Court may make are, the transfer of ownership of property to the applicant and a lump sum payment to the applicant. To achieve the latter, it may be necessary for the Court to order the sale of specific property.

Family provision claims can be complex and nuanced. In the event you are considering filing a family provision application you should first obtain specialist advice in relation to the evidence that you can give in support of your application, and the prospects of your application being successful.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Travel and Parenting Orders

With the school holidays fast approaching, many parents will be travelling internationally with their children. These experiences are seen as a once in a lifetime opportunity for lots of families and the benefits of international travel on the growth of a child can be intangible. As a separated parent, travelling with children gives rise to additional considerations and planning- on top of the effort which already goes into the trip itself.

This situation becomes complex for separated parents who are involved in current proceedings before the Federal Circuit and Family Court of Australia or where separated parents have already entered into parenting orders restricting their children from international travel. Sections 65Y and 65Z of the Family Law Act 1975 (Cth) specifically set out that if a parent, who is subject to a parenting order or where orders are pending (for example, awaiting the delivery of a judgment on an interim or final basis) removes a child from the jurisdiction of Australia, this parent has committed an offence. This offence carries a penalty of three years imprisonment.

What if I do not have orders in place or I am not in litigation?

A separated parent seeking to travel overseas with their children should approach the other parent and seek their consent for the travel in the first instance. Ideally, the parent seeking to travel would provide all the relevant information and details of the proposed travel- and with as much notice as possible- including duration, destination, method of travel, copies of travel tickets and itinerary, and where possible provide options for maintaining communication between the other parent and the children whilst overseas.

If the other parent refuses consent to the travel, you may need to apply to the Federal Circuit and Family Court of Australia for approval to travel. It is commonplace for this Court to make Orders pertaining to travel and provide for international travel so long as enough notice is provided, and the travel is to a Hague Convention Country, and that they are satisfied that the child will return to Australia at the end of the proposed travel. Often, the Courts order makeup time for the non-travelling parent if time with that parent is affected by the child’s travel.

What if I have concerns about my child’s international travel with the other parent?

In some cases, parents will have genuine concerns about a child travelling internationally for a number of reasons- risks to personal safety and wellbeing; impact on education if the child is missing school for a prolonged period of time; and where the parent holds a genuine concern that the child might be permanently removed from the jurisdiction of Australia. There may be valid reasons for a parent to not provide consent to the travel.

If you hold this concern about your child’s travel, you can make an application to the Federal Circuit and Family Court of Australia to have the child placed on the Australian Federal Police Watchlist. This can only occur via a Court Order and will prevent that child leaving any port of exit from the jurisdiction of Australia. In cases of urgency- where you have a grave concern that your child will be travelling imminently with the other parent- this process can occur very quickly.

It is important for separated parents to balance the benefits of overseas travel for their children with the possible competing interests of ensuring their safety and wellbeing. It is important to seek the other parent’s consent in the first instance when seeking to take your child overseas- and with enough notice where possible. If you are planning a holiday with your children, contact Robinson + McGuinness for specialist family law advice.

Contact Robinson + McGuinness today to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Lauran Clifton

R+M Ranked 'First Tier' in 2024 Doyle's Guide

The Doyle’s Guide yearly Best Firms & Lawyers listing is compiled by peers within the legal profession. For a firm to receive a ‘First Tier’ ranking the firm not only needs a high vote count, but they also need to have glowing reports from clients and individuals. The same applies for the individual rankings; those who place in the Preeminent and Leading lawyers’ categories are those who consistently draw the praise of both clients and peers.

We are proud to announce that Robinson + McGuinness has been recognised once again as a First Tier - Leading Family and Divorce Law Firm in Canberra, a great achievement for the firm which has now been in practice for over eight years.

Members of the Robinson + McGuinness team have also been recognised for their excellence in the family law field. Our Directors, Kevin Robinson and Sally McGuinness have yet again been recognised by their peers as Leading Family and Divorce Lawyers, with Sally being acknowledged as Preeminent within the ACT. Both Directors have also been recognised in the Leading Parenting, Custody & Children’s Matters, with Kevin being acknowledged as Preeminent within the ACT. Our Associate Anika Buckley has also made a lasting impression being recognised as a Rising Star in Family Law.

We are very grateful for the recognition and support, and we congratulate our team on their great achievements! 

If you would like to make an appointment with one of our experienced lawyers, please contact us today either online here, via phone on (02) 6225 7040 or via email on info@rmfamilylaw.com.au.

You can read the full listing on the Doyle’s Guide website, here.

Do my children need a lawyer?

If you are involved in Court proceedings about the care of your children, you may wonder whether the children should have their own lawyer. In some circumstances, the Court may appoint an ‘Independent Children’s Lawyer’ (an ICL) to provide independent representation for the children. The ICL is not your lawyer, nor are they the other parent’s lawyer.

How does the Court decide to appoint an ICL?

The Court usually considers a number of factors in the appointment of an ICL (outlined in the decision of the Full Court in Re K [1994] FamCA 21), including matters involving:

1.  Allegations of child abuse or neglect;

2.  High levels of conflict between the parents;

3.  If a child has strong views (and their views should be given weight due to their age or maturity);

4.  Allegations of family violence;

5.  Allegations of serious mental health issues; and

6.  Difficult or complex issues.

The Court can appoint an ICL of its own volition, or the parties can apply for the appointment of an ICL.  The Legal Aid Commission will then appoint an ICL from within Legal Aid or a private legal practitioner will be appointed.  Notwithstanding this, parties may be required to contribute to the legal costs of an ICL’s participation.

What do ICLs do?

The ICL participates in the proceedings as any party would.  The ICL can issue subpoenas to the children’s treating medical practitioners and to their schools, for example. The ICL can also issue subpoenas seeking information about the parents.

If the children are old enough, the ICL will likely meet with the children.  Having regard to the children’s views, the ICL advocates for the children’s best interests – inside and outside of the Court. 

Once appointed, the ICL is involved in each Court event and will actively participate in making sure the appropriate evidence is before the Court. The ICL will have their own position which they deem to be in the children’s best interests. Sometimes, this may be in support of one parent’s application and at other times, it may be somewhere in the middle between competing applications.

The ICL can be involved in general correspondence as the matter progresses and will participate in settlement negotiations outside of Court. As with any party, the ICL must ‘sign off’ on any settlement reached. A matter may be unable to resolve by consent if the ICL does not support the parties’ proposed orders, however the decision is ultimately up to the Court.

If you are unsure about whether your matter would benefit from the appointment of an ICL or if you are thinking of making an application for an ICL, you should consider speaking with a specialist family lawyer about your options. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley 

Spousal Maintenance – What is it and who can apply for it?

The breakdown of a relationship is a daunting process for many; there are several unknowns, including how life will be funded without a dual income pending the completion of a property settlement.  More often than not, there is an income discrepancy between the parties of the relationship, and this can cause anxiety for the party with a lower income. They may be concerned about how they will afford basic living expenses and accommodation.  

What is spousal maintenance?

The Family Law Act places an obligation on a party to a marriage or de facto relationship to maintain the other party, to the extent that they are reasonably able to do so, in the event that the other party is unable to support themselves adequately due to:

1. The care of a child under the age of 18 years;

2. The party’s age, physical or mental incapacity to gain meaningful employment;

3. Or any other matter considered relevant by the Court.

This obligation is known as spousal maintenance.

In more general terms, spousal maintenance becomes applicable when one party has a shortfall between their income and outgoings, and the other party has the capacity to assist in meeting those outgoings once they have paid for their own reasonable expenses.

There are many forms of spousal maintenance, including:

• Urgent spousal maintenance – where the Court can make an order pending consideration of the need for ongoing maintenance;

• Periodic spousal maintenance – where the Court makes an order, either interim or final, for payments to be made for a period of time (i.e. weekly);

• Lump sum spousal maintenance; and

• An order for the sole use of property (i.e. the former matrimonial home or a vehicle).

Spousal maintenance orders tend to be made on an interim basis, or for a set period on a final basis, to enable the applying party’s circumstances to change such that they can financially support themselves (i.e. return to work once young children go to school, complete studies that will allow them to obtain meaningful employment, or the completion of a property settlement which accounts for the parties’ future needs, including incomes disparity and age).

Who can apply for spousal maintenance?

Spousal maintenance proceedings can be commenced by either party to a marriage or a de facto relationship.  The proceedings can be commenced as follows:

• For married couples: during the relationship, at any point following separation and within 12 months of a divorce order being granted; and

• For de facto couples: within 2 years of separation.

Spousal maintenance proceedings are separate to property settlement proceedings.  While they often run concurrently, there is no need to have a property settlement application before the Court in order to commence spousal maintenance proceedings.

What evidence is required?

When applying for spousal maintenance, the applicant will need to give evidence about the following matters:

• The nature of their relationship with the other party – i.e. was there a marriage or de facto relationship?  

• If the proceedings are to be commenced out of time (see time limits above), an explanation as to why that is the case and a request for leave to apply out of time must be made.

• The applicant’s income and reasonable living expenses.

• Details of why the applicant says they are unable to adequately meet their expenses – i.e. is there something that precludes them from obtaining meaningful employment, or employment with greater renumeration?  Evidence should also be given about the arrangements that were in place during the relationship – i.e. if the Applicant was the primary carer of small children during the relationship, this is a relevant factor for the Court to consider.

If applicable, independent evidence should also be provided to the Court to assist the determination of a spousal maintenance application. Independent evidence would be applicable if, for example, the applicant said they were unable to work due to a disability or illness.

No two family law matters are the same, and while there can be similarities between cases each case must be assessed based on its own facts.  In the event you are considering filing a spousal maintenance application you should first obtain specialist family law advice in relation to the evidence that you can give in support of your application, and the prospects of your application being successful.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Capital gains tax in deceased estates

If you have been appointed to administer a deceased estate, it is important to consider the application of Capital Gains Tax (CGT) when disposing of estate assets. CGT can vary depending on a number of factors, including the type of assets involved and the timeframe in which the estate is administered.

An executor (or administrator) may need to sell or transfer estate assets to beneficiaries as part of their role in administering the estate. There can be advantages and disadvantages of selling and transferring assets, which should be considered carefully during this process.  

CGT applies when an asset is disposed that is subject to CGT, known as a CGT event. There are a number of factors to consider in determining whether CGT applies, including:

1. Whether the asset was acquired before 20 September 1985, when CGT was introduced. Assets acquired before this date are exempt from CGT.

2. Whether a property was the deceased’s principal place of residence. A CGT exemption may apply in these circumstances, including if a beneficiary sells the property within 2 years of the deceased’s death.

3. Whether the deceased had shares or investment properties – CGT generally applies to the sale of shares and investment properties, unless a relevant exemption applies.

There are other factors and exemptions that may apply in your circumstances.

If an executor sells an asset as part of the administration of an estate, the estate will be assessed for CGT when a tax return is filed on behalf of the estate. Whilst the proceeds can then be distributed to the beneficiaries as a gift, the overall value of the estate may be reduced by the application of CGT. As deceased estates are treated as individuals for tax purposes for the first three years, there may be benefit in selling assets over the course of that period to take advantage of the tax free threshold.

In the alternative, an executor may transfer estate assets to beneficiaries in specie (in its current form). This means no CGT is immediately payable on the transfer, but will rollover and apply to any future sale of the asset. As such, it is important to consider CGT before transferring specific assets to beneficiaries, particularly shares and other investments.

It is recommended to seek legal and accounting advice before administering a deceased estate. If you would like to discuss your situation 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

Trusts & Family Law

Trusts, and specifically discretionary family trusts, are commonly utilised as means of holding income generating assets and distributing that income to beneficiaries, who are often family members. When a relationship breaks down, and one or both of the parties hold assets in a trust, questions often arise as to how the trust, and the property of the trust, will be dealt with in the family law settlement. Trusts can be a complex area in settlements, as sometimes they are used by one party to protect or exclude assets, or to prevent the other party from accessing their share of the property.

There is a misconception that if assets are held in a trust, they are to be excluded from the property settlement. This may or may not be the case depending on the structure, composition and set up of the Trust.

There are two ways trusts are likely to be dealt with by the Court- it can be treated as an asset to be included in the matrimonial asset pool or as a financial resource. Trusts are more likely to be considered an asset for distribution if the Court is satisfied that the Trusts’ assets form part of the property of the parties to the marriage or de facto relationship. Under section 4 of the Family Law Act 1975 (Cth) “property” holds a very broad meaning, and the Court has demonstrated its willingness to include trust assets in a property division where certain factors relating to “control of the trust” exist. Where one party has effective control of the trust (i.e. if one party is the trustee, or an appointor) it is more likely to be included as property to be distributed in a family law settlement (see Kennon v Spry [2008] HCA 56 (3 December 2008)).

The Court has also demonstrated that where trust assets do not fall within the definition of property, the Court can still consider whether the parties have received benefits or distributions from the Trust and whether they are likely to in the future, notwithstanding a lack of control over the trust. In this scenario, the Court is likely to consider Trust property as a financial resource of that party under section 75(2) of the Act when determining the overall settlement.

Trusts are a complex area of family law and can require the input and advice of financial advisors, accountants, and solicitors. Whether a trust asset will form part of the matrimonial asset pool available for distribution and whether it is outside of the reach of a property settlement in the context of family law will depend on the specific circumstances of your matter.

For specialist family law advice, including the effects of trusts in a family law property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Lauran Clifton

Assessing contributions

Assessing contributions is an important step in determining how to arrive at a just and equitable property settlement between separated couples.

What contributions does the Court consider? 

Section 79 and 90SM of the Family Law Act 1975 requires an assessment of the following contributions:

1. Financial contributions towards the acquisition, conservation, and improvement of property. These contributions may include financial contributions received by way of income, inheritances, redundancy payments, compensation awards, and windfalls such as lottery wins;

2. Non-financial contributions made towards the acquisition, conservation, and improvement of property. These contributions may include a party conducting renovations toward real property at no cost; and

3. Contributions made towards the welfare of the family through homemaking and parenting contributions.

When does the Court assess contributions? 

The Court assesses contributions made at the commencement of the relationship (in particular, whether one or both parties had significant assets at the commencement of the relationship), during the relationship, and post-separation (if relevant).

What weight is given to contributions made by either party? 

The weighing of contributions is not a mathematical exercise. Weighing of contributions has been described by the Court as being a holistic assessment of the myriad of contributions that are made by parties throughout the course of their relationship.

Each case is different, and all contributions made by parties are unique to their own circumstances. The Court has the discretion to make an adjustment in favour of either party after assessing those contributions.

The size of the adjustment given to a party based on their contributions will depend on a range of factors including the contribution that was made relative to the asset pool that exists (in the case of a financial contribution) or the passage of time since that contribution was made, and importantly, weighing the relevant contribution against contributions made by the other party to the relationship or marriage.

Do some contributions carry more weight than others?

Historically, the Court placed more weight upon financial contributions (by way of income) over contributions made as homemaker and parent, in cases where it was said that the primary income earner exercised “special skill” in order to make those financial contributions. In traditional relationships at that time, this would advantage the primary breadwinner (often the Husband) and disadvantage the party who had made contributions within the home that prevented them from earning an income (often the Wife). The Court has since disapproved of that approach and “special skills” are no longer recognised as being a particular category of financial contribution.  

For specialist advice regarding your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers. The sooner you seek advice the better – so you can make informed decisions about your options.

Author: Margot McCabe

Sole Occupation: Who gets to stay in the house after separation?

Following separation, it is not uncommon that one party may seek to stay in the former matrimonial home, to the exclusion of their former partner or spouse. This is particularly so if there are factors which may limit their ability to obtain alternative accommodation.

The test often referred to in applications for sole occupation is the “balance of convenience” or “balance of hardship”. This exercise requires the Court to weigh and balance the benefits to the spouse seeking to remain in the property versus the hardship that the other party would suffer as a result of being required to leave their home.  

An application for sole occupancy however should not necessarily be determined only with reference to the balance of convenience. In the case of Dean and Dean (1977) FLC 90-213, the Court noted that in order for the Court to grant an application for exclusive occupation of a property, caution should be exercised when making such orders and, “it must not be reasonable or sensible or practical for the parties to the marriage to live in the same house.” 

In the case of Davis and Davis (1976) FLC 90-062, the following criteria were considered by the Court in determining an application for sole occupation:

1. The means and needs of the parties;

2. The needs of any children of the relationship;

3. The hardship to either party or to any children of the relationship; and

4. Whether the conduct of one party may justify the other party leaving the home, or seeking that the first party be excluded from the family home. This does not mean that the removal of one party from the family home is a sufficient basis for a sole occupation application to be granted, in order to enable one party to live more peacefully.

Other factors relevant to the determination of an application for sole occupation have been set out in subsequent decisions, including the following considerations outlined in the case of Plowman v Plowman (1970) 16 FLR 447:

1. Whether a party could be adequately housed elsewhere;

2.Whether there are funds, of either party, that could be used to enable one party to obtain alternative housing;

3. What housing arrangements operate in the best interests of the children;

4. Whether both parties are registered owners of the property;

5. Whether the Court could make an injunction preventing certain conduct from one party, in order to address any concerns raised by the other party regarding the first mentioned party’s conduct.

For advice in relation to your property settlement or obtaining sole occupation of your home, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Parental Responsibility Explained

‘Parental responsibility’ refers to the duties, powers and responsibilities that a parent has in relation to a child.  This becomes an important consideration as you navigate the journey of co-parenting after separation.

Parental responsibility determines who makes long-term decisions about a child, such as what school a child attends, where a child lives and whether a child practices a religion. Section 65DAE of the Family Law Act 1975 (Cth) provides that parents are not required to consult on day-to-day issues (or issues that are not major long-term issues) – for example, what a child wears or what type of food a child takes in their lunchbox.

In the absence of a Court Order determining parental responsibility, there is a presumption that both parents have ‘equal shared parental responsibility’ (also referred to as ‘ESPR’).  ESPR requires that parents consult with each other about any long-term decision to be made, and make a genuine effort to come to that decision jointly.

This presumption is set out in section 61DA of the Family Law Act.  The presumption of ESPR does not apply if there are reasonable grounds to believe that a parent of a child has been abusive towards that child (or another child in the family), or if they have engaged in family violence, including towards the other parent.

If there is enough evidence to satisfy a Court that an order for ESPR is not appropriate in the circumstances, the Court may make an order for ‘sole parental responsibility’.  A Court may consider that an order for sole parental responsibility is appropriate if the parents are unable to make decisions jointly, or if the communication between the parents would make an order for ESPR untenable.

On a final basis the Court must disregard any orders made on an interim basis about the allocation of parental responsibility. This means if your matter is in Court and an order has been made for ESPR on an interim basis, the Court may ultimately decide that ESPR is not appropriate on a final basis.

It is also important to understand that parental responsibility does not determine what time a child spends with each parent. An order for ESPR does not automatically mean that a child will spend equal time with each parent. Courts will consider what is in a child’s best interests and whether an equal time arrangement would be reasonably practicable, among other things.

If you are unable to reach a joint decision about a major long-term issue regarding your child, or if you are concerned about sharing parental responsibility with your former spouse, you should contact a family lawyer to better understand your rights and obligations. If you are ready to book an initial appointment with a specialist family lawyer in Canberra, contact us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Anika Buckley

Enforcement of financial orders

The Family Law Act sets out options available to parties to seek enforcement of Orders in relation to financial matters. Regrettably, in some cases, it can become necessary to seek enforcement of Orders where a party is not compliant with Orders of the Court.

When can I seek enforcement of Orders?

Enforcement can be sought where pursuant to Orders, maintenance agreements or Binding Financial Agreements made pursuant to the Family Law Act:

1. There is an obligation on a party to pay money;

2. There is an obligation on a party to sign a document;

3. A party is entitled to possession of real property; or

4. A party is entitled to transfer or delivery of personal property.

Although less common, there are other circumstances in which a party can take enforcement action against a non-compliant party, such as there where a party has registered an arbitral award, a child support liability or where there is an overseas maintenance order that has been registered in Australia.

How do I enforce Orders?

Methods of enforcement available to a party seeking compliance with Orders pursuant to the Family Law Act include:

1.  Appointing a Registrar of the Court

   A Registrar of the Court can be appointed to sign documents in place of a non-complaint party, such as Transfer documents in order to progress the transfer of a house, transferring shares or, closing bank accounts.

2. Third Party Debt Notice

   A Third Party Debt Notice requires a third party to discharge a debt by redirecting funds to which the non-compliant party would otherwise be entitled, to the party seeking enforcement. For example, a party seeking enforcement could seek that the non-compliant party’s wage be directed to them instead over a period of time in order to satisfy a debt.

3. Trustee for sale of real property

   If an Enforcement Warrant has been obtained in relation to real property in which the non-compliant party has an interest, a party can seek to be appointed as Trustee for Sale of real property. If a party is appointed as Trustee for sale it will generally be necessary to also seek that a Registrar of the Court be appointed to execute documents on behalf of the non-compliant party (as above).

4. Warrants for possession of property

   A party seeking enforcement of Orders can apply for a warrant for possession of real property, personal property, or for the seizure or detention of property owned by the non-complying party, which can then be sold, for example, to satisfy a debt.

There are other forms of relief available to a party seeking enforcement of Orders, including sequestration of property, receivership and seeking that a non-complaint party be declared bankrupt. It is likely that the Court would only adopt such methods of enforcement if other attempts at enforcement had been exhausted or there were circumstances justifying forms of enforcement that could be considered severe or prejudicial to the non-compliant party.

Can I seek that my legal costs be paid by the non-compliant party?

The Court has general powers of enforcement, including the power to make Orders that one party pay the other party’s costs. Although costs to do always “follow the event” i.e., the winning party does not always get their costs reimbursed, the Court is sometimes more inclined to order that a non-compliant meet the other party’s costs of enforcement, arising out of the non-compliant party’s failure to comply with an Order of the Court, as it has been unfair that the applicant has had to pursue such steps.

For specialist family law advice including about enforcement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Making the most out of your first appointment

There are different stages where you may be thinking about seeing a family lawyer. You may be thinking about entering into an agreement with your partner setting out what will happen to your assets and liabilities if you were to separate. On the other hand, you may be at the conclusion of your relationship and wondering what to do next.

Whether you have done some research about family law firms and chosen one, or whether a family or friend has recommended a particular firm, the next step will likely be to book in an initial appointment or consultation.

To make the most out of your first appointment with a family lawyer, there are a number of things you can do or start to think about:

1. Consider your assets, liabilities and superannuation

When you see a family lawyer, it is useful to understand the composition of the property pool. This means knowing what assets you or your spouse own, and any debts or liabilities that may be owing. If you have time, it is worth preparing a list or balance sheet setting out your estimated values of assets and liabilities and checking your current superannuation balance.    

2. Think about the outcomes you want to achieve

You may have booked an initial appointment with a family lawyer seeking to understand your rights and what you might be entitled to arising from your separation. It is useful if you give some consideration to what assets and liabilities exist, and which of those are important for you to keep in any separation. Your family lawyer will likely be able to provide some guidance about what a realistic outcome might look like, including the mix of assets and liabilities you are seeking to keep.

3. Prepare a summary or background of your relationship

Once again, if you have time, it is helpful for you to prepare a short summary or background/ chronology of your relationship for your family lawyer. This includes when you first met, started living together and when you separated. It is also useful to include relevant details such as:

1. What you each owned at the start of the relationship;

2. How the various assets and liabilities were accumulated throughout the relationship;

3. How you divided any household responsibilities;

4. Whether you received any gifts, inheritances or insurance payouts during the relationship;

5. If you own property – whether you ever did any renovations;

6. Your current employment status and your income; and

7. If you have children – how you divided the parenting responsibilities and how you see the future arrangements for your children.

If you do not have time to prepare a summary of your relationship or a list of your assets, liabilities and superannuation, do not worry. At an initial appointment, your family lawyer will be able to provide you with important information to guide you through the next steps.  If you are ready to book an initial appointment with a specialist family lawyer, contact us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice. The earlier the appointment the better, so you can make informed decisions about your options.

Author: Anika Buckley 

Stages of your property settlement

If you are recently separated, it is advisable to become informed about your property settlement, particularly if you wish to reach an amicable agreement and avoid litigation. Unfortunately, there is no set timeframe as to how long a property settlement negotiation may take, there are however common stages in almost every property settlement:

Disclosure and information gathering stage

Before providing comprehensive advice about the range of potential outcomes in your property settlement, your family lawyer will first need to know about the values of all assets, liabilities and superannuation that you and your former spouse or partner have an interest in.

Parties have an obligation to provide full and frank financial disclosure of their financial circumstances to the other. This might extend to exchanging personal financial documents (such as taxation returns, bank statements, payslips), or a more informal exchange of disclosure whereby parties provide estimated values of their assets, or a screenshot of their bank account balances.

In order to determine the values of assets such as real properties, businesses, defined benefit superannuation or other significant assets, parties will generally obtain joint valuations from suitably qualified experts.

Your lawyer may also recommend that you seek advice from other professionals before you begin negotiating your property settlement, such as financial or accounting advice.

Obtaining advice

Once your family lawyer has received all of the necessary information about the asset pool, they will be able to provide you with advice about the potential range of outcomes in your property settlement, based on your instructions.

Your family lawyer should provide advice about your likely entitlement with reference to the “four step process”, which is (generally):

1.  Identify and value assets, liabilities and superannuation owned by each party or in which they have an interest;

2.  Assess the contributions made by the parties, including financial contributions, contributions made as homemaker and parent and non-financial contributions;

3.  Identify matters relevant to the future needs of the parties, such as whether there may be a basis for an adjustment in favour of either party, having regard to matters such as age, health, income and income earning capacity;

4.  Consider the effect of the above steps and to determine a just and equitable outcome overall.

Negotiating

Negotiating your property settlement can be the most difficult stage in your property settlement. Unfortunately, for some, they are not able to negotiate their property settlement either directly with their former spouse or partner, or with the assistance of a lawyer, and they will need to litigate in order to have a judge determine the outcome.

Negotiations may also occur through more traditional forms of negotiation, such as making written offers of settlement.  Negotiating may involve participating in forms of dispute resolution such as mediation or conferences, to attempt to reach agreement.

Formalising your agreement

Once you have negotiated your property settlement, it is usually advisable to formalise your agreement.

The options to formalise your property settlement are to enter into Consent Orders or a Binding Financial Agreement. The most common and cost-effective option to formalise your property settlement is by entering into Consent Orders. Consent Orders are lodged with the Federal Circuit and Family Court of Australia, and will become approved by the Court, if the Court is satisfied that the outcome of the property settlement is just and equitable.

You should obtain specialist advice early, to understand your options and in order to be able to make an informed decision about your particular circumstances.

For advice in relation to your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Protection and separation

Separating from a spouse can be one of the riskiest times for an individual, particularly where family violence has been a feature of the relationship. The legal definition of ‘family violence’ can be found at section 8 of the Family Violence Act 2016 (ACT) or section 4AB of the Family Law Act 1975 (Cth). The definition in both pieces of legislation is broad and canvasses many different types of behaviour that constitute family violence.

Sometimes an individual may not recognise that certain behaviours they have experienced during their relationship constitute family violence until they are out of that relationship. Other times, an individual may have felt powerless or not known what avenues are open to them to protect their safety.

In the ACT, any person can apply for an interim Family Violence Order (FVO) for their immediate protection, or to prevent substantial property damage. Applications for a FVO are generally heard ex parte, meaning that the Court considers the applicant’s evidence in the absence of the respondent (the person who the FVO is being sought against).  

If the Court is satisfied that an applicant is in need of immediate protection, an interim FVO will be granted on the same day as the application is made. The interim FVO generally remains in place for 12 months, pending a final hearing where the Court will determine the application on a final basis (namely whether a final order should be made protecting the applicant). An interim FVO can be extended in some circumstances.

In the ACT, the Australian Federal Police will serve a copy of the application and the FVO on the respondent.

Either party can file documents seeking to amend an FVO, if amending the order will not adversely affect the safety of the protected person. For example, if the protected person’s circumstances have changed since the making of the FVO, or if the FVO restricts the respondent’s rights unnecessarily.    
If you are experiencing family violence, or are at risk of experiencing family violence, it is worthwhile speaking to one of our experienced family lawyers. We can advise you on your prospects of successfully obtaining an FVO and what type of restrictions you might want to seek in a protection order based on your experiences in the relationship, and your concerns.  

We can also advise on the next steps once an FVO has been granted (whether you are the applicant or the respondent), including any flow-on effects that an FVO may have on your family law matter.

In the event you are concerned for your safety, there are a number of services available to you:

1. If you are concerned for your immediate safety, you should contact 000.

2. The Domestic Violence Crisis Service offers assistance with safety planning and can be contacted on (02) 6280 0900.

3. To discuss a potential breach of a Family Violence Order, you should contact 131 444 (the non-urgent ACT Policing number).

For advice in relation to your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Ebrahim & Ebrahim & Lamsaard: A lesson in what not to do in litigation

Litigation is a stressful and arduous process. The recent case of Ebrahim & Ebrahim & Lamsaard [2023] FedCFamC1F 28 and Ebrahim & Ebrahim & Lamsaard (No 2) [2023] FedCFamC1F 209 serves as a reminder of the importance of following Court procedure and adhering to the Rules and Orders of the Court, in family law proceedings.

So, what happened in the case of Ebrahim & Ebrahim & Lamsaard?

This is a parenting case in which the Mother commenced Court proceedings seeking orders in relation to the parties’ child. After procedural orders were made in relation to the conduct of the parenting case in June 2022, neither the mother nor her solicitor attended any future Court events. The Court formed a view that the Mother’s application did not have prospects of success. On 31 January 2023, and after the Mother had been provided with a number of opportunities to re-engage in the litigation, the Mother’s Application was dismissed. The Father successfully sought that the Mother meet his legal costs of the proceedings, and that a portion of those costs be paid by the Mother’s solicitor.

What are the lessons to learn from Ebrahim & Ebrahim & Lamsaard?

1. Do not make an ambit claim - An “ambit claim” is where a party to litigation seeks an outcome which has no reasonable prospects of success.

2. Prosecute your own case - Parties to litigation, particularly an Applicant (the party who initiates Court proceedings) has an obligation to prosecute their own case by participating meaningfully in Court proceedings.

3. Know the rules - You should familiarise yourself with the Central Practice Direction, as well as the Federal Circuit and Family Court Rules and the Family Law Act. These documents set out the pathway towards resolution of litigated matters, and what expectations the Court has of parties to Court proceedings, amongst other things. Of course, the legislation and rules contain complex legal concepts and so, it is prudent to obtain independent legal advice or legal representation if you are involved in Court proceedings.

4. Do not cause undue delay –The Court found that the Mother should have filed a Notice of Discontinuance approximately 6 months prior to her application being dismissed by the Court, given her failure to engage in the proceedings. The failure of the Mother to attend Court carried significant weight in the Court’s decision to dismiss her case.

5. Communicate with your lawyer – In this case, both the Mother and her solicitor have fallen short of their respective obligations. If the Mother’s solicitor was not able to obtain instructions from his client, he should have filed a Notice of Ceasing to act, indicating that he was no longer able to represent the Mother. If the Mother did not want to or was not able to continue the proceedings, she should have filed a Notice of Discontinuance. It is essential that parties communicate openly with their solicitor about how they wish to conduct their case (and whether they wish to continue litigation at all), so that they can receive advice about their options. For example, if a party does not wish to continue proceedings, they may receive advice to make offers of settlement to resolve the proceedings, attend mediation or to file a Notice of Discontinuance.

What does this mean for you?

If you are self-represented and unsure of your obligations as a party to litigated proceedings, or you would like a second opinion, you should obtain specialist legal advice in relation to your circumstances.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced family lawyers.

Author: Margot McCabe

DISTRIBUTION OF A DECEASED ESTATE: WHEN CAN THIS OCCUR?

As an executor of a deceased estate one of the biggest questions you might have is “when can I distribute the estate?”.  You’ve gone through the motions of obtaining the Grant of Probate and have taken steps to call in all of the assets. There is money sitting in a bank account, and you have beneficiaries enquiring of you as to when they can have access to the funds.

As tempting as it might be to wrap the process up as soon as possible, it is important that you continue to follow your obligations as an executor and take steps to act in the best interest of the estate.

Executors of a deceased estate in the ACT will need to have regard to and follow the Administration and Probate Act 1929 (ACT).

Section 64 of the Administration and Probate Act 1929 (ACT) outlines that an executor can only distribute the estate once:

1. 6 months have passed since the date of the deceased’s death; and

2. That the executor has published a Notice of Intention to Distribute the Estate (a published document that puts all creditors and interested parties on notice that the executor intends to distribute the estate in accordance with the deceased’s Will after the passing of a further specified number of days); and

3.  All debts of the estate have been paid.

You may be thinking “I already put creditors on notice when I filed my Notice of Intention to Apply for Probate”.  While that is correct, it is important to do so again before distributing the estate; a failure to do so could have significant ramifications for you as the executor.  The period of 6 months following the deceased death is seen to be a reasonable period of time for creditors to raise a debt with the estate.

Further, the Notice of Intention to Distribute will place any potential family provision claimants on notice of your intentions to distribute the estate; those potential claimants have a period of 6 months from the date the Grant of Probate was issued to challenge the Will.

In the event an executor fails to comply with section 64 of the Administration and Probate Act 1929 (ACT), there is a risk that the executor will be personally liable to repay funds into the estate in the event a creditor files a debt with the estate, or a family provision claim is made (in this regard costs will likely be incurred in responding/defending the claim regardless of whether the claim is successful).   

If you are unsure of your obligations as an executor, or what you need to do to ensure compliance with section 64 of the Administration and Probate Act 1929 (ACT), you should seek specialist legal advice from an estate lawyer.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Co-parenting after Separation: Medical Decisions

When you and your partner separate, there can be a big shift in how you care for the children in both the day-to-day routine and in the long-term.  In some families, one parent can be predominantly responsible for arranging and taking the children to appointments, such as dentist check-ups and routine GP visits.  In other families, parents share the responsibility for arranging and taking the children to these appointments.

When presented with a medical issue, it can be difficult when you and your former spouse do not agree about the proposed treatment or care for your child. Where no Court Orders exist or setting out who has parental responsibility, there is a presumption that you and your former spouse have ‘equal shared parental responsibility’ (“ESPR”) for the children. This means that you must consult with each other and endeavour to reach agreement about any long-term decisions, such as schooling, religious practices or medical treatment.

The presumption of ESPR may not apply if the Court has reasonable grounds to believe that a parent has engaged in the abuse of a child or engaged in family violence.  The presumption can also be rebutted if the Court deems it would not be in the child’s best interests for parental responsibility to be shared between parents.

When treating a child, medical professionals generally require the consent of a parent (or someone who has parental responsibility for that child). In some instances, where a medical professional considers that a child understands the nature and consequences of a proposed treatment, that child can proceed with the proposed treatment or procedure. The medical professional would take into account matters including the child’s age and maturity, their ability to understand the medical advice provided, and the implications of undergoing the proposed treatment.

It is important to note that in some instances, a child is not able to make their own decision about treatment and a Court Order could override their decision.

In the case of an emergency, you are able to provide consent for your child’s treatment if you present to an emergency department with that child.  If a medical emergency occurs whilst a child is in your care, you should still endeavour to consult the other parent (to the extent that you can) and keep them informed about what is happening and the next steps.

Where there is no medical emergency, decisions about long-term medical care should be made jointly where there is a presumption of ESPR (or a Parenting Plan or Court Order which states you have ESPR).  Where you cannot agree about proposed treatment and there are no circumstances of urgency, you should consider attending dispute resolution (or if that is unsuccessful, you may need to consider applying to the Court).

If you are concerned about a proposed treatment for your child or if you are worried that your former spouse is not following reasonable medical advice or recommendations, you should seek legal advice to understand your rights.  Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley 

Administration of Deceased Estates

Administering a deceased estate comes with a wide range of responsibilities. This includes managing the deceased’s assets, notifying institutions, paying debts and distributing the estate in accordance with the will or applicable law.

1. Obtaining the Death Certificate

   The first step in administering a deceased estate is to obtain the death certificate. This is required for various legal and administrative purposes, including to notify banks and other institutions, and to apply for a grant of probate or letters of administration.

2.  Identifying the Executor or Administrator

   If the deceased left a valid will, they will have appointed an executor. The executor's role is to ensure that the deceased's wishes are carried out in accordance with the will. In cases where there is no will or appointed executor, the court may appoint an administrator. The executor or administrator is responsible for managing the estate's assets, paying debts and distributing the estate.

3.  Applying for a Grant of Probate or Letters of Administration

   A grant of probate or letters of administration is obtained by filing documents with the Supreme Court of the state or territory where the deceased held the majority of their assets. You may need to file in multiple states/territories, which is known as obtaining a reseal of the grant.

4. Collecting and Managing Assets

   Once a grant of probate or letters of administration is obtained, the executor or administrator can begin collecting and managing the deceased's assets. This includes identifying bank accounts, shares, property and personal belongings. The executor or administrator should ensure they maintain accurate records of all financial transactions and estate related activities.

5. Paying Debts and Distributing the Estate

   Before distributing the estate to the beneficiaries, the executor or administrator must settle any outstanding debts and liabilities of the deceased. This may include paying debts owed to creditors, outstanding bills and tax obligations. Once this has been completed, the remaining assets can be distributed to beneficiaries in accordance with the will or the laws of intestacy if no will exists.

You may wish to seek professional advice and assistance with administering a deceased estate. Robinson + McGuinness offer fixed fees for an application for probate or letters of administration. If you would like to discuss your situation 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

Costs: When can you seek that one party meet your legal costs of family law proceedings?

The Family Law Act provides for each party to bear their own legal costs. In some cases however, a party may seek that the other meet their legal fees.

Section 117(2) of the Act provides that the Court may make an order that one party meet the other party’s costs of Court proceeding, “if there are circumstances that justify it doing so”.

Costs applications are commonly made where one party has made an offer to resolve the proceedings, the offer is rejected by the other party, and then the first mentioned party goes on to receive a similar or more advantageous outcome than the offer that was refused.

If I am successful in the proceedings, do I automatically get a costs order?

Costs will not automatically be awarded at the conclusion of a hearing. This is consistent with the general principle in family law proceedings that each party will be responsible for meeting their own costs.

If you wish to seek that the other party meet your costs, it will be necessary to file an Application, with a supporting Affidavit. The Court will conduct a separate hearing of your costs application, either by considering the documents in Chambers (where the parties do not need to appear) or at a hearing. Unfortunately, this means that you are likely to incur further legal costs whilst seeking that the other party meet your costs of the proceedings.

What will be considered when determining a costs application?

The Court will have regard to the following matters, as identified in section 117(2A) of the Family Law Act:

1. The financial circumstances of each of the parties to the proceedings;

2. Whether any party to the proceedings is in receipt of assistance from Legal Aid, and the terms of that assistance;

3. The conduct of the parties to the proceedings;

4. Whether the proceedings were necessary as a result of one party’s failure to comply with Orders of the Court;

5. Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

6. Whether any party to the proceedings has made an offer of settlement in writing to the other party, and the terms of any such offer;

7. Any other relevant matter.

Will I be reimbursed all of my costs?

If a costs order is made, it will not necessarily provide for you to be reimbursed for the amount you spent on the litigation. The Court can consider awarding costs from the date that the offer was made (and for rejected) until the conclusion of the proceedings for example.

The Court has the power to order that a party meet the other party’s costs of the proceedings on an indemnity basis, or in accordance with a scale of costs set in the Federal Circuit and Family Court (Family Law) Rules 2021. The scale of costs set in the Family Law Rules is significantly lower than the costs that a party would likely have incurred with their solicitor.

Indemnity costs effectively provide for a party to be reimbursed the costs incurred by them with their solicitor (for the relevant period, from when the offer was made until the conclusion of the hearing). It is rare that the Court orders one party to pay costs on an indemnity basis. In order to do so, the Court must be satisfied that a party “imprudently refused of an offer to compromise”, as found in the case of Colgate-Palmolive v Cussons [1993] FCA 536. Indemnity costs can also be ordered against a party who has failed to comply with Court Orders or who has improperly conducted themselves throughout proceedings.

The Court may also order that costs be paid as assessed or agreed, whereby if the parties cannot agree on the amount of costs to be paid, an independent assessor can be appointed to determine the amount of costs payable, based on what costs were reasonably incurred during the proceedings. The costs assessor is entitled to be paid for their work in assessing the costs also.

What does this mean for me?

The above matters emphasise the importance of making reasonable offers to resolve your family law matter, and also the necessity to consider any offer of settlement very carefully.

If you wish to obtain advice in relation to your family law matter, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe