Family Law FAQs
Evidence is information that the court looks at in understanding and ultimately determining a matter.
In a family law matter there a number of different pieces of evidence that the court will look to:
Affidavits: Affidavits by you and possibly supporting witnesses. Affidavits are sworn written statements of fact. Affidavits are used to support your wishes as to what Orders the court can make. Your solicitor will help you draft your and any supporting affidavits. Your affidavit must comply with court evidence rules. Anytime you submit evidence to the court there are important considerations to take into account regarding your matter from both a strategic and practical perspective. Therefore it is very important to talk to a solicitor before submitting anything to the court.
Valuations: Valuations of any property, businesses, chattels and superannuation may be required from the court. The court has special rules about who can value assets and the process involved in obtaining these valuations. Your solicitor will assist you in this process.
Financial Statement: Your financial statement is a document which sets out a person’s income, financial resources, assets and liabilities.
Expert witnesses: The court may order that an Expert Witness is called in. Expert Witness are professionals in other fields that can make an assessment and then provide evidence about a particular issue. For example, a superannuation expert may be brought in to provide evidence on a complicated superannuation issue.
Subpoenas: If you are unable to gain disclosure information, for example, because of confidentiality issues you can apply for a Subpoena. There are three types of subpoenas:
- Subpoenas to produce documents;
- Subpoenas to give evidence;
- Subpoenas for production of documents and to give evidence.
If you think that you have been left out of a Will, the Will maker may not have made ‘adequate provision’. In these cases the court can step in and make an award from the estate.
A case (Brennan v Mansfield & Ors  SASC 83) was one of the first cases of a will for a person in a same sex relationship. But what makes the decision more interesting is the discussion about what amounts to “adequate provision”.
What is considered to be ‘adequate provision’ is dependent upon a variety of factors including the size of the estate, the terms of the deceased’s will, the nature of the relationship between the deceased and the applicant, other beneficiaries of the estate, the applicant’s financial circumstances and the deceased’s intentions.
If you are wanting to draft or redraft a will or you believe that you have been left out of a will contact one of our estate planning lawyers today.
It is a comforting thought to know that there are arrangements in place for your children should you suddenly pass away. We have a lot of new families who ask us to write up their Wills after their first child arrives. It is great assurance to know that your intentions are clearly written down should something unexpected happen.
You can appoint a person over the age of 18 to be a guardian for your children. This person is referred to as a ‘testamentary guardian’. The appointment of a guardian has to be done in accordance with the laws of the state of territory in which you reside otherwise it will be ineffective.
There are more difficulties to overcome if you are separated from the child’s other parent and you would like to appoint someone else apart from the surviving parent as the children’s guardian.
Alongside giving them responsibility to care for the day to day needs and decisions regarding your children, you are giving them long term responsibility over the long-term care and welfare of your children.
In the event that the testamentary guardian is appointed, the guardian then has rights and duties subject to the Family Law Act. If there is ever a dispute regarding the appointment of the guardian or the care of the children an application can be made to the Court. The Court will then consider what is in the best interests of the children.
Who cares for your children in the event of your death is a different consideration to who controls your finances and how they will be distributed to your children. You should consider whether the guardian should have access to financial assistance for your children through your executor and/or financial reimbursement. You can appoint different people or the same person to be your executor and testamentary guardian.
When discussing how your finances should be controlled in the event of your death and an appointment of a guardian, you need to consider your children and the guardian’s future needs including housing, education and medical expenses.
You may wish to leave a statement of wishes to your executors. Whilst this is not a legally binding document it does document your wishes and can be used as evidence in Court if there is ever a dispute. Your statement of wishes can also include who you would like your children to be looked after in the event that you’re appointed guardian cannot begin their role immediately after your death.
If you would like to get a Will a drafted or change your existing will to include a testamentary guardian you should contact one of our estate planning lawyers today.
If you have received an inheritance prior to separation then it will generally be included in the asset pool as the court looks at the assets at the time the matter comes before the court.
There are of course exceptions to this, for example if you have received your inheritance in the form of a testamentary trust you may be able to exclude this from the asset pool.
If you are would like to protect your inheritance or are worried about the effect it may have on your property settlement you should contact one of our solicitors to discuss the options available to you.
A trust is a way of controlling and protecting assets. There is a legal relationship between the trustee (who administers the trust) and the beneficiary (the person who receive the money or assets). The Trustee has a legal obligation to look after the trust, this can often mean investing or using the money wisely with the beneficiary’s interests in mind.
The person who sets up the trust is called the settlor. This person is usually unrelated to the party or family and will not be a beneficiary to the trust. If a trust is established through a Will the settlor is called the testator. The terms and conditions of the trust are set on in a Trust Deed. This is a legal document which specifies;
- Who the Trustee is
- Who are the beneficiaries.
- When and how the beneficiaries are to receive benefits from the trust.
- What the trustee must consider in administering the trust
- Any other obligations or powers the trustee may have.
If a trust is to benefit a person with a severe disability this person is called the principal beneficiary. In these circumstances other beneficiaries to the trust are called residuary beneficiaries.
A trust deed may also name an appointor. An appointor is someone who is independent from the trustee and has the ability to make changes to the terms of the trust including to appoint new trustees or beneficiaries. In most cases the appointor will be a close relative of the principal beneficiary.
The property which the trust consists of is called the capital. From there the trust can earn an income i.e. though rent, interest, dividends etc.
A discretionary trust is a trust which gives the trustee power to decide who receives a benefit from the trust and to what extent. In a discretionary trust a trustee must consider all the possible beneficiaries but has no obligation to the then distribute benefits to all beneficiaries.
A testamentary trust is a trust set up under a Will. When a person creates a will they are called the testator. At the time of death any property owned by the testator is known as their estate. Their will then appoints an executor to administer the estate when the testator dies. If a trust is created under the will, a trustee will also be appointed. This person may be the same person or different person to the executor. The trustee has an obligation to act in the best interests of the trust’s beneficiaries.
The Trustee has the obligations and duties to do the following;
- To implement and manage the trust in accordance with the deed
- To manage the trust with the beneficiaries in mind. This includes spending, investing and otherwise using trust property to the benefit of the beneficiaries.
- To avoid unnecessary waste or expense of trust property
- To seek professional advice regarding the management of the trust.
- To keep accurate and professional accounts of the trust’s assets and liabilities, income and expenditure and make it available to the beneficiaries if necessary.
The trustees also have rights attached to the management of the trust;
- To have reasonable trust-related expenses paid from by the trust
- If they are in doubt of their entitlements to the trust they are able to the apply to the Supreme Court for advice and directions. This can especially apply in cases where there has been a breach of the trust or another abnormality has arisen.
- To gain compensation for the work they do from the trust. In many cases the deed will specify the form and sum of compensation to be paid to the trustee.
- If they can no longer continue their responsibilities as trustee, to appoint additional or replacement trustees.
The Trustee Act 1925 (ACT) outlines the various rights and obligations of trustees.
I’m a beneficiary what are my rights?
The trustee has an obligation to the beneficiaries to administer the trust in accordance with the deed. The beneficiaries have the right to express their wishes and ask the trustee for assistance, but they cannot compel the trustee to make certain actions unless the deed allows it. The beneficiaries have the right to ask for an account of the trustee but are limited in questioning the reasons why a particular decision has been made by the trustee. If the beneficiaries believe that the trust has been mismanaged an application to the court can be made.
At the end of the day beneficiaries can expect to benefit from the trust. However it is important how the trustee will manage the trust in both the long term and short term.
Are Trusts taxed?
For tax purposes a trust is treated as a separate legal entity and as such has its own tax responsibilities. Trustees have an obligation to submit tax returns and pay tax just as a normal person would. Trusts are no entitled to the tax-free threshold and higher rates of tax may be applied. The trustee has the power to pay tax from the trust’s assets. It is important that you seek professional advice regarding your trust’s tax responsibilities as both the trust and the beneficiaries can be liable to pay tax.
How much does it cost to manage a trust?
Like any business there are costs involved in managing a trust. These include initial start-up costs, ongoing accountant costs and ongoing legal costs. These are ongoing costs and something that you should talk to a solicitor and accountant about prior to setting up a trust. There has to be enough capital to both establish the trust and then continue to maintain the trust in a way that will benefit the beneficiaries.
A family trust (also known as a discretionary trust) is a way to control and protect a family’s assets and/or conduct a family business.
A trust is usually set up by a member of the family and can be used to protect the family group assets from liabilities, a family trust also allows families to pass on the group assets to future generations relatively easily. Other benefits of having a family trust include certain tax benefits, asset protection and the clarity of avoiding challenges against certain assets in the event of the death of a member of the trust.
The terms and conditions of trust, including a list of its beneficiaries, are written up in the form of a deed. Once the deed has been drafted and then finalised, the trustee or trustees will then sign the deed. Once signed the trustees are legally responsible for managing the trust’s assets.
If you are interested in establishing a family trust or you have a question about the management of a trust you are involved in contact our expert estate lawyers today.
Unlike the house or the family farm, superannuation is not asset that you can just leave to someone in your will. Instead it is a trust.
For some superannuation interests, you can chose who gets your superannuation in the event of your death through a death benefit nomination. The rules of a death benefit nomination are provided by your superannuation fund.
A nomination can be either a non-binding or binding nomination. In the event that a death benefit nomination is not provided or not binding, who receives your superannuation is up to the discretion of the trustee. If you have a self-managed super fund this could be a more complicated process and you should speak to a solicitor to make sure that your nomination is legally binding.
Whilst what your Will says about your superannuation may have some influence, if the issue was to go to court, it is important to note that your Will cannot replace a death benefit nomination. In fact, in many cases, a persons Will has had very little influence over how the court has distributed a deceased person’s superannuation benefits
In order to make sure that your wishes are carried out in the event of your death you should complete a binding superannuation death benefit nomination and a well drafted estate plan.
Contact one of our estate planning solicitors today if you would like to start an estate plan or talk more about death benefit nominations.
Getting an estate plan is an important step in making sure that your legal and financial affairs are in order.
Having a solid estate plan means that in the event of your death, your finances and assets are distributed in line with your wishes. If you don’t’ have an estate plan your estate will be distributed in line with the rules of intestacy.
What is an estate plan?
An estate plan involves the following documents:
- Will – This is a document which sets out how you would like your assets distributed in the event of your death. A Will can be a very straight forward or a very complicated document depending on the size and complexity of your estate and how comprehensive you would like your will to be.
- Power of Attorney – A power of attorney is a document which appoints another person as your decision maker in the event that you become temporarily or permanently disable and are no longer able to make decisions for yourself. You can appoint a power of attorney to step in to make decisions about your legal matters and medical treatment. These decisions can be made by the same person or two or more different people in agreement.An example of this would be if you had a car accident and were placed in a coma. Your power of attorney would be able to make decisions about your medical treatment on your behalf.
- Testamentary Trust- this is a kind of trust which works together with your will. A testamentary trust puts in place ongoing control of your assets after your death. You can use a testamentary trust to control when and how your beneficiaries get your assets for example when your children turn a certain age.
Other things that your estate planning lawyer will help you consider include your superannuation and associated death benefits, insurances and other financial affairs which you need to manage and plan for.
What is an executor and do I need one?
The executor of your estate is the person you appoint to manage and distribute you estate after your death. Your executor will administer and carry out the terms set out in your will and in the best interests of the beneficiaries of your estate.
If you would like to start drafting an estate plan or have been named as an executor in someone else’s Will contact our offices today to speak to a solicitor in our estates team.
What if a loved one never left a Will or I have been left out of their Will?
Our lawyers are not only great at drafting estate plans they are also experts at dealing with or contesting a deceased estate.
The death of a loved one can be a very emotional and stressful time, even more so when issues arrived from the deceased’s estate. In these circumstances we can discuss a variety of different options and find a pathway that suits you and your family’s interest best. Estates can often be more straightforward than people automatically assume and having a friendly and approachable expert on your side can make even the most complicated matter seem straightforward.
Domestic violence (also known as family violence) constitutes a very broad spectrum of behaviour. Both physical and psychological violence are deemed to be domestic violence.
The relevant legislation in the ACT is the Family Violence Act 2016 (ACT). Recent changes to the legislation now mean that the definition of family violence is broader than ever before. Family violence extends far beyond physical violence or verbal abuse. Family Violence includes emotional, psychological or financial abuse. Any behaviour which makes you or your children feel unsafe is likely to constitute family violence.
The ACT Magistrates Court determines Family Violence Orders (these were previously known as Domestic Violence Orders).
Every family violence matter is different and as such family violence orders can include a variety of different orders which prevent certain actions. Actions which can be controlled or prevented include;
- Preventing a person from approaching another person or place
- Preventing a person from being within a particular distance from a certain person
- Preventing a person from taking another person’s belongings or refusing to return belongings
- Preventing someone from harming pets
You can make a family violence application to the court. Before making an application it is advisable to contact a solicitor to discuss your issues in detail. Every matter is different and it is important that you know the options available to you.
If you are considering applying for a family violence order you should also talk to your solicitor about any family law issues that may have arisen simultaneously or consequentially. Family Violence issues and family law issues are connected and legal action in one area can affect the other so it is important to have a good understanding of the law involved and how it affects you.
People often think that abuse is limited to acts of physical violence. This is not the case. Abuse can be either physical or emotional. If your partner humiliates or criticises you, threatens or emotionally blackmails you or your children or family members, keeps you from seeing your children or restricts your access to finances, the phone or the internet you may be experiencing family violence. You may feel unsafe within your relationship or you are worried about the safety of your children, you may also feel controlled or isolated.
If either you or children are being subjected to family violence you should contact Canberra Domestic Violence Lawyers for a free initial appointment to discuss your legal rights and options.
There are a variety of options available to you in both the legal and practical sense. We can advise you what steps you need to take to get yourself and your children away from danger. Getting help from a lawyer doesn’t automatically mean you will go straight to court, instead there are a lot of different avenues available to you including negation and mediation. We can also help you get connected with other support services and organisations in your local area and our in-house family and child specialist Amy McGinn is often available for a chat.
Generally if you and your former partner are involved in a family law dispute you will both be required to pay your own legal costs. However this is not a blanket rule and in some cases you may be able to apply to the court for one party to pay the legal costs of the other party (known as party-party costs).
You can talk to your solicitor about options involving costs.
A conciliation conference is type of dispute resolution meeting where you and your former partner will try and reach agreement on financial issues. A Registrar of the court will conduct the conciliation conference.
A conciliation conference can be a very productive step toward reaching a settlement agreement. Whilst the Registrar cannot force you and your former partner to come to an agreement, we encourage our clients to take advantage of the opportunity to attend a conciliation conference and to keep an open and positive mindset towards reaching an agreement.
Prior to the conciliation conference the court will order you to produce and file certain documents including a financial statement and the normal duty of disclosure applies.
At the conference the Registrar will give an outline of the conciliation conference process and identify the different parties’ issues within the dispute. The Registrar may also give an indication of the result that that they believe the court might find should the matter proceed to hearing.
If an agreement is made at the conciliation conference your solicitors will help draw up an agreement and the Registrar will make orders, settling the matter. If an agreement is not reached the matter may proceed straight to final hearing or the Registrar can enforce more procedural orders prior to progressing to hearing.
If a child is removed, detained or concealed from one parent by the other parent than this may constitute parental abduction. An abduction can occur whether or not the parents have separated and can involve other family members aside from just the parents. Children can be abducted within Australia and internationally.
If your children have been abducted and you have concerns for their safety, you should in the first instance contact the police and then seek legal advice from a specialist family lawyer.
If you believe that your partner or former partner may act to abduct your children you should contact a solicitor straight away to discuss your options.
Your solicitor can help you apply to the court to seek protection over your children and if necessary seek a recovery order. If your child has been abducted or someone is threatening to abduct them this can be a very stressful and worrying time, it is important that you act quickly and with the best legal advice possible.
If you are the subject of family court orders and you think that you or your former partner may have breached those orders, you should contact one of our solicitors to discuss your options. The law on contravention is complicated and it is always best to seek legal advice before acting on or after a contravention; that way you can gain a clear understanding of your rights and responsibilities.
A contravention can constitute a variety of acts in Family law proceedings including if a party does not attempt to comply with the orders, or purposely breaches an order without a reasonable excuse.
If a contravention of the Orders has occurred there are different ways that this contravention can be addressed, depending on the severity of the breach and the relationship and situation of the parties. If the other party in your matter has made a contravention, filing a contravention application at the court is not your only option, you may be able to come to an agreement with your former partner without going to court.
If on the other you have contravened orders it is important that you seek legal advice as soon as possible. Penalties for contravention are up to the court’s discretion and can range from compensation in terms of more time with the children for the other parent, all the way up to a fine or imprisonment.
Whilst our lawyers are experts at Family Law we don’t pretend that we are also experts in other fields such as psychology or financial planning. Expert witnesses are professionals who are experts in their given field. Experts can be called on in Family Law proceedings to report on a particular part of the dispute for example property valuations, medical conditions or complex superannuation matters.
Experts are valuable resources in the family law world; whether the court orders a psychologist to give evidence at your hearing or you are in the middle of collaboration and we suggest getting a superannuation consultant in, an expert can put a new perspective on your dispute and often help both parties come to an agreement on certain areas of the dispute.
Usually you and the other partner can chose the expert to be used in your matter. Experts can be used to provide written reports to the court or give oral evidence in court or to provide letters of advice or more informal advice in an out of court negotiation or collaboration.
If the court orders a report, you, your former partner and your children may be asked to attend an interview with the assigned expert.
At all times an expert witness has a duty to the court to apply their expertise against the facts and to form an independent and truthful opinion based on their findings.
When the court orders a meeting between a family consultant, the parents and the children of a family law dispute this is called a child inclusive conference. At this meeting your lawyer will not be included. As this is a court ordered meeting there is an obligation to attend.
The goal of the conference is to help the court understand your family situation and in particular the experience and feelings of your children. By gaining a better understanding of your family situation the court will be able to come to decisions about your parenting arrangements in the interim and may also be able to help you and your former partner reach an agreement.
Family consultants are court experts who specialise in children’s matters, they are usually psychologists or social workers.
After the child inclusive conference is finished the family consultant will compile their observations and advice into a document called a Memorandum to Court. This Memorandum is then treated as a piece of evidence to the proceedings. Anything said in these conferences are not confidential.
In parenting cases, a family report can be a very important and useful document. A family report is an independent report written by a court-appointed family consultant. The report will give an assessment of what are the relevant parenting issues in your case and will give recommendations to the court about what is in the best interests of your children. Whilst the focus of the report will always be what is the children’s best interests the court can direct the consultant to focus on specific issues in the report if needed.
You, your former partner and your children will be interviewed by the family consultant. The children (depending on their age) will be seen with the parents and separately. After the interviews the consultant will consider all the evidence and circumstances involved in your dispute (including court documents already filed in your matter) and write up a report.
Things that the report may discuss include:
- A brief description of each parent and child’s family history and any significant events that may have affected or may affect the dispute.
- The parents desires to resolve the dispute.
- The parent’s attitudes, willingness and capacity to adjust to change.
- Your child/rens wishes and views regarding the separation.
- What your relationship is like with your children and how the children view that relationship.
- The difficulties, risks and effects that a change in circumstance could cause to your family unit.
If you are required to participate in a family report your solicitor will be able to talk you through what is involved. We also have our own in-house Family and Child Specialist Amy McGinn who may be able to assist you.
Arbitration is another dispute resolution pathway in the family law world. Arbitration can be a good option for you to consider if you and your former partner have been unable to reach a decision through other pathways such as mediation or negotiation. Matters which can be heard by an Arbitrator include property and financial matters, parenting matters cannot be dealt with by arbitrators.
The Family Law Act defines arbitration as ‘a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.’
While waiting for a court hearing can be a timely and costly process, a decision through arbitration can be quick, efficient and cheaper than litigation.
There are many other positive aspects of arbitration including that the parties have a choice of arbitrator, that there is control over the level of formality, there is less delay than in the court system, Arbitration is cost effective and arbitration is subject to confidentiality.
Similar to the court process both parties will present evidence to the arbitrator and then the arbitrator will make a decision based on that evidence. An arbitration can be about one or more issues within the dispute and therefore does not have to cover all aspects of the dispute between yourself and your former partner. A decision made by an arbitrator has as much legal authority as a court order.
An arbitrator is a legal practitioner who specialises in Family law and has been trained and accredited as an arbitrator.
The collaborative law process is a form of alternate dispute resolution which puts you in control of your family law matter. Collaboration is a great option if you believe that you and your partner are able to cooperate and negotiate on amicable terms during your family law dispute. Collaborative law is not about confrontation, rather it is about you and your former partner problem solving with the assistance of your lawyers to come to an agreement and understanding.
During collaboration you will partake in ongoing correspondence and a series of meetings with your former partner. During these negotiations you, with the help of your solicitors, will identify what is important to both parties, what questions you need to answer regarding the separation, identify and evaluate the options available to you and finally negotiate your way to an agreement.
If for some reason you do not reach an agreement, you and your former partner do have the option to file an application with the court. However if you chose to do so the lawyers who assisted you with the collaboration will not be able to act for you in any litigation.
Mediation is a dispute resolution process where a mediator (an independent third party specially trained in helping two parties reach an agreement) facilitates communication between you and your former partner in the hope of reaching an agreement.
During a family law mediation you and your former partner and your legal representation will discuss both parties’ wishes and try to come to an agreement that suits both parties and any children involved. Depending on the type of mediation, you can discuss all aspects of your dispute in a mediation including property settlement and arrangements for the children as well as other issues which you might not normally bring up in court, for example who gets to keep the cat, the children’s time with their friends or the baby’s feeding and sleeping routines.
Unlike a Judge or Registrar at Court, the mediator is not able to impose a decision on you or your former partner. Mediation is all about coming to an agreement together. It puts you in the control seat and enables you to make sure that all of your concerns have been addressed.
Where does mediation occur?
A mediation is usually conducted at either your lawyers office or the other parties’ solicitors office. If this is not available or convenient another office location can also be arranged.
We often like to host mediations at our FGD Canberra office so that we can take advantage of our great meeting rooms and modern office layout. We will usually book out a big meeting room for group party discussions, a room for the mediator and break out rooms so that you and your solicitor can have some space and privacy to discuss how the mediation is going throughout the day.
We also make pretty good coffee which of course is available throughout the day ☺
Is mediation a one off thing?
Sometimes an agreement can be reached in a matter of hours or over the course of one day.
Sometimes you may have to attend more than one mediation in order to reach an agreement with your former partner.
What happens if you reach an agreement?
If you and your former partner reach an agreement at the end of your mediation, the solicitors will draft up ‘Terms of Settlement’ or ‘Heads of Agreement’ which is a document that outlines what you have agreed to and something you can refer to until Orders are made. After the mediation usually the solicitors will draft up consent orders based on the mediation agreement and, once finalised, these consent orders will be sent to the court for filing. The court will then make Orders based on the Consent Orders – These are legally binding and enforceable orders.
Why is mediation a good option?
It’s cost effective. Mediation is usually considerably less than the cost of ongoing litigation.
It’s time efficient. The courts have a huge waiting list and a non-urgent application can take between 8- 12 months (or longer) to be heard. A mediation can occur as soon as the mediator that you both agree on is available. Once you reach an agreement at mediation the process to get consent orders drafted, signed and filed is relatively straightforward. Orders are usually made with 30 days.
Less emotionally draining. Going to court can be a very stressful and emotionally exhaustive process. A mediation has the benefit of being less formal and more relaxed than a court appearance. It can also help you feel more in control of your own result than you would in a court room where you would have little opportunity to talk.
It Works! Mediation has great results and a huge percentage of mediations will settle without having to go to court.
It’s Confidential! Any information talked about in mediation with your lawyer is covered by legal privilege. This means that any information disclosed during the mediation cannot be used in later court proceedings.
FDR stands for Family Dispute Resolution. Section 10F of the Family Law Act gives a basic definition of FDR to be a non-judicial process where an FDR practitioner assists separated couples to resolve some or all of their disputes. An FDR practitioner is independent of all parties involved in the matter.
If you or your former partner have applied for a legal aid grant to go to Court, Legal Aid may ask you to attend an FDR conference first.
The FDR practitioner must first consider whether your matter can be appropriately dealt with through FDR. Things that will be considered include whether or not there is a history of family violence, the safety of each party, psychological and physical health of each party, the history or risk of child abuse.
There are certain confidentiality and disclosure requirements involved in the FDR process.
An FDR conference can help you and your former partner settle your dispute without the costly and timely process of going to court. Both the distribution of your property and the future arrangements regarding your children can be discussed.
At FDR both parties are able to talk about their positions towards a settlement, you and your lawyer can both attend the conference and if required a lawyer can also be there to represent your children.
If you or the other party requests that the FDR process be terminated or your lawyer thinks it is no longer appropriate the process can be stopped at any time.
Within the family law system there is a duty to disclose all relevant information relevant to your matter to all the involved parties and the court.
When you begin a family law matter regarding property, whether this is outside or inside the court room, you and your former partner will exchange disclosure documents. In a property matter these documents can include documents such as bank statements, superannuation statement, payment summaries, phone bills and payslips.
The duty of disclosure runs right from the get go of your matter all the way up until settlement. This means that you have a duty to disclosure any new relevant information or documents as your circumstances change throughout the timeline of your dispute.
It is important that you follow this duty to disclosure and provide the other party in your matter with all relevant information. The court has published a brochure about disclosure which you can see here: or you can talk to you solicitor at any time about what you need to disclosure.
Pets are such an important part of our lives and often an even bigger part of the family. When your relationship breaks down, working out who keeps the pets can be almost as complicated and emotional as working out parenting arrangements.
But not everyone is a pet person, so if pets are a big part of your life it is important to get a family lawyer who loves pets as much as you do. Here at FGD we have pets at the office on a regular basis and we love having a giggle at a baby animal video or four!
Under Australian law, pets are considered property and in the eyes of the law are comparable to the car or fridge. That’s why you need a lawyer who thinks of your furry friend as much more than just the lawn mower.
The court has discussed pets in numerous cases, more recently in Downey & Beale. Here the court considered a number of different factors surrounding pet ownership when determining who kept the pet. These factors included who initially purchased the pet, who paid for the pet’s expenses, who held the pet’s registration papers and where the pet lived after the relationship broke down.
Whilst the court will look to your pet dispute if necessary, here at FGD we love doing things differently and will try to keep you and your furry friend out of the court room if possible. We can help you with out of court agreements.
We can also help you make sure that you and your furry friend are protected as owner and pet in the event of future relationship break down, (A Pet Prenup).
Whilst Australia is yet to recognise same sex marriage, the Family Law Act’s definition of De Facto couples includes same sex couples.
Can I got to Court?
As long as you and your partner fit the requirements of a de facto relationship you can apply to the court for a property settlement. The law is almost exactly the same for de facto couples as it for married couples.
Out of Court?
At FGD we are passionate about out of court options to settle your family law dispute. If you were in a same sex relationship; negotiation, collaboration and mediation are all options which are open to you and your former partner.
As a same sex couple you can also enter into Binding Financial Agreements (colloquially known as a prenup).
What if we got married overseas?
If you are in a same sex relationship and you are and your partner were married overseas, things get a little more complicated – so that’s where we can help.
Currently, because an overseas same sex marriage is not recognised in Australia, same sex couples cannot become legally divorced in Australia.
If you are both living in Australia applying for a Divorce overseas can be a little bit tricky because we may need to convince that jurisdiction that it is the appropriate forum to deal with your divorce.
Overseas same sex marriage can also affect how your estate is distributed after you pass away. So it is important that you have talked to a lawyer about your estate plan if you are in a same sex marriage.
The quick answer is yes you can!
Once you and your former partner have been separated for 12 months or more you can apply for a divorce in Australia by using a divorce kit.
You can apply for a divorce either individually or jointly. Applying for a divorce is a separate application to your property settlement or arrangements for your children.
Using a divorce kit can be a good option for many reasons. It allows you to do most of the paper work which means the whole process can be a more cost effective.
Once you fill out the application and get it witnessed by a lawyer or JP you can file your application at the court registry. You will need to pay a filing fee. This filing fee can be quite expensive so you should talk to you former partner about paying half the filing fee if you are filing a joint application for divorce.
Once you file your application at the registry you will be given a future court date. This is the date when the Registrar or Judge will look at your application. You may or may not have to attend this hearing. You can ask your solicitor whether they think it is necessary for you to attend or for a solicitor to attend on your behalf. They may grant the divorce at that hearing without issue or you may be asked to provide more evidence regarding your separation before the court grant’s your divorce.
Once your divorce is granted you will receive an official divorce order from the court. You must then finalise your property settlement within 12 months of the date that your divorce became official. It is important to talk to a solicitor about your property settlement as soon as possible as everyone’s situation is different and property settlements can range anywhere between very complicated to relatively straight forward.
If you would like to apply for a divorce using a divorce kit or you are ready to move on to a property settlement you should contact our offices today.
The divorce kit can be downloaded from the family court website.
The Family Law Act specifies time limits in which you or your former partner can make an application to the court.
Applying for a Divorce
In order to apply for a divorce you must have been separated for at least 12 months.
If however you have been married for less than two years the court requires that you attend counselling and receive a Certificate before you apply for divorce.
If you are Divorced
If you are divorced you must file an application for a property settlement within 12 months of the date that your divorce was finalised (you can find this date on your divorce order). If you are not yet legally divorced than the clock for property settlement has not started ticking and you can apply for a property settlement at any time.
If you take longer than the 12 months to apply for a property settlement you will need to apply to the court for leave to begin the proceedings out of time – this is not always a guarantee, but the factors the court will consider include whether or not there is an ongoing financial relationship or reliance between yourself and your former partner, whether you continue to have joint property and whether there is an adequate reason for not beginning your settlement within the 12 month time frame.
If you wish to apply for a property settlement or you would like to apply for a property settlement out of time please contact FGD today.
If you were in a De facto relationship
If you were in a de facto relationship and wish to apply for a property settlement you must make an application to the court within 2 years of your relationship breaking down. The exact date of the breakdown of your relationship can often be hard to determine, so you if you and your former partner can agree in writing as to when this was or you have kept a record of the day that you separated this can be helpful in determining when the 2 year period to apply to the court began.
These time periods can be pretty confusing so if you have any questions at all regarding a property settlement with your former partner, contact FGD to chat to a solicitor. It is never too early to begin discussions with your former partner about a settlement, the worry is being too late!
Moving away can be a stressful and exhausting process at the best of times, let alone when you are in the middle of family law dispute or already have parenting orders in place.
Whether you are considering moving away for work or personal reasons, our lawyers can help you make the relocation process as easy and as smooth as possible.
If you do already have a parenting arrangement and/or Court Orders in place, you should not move away without first seeking legal advice, otherwise you may risk escalating your family law matter or contravening Court Orders.
There are many avenues to explore when reaching an agreement with your former partner about relocation, these include negotiation, mediation, collaboration and an/or application to the court. At FGD we are very passionate about collaborative law and we are always happy to talk to you about how this out of court option could work for you and your former partner.
There are a number of reasons why adoption may be in the best interests of a child. These include if a child is no longer able to live with their birth family due to family, social or medical reasons or if a child is living in a blended family and the parents and child wish to formalise their relationship.
The laws about adoption are found in State not Commonwealth Legislation. This means that whilst your family law matter would be heard by the Family Court or the Federal Circuit Court under the Family Law Act, an Application for Adoption needs to be commenced in the Supreme Court under the Adoption Act.
If you wish to apply for adoption we can help you commence proceedings in the ACT Supreme Court or the Supreme Court of the state or territory in which you live. If you live in the ACT there may also be an option to ask the Family Court to exercise jurisdiction under state legislation (because the ACT is a territory not a state – long story)
If order to apply for adoption there are a few requirements that you have to meet and/or consider.
- Both of the child’s birth parents (sometimes called natural or biological parents) need to consent to the adoption. If one or more parents are either unidentifiable, deceased or unable to consent for medical or other reasons, this requirement may be waived.
- The person who is the biological parent for the child needs to sign a consent declaration. There is a cooling off period involved where that person can revoke their consent before any Orders are made.
- The applicant for adoption must be on the Register of Suitable People. You will need to apply to community services to do this and we can help you with this process.
- You cannot be in a domestic partnership if you wish to apply for adoption as a sole applicant. If you are in a domestic partnership you and your partner will both need to apply for adoption.
- There are extra considerations involved in the process if the child has any Indigenous heritage. If this is the case you should speak to you solicitor.
- Your place of residence is an important part of the adoption process. If you are someone who moves interstate a lot for work purposes, or you have spent time living overseas your solicitor can help you determine your place of residence.
- You may need to be a relative of the child who is being considered for adoption.
- The court needs to find that adoption and the redefinition of the child’s family relationships is in the best interests of the child.
- The court needs to find that the adoption would be preferable over another Order relating to guardianship or custody.
What paperwork is involved?
Your solicitor will help you lodge an application with the court. Alongside the application you will need to give notice to the biological parents and then receive their consent.
A report containing recommendations regarding the application is also required.
There will be fees involved with the court application and report. Once the application is lodged, the Court will provide Orders either granting or not granting the adoption.
Once the adoption is finalised it is important to remember that the biological parents still have the right to apply to the FCC or Family Court for parenting orders, (but with a different set of considerations as they would no longer be the child’s legal parents).
Adoption can be a fairly complicated process so if you are considering adopted a child you should contact one of our solicitors. Your solicitor can help you gain a greater understanding of the whole process before you begin a court application.
In the legal world ‘child custody’ is a fairly outdated term, but it is a term that continues to be strongly used by the public.
But let’s not get too caught up in semantics. Child Custody or parenting arrangements refer to a child’s living arrangements. This includes who the child ‘lives with’ and who the child ‘spends time’ with. Terms which you may be familiar with include ‘residence’, ‘contact’ and ‘custody.’
In family law matters there is rarely a winner or loser. Instead your solicitors and the court are most interested in coming to an arrangement which focusses on the best interests of your child. The Family Law Act emphasises the importance of children to have meaningful relationships with both parents whilst also making sure that they are safe and protected from any harm.
It is a common for people to think that there are set formulas or care arrangements that the court will enforce, this is a myth! In any family law negotiations inside or outside of court it is the children’s best interests that will be the main focus.
In many Australian families, grandparents play a very important role in the family unit and can sometimes be a significant care giver to their grandchildren.
If you are a grandparent and you do not believe that the rights of your grandchildren are being properly exercised, and you have been involved in the care, welfare and development of your grandchildren, then you may be able to file an application for orders at court.
Family law recognises the importance of the relationship between grandparents and their grandchildren and how this relationship can foster a child’s welfare and development. The Family Law Act also recognises the rights of both biological and non-biological people who are important in children’s lives.
If you believe it is in the best interests of your grandchildren to have access or have more access to you (their grandparent) or you would like to apply for custody of your grandchildren then there are a variety of options open to you both outside and inside the court room. These options include negotiation, mediation, collaboration and/or an application to the court for parenting orders involving both parenting arrangements and if needed parental responsibility.
If your grandchildren already live with you by way of an informal agreement with their parents, we can also help you formalise this agreement so that there is certainty for all people involved.
Under the Family Law Act each parent has ‘parental responsibility’ for their children unless a court order states otherwise.
Parental responsibility involves responsibility regarding your children’s long term welfare, care and development. Where your child goes to school, what religion they adhere to and whether they should undergo certain medical treatment are decisions that are covered by parental responsibility.
If you and your former partner cannot come to an agreement over an issue of parental responsibility your solicitor will be able to help you begin the negotiation process and hopefully reach an agreement. If you are still unable to come to an agreement after alternate dispute resolution you can apply to the court to make a decision regarding the particular issue in contention or to decide whether both parents should maintain parental responsibility.
A parental alliance is a pact between parents that although they are separated, they will work together so that the sum of their parenting and care will be greater than the two, separated, parts. The alliance works so that each parent enhances the other parent’s strengths, and helps smooth off any rough edges.
A parental alliance is not easy to achieve and requires hard work and dedication by the parents, and skill by those who assist them. However hard, the benefits for children in establishing a parental alliance cannot be underestimated.
The Family Law Act specifies what the court must consider when making arrangements for children in a family law dispute.
The court must at all times focus on what is in the best interests of the children.
One of the issues the court will consider is who has and who should have parental responsibility for the children. Unless changed by a court order both parents usually share parental responsibility for their children. Parental responsibility refers making major decisions about your child’s welfare and development, for example where they go to school, their religion and any major medical treatment they may need.
The court will then decide the best care arrangements for the children, including how much time each child should spend with the parents and what responsibilities are attached to that care. Sometimes people refer to this as child custody.
The court does not have a set rule or formula that they apply to parenting cases so it is important to remember that every matter and situation is different. Some people think that there is an automatic right to 50/50 time with their children – this is a myth! The court will decide what is in the best interests of your child not what seems ‘fair’ to the parents.
Another myth is that parenting disputes have to go to court. There are a variety of options for you and your former partner to look to when you are negotiating parenting arrangements and many of these options are outside of a court room.
At FGD we are passionate about alternate dispute resolution. We can help advise you about how to reach an agreement with your former partner that is in the best interests of your children. Often separated couples are able to reach an agreement about the care of their children through negotiation, collaboration or mediation. If you reach an agreement outside of court your solicitor can help you and your former partner draft consent orders. We will then file these with the court and they will be made into Orders (a legally binding document).
We are not just here to give you legal advice, at FGD we want to support you through your family law dispute as much as possible. We have great connections with other professional in Canberra who can help you deal with all aspects of your relationship breakdown. We also have our in house family and child consultant Amy McGinn who is able to talk to you about ways to cope and move through what can often be a very difficult time.
Separations can often be a very emotional and uncertain time and it is important to acknowledge the effect that this can have on your children. Conflict in the family and the trailing of new childcare arrangements can have a big impact on your child’s emotional and psychological wellbeing.
Child Inclusive Practice can be a great tool in parenting cases, as it allows your children’s feelings to be heard. Your children will meet with a child specialist who will talk to your children on their level. The purpose of the discussion is to gain an understanding of their views but never to pressure them to make a decision about what should happen. After the interview the child specialist with give the parents feedback. This feedback is a great resource and can often give a new perspective on the dispute and current parenting arrangements. The information provided through CIP can greatly assist parents in making decisions which focus on the children’s best interests and discuss the potential outcomes and effects of parenting arrangements.
Whilst child inclusive practice can be used in a variety of different circumstances we believe that it is most effective during the collaborative process. At Farrar Gesini Dunn we specialise in collaborative law and believe it is a great option of dispute resolution which keeps you in the driver’s seat and keeps your children at the centre of negotiations.
When you and your former partner separate your superannuation is an important part of your property settlement and the state of your future finances.
The percentage split of your superannuation will depend on a number of circumstances including the total of your current superannuation, your ability to work during and after the relationship and your future needs. This means that if you have been the sole carer of your children during the relationship and as such unable to work full time and accumulate superannuation, you will not be left without any superannuation heading into your future retirement. If you and your former partner can reach an agreement about your superannuation outside of court your solicitors can help you formalise this agreement. If you are unable to meet an agreement through alternate dispute resolution than your solicitor will help you make an application the court.
If the superannuation fund that you and your former partner were involved in is a self-managed super fund (SMSF) things can be a little more complicated.
In a SMSF the individuals involved are both the trustee’s and the members. Whilst you must fulfil both roles you also must separate these roles. This is an important distinction and one that is even more important when couples are in the process of separating.
When a couple separates, superannuation is an important issue to be taken into consideration. Since the introduction of the Superannuation Guarantee in 1992, the amount of money in superannuation is ever-increasing. When the superannuation is a self managed superannuation fund (SMSF), another layer of complexity is added.
Your solicitor can help you come to an agreement that removes you from the fund and therefore removes the chance of unnecessary conflict with your former partner at a later time.
When considering a superannuation split (especially if it involves a SMSF) it is important to get expert advice as there can be both legal and tax consequences. The ATO is always keeping an eye out and may conduct an audit to check that the splitting of the superannuation fund was the result of a genuine separation not just to gain tax benefits. We recommend getting the experts in from the very beginning that way you can ensure that your retirement is in good hands.
The ability for de facto couples to make an application for a property settlement under the Family Law Act came into effect on 1 March 2009.
Before this de facto couples had to apply to State or Territory courts with their claim for property settlements. This was problematic in many ways and the Family Law Act amendments were very welcome and significant changes.
Whether the Family Law Act applies to you:
- Do you meet the definition of De facto relationship under 4AA of Family Law Act?
You can read the definition section of the Act on the Federal Register of Legislation website: s4AA FLA
Keep in mind that none of these considerations are more important than any other and this list is NOT exhaustive. Importantly same sex couples can be considered to be in de facto relationships. Usually your solicitor will be able to tell you whether or not you were in a de facto relationship.
- Do you satisfy the geographical requirements in 90SK?
If you lived outside Australia or in Western Australia during your relationship then you might not meet the requirement. If this applies to you then it best to talk to your solicitor and get them to look over the geographical requirement as it can be complicated and confusing.
- Did you separate after 1 March 2009? Yes or no?
If the answer is yes than the Family Law Act applies to you. If you separated before 2009 than you will need to talk to your solicitor about whether or not the opt in provisions will apply to you or if state or territory law is applicable.
- Do you meet one or more of the other Jurisdictional thresholds?
These are set out in section 90SB of the Family Law Act.
- If you were in a relationship for at least 2 years;
- If you had a child together;
- If you registered your relationship or entered into a civil union; or
- If one person in the relationship made substantial contributions to the relationship and a serious injustice would occur if the court does not make orders.
If you cannot agree, the court is able to make orders relating to the distribution of your property after a relationship breakdown.
Whilst every matter is different and some property settlements are more complicated than others, the Family Law Act provides a basic framework which determines how every case should be decided. Keep in mind that there is no set formula to determine your property settlement. The court will make an order after it has heard all evidence regarding your matter and your solicitor will communicate your needs and wishes to the court. The court will then make a decision of what it believes is a just and equitable decision.
In family law, property involves all items of value relating to your relationship. All assets, liabilities and resources owned, shared and disposed of following separation by you and your former partner will be considered.
When you put in a property settlement application to the court you and your lawyer will fill out a financial statement and complete other legal documents which will disclose to the court all your property.
- You bank account balances
- Your house/s and your car/s
- Any investments, shares or trusts that you are involved in
- Any gifts or inheritances that you have received
- Your superannuation
- Any loans or other liabilities (including credit card debt)
What does the Court considers in making a property adjustment?
Your financial contributions to your relationship. Your income during the relationship, the payment of day to day expenses, any gifts or loans from family, compensation claims and lottery wins will be considered, amongst other things.
Your non-financial contributions
These include the care of your children, any homemaker duties or property improvements and the care of any other family member which meant that you could not work.
Your Future Needs
The court will look to your own and your former partners future needs. The future income streams and capacity of both you and your former partner will be considered. Your age, health, and your financial situation now and in the future and the needs of your children are all major factors in considering your future needs. This means that if you are unable to work for health or childcare reasons in the foreseeable future the court may consider this in making a property adjustment.
What the court will award?
The court can make a variety of different property orders depending on the adjustment it decides on. Your property settlement could include a lump sum payment, ongoing payments, the distribution of assets (including who keeps the family home or whether it is sold) or a superannuation distribution.
Each property settlement is different and the court will not automatically reward any specific combination of the above. It is up to you and your solicitor to convince the court of what is just and equitable in your matter.
How much time do I have to apply for a property settlement?
If you are divorced you must make an application for a property settlement within 12 months of the date that your divorce was finalised (you can find this date on your divorce order).
If you are not yet legally divorced then the clock for a property settlement has not yet started ticking and you can file an application at any time. Usually, the sooner you apply, the better.
If you were in a de facto relationship you must make an application to the court within 2 years of your relationship breaking down.