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COMPASSIONATE FAMILY LAW EXPERTS

Our Family Law Glossary

The Law Society of NSW operates the Specialist Accreditation Scheme to help the general public identify solicitors who have demonstrated proficiency in a particular area of law. Solicitors who fulfil the requirements of the scheme are entitled to use, after their name, the words ‘Accredited Specialist’ in the nominated area of practice.

Only individual solicitors can be Accredited Specialists, not firms.

Accrued jurisdiction allows a court to deal with the whole of a matter even where some elements might otherwise have extended beyond its normal or direct jurisdiction or might normally fall within the jurisdiction of another court.

The circumstances where accrued jurisdiction might apply in a family law context were set out in Warby (2001) 28 Fam LR 443 where the full court of the Family Court said:

“Relevant to whether the Family Court of Australia will invoke the court’s accrued jurisdiction in the circumstances posited in question 1 are:

  1. what the parties have done;
  2. the relationships between or among them;
  3. the laws which attach rights or liabilities to their conduct and relationships;
  4. whether the claims are part of a single justiciable controversy and in determining that question whether the claims are “attached” and not “severable” or “disparate”;
  5. whether the claims are non-severable from a matrimonial cause and arise out of a common sub-stratum of facts; and
  6. whether the court has the power to grant appropriate remedies in respect of the “attached” claims.”

The general rule at common law is that all evidence which is sufficiently relevant to the issue before the court is admissible and all evidence that is irrelevant or insufficiently relevant is excluded (Hollington v F Hewthorn and Co Ltd [1943] KB 587).

Not all relevant evidence is admissible for family law purposes and the Commonwealth Evidence Act (in particular) allows the exclusion of some relevant evidence under specific provisions.

Bases for exclusion of otherwise relevant evidence take many forms but include:

  1. unreliability;
  2. the possibility the evidence is manufactured;
  3. procedural fairness;
  4. untested (or untestable) evidence;
  5. collateral issues; or
  6. the value of evidence is outweighed by unfairness, prejudice or delay.
  7. Generally, the evidence of an individual can only include a description of something seen, heard or taken in through one of the senses – conclusions or suspicions cannot ordinarily be included.

    Generally, evidence drawing conclusions or evidence of a specialised nature requiring particular expertise can only be provided by a suitably qualified expert.

    The requirements for admissibility in the hearing of an interim application may be less stringent than those applying in relation to hearing of a final application.

In family law, this term applies to an application for re-hearing or review of a decision made by a single judge. In the case of a Family Court judge, appeals are usually heard by the full-court (usually made up of three Family Court judges).

Re-hearing or review of a registrar’s decision is generally referred to as a review.

Time limits apply in relation to appeals and reviews. Leave for extension of time can be available in some circumstances.

In certain cases, leave to appeal may be required. This means that permission of the full court or relevant appeal tribunal is necessary before an appeal application can be made.

Once a party to a marriage or de facto relationship becomes bankrupt, their assets (excluding some categories like household items, super, some tools or some vehicles) vest in the trustee.

The Family Court or the Federal Circuit Court can deal with matters involving a bankrupt party in relation to property settlement, maintenance, setting aside property orders and enforcement.

The court can determine the competing rights of creditors and the non-bankrupt party. Neither has defined priority.

The trustee can apply to become a party to proceedings.

Certain notice provisions apply.

Case assessment conference (CAC) is the first step in the Family Court’s process after a final application relating to property issues has been filed. (This step is different in the Federal Circuit Court.)

CACs are run by registrars (usually, in Sydney, on level 8 of the court building).

The purpose of a CAC is to provide directions for the preparation of a conciliation conference (the next step). The importance of these directions is often underestimated by participants. They can (and often do) make the difference between a successful conciliation conference and a failed one – the difference between resolving a matter at a relatively early stage and going on through the court system (with the costs and stress likely to be associated with that).

Ideally, CAC directions should be carefully and thoughtfully prepared; they should anticipate any significant problems likely to occur at conciliation conference in the particular circumstances of the matter and they should contain provisions that mean those problems will not arise at the conciliation conference or will be resolved beforehand.

See also Conciliation conference.

Except in very unusual circumstances, children do not give evidence (directly) to a court. Evidence about children’s views, needs or wishes can be provided via the affidavits of parents or others (via an exception to the hearsay rule that applies concerning things said by children), via an expert psychiatrist or psychologist (appointed by the court or via the court) or through the child responsive programme.

The child responsive programme is run by the Family Court (the process is different in the Federal Circuit Court) and involves a series of meetings between a court-appointed family consultant, the parents (and/or carers) and the child or children. The meetings focus on children’s needs. The purpose of the programme is to provide assistance to the parents and to the court to assist in resolving parenting issues and to achieve the best outcomes for children.

Where appropriate, a report will be prepared by the family consultant which will usually be provided to the parties (or their representatives) and to the court (and to any independent children’s lawyer). Often the family consultant will also be available at hearing to provide assistance to the court.

Child support is governed by the provisions of the Child Support (Assessment) Act and the Child Support (Collections) Act. The CS(A)A provides a statutory formula based on studies of costs of living for children, based on the respective incomes of the parents and based on children’s ages and time they spend with each parent or carer.

Parents or carers can agree about levels of child support informally or via a child support agreement or binding child support agreement. A child support agreement or binding child support agreement binds the parties to those agreements and oust the jurisdiction of the Child Support (Assessment) Act from assessing child support.

A Child Support Agreement or Binding Child Support Agreement can only be set aside by the Court in certain circumstances.

In addition to Child Support Agreement or Binding Child Support Agreement, parties can enter into a Child Maintenance Trust (“CMT”) which allows child support to be made on behalf of children.

A CMT segregates cash or assets separate from the parties so as to provide ongoing support for the children of the relationship. Funds settled on the CMT can be borrowed by the contributor on commercial terms provided the capital ultimately is repaid and benefit or be settled on the children. The advantages of a CMT are that it:

  • provides asset protection from creditors attacking the parents’ assets;
  • leaves an estate for the children when they reach the vesting age (say 18 years old);
  • secures future maintenance arrangements that gives certainty to all parties involved; and
  • provides tax advantages to the contributor or settlor of the CMT.

Alternatively, a parent or carer may apply for assessment of child support to the Child Support Agency (CSA). The assessment will follow the statutory formula.

Indications about child support levels under the statutory formula can be obtained by keying relevant information into the calculator at https://processing.csa.gov.au/estimator/About.aspx.

Once an assessment is made, an application for change-of-assessment can also be made to the CSA. Such an application must be based on special circumstances and one or more of ten grounds. Briefly, those grounds are:

  1. high costs of communicating or spending time with a child/children;
  2. costs associated with special needs;
  3. costs of education or training;
  4. child’s/children’s income or resources;
  5. property or assets transferred;
  6. high child-care costs (for children under twelve);
  7. necessary expenses reduce capacity to support;
  8. unfairness arising from earning capacity, assets or resources;
  9. legal duty to maintain another (or others);
  10. responsibility for resident (other) child.

In certain circumstances, applications for departure from a child support assessment made be made to a tribunal or court.

The above is necessarily a very brief and general summary of processes that can be more complex. There are many important cases that deal with child support. While we like to talk about those cases, it is difficult to know where to start or what particular aspects or topics to cover in notes like these. It is probably better to call us on (Sydney) 9222 8000 to ask about those aspects or topics that relate to your particular circumstances.

 

  • Change-of-assessment

See Child support

 

  • Child maintenance

Child maintenance pre-dates child support. It is not generally available where child support is. It may continue to apply in circumstances where maintenance is warranted in relation to an adult child (unable to complete education or suffering disability) or where child support is not available.

The above is necessarily a very brief and general summary of processes that can be more complex. There are a number of important cases that deal with child maintenance. While we like to talk about those cases, it is difficult to know where to start or what particular aspects or topics to cover in notes like these. It is probably better to call us on (Sydney) 9222 8000 to ask about those aspects or topics that relate to your particular circumstances.

Collaborative law is a system developed (originally) by Stu Webb in Minnesota in the late 1980s. The system is designed to save costs and delay by aligning the interests of parties and lawyers and by minimising scope for unrealistic expectations and reducing court involvement. In its basic form, it is a contract involving both parties and both lawyers that requires both lawyers to withdraw from the matter if either party involves the court (except for the filing of a consent order or equivalent).

While it is now a little out-of-date, Stu Webb’s original book, The Collaborative Way to Divorce, remains a very useful reference.

See Cooperation, Delay, Disclosure, Expense issues, Interim issues, Unrealistic expectations, and Written communication.

  • Cooperation

There are three ways to resolve a family law matter. Two of those – consent order and financial agreement – are relatively quick, and cost-effective but requires cooperation; the third – court order – is relatively difficult, expensive and stressful but can occur without cooperation. It follows that cooperation is the key factor that is likely to mean the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. The problem is that this is not well understood or well-advertised and, if you watch American television or talk to well-meaning friends of family (including those who have been through divorce), you can get the opposite impression.

While it is common for people to take an adversarial or combative approach to family law, often, small things that might promote cooperation and trust, especially at the beginning of a matter, can pay dividends in the form of savings in costs, delay and stress.

  • Delay

As a general proposition, family law matters that begin efficiently tend to continue and to end efficiently. Conversely, matters that involve delay tend to bog-down and to become difficult. Where parties obtain sensible advice promptly, get a good understanding of reasonable expectations and how things work promptly and provide compulsory information to each other promptly, participants tend to feel good about the process and things can move through the steps accordingly. Especially where compulsory information is not provided promptly, participants tend to become suspicions and disgruntled and things tend to stall.

In the short-term, delay tends to lead to little problems, often associated with changing circumstances – unnecessary arguments about income, assets, expenses that have arisen since separation and whether they belong to one or both parties (for example – there are many of these little problems associated with delay). These problems can add-up and make resolving the whole matter more difficult and more expensive.

In the longer-term, delay can lead to much larger problems. There are some good examples in the case law. Phone us to hear about them.

  • Disclosure

Full and frank disclosure of each party’s financial circumstances is central to alteration of property interests under family law. Disclosure obligations apply to each party and cannot be dispensed with by consent or otherwise.

Chapter 13 of the Family Law Rules deals with financial disclosure. Rule 13.04 provides a comprehensive list of disclosure material and information.

Section 79A of the Family Law Act provides for a property order (including a consent order) to be set aside where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance” (our emphasis).

In order for any resolution of a family law property matter to be reliable, full and frank disclosure of both parties’ financial circumstances is compulsory. Generally, it makes sense for this disclosure to occur very early in a matter in order that both parties may receive detailed advice and may make informed decisions as soon as possible.

While leaving financial disclosure to the end of a matter is permissible, it often results in one or other party backing away from what seemed like a deal as they realise finances are not exactly as expected or that the deal is not as good as it seemed (and they would have decided differently if information had been available earlier).

Providing thorough disclosure early can also promote the kind of cooperation that might help resolve a family law matter more efficiently and cost-effectively – see Cooperation.

Many cases deal with disclosure obligations and the potentially unpleasant consequences of improper compliance with those obligations. Those cases tend to be interesting and, even, entertaining. Rather than listing those here, you might prefer to phone 9222 8000 and to ask about your particular circumstances.

  • Expense issues

See Interim Issues.

  • Interim issues

Interim issues here means anything that does not deal with the matter as a whole. Such issues can result in argument, solicitor involvement and court involvement and this can be wasteful and expensive. It can also affect the kind of cooperation that might help resolve a family law matter more efficiently and cost-effectively – see Cooperation.

Interim issues are often unnecessary and often based on misunderstanding (about the idea of ‘his’ or ‘her’ assets).

The most common example of an interim issue is where one party feels unable to meet a continuing expense after separation without assistance from the other party and the other party is not inclined to help.

Misunderstanding about interim issues can arise from the general proposition that applies in most family cases – that all assets and liabilities (of both parties) are added before distribution under family law. This means that there is not so much ‘his’ or ‘her’ assets but a pool of assets available for distribution between both parties (section 79(1)(a), Stanford, Bevan, Biltoft, Pastrikos, Lee Steere, Hickey). This can often mean that there is little point arguing (and potentially losing cooperation that might have made things easier) about who pays expenses in a family law matter because it generally makes little difference who’s bank account has been reduced by an expense payment in the final result because all assets and liabilities of both parties are added together before distribution under family law.

  • Unrealistic expectations

Generally, there are only two ways to resolve a family law matter reliably – one of those ways (consent order or agreement) involves finding something that both parties can agree; the other way (court order) usually involves a judge’s decision. There is no way of resolving a family law matter reliably that does not involve either agreement of the parties or a court decision.

Unrealistic expectations can cause important problems in family law. Such expectations can mean that one or both parties spend time and money pursuing a result that they are unlikely to achieve either via agreement or via the court. As well as added costs and delay, this can lead to frustration and angst and can reduce cooperation levels which can then make resolving a matter more difficult.

Unrealistic expectations often arise from looking at only one side of the coin or from thinking in terms of what one party wants or needs. You only need to think about what might happen if both parties think in this way to see that there might be a blood-and-stone problem (where the wishes or needs of both parties reach a total greater than what is available for distribution between them).

While there is nothing wrong with aiming for the best possible result in family law, there can be a lot wrong with aiming for a result which cannot be achieved in practice. Gaining a good understanding of how family law works and how to avoid common problems can greatly help in understanding the difference between the best possible deal and an impossible one. See Why Family Law Doesn’t need to be Difficult or Expensive.

Unrealistic expectations can also arise because well-meaning friends or family (or even solicitors) try to provide support or encouragement or might wish to avoid disappointing news.

Sometimes, a party may have overly optimistic expectations about the difference that involving a solicitor can make or the level of empowerment that may be associated with engaging a solicitor. Sometimes, lawyers can feel pressure to deliver on these kinds of expectations. This can sometimes mean that expectations are not reality-tested as much as they might be. (You only need to think about the situation where both parties have involved lawyers to see that there are problems with this kind of thinking.)

Generally, the worst thing a solicitor can do for a client is to allow unrealistic expectations to continue without proper reality-testing because that can lead the client to waste time and money pursuing what is not achievable in reality.

  • Written communication

On separation, you may effectively be a party to a family law matter. As such, you may not be able to expect yourself to be completely objective at all times. It may be important to remember this when communicating in writing.

Increasingly, emails and text messages have been used as the evidentiary basis for interim court applications. Interim disputes and interim court applications are very frequently wasteful and can reduce the level of cooperation that can be useful in resolving a family law matter efficiently. (Interim disputes can also often based on a misunderstanding – see Interim issues.)

Written communication made in haste or without some care or written communication that lacks objectivity can reflect badly in the courtroom or in settlement conferences or the like.

It follows that it can be advisable to be careful about what you put into writing when involved in a family law matter or when such a matter may be pending.

Except in unusual cases, all assets and all liabilities of both parties are taken into account when altering interests in property between parties under family law following separation. (That doesn’t mean that everything is shared equally – net assets are divided after consideration of each party’s contributions and each party’s future needs – see How are property issues resolved?)

In the context of family law, interests in companies or businesses can give rise to many issues including in relation to value, valuation methodologies, goodwill, enterprise and personal goodwill, minority interests, shareholder loan accounts, accounts and records, accounting and recording methodologies, notes, depreciation, forecasting, budgets, management accounts, group structure, asset character, history, shareholder agreements, governing documents, remuneration, expenses, relationships, roles, responsibilities, premise of value, market, acquisitions, historical value, strategic benefits, adjustments, risk, key clients and employees, economic cycles, core and non-core assets, premises, debtor and creditor issues, tax issues, finance issues, leave entitlements, asset-backing, work-in-progress, off-balance sheet items, covenants and/or contract issues.

There are many cases dealing with company and business interests and related value issues. Rather than listing those here, you might prefer to phone 9222 8000 and to ask about your particular circumstances or the circumstances of relevant business interests.

  • Big money cases

See Special contributions.

  • Companies

Except in unusual cases, all assets and all liabilities of both parties are taken into account when altering interests in property between parties under family law following separation. (That doesn’t mean that everything is shared equally – net assets are divided after consideration of each party’s contributions and each party’s future needs – see How are property issues resolved?)

In the context of family law, interests in companies or businesses can give rise to many issues including in relation to value, valuation methodologies, goodwill, enterprise and personal goodwill, minority interests, shareholder loan accounts, accounts and records, accounting and recording methodologies, notes, depreciation, forecasting, budgets, management accounts, group structure, asset character, history, shareholder agreements, governing documents, remuneration, expenses, relationships, roles, responsibilities, premise of value, market, acquisitions, historical value, strategic benefits, adjustments, risk, key clients and employees, economic cycles, core and non-core assets, premises, debtor and creditor issues, tax issues, finance issues, leave entitlements, asset-backing, work-in-progress, off-balance sheet items, covenants and/or contract issues.

There are many cases dealing with company and business interests and related value issues. Rather than listing those here, you might prefer to phone 9222 8000 and to ask about your particular circumstances or the circumstances of relevant business interests.

  • Trusts

Questions commonly arise concerning whether trust assets can be included in consideration relating to family law property settlements.

Section 79(1)(a) of the Family Law Act provides for the court to make orders “with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property”.

As a general proposition, where a party is one of a number of potential beneficiaries under a discretionary trust, where there is no pattern or history of distributions from the trust to that party, and where the party has no control over the operation of the trust or the discretion, the assets of the trust are not likely to seen as property that can be taken into account when making an order altering the property interests of the parties to a marriage under family law (see Whitehead (1979) 5 Fam LR 308).

Where a party to a marriage can effectively treat assets of a trust as their own or has some element of control over those assets, the trust property can be treated as property of that party under family law (see, for example, Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 and Ashton (1986) 11 Fam LR 457).

A trustee cannot generally be directed to act in a manner that is not consistent with the trustee’s duties under to the trust deed or in a manner contrary to the due administration of the trust (see BP and KS [2002] FamCA 1454).

Section 80(1)(e) of the Family Law Act says the “court, in exercising its powers under this Part, may do any or all of the following…appoint or remove trustees”. This would generally only occur where the assets of the trust can be treated as property for family law purposes (see above) and the court cannot generally vary the terms of an existing trust.

  • Taxation

In the context of family law, taxation considerations can give rise to many issues including in relation to prior transactions, recording and reporting accuracy, penalties and interest, setting aside past transactions, prospective or retrospective effects, company, business or trust, structure reorganisations, rollover provisions and relief, allowing for presently accrued liabilities (including CGT), concessions and exemptions, stamp duty, deemed dividends and Division 7A issues, trust issues, trust resettlement issues, income entitlement issues, accumulations, distributions, known and unknown transactions, disclosure and investigation issues, transactions that may give rise to uncertain tax outcomes, rulings, determinations and private rulings, consideration issues, valuation issues, CGT events, capital losses issues, timing issues, depreciating assets, trading stock issues, capital allowances, individual, company and trust interactions, inter-entity arrangements, franking and double-counting issues.

Each family law matter should be examined carefully so as to identify any potential taxation issues and the right expert advice obtained.

There are many cases dealing with taxation and related issues. Rather than listing those here, you might prefer to phone 9222 8000 and to ask about your particular circumstances or the circumstances of relevant business interests.

  • Valuation

Valuation issues can be important in family law matters. One of the most common causes of difficulty in Family Court conciliation conferences is valuation issues. If the parties hold significantly different views about the value of a significant asset or assets, this can make reaching settlement more difficult. (See Case assessment conference and Conciliation conference.)

Valuation issues can be resolved by compromise, via the use of a single-expert (see Single-expert) or by a judge with the assistance of a report or evidence from a single-expert or a shadow expert (see Shadow-expert).

In the context of family law, compliance means carrying out the requirements of an order of the court or the court’s rules.

Orders can be made by registrars at case assessment conference (see Case assessment conference) or conciliation conference (see Conciliation conference) or by registrars or judges in chambers (offices within the court building) or in open court.

The Family Court’s rules can be accessed via the link http://www5.austlii.edu.au/au/legis/cth/consol_reg/flr2004163/. The Federal Circuit Court’s rules can be accessed via the link http://www5.austlii.edu.au/au/legis/cth/consol_reg/fccr2001262/

Where a family law matter has not been resolved via cooperation (see Cooperation) and without the involvement of the court, conciliation conference (the Family Court’s second event) is generally the best opportunity the parties will get to resolve their matter relatively efficiently and cost-effectively.

In order to improve the chances of a conciliation conference being successful, it helps to understand those factors that most frequently result in failure of such conferences.

The most common cause of failure for conciliation conferences is lack of preparation. For example, at the beginning of a conference, the registrar asks one party what result they think might be appropriate and that party says that they have been advised that about sixty percent might be reasonable but that they have not been able to work out what one hundred percent is because they are not sure how much super the other party has or what the business is worth. This means that the party cannot tell the difference between a good and a bad deal and that the chances of the registrar being able to help them achieve a satisfactory result are dramatically reduced.

This problem can be addressed by preparing properly for the case assessment conference (the Family Court’s first event) and obtaining directions at that conference which identify potential sticking-points and resolve them before the conciliation conference (see Case assessment conference).

The second most common cause of conciliation conference failure relates to relevance. A conciliation conference listing is generally for one and a half or for two hours. If one or both parties use that time to talk about less relevant issues (including venting or criticising), the opportunity to resolve issues can be lost. This problem can be addressed by thinking about relevant issues before the conference and by preparing properly.

Registrars only make decisions about directions for future progress at conciliation conferences. They do not make decisions about property or parenting issues. Resolution of issues can only occur at a conciliation conference if both parties agree.

In a family law context, conflicts of interest can arise in circumstances where (for example) a solicitor has acted for both parties in some capacity previously and might have access to information about the other party which might not otherwise exist or might be improper (or might give an impression of impropriety). It can also exist where the interests of solicitor and client differ.

A consent order is an order of the court made with the consent of both parties (as opposed to an order made by a judicial officer independently of the parties’ consent).

Most family law matters are resolved by way of a consent order.

Generally a consent order will be in writing, it will include all relevant details, including details of mechanics and timing for compliance, it will be signed by both parties and (generally) signed by both parties’ solicitors or representatives.

If a property consent order is properly drafted and made following advice and full and frank disclosure of both parties’ financial circumstances, it will be very reliable. For the court to make a consent order and for it to be reliable (or as reliable as it can be), the court must be satisfied that each party has made full and frank disclosure, that each party has received independent advice about the operation of family law and that the order is just and equitable. Satisfying these requirements can usually be done by completing documents setting out each party’s financial circumstances and evidence of advice. Court attendance is not generally necessary for consent orders.

(See also When an order can be set aside (section 79A).)

Consent orders relating to children can change but, most often, this would occur only where there has been a significant change in circumstances since the last order.

  • When an order can be set aside (section 79A)

Section 79A of the Family Law Act provides for a property order (including a consent order) to be set aside where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance”.

The section also makes provision for circumstances where:

  • carrying out an order has become impractical;
  • a person is in default and it is just and equitable to vary the order;
  • exceptional circumstances exist relating to a child; and
  • in the case of a proceeds of crime order.

Orders relating to children can be varied at any time but, most often, this would occur only where there has been a significant change in circumstances since the last order.

Contempt in the context of family law involves disobedience of judgments, orders, rules or other processes of the court.

Contempt is dealt with specifically in part XIIIB of the Family law Act. Penalties for contempt can include fines or prison (or both). There is no upper limit specified for such penalties. (We note that imprisonment rarely occurs in the Family Court or the Federal Circuit Court.)

  • Vexatious proceedings

Vexatious proceedings are specifically dealt with in part XIB of the Family Law Act.

Section 102Q defines vexatious proceedings as including:

  1. proceedings that are an abuse of the process of a court or tribunal; and
  2. proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
  3. proceedings instituted or pursued in a court or tribunal without reasonable ground; and
  4. proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

Section 102QB(2) provides that the court can make any or all of the following orders in relation to vexatious proceedings:

  1. an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
  2. an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
  3. any other order the court considers appropriate in relation to the person.

There are only two ways to resolve a family law matter reliably – one way (consent order) is relatively quick, easy and cost-effective but requires some cooperation; the other (court order) is relatively difficult, expensive and stressful but can occur without cooperation. It follows that cooperation is the key factor that is likely to mean the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. The problem is that this is not well understood or well-advertised and, if you watch American television or talk to well-meaning friends of family (including those who have been through divorce), you can get the opposite impression.

While it is common for people to take an adversarial or combative approach to family law, often, small things that might promote cooperation and trust, especially at the beginning of a matter, can pay dividends in the form of savings in costs, delay and stress.

In the context of family law, ‘costs’ refers to legal fees.

Legal fees are dealt with, generally, in sections 117 and 117C of the Family Law Act – see Offers of settlement (sections 117 and 117C).

See Offers of settlement (sections 117 and 117C).

In the context of family law, this term generally refers to registrars or judges, though, the person who calls the name of the next matter at the courtroom door is also specifically called a court officer.

  • Judges

In the context of family law, judges of the Family Court are referred to as judges or justices and generally referred to in court as ‘your honour’; Federal Circuit judges are called judges and are also generally referred to in court as ‘your honour’.

Some aspects of family law can be administered by Local Court magistrates. Since June 2013, these are also referred to in court as ‘your honour’.

  • Registrars

Both the Family Court and the Federal Circuit Court delegate some decision-making processes to registrars. In Sydney, some FCC work is done by FCA registrars. Rules 18.05 and 18.06 of the Family Law Rules deal with powers delegated to registrars. Part 20 of the Federal Circuit Court Rules deals with registrars’ powers.

Since 1 March 2009, property issues concerning de facto relationships have been dealt with under the Family Law Act in almost the same way as for marriage relationships. (Parenting issues concerning de facto relationships have been dealt with under the Family Law Act since its inception.)

Section 4AA(1) of the Family Law Act defines de facto relationship. The definition provides that partners (or former partners), who may be of the same or opposite sex (section 4AA(5)(a)), had a relationship as a couple living together on a genuine domestic basis but provides that a relationship is not a de facto relationship if the parties were legally married to one another or are related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship (section 4AA(5(b)).

Section 4AA(2) lists circumstances relevant to determining whether a de facto relationship exists as:

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of children
  9. the reputation and public aspects of the relationship.

The limitation period for de facto relationship property and maintenance matters is two years from the breakdown of the relationship (section 44(5)).

Section 79(8) and 79(1A) of the Family Law Act make provision for continuation of existing family law property proceedings to be continued by, or for orders to be enforced against, the estate of a deceased party after the death of that party (in circumstances specified in those provisions).

Proceedings under section 79 (alteration of property interests) cannot be instituted (as distinct from continued) after the death of a party to the marriage. After the death of a party, proceedings cannot be characterised as “proceedings between the parties to a marriage” as required under paragraph (ca) of the definition of “matrimonial cause” in section 4 of the Family Law Act.

Full and frank disclosure of each party’s financial circumstances is central to alteration of property interests under family law. Disclosure obligations apply to each party and cannot be dispensed with by consent or otherwise.

Chapter 13 of the Family Law Rules deals with financial disclosure. Rule 13.04 provides a comprehensive list of disclosure material and information.

Section 79A of the Family Law Act provides for a property order (including a consent order) to be set aside where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance” (our emphasis).

In order for any resolution of a family law property matter to be reliable, full and frank disclosure of both parties’ financial circumstances is compulsory. Generally, it makes sense for this disclosure to occur very early in a matter in order that both parties may receive detailed advice and may make informed decisions as soon as possible.

While leaving financial disclosure to the end of a matter is permissible, it often results in one or other party backing away from what seemed like a deal as they realise finances are not exactly as expected or that the deal is not as good as it seemed (and they would have decided differently if information had been available earlier).

Providing thorough disclosure early can also promote the kind of cooperation that might help resolve a family law matter more efficiently and cost-effectively – see Cooperation.

Many cases deal with disclosure obligations and the potentially unpleasant consequences of improper compliance with those obligations. Those cases tend to be interesting and, even, entertaining. Rather than listing those here, you might prefer to phone 9222 8000 and to ask about your particular circumstances.

Diamond Conway usually doesn’t charge for divorce. However, there is a court fee for filing a divorce application (presently $845).

Divorce is the opposite of marriage to the extent that it ends a marriage. However, it does not resolve property or parenting issues – these are dealt with separately (see Property settlement and Parenting).

An application for divorce can be made by one or both parties to a marriage. In Sydney, applications are generally heard by the Federal Circuit Court before a registrar. Listings usually occur about eight weeks after an application is filed (but this can vary). At hearing of a divorce application, the court must be satisfied that:

  1. there has been a valid marriage;
  2. there is jurisdiction (which can be based on domicile – being lawfully in Australia with an intention to continue or Australian citizenship);
  3. there has been irretrievable breakdown of the marriage (represented by twelve months continuous separation);
  4. (if the application is not joint) there has been proper service of the application on the other party; and
  5. proper arrangements are in place concerning any children of the marriage (though, the court has discretion to proceed without being satisfied on this point in some cases).

While a period of separation under one roof can be relied upon in a divorce application, this usually involves the provision of a supporting affidavit sworn by a third party.

If the court is sufficiently satisfied about the above points, a decree nisi is pronounced. This decree becomes absolute after one calendar month and one day. After that time, the divorce cannot be reviewed or appealed, the parties may legally re-marry and the divorce may affect either party’s will (by striking out the name of the other party – this may lead to a partial intestacy or to other problems and should be kept in mind).

  • Decree absolute

See Divorce.

  • Decree nisi

See Divorce.

Both the Family Court and the Federal Circuit Court operate under a docket system. This means that, for most processes that involve the court, the case coordinator, the same registrar and the same judge will be involved. Interim or urgent applications may be dealt with by officers other than the docket-registrar or docket-judge.

Part XIII provides generally in relation to enforcement of orders and provides broad powers. Where non-compliance or disobedience of judgments, orders rules or other processes of the court constitutes contempt, those powers can include fines or prison (or both) without specified upper limit. (We note that imprisonment rarely occurs in the Family Court or the Federal Circuit Court.) See Contempt.

Evidence is any matter of fact the effect, tendency or design of which is to produce in the mind a persuasion affirmative or negative of the existence of some matter of fact (Cheney v Spooner (1929) 41 CLR 532). The term will have different meanings in different courts or tribunals.

See also admissibility.

See Post-separation expenses.

In relation to value issues – see Valuation and Single-experts.

See Child Responsive Programme (CRP).

The Family Court of Australia is a court vested with jurisdiction under the Family Law Act. See also accrued jurisdiction.

In Sydney, the Family Court is located (together with the Federal Circuit Court) on the corner of Goulbourn and Castlereagh Streets.

See Child Responsive Programme (CRP).

The Federal Circuit Court is a court vested with jurisdiction under the Family Law Act. See also accrued jurisdiction.

In Sydney, the Federal Circuit Court is located (together with the Family Court) on the corner of Goulbourn and Castlereagh Streets.

See How are property issues resolved?

  • Earnings

See How are property issues resolved?

  • Initial contributions

See How are property issues resolved?

  • Large

See Companies, Trusts, Taxation.

  • Lump-sum contributions

See How are property issues resolved?

  • Non-financial

See How are property issues resolved?

Parties who are either married or in de facto relationship (including same sex couples) can organise their financial affairs between them to avoid or limit future litigation arising from the breakup of the relationship.

Financial Agreements provide a means whereby parties can define their respective rights and obligations to each other and how property of the parties to the relationship (“the asset pool”) is divided in the event of a breakdown of the relationship.

A Financial Agreement properly entered into acts as a bar to any claim for property or spouse maintenance that either party can make against the other in the event of breakup of their relationship.

A Financial Agreement can be entered into at any time of the relationship whether in contemplation of entering into the relationship, during the relationship or upon breakup of the relationship.

There are certain provisions under the Family Law Act (“the Act”) which must be adhered to when preparing the Financial Agreement. The Court may interpret those provisions strictly and any non-compliance may lead to the Financial Agreement being set aside.

There is, however, discretion within the provisions of the Act whereby the Court while finding non-compliance with the Act may, in certain circumstances, if satisfied that it would be unjust and inequitable to do so, order that the Agreement should nevertheless bind the parties.

The Financial Agreement operates despite the death of the party to the Financial Agreement and binds the legal representative of the deceased in relation to all obligations under the Financial Agreement. The Financial Agreement is not to operate upon death and this must be specifically stated.

A Financial Agreement can be terminated if the Agreement itself provides a termination clause on a particular event or a termination agreement is made terminating the provisions of the Financial Agreement.

The Financial Agreement can deal with property and financial resources including superannuation and incidental or ancillary matter. Financial Agreements also deal with spousal maintenance during and after the relationship has broken down, that is it can oust the jurisdiction of the Court for either party to claim spouse maintenance against the other. Spousal maintenance provisions must specifically refer to the amount provided or the value of relevant property attributable to the maintenance of the party.

A Financial Agreement may be set aside by the Court pursuant to specified grounds in the Act. Those grounds include:

  • The terms of the Financial Agreement were obtained by fraud including non-disclosure of material matters.The Financial Agreement is void, voidable or unenforceable. A Financial Agreement is held to be void for uncertainty, incompleteness or in some circumstances by mistake whereas a Financial Agreement can be pronounced void by one of the parties or held to be void by a Court. In other words, the Financial Agreement continues until the other party or the Court pronounces it to be void.
  • A Financial Agreement may be valid but unenforceable for a number of reasons. A Financial Agreement can be set aside due to duress, undue influence of unconscionability.

Among the issues that a Financial Agreement may cover include:

  • Whether the parties will retain their respective assets (including overseas assets) existing as at the commencement of the marriage.
  • Retention of any respective inheritances by either party received pre and during marriage and post separation.
  • Gifts by each to other and by others to each other be retained by the donee of the gift.
  • The financial support in the event of children.
  • What property will either party receive in the event there are children of the marriage?
  • What accommodation arrangements will be in place for the children and the prime carer?
  • What assets or payment in lieu of assets is each party to receive on separation?
  • Is (g) above dependent on the length of the marriage? In other words, is the value of assets to be retained on separation to be assessed pro rata the length of the marriage?
  • What provisions are to apply in the event there are no children and the marriage lasts say 5 or 10 years or more?

A Financial Agreement must meet strict compliance requirements under the Act including the statement by each party that prior to the Financial Agreement being signed, independent legal advice was provided by a legal practitioner to the party regarding:

  • The effect of the Agreement on the right of the party.
  • The advantages and disadvantages at the time the advice was provided.
  • A statement is annexed to the Agreement signed by the solicitor providing the independent legal advice to confirm the advice was provided.

See Disclosure.

The financial statement is the form specified in rule 13.05 of the Family Law Rules. It is designed to assist parties to comply with their disclosure obligations. See Disclosure.

In a family law context, the continuing or future needs of each party are relevant to property settlement under section 79(4)(e) of the Family Law Act and to issues of maintenance under section 75(2). These sections incorporate considerations of:

  • the parties ages and health;
  • the income, property, financial resources and earning capacity of each of the parties;
  • care of children;
  • commitments necessary for the support of each party, children or other persons;
  • social security entitlements (disregarded for consideration about maintenance);
  • living standards;
  • education or training issues;
  • potential effects on creditors;
  • duration of the marriage;
  • parenting roles;
  • financial circumstance relating to cohabitation (with a third party);
  • child support;
  • the terms of any relevant financial agreement; and/or
  • any other circumstance the court thinks justice requires be taken into account.

An independent children’s lawyer (ICL) may be appointed by the court of its own initiative or on the application of any person (including the child).

The role of the ICL is set out in section 68LA of the Family Law Act which provides (among other things) that an ICL:

  • must form an independent view of the best interests of the child;
  • must act in those interests;
  • is not the child’s legal representative;
  • is not obliged to act on the child’s instructions;
  • must act impartially;
  • must ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court;
  • must endeavour to minimise the trauma to the child associated with proceedings; and
  • must facilitate an agreed resolution.

Inheritance

The Family Court deals with inheritances in the same manner as it does with all contributions to the property of the parties to the relationship. How the Court deals with inheritances when considering what property settlement to make depends on a number of factors including:

  • Was it intended that the inheritance would benefit one or both parties to the relationship?
  • Was the inheritance received earlier in the relationship or towards the end or after separation?
  • What contribution did the party who seeks to benefit from the inheritance make to the property of the testator that may have influenced the inheritance being left to the other party?

In some cases, the Courts, when determining whether an adjustment ought to be made under Section 75(2)(o)[1], have quarantined the inheritance from the asset pool of the parties and considered the inheritance as a financial resource to the receiving party.

There are a number of cases dealing with inheritance, a typical case is that of Elgabri and Elgabri [2009] FamCA 227 which involved a 25 year marriage with the husband receiving substantial sum by way of inheritance later in the marriage. The trial judge found in all other respect the contribution of both parties as being equal but made an adjustment of 7.5% in favour of the wife due to the benefits the husband would receive through his inheritance.

It is generally the case that parents would like to make provision in their wills to leave their bounty to their children while at the same time protecting that bounty from their children’s spouses in the event of a breakup of the marriage. Relying on the outcomes of Family Law proceedings to achieve that objective may not be the desired outcome.

One means of quarantining inherited property is to have a financial agreement which specifically states that any inheritance received by other party during the marriage will upon separation be retained by the party who received that inheritance.

Another issue that arises is what to do with an expectation of inheritance. In the majority of cases, expectancy of inheritance will not be relevant in Family Law proceedings unless:

  • the testator is at an old age and/or in poor health; and
  • there is relevant connection between contributions of a party to the testator’s assets.

In White and Tulloch v White [1995] FLC92-640, the wife’s mother was 81 years old, widowed in reasonable health and had two children. The husband had issued a subpoena to the mother to produce her will. The Court approved the issue of the subpoena.

Similarly in Rogan v Rogan [2007] FMCA FAM 333, the Court allowed the wife to issue a subpoena to the husband’s mother who was 94 in need of constant care and with the real estate compromising part of her estate worth at least $3 million. The trial judge having considered whether the material sought in the subpoena was sufficiently likely to add to relevant evidence concluded that it did and allowed inspection of documents produced by the mother under subpoena.

Gifts

When determining the nature of a gift, that is whether it is intended to benefit both parties or one party, the Court looks at the actual intention of the donor as being the critical issue. By way of example, if title to realty property is transferred to one or both parties, the Court would readily find the intention of the donor to be in accordance with the ownership recorded on the transfer of title to the property (see Gosper [1987] 11 FamLR 601).

This does not mean that a party intended by a donor as recipient would necessarily receive full credit for the present value of a gift or a gifted asset. The weight the Court affords to the gift depends on a number of factors including the use made of the gift to the overall property pool.

Where a gift is made to both parties, it remains open to the court to regard the gift as a contribution made on behalf of the party to whom the donor is related in appropriate circumstances. If, however, evidence suggests that the donor intended to benefit both parties, the gift is regarded as a contribution made on behalf of both parties.

[1] For explanation of Section 75(2) factors, see further on in this Glossary.

An injunction is an order directed to a party to court proceedings forbidding some act or permitting some act or restraining the continuance of some act where the act (or non-act) or its continuance would be unjust, inequitable or injurious and where the result of the action or non-action could not adequately be addressed by law.

Specific provision for injunctions is made in the Family Law Act at sections 68B (in relation to child-related matters) and 114 (in relation to other matters).

Section 68B(1) provides for the making of injunctions for the personal protection of a child or the protection of a parent or carer of a child or injunctions restraining entry to relevant places.

Section 114 provides for the making of injunctions relating to the protection of parties, relating to entry or occupation of premises or places and relating to property (assets or liabilities).

Interim issues here means anything that does not deal with the matter as a whole. Such issues can result in argument, solicitor involvement and court involvement and this can be wasteful and expensive. It can also affect the kind of cooperation that might help resolve a family law matter more efficiently and cost-effectively – see Cooperation.

Interim issues are often unnecessary and often based on misunderstanding.

The most common example of an interim issue is where one party feels unable to meet a continuing expense after separation without assistance from the other party and the other party is disinclined to help.

Misunderstanding about interim issues can arise from the general proposition that applies in most family cases – that, in an unresolved family law matter, there isn’t so much ‘his’ or ‘her’ assets so much as a pool of net assets (made up of the assets and liabilities of both parties) available for distribution between the parties under family law (section 79(1)(a), Stanford, Bevan, Biltoft, Pastrikos, Lee Steere, Hickey). This can often mean that there is little point arguing (and potentially losing cooperation that might assist in resolving a matter efficiently and cost-effectively – see Cooperation) about who pays expenses in a family law matter because it generally makes little difference who’s bank account has been reduced by an expense payment because, under family law, all assets and all liabilities of both parties are added before distribution.

There are only two ways to resolve a family law matter reliably. One of those ways – a consent order – is relatively quick, easy and cost-effective but requires some cooperation; the other – a judge’s order – tends to be difficult, expensive and stressful but can occur without cooperation. It follows that cooperation is the key factor that means the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. See Cooperation.

Sometimes, it is not feasible to resolve a family law matter by consent .

Disclosure obligations and advice requirements are central to family law. The law assumes that parties need reliable information about each other’s financial circumstances and that each needs independent advice about how family law operates in order that a deal can be fully reliable.

It is not generally feasible to make informed decisions in family law matters without being able to make a reasonable calculation of the value of combined net assets or without sufficient information to facilitate proper advice. This requires a level of cooperation between parties.

Sometimes, it is not feasible to obtain the kind of cooperation that is necessary obtain sufficient information to make informed decisions. In such cases, a party may decide to make use of the court’s rules and/or to request orders of the court in order to oblige another party to cooperate and/or to provide information.

A decision to involve the court will ordinarily involve a detailed examination of the potential benefits and potential costs.

Very briefly, involving the court can, where it seems necessary, provide benefits by obliging both parties to provide the kind of information that is necessary for each to prepare a reasonable calculation of combined net assets and to facilitate proper advice. This means that both parties can be in a position to make informed decisions. Without such information, a party may not be able to translate family law advice (which is most usually expressed in terms of overall percentage shares of combined net assets) into dollars and cents and may not be able to tell the difference between a good and a bad deal. This is the most common cause of failure of settlement conferences. See Case assessment conference and Conciliation conference. Involving the court will also oblige parties to attend at settlement conference(s) and will provide a timetable that obliges both parties to provide information and to attend such conference(s) on a timely basis.

Involving the court can mean additional costs. While the first two steps in the court’s process are generally efficient and cost-effective and while there is a reasonably good probability that a matter will be resolved in those steps (and that probability can be substantially improved with proper preparation – see Case assessment conference and Conciliation conference), there can be no guarantee that a matter will be resolved within those first steps. Further steps in the court system can be expensive, time-consuming and stressful. A full discussion of this point is beyond the scope of these notes. Please call us to discuss.

  • Instituting proceedings

See Involving the court.

  • Potential pros, cons and costs

See Involving the court.

Confidential communications between a client and the client’s legal adviser can be privileged (and inadmissible in the courtroom) if made for the dominant purpose of submission to the legal adviser for advice (whether connected with litigation or not) or for use in existing or anticipated litigation. The privilege promotes the public interest by preserving the confidentiality of communications between lawyer and client and by encouraging the client to make full and frank disclosure to the legal adviser. In doing so, the privilege outweighs the competing public interest that, in the interests of a fair trial, all relevant material should be available (Esso Australia Resources Ltd v FCT (1999) CLR 49).

Legal professional privilege may be waived where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect (Expense Reduction Analysts Group P/L v Armstrong Strategic Management and Marketing P/L [2013] HCA 46).

Section 44(3) of the Family Law Act provides a limitation period of twelve months after a divorce has taken effect after which (oversimplifying) proceedings relating to family law property (assets and liabilities) or maintenance require leave of the court.

Section 44(5) provides a similar limitation that applies two years after the end of a de facto relationship.

Mediation operates by interposing an independent person (mediator) between two contending parties in order to aid them in the settlement of a disagreement. Mediation usually aims to promote a better understanding of each party’s understanding of the position and/or interests of the other party and aims to promote compromise and agreement.

Conciliation is similar to mediation but (generally) involves a mediator who has some expertise in the field to which the dispute relates.

In mediation and in conciliation, any resolution of the dispute depends upon agreement between the parties. The mediator or conciliator does not make decisions determining the dispute.

Arbitration differs from mediation or conciliation in that the mediator has some authority to make decisions determining the dispute.

  • FDRPs

FDRP stands for family dispute resolution practitioner.

Section 60I of the Family Law Act provides that, except in specified circumstances (relating to risk of harm, urgency, contravention or where there is consent about an order), the court must not hear an application for a part VII (children) order in relation to a child unless the applicant first files in the court a certificate relating a meeting with an FDRP.

FDRP meetings will generally involve both parties to a family law parenting dispute and are designed to ensure that all persons who have a dispute about parenting matters make a genuine effort to resolve that dispute by family dispute resolution before an application for a part VII order is made to the court.

An FDRP may issue a certificate in circumstances where all relevant parties attended and made a genuine effort to resolve relevant issue(s) and may even issue a certificate where such effort was not made by all parties or even where one party refused or failed to attend.

The Marriage Act provides that a relevant marriage (one celebrated after 20 June 1977) is void in five circumstances, “and not otherwise”. Those circumstances are:

  1. the prior existing marriage of a spouse;
  2. prohibited relationships (marriage with an ancestor or descendent or between siblings – including adopted siblings);
  3. non-compliance with formalities (where the celebrant is not authorised and both parties are aware or the ceremony does not comply with prescribed form – the form adopted by a particular religion or the minimal non-religious form);
  4. lack of real consent of a spouse; or
  5. lack of marriageable age.

Additionally, the definition of “marriage” inserted into the Marriage Act in 2004 includes “the union of a man and a woman” and indicates the requirement that the parties must be respectively male and female (see also Re Kevin; Validity of Marriage 2000 28 Fam LR 158).

Section 117 of the Family Law Act provides generally that “each party to proceedings under this Act shall bear his or her own costs” unless “the court is of the opinion that there are circumstances that justify” otherwise. Subsection 117(2A) sets out considerations relevant to questions about such circumstances. These include considerations relating to parties’ financial circumstances, parties’ conduct, prior compliance, success (in terms of what each party asked the court to do) and whether written settlement offer(s) have been made.

Section 117C also provides in relation to settlement offers and orders for payment of costs.

In a family law context, written settlement offers are often generally referred to as section 117C offers.

A written offer (especially a reasonable one made early in a matter) can promote settlement because it raises the possibility that the party receiving the offer may be ordered to pay the other party’s costs (or part of them) if the offer is not accepted and if the matter proceeds to a court decision. The wording of offers can be very important.

In the context of family law, an order generally refers to an order of a court exercising jurisdiction under the Family Law Act. Orders are binding on parties to proceedings. A breach of an order can result in sanctions including fines or imprisonment. See Injunctions.

See How are parenting issues resolved?

  • Adoption

In New South Wales, adoption is governed under the Adoption Act (see http://www5.austlii.edu.au/au/legis/nsw/consol_act/aa2000107/s8.html) and administered by Community Services (see http://www.community.nsw.gov.au/docs_menu/parents_carers_and_families/fostering_and_adoption/adoption/want_to_adopt/local_adoption.html).

Adoption will generally change child support responsibilities.

The above is necessarily brief. It is important to note that family law and other relevant areas of law and related legal requirements can be complex. This entry cannot be relied upon as advice or as the basis for action.

  • Artificial conception

The combined effect of section 29 of the Child Support (Assessment) Act and section 60H of the Family Law Act means that the Child Support Registrar can act on an application concerning a child (without further enquiry) submitted by a woman who gave birth to the child via artificial conception (though, not necessarily a biological parent) and/or submitted by the marriage or de facto partner (at the time of the birth) of that woman where the partner (not necessarily a biological parent) consented to the artificial conception procedure. (The sections should be read in full.)

In relation to the position of a donor of genetic material in relation to child support see B and J (Artificial Insemination) [1996] FamCA 124.

In relation to issues concerning parenting, any person having an interest in the care, welfare or development of a child may make an application to a court having jurisdiction under the Family Law Act (see section 65C).

  • Best interests of children

See How are parenting issues resolved?

  • Child abduction
    • Hague convention

The Family Law (Child Abduction Convention) Regulations made under sections 111B and 111D of the Family Law Act 1975 give effect to the Convention on the Civil Aspects of International Child Abduction.

While there are limited specific exceptions, the Convention generally provides that the removal (or the continuation of such removal) of a child from the country in which the child was habitually resident immediately before the removal is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of that country and that the child should be promptly returned to that country for determination of issues relating to where and with whom the child is to live.

Schedule 2 of the Regulations list those countries in which the Convention applies.

The above is necessarily brief. It is important to note that family law and other relevant areas of law and related legal requirements can be complex. This entry cannot be relied upon as advice or as the basis for action.

  • Location order

Division C (sections 67J to 67Y) of Part VII of the Family Law Act provides in relation to location and recovery orders.

A location order requires a person or authority to provide the court with information about a child‘s location.

A recovery order is an order requiring the return of a child to a specified person or making provision relating to provision of assistance or authority for the purpose of finding or recovering a child. Section 67Q provides broad powers for these purposes.

  • Recovery order

See Location order.

  • Children’s’ views

See How are parenting issues resolved?

  • Independent children’s lawyer (ICL)

An independent children’s lawyer (ICL) may be appointed by the court of its own initiative or on the application of any person (including the child).

The role of the ICL is set out in section 68LA of the Family Law Act which provides (among other things) that an ICL:

  • must form an independent view of the best interests of the child;
  • must act in those interests;
  • is not the child’s legal representative;
  • is not obliged to act on the child’s instructions;
  • must act impartially;
  • must ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court;
  • must endeavour to minimise the trauma to the child associated with proceedings; and
  • must facilitate an agreed resolution.
  • Paramount consideration

See How are parenting issues resolved?

  • Parentage testing
  • Parenting presumptions
  • Parental responsibility
  • Surrogacy
  • Violence / abuse

Magellan list

  • Who can apply?

The treatment of post-separation expenses and, particularly, expenses that one or other party considers have been incurred unreasonably since separation, has occupied a lot of court time in recent years.

In Chorn and Hopkins [2004] FamCA 633, the full-court said (quoting an earlier decision of Marker) “It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under s.79” and “There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses”.

In Omacini [2005], 33 Fam LR 134, the full-court identified three categories that justify notional add-backs (where money that existed previously may be notionally added back to assets available at hearing with the effect that some past expenditure or loss or missing asset forms part of the share of a party) as:

  1. legal fees;
  2. premature distribution of matrimonial assets; or
  3. where one party has embarked on a course of conduct designed to reduce value or has acted “recklessly, negligently or wantonly” so that value is reduced.

In Bevan [2013] FamCAFC 116, the majority of the full-court (by way of obiter dicta – more of a comment than something necessary in reaching a decision):

“We observe that ‘notional property’, which is sometimes ‘added back’ to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute ‘property of the parties to the marriage or either of them’, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.”

As a result of the above, the treatment of unreasonable post-separation expenditure is in a state of flux. It might be reasonable, however, to say that adjustments where post-separation expenditure has been reckless, negligent or wanton are still reasonably probable and that such adjustments are now more likely to occur via adjustment under section 75(2)(o) (any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account) than as a direct mathematical add-back.

Rule 1.05 of the Family Law Rules provides that, before “starting a case, each prospective party to the case must comply with the pre-action procedures”. Specific exemptions are made including in relation to parenting cases involving risk of harm, other cases involving violence or fraud, urgency, undue prejudice, a related application within the past twelve months, divorce, a child support appeal and some bankruptcy matters.

The pre-action procedures require a party considering filing an application to provide to the other party(ies):

  1. a copy of the pre-action procedures brochure (schedule one to the Family Law Rules);
  2. an invitation to participate in a dispute resolution process (other than the court);
  3. written notice of an intention to commence proceedings with details of the issue(s) in dispute, the order sought if proceedings commence, a genuine offer to resolve issues and a nominated time (at least two weeks) for the other party to reply.

See Family Law Rules Schedule 1.

See How are property issues resolved?

  • When a property order can be set aside (section 79A)

Section 79A of the Family Law Act provides for a property order (including a consent order) to be set aside where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance”.

The section also makes provision for circumstances where:

  • carrying out an order has become impractical;
  • a person is in default and it is just and equitable to vary the order;
  • exceptional circumstances exist relating to a child; and
  • in the case of a proceeds of crime order.

Orders relating to children can be varied at any time but, most often, this would occur only where there has been a significant change in circumstances since the last order.

See How are property issues resolved.

Section 4AA(5)(a) provides:

(5)    For the purposes of this Act:

  1. a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
  2. a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

See De facto relationships.

Section 49 of the Family Law Act provides:

  1. The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
  2. The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

In Pavey (1976) 1 Fam LR 11,358, the full-court quoting (with amendments in square brackets) the decision of Murphy J in Todd (No 2) (1976) 1 Fam LR 11,186, said:

“‘separation’ means more than physical separation — it involves the [breakdown] of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships [and the nurture and support of the children of the marriage].”

It has often been argued in family law matters that one party’s special skill or talent (especially where such skill or talent has resulted in the acquisition of a substantial or exceptional level of net assets), should receive additional recognition. This notion, often referred to as “special contributions”, has received some intermittent and controversial recognition in the case law (especially) since the early 1990s (see Whiteley in 1992 and Ferraro in 1993)

Two recent full-court decisions, however, seem to have reduced scope for recognition of such special contributions arguments.

In Kane [2013] FamCAFC 205, the full-court said:

“We agree with Murphy J that the notion of ‘special contributions’ necessarily predisposes matters to an outcome that may not otherwise be available upon a proper assessment of all the contributions.”

In Hoffman  [2014] FamCAFC 92, the full-court said:

“We consider that the true position is, with respect, put correctly and succinctly by O’Ryan J in D & D [2005] FamCA 1462 at [271]: “…the notion of special contribution has all been a terrible mistake … what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement…

“In summary, we do not consider that there is any “legitimate guideline” of “special contributions” or any such guideline pertaining to particular contributions.”

Spousal maintenance relates to the ongoing expenses of one of the parties to the marriage. It differs from child support which is concerned with ongoing expenses relating to children.

There is a wide body of case law relating to spousal maintenance. Trying to provide a summary of that case law in a small space like this is not really feasible. However, a preliminary look at some of the relevant sections of the Family Law Act can make a useful starting point.

Sections 71, 72, 74, 75, 77, 77A and 80-85 of the Family Law Act provide in relation to spousal maintenance.

Section 72(1) provides:

“(1)  A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)  by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)  by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)  for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).

Section 75(2) provides:

  • (2)  The matters to be so taken into account are:
    • “(a)  the age and state of health of each of the parties; and
    • (b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
    • (c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
    • (d)  commitments of each of the parties that are necessary to enable the party to support:
      • (i)  himself or herself; and
      • (ii)  a child or another person that the party has a duty to maintain; and
    • (e)  the responsibilities of either party to support any other person; and
    • (f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
      • (i)  any law of the Commonwealth, of a State or Territory or of another country; or
      • (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and
    • (g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
    • (h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
      • (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
    • (j)    the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
    • (k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
    • (l)    the need to protect a party who wishes to continue that party‘s role as a parent; and
    • (m)  if either party is cohabiting with another person–the financial circumstances relating to the cohabitation; and
    • (n)  the terms of any order made or proposed to be made under section 79 in relation to:
      • (i)  the property of the parties; or
      • (ii)  vested bankruptcy property in relation to a bankrupt party; and
        • (naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
          • (i)  a party to the marriage; or
          • (ii)  a person who is a party to a de facto relationship with a party to the marriage; or
          • (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
          • (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
        • (na)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
    • (o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
    • (p)   the terms of any financial agreement that is binding on the parties to the marriage; and
    • (q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”

Section 75(3) says:

“(3)  In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.”

Section 90 of the Family Law Act provides for specified instruments to be exempt from state or territory stamp duty. This list includes “a deed or other instrument executed by a person for the purpose of, or in accordance with, an order made under this Part” (Part VIII – property, spousal maintenance and maintenance agreements).

In New South Wales, section 68 of the Duties Act provides in relation to stamp duty exemptions relating to specified documents executed in accordance with an order of a court made under the Family Law Act and specified documents executed in accordance with a financial agreement made under the Family Law Act.

It is important to note that family law and stamp duty law and related requirements can be complex and that this entry cannot be relied upon as advice or as the basis for action.

Stay of proceedings generally refers to an order halting or postponing operation of an earlier order or further process. This sometimes occurs in circumstances where an appeal or review has been filed with the court (see Appeal and Review) and where carrying out the order which forms the subject of the appeal or review would defeat the purpose of the review or would otherwise cause difficulty or duplication of costs or effort.

When family law matters progress efficiently and cost-effectively, they tend to follow particular steps in a particular order. Sometimes, problems can be associated with skipping steps or changing the order of steps.

The steps in efficient matters tend to be:

  1. both parties obtain advice from two separate (and, hopefully sensible) solicitors – this means that both parties gain a reasonable understanding of what they can reasonably expect and a reasonable understanding of common mistakes to be avoided and these things make reaching a resolution much easier;
  2. both parties provide details of their respective financial circumstances in a reliable form – this allows both parties to prepare calculations of net assets available for distribution, allows both parties to obtain proper advice and avoids the common problem of discovering that a property settlement agreement is not as good as it seemed before proper information was provided;
  3. each of the parties meet with respective solicitors to examine calculations of net assets available for distribution (made possible by the second step), to receive advice (turning earlier overall percentage advice into dollars) and to work through all those considerations (relating to stamp duty, accrued CGT liabilities, other tax issues, practical issues, finance issues, indemnities, joint accounts, credit issues, parenting, child support, maintenance, updating, checking, personal items, super issues, SMSF issues, trustee obligations, double-checking,…) relevant to making a proposal;
  4. proposals;
  5. settlement

In less efficient matters, a number of additional steps may be involved.

The most common problems associated with changing the order of the steps listed above include making a proposal that does not take account of some important consideration or is based on inaccurate of out-of-date figures and/or realising that a deal agreed earlier is not as good as it seemed before further information was obtained. These problems can lead to important difficulties and to loss of the level of cooperation that can mean the difference between an efficient, cost-effective matter and a difficult, expensive one. See Cooperation.

Section 79(1)(a) of the Family Law Act provides for the court to make orders “with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property”.

Section 90MC says a “superannuation interest is to be treated as property…”.

It follows that, in most family law matters, each of the parties’ superannuation entitlements can form the subject of an order altering the interests of the parties to the marriage or be taken into account when making such orders.

In December 2002, specific amendments providing for the splitting of superannuation entitlements under family law became effective.

In the case of an accumulation entitlement (the most common form of superannuation in Australia), a value can usually be ascribed to the entitlement by obtaining an up-to-date statement from the trustees of the fund.

In the case of a defined-benefit superannuation entitlement, figures on statements can differ substantially from the value calculated under the court’s regulations. The pension or lump-sum value of a defined-benefit superannuation entitlement is usually calculated as a function of final salary and a specified multiple. If you have such an entitlement, you will probably be used to hearing about the multiple at your workplace or will have seen references to it on statements.

Valuation methodologies for defined-benefit superannuation interests (including pensions) are set out in the schedules to the Family Law (Superannuation) Regulations. While Regulation 29 says “If the whole of the superannuation interest is a defined benefit interest, the gross value at the relevant date of the interest is to be determined in accordance with this regulation”, the court is not necessarily bound to adopt such a value (see, for instance, Edwards [2009] FamCAFC 139).

A number of issues can arise in relation to self-managed superannuation funds (SMSFs). Issues may relate to compliance (questions about whether funds comply with relevant superannuation requirements); may arise as a result of the potential for conflict between an individual’s interests as a member of a fund, as a party to a family law matter and/or as a trustee of a fund (or as director of a trustee company); or can also arise where some assets of a fund may be subject to accrued capital gains tax liabilities or potential stamp duty liabilities. There may be other issues. Parties may need to be careful when dealing with SMSFs under family law and may need to obtain specialist advice.

  • Defined-benefit entitlements

See Superannuation.

  • Flagging orders

Section 90MD of the Family Law Act says “’flagging order’ means an order mentioned in subsection 90MU(1)”.

Section 90MU(1) provides for the court to make an order “directing the trustee not to make any splittable payment in respect of the [superannuation] interest without the leave of the court”.

A flagging order might be made in circumstances where superannuation forms a large proportion of the net assets of a separating couple and the court (or the parties by consent) determines that property proceedings (or some part of them) should be adjourned until the relevant superannuation entitlement becomes accessible. The order acts to prevent any dealing with the entitlement in the meantime (without the court receiving notice).

  • Self-managed super funds

See Superannuation.

  • Super splitting

See Superannuation.

See Limitation periods.

Questions commonly arise concerning whether trust assets can be included in consideration relating to family law property settlements.

Section 79(1)(a) of the Family Law Act provides for the court to make orders “with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property”.

As a general proposition, where a party is one of a number of potential beneficiaries under a discretionary trust, where there is no pattern or history of distributions from the trust to that party, and where the party has no control over the operation of the trust or the discretion, the assets of the trust are not likely to seen as property that can be taken into account when making an order altering the property interests of the parties to a marriage under family law (see Whitehead (1979) 5 Fam LR 308).

Where a party to a marriage can effectively treat assets of a trust as their own or has some element of control over those assets, the trust property can be treated as property of that party under family law (see, for example, Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 and Ashton (1986) 11 Fam LR 457).

A trustee cannot generally be directed to act in a manner that is not consistent with the trustee’s duties under to the trust deed or in a manner contrary to the due administration of the trust (see BP and KS [2002] FamCA 1454).

Section 80(1)(e) of the Family Law Act says the “court, in exercising its powers under this Part, may do any or all of the following…appoint or remove trustees”. This would generally only occur where the assets of the trust can be treated as property for family law purposes (see above) and the court cannot generally vary the terms of an existing trust.

Section 79(1)(a) of the Family Law Act provides for the court to make orders “with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property”.

In most family law matters, the value of the whole of “the property of the parties to the marriage or either of them” and the value of individual assets and liabilities to be retained by each party or shared in some way will be important considerations.

Usually, issues relating to values will arise early, in order that the parties might be in a position to obtain proper advice and to make informed decisions (see Steps in the settlement process).

Where the value of an asset or liability is not agreed between the parties to a family law matter and where respective views make a significant difference to calculations of overall percentage outcomes, this can make settlement discussion or negotiation more difficult. For example, if the value of combined net assets of the parties is around $1,000,000, party A thinks business interests are worth $300,000, party B thinks those interests are worth $500,000, and it is agreed that A will keep the business, the two different values make a big difference to A’s overall percentage outcome and questions about whether other assets are available for A to take.

Division 15.5.2 of the Family Law Rules provides in relation to single-experts.

Where a difference of views about value means that negotiation becomes more difficult, the parties can agree to appoint a single-expert. In the absence of such agreement, the court may appoint a single-expert.

The system of single-experts was introduced to reduce common perceptions about partisanship relating to experts hired and instructed by individual parties and the notion that such experts might suffer pressure to act as advocate for those who instruct them or suffer conflict of interests. Accordingly, single experts are appointed by both parties or by the court and (generally) are paid by both parties.

While the rules provide for appointment of other experts to provide evidence in addition to the evidence of a single-expert, such appointments require the court’s specific permission and, because the additional expert (shadow-expert) is usually instructed and paid for by one party, the perception noted above may apply.

Vexatious proceedings are specifically dealt with in part XIB of the Family Law Act.

Section 102Q defines vexatious proceedings as including:

Section 102QB(2) provides that the court can make any or all of the following orders in relation to vexatious proceedings:

Section 43(1)(ca) of the Family Law Act directs that the “Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to…(ca)  the need to ensure protection from family violence”.

Section 60CC(1) says: “Subject to subsection (5), in determining what is in the child‘s best interests, the court must consider the matters set out in subsections (2) and (3)”.

Section 60CC(2) says the “primary considerations are:

(a)    the benefit to the child of having a meaningful relationship with both of the child‘s parents; and

(b)   the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

Section 60CC(2A) says “In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)”.

See How are parenting issues resolved?

In relation to violence in the context of family law property matters, the majority of the full-court in Kennon (1997) 22 Fam LR 1 said “Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of ‘negative contributions’ which is sometimes referred to in this discussion.”

The majority also said these principles “should only apply to exceptional cases”.

It is probably sensible to review your will every few years or whenever there is a significant change in your life. The time surrounding separation may generally be such a time. Changing circumstances may mean it is advisable to re-examine choices of executors and beneficiaries or other matters.

Divorce has the effect of deleting any reference in the will of one spouse (or, by then, ex-spouse) of the other ex-spouse. This can result in problems concerning appointments of executors or can result in a full or partial intestacy (where a will does not provide in relation to all assets).

Similarly, marriage can have the effect of revoking a will that is not expressed to be made in contemplation of such marriage (though, in New South Wales, the Succession Act sets out a number of exceptions to this).

Diamond Conway has very experienced wills experts. You can contact Michael Schneider on 9222 8000 for help.

The expression “windfalls” generally applies to lottery winnings or the acquisition of money or property or increase in value of property by chance. For example, lottery or gambling winnings or rezoning of real property that results in substantive gain in the value of that property.

How the Court deals with windfalls depends on how the windfall was acquired. By way of example, in the case of Zyk [1995] 19 FamLR 797 where the husband, who purchased a winning lottery ticket during cohabitation was found by the court to be less than supportive of the family during the marriage, and held that the ticket had been bought through joint funds and that being the case:

The contribution of the prize will be seen as a contribution by the parties equally”.

The Court went on to say that that approach would not necessarily apply in every case but depend on many factors including whether the windfall occurred before or after the relationship commenced or ended and the circumstances of each particular case.

In a more recent decision of Eufrosin [2014] FamCAFC, the wife purchased a winning ticket six months after separation from funds of a business in which the husband had had some involvement. In that case, the Full Court said:

At the time the wife purchased the ticket some six months after separation, the parties had commenced the process of leading separate lives, including separate financial lives”.