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    With the rising cost of living becoming a common topic in many news and media outlets and a very real problem for many families in Australia, an increasingly asked question to family lawyers is “Can the other party help to pay my legal fees?” 1024 768 Dorter

    With the rising cost of living becoming a common topic in many news and media outlets and a very real problem for many families in Australia, an increasingly asked question to family lawyers is “Can the other party help to pay my legal fees?”

    Many families in Australia feature traditional roles with one party being the primary breadwinner and the other party being the primary homemaker and parent. If a couple decides to separate, payment of legal fees to help obtain a fair settlement can cause stress for the party who has sacrificed their career to stay at home and care for the children. This can be particularly problematic if the separation is acrimonious.

    Sometimes, parties are able to obtain loans from friends and family members for payment of legal fees, however for many, this is not the case.

    Generally the Family Law Act requires each party to bear their own costs in a family law matter, regardless of the outcome of the case.

    However, there is long standing authority in the Family Court that recognises the need for an “equal” or “level playing field”, particularly in cases where there is significant financial disparity between the parties.

    Section 117(2) of the Family Law Act allows the Court to make orders for the payment of legal costs in some circumstances.

    If the Court does make an order requiring one party to provide a payment to the other for legal fees, (often referred to as “litigation funding”) the Court can make different types of litigation funding orders for example, a lump sum payment, or a “dollar for dollar” order.

    A costs order can be made requiring one party to make a one-off lump sum payment to the other party, if there is sufficient liquid assets in the property pool. The quantum of that lump sum payment can depend on the complexity of the case.

    A “dollar for dollar” order is an order requiring each dollar that is paid to one party’s solicitor, to be paid to the other party’s solicitor. While this may not be ideal in all cases, this type of order can assist if there is a smaller property pool with little to no liquid assets, but the other party has a significant income.

    When considering whether to make a costs order in a family law matter, the Court must have regard to factors such as the financial circumstances of each party, whether either party is in receipt of legal aid, the conduct of the parties, whether proceedings have been commenced due to non-compliance with previous orders, whether written offers have been exchanged, whether one party has been wholly unsuccessful with their case or any other relevant matter. The notion of a “level playing field” is one which is fundamentally in the interests of justice and an important matter to consider when deciding whether it would be appropriate to make an order for the payment of legal costs.

    If parties own a property and do not want to commence proceedings to obtain litigation funding, another option is to obtain a loan for litigation funding. These finance providers look at the prospects of that party’s case and can provide a loan for payment of legal fees, which is usually secured by a caveat on the title of that property.

    If you would like assistance with securing funds to obtain a fair settlement after separation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Maeve Cooper
    Associate

    Rebekah Dorter
    Principal

    What is a de facto relationship? 1024 683 Dorter

    What is a de facto relationship?

    Whether a de facto relationship exists or existed can depend on what purpose the de facto status is being decided. 

    The criteria for a de facto relationship changes in various settings depending on whether the de facto status is being considered for the purpose of Family Law, Migration Law or Succession Law. For example, in the Federal Circuit and Family Court of Australia (“FCFCOA”), the Court applies the definition in the Family Law Act which appears in Section 4AA.

     A person is in a de facto relationship with another person if:

    1. the persons are not legally married to each other, but this does not prevent a person from being legally married to someone else; and
    2. the persons are not related by direct lines of family descent or by adoption; and
    3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

    The circumstances that may be considered by the Court include any or all of the following:

    1. the duration of the relationship;
    2. the nature and extent of the person’s 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.

    No particular finding in relation to any of the above circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship. A Court determining whether a de facto relationship exists has discretion to consider all the circumstances of the particular case.

    A de facto relationship can be between people of the same gender or different genders. A person can be married to one person, but in a de facto relationship with another person. A person can also be in more than one de facto relationship.

    Section 90SB of the Family Law Act applies to all de facto financial cases. The legislation requires that the relationship must have been of at least two years’ duration for proceedings to be brought. If the relationship is less than two years, then proceedings may only be instituted if: 

    1. there is a child of the relationship, or 
    2. the applicant made substantial contributions to property such that serious injustice would be caused if the proceedings were not permitted to proceed, or 
    3. the relationship is or was registered under a prescribed law of a state or territory.

    For the purpose of Succession Law in NSW, a person is not required to be in a relationship for 2 years to be considered de facto. Similarly, Migration Law in Australia does not have a prescribed minimum period to be considered de facto.

    In making an application for property settlement or spousal maintenance, family law legislation applies geographical limitations on applicants. It is required that either:

    1. both parties must be ordinarily resident in a participating jurisdiction (e.g. NSW) when the relationship breaks down, or
    2. either or both of them are ordinarily resident in such a jurisdiction at the date the application is made, and:
      1. the parties have been ordinarily resident in such a jurisdiction for at least one third of the relationship; or
      2. the applicant has made substantial contributions in the jurisdiction.

    In NSW, de facto relationships can be registered at any time subject to a 28-day cooling off period. Similarly, the end of a de facto relationship can be registered by either person in the relationship provided that they serve notice on the other party.

    To apply to register a relationship in NSW both partners must be:

    1. over 18 years of age;
    2. not married to each other or anyone else;
    3. not already in a registered relationship under this Act or in another state or territory in Australia;
    4. not in a relationship with another person; and
    5. not related by family.

    The requirements for registration can vary between the States and Territories.

    If you require advice in relation to de facto relationship law, for example, you are living with someone else and you are uncertain about your rights, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Christopher Palumbo 

    Partner 

     My partner and I have just separated and we are trying to remain amicable. What do we do now?  1024 914 Dorter

     My partner and I have just separated and we are trying to remain amicable. What do we do now? 

    Separation can be a very difficult time and it can be hard to know where to start when sorting arrangements for your children, division of property and finances. Often, parties try and remain amicable, especially when children are involved, although sometimes this is not possible. Attending counselling or family therapy can assist separating couples try to remain amicable while negotiating the steps which need to be taken to finalise their separation.

    If you have decided to separate and you and your partner are amicable, you may wish to:

    1. Consult with a specialist family lawyer and obtain advice in relation to your rights and entitlements following the breakdown of your relationship. 
    2. Attempt to reach agreement in relation to parenting and/or property matters with your former spouse directly. 
    3. If you cannot reach agreement, you should consider attending family dispute resolution or mediation. You can organise a private mediation or, in some circumstances, through a not-for-profit agency such as Relationships Australia. If you require assistance with negotiating, you should consider attending with a specialist family lawyer to negotiate on your behalf. If you can reach agreement, it is in your best interests to document the agreement you have reached with your former partner sooner rather than later. You can document the agreement you have reached by entering into the documents below: 
      1. Application for Consent Orders and Minute of Consent Order – These documents are filed with the Federal Circuit and Family Court of Australia and once approved by the Court they sever your financial ties with your former partner on a final basis. These documents must be filed to end your financial relationship with your former spouse. Entering into these documents seeks to ensure that your former partner does not file an application in the Federal Circuit and Family Court of Australia seeking a property settlement at a later date. It is not necessary for either party to obtain their own legal advice to prepare or enter into these documents, although it is strongly recommended. You can also include parenting Orders in this document. However, if you wish to remain flexible with your parenting agreement, then a Parenting Plan may be more suitable. Sometimes parties elect to enter into a Binding Financial Agreement instead of an Application for Consent Orders and Minute of Consent Order to document arrangements made in relation to property
      2. Deed of Release – this document seeks to provide that you and your former spouse will release each other from a future ‘family provision claim’ on each other’s estate and further, that you will not challenge the other’s Will. This document is not necessary to end your financial relationship with your former partner, but is often recommended to afford your estate greater protection when you pass away. If you wish to enter into a Deed of Release with your former partner, both parties are required to obtain legal advice from their own lawyer. 
      3. Binding Financial Agreement for NIL spousal maintenance – this document seeks to prevent a successful claim for spousal maintenance (also referred to as ‘alimony’ in the United States) against each other now or in the future. This document seeks that neither you, nor your former partner will be able to make an application to the Federal Circuit and Family Court of Australia requesting payment of spousal maintenance unless the Binding Financial Agreement has been first set aside. This document is not necessary to end your financial relationship with your former partner, but is often recommended if you are the spouse with the greater income. If you wish to enter into a Binding Financial Agreement, both parties are required to obtain legal advice from their own lawyer.
      4. Child Support Agreement – If you reach a private agreement with your former partner in relation to financial arrangements for your children that is separate or in addition to a child support assessment issued by Services Australia (Child Support), you should consider documenting this arrangement by way of a Child Support Agreement. A Child Support Agreement documents arrangements made for payment of expenses such as school fees, private health insurance, medical expenses or extra-curricular activities. There are two different types of child support agreements – a Limited Child Support Agreement and a Binding Child Support Agreement. If you wish to enter into a Binding Child Support Agreement, both parties are required to obtain legal advice from their own lawyer.

    Application for Divorce
    A property settlement is separate from an Application for Divorce and this can be filed once you have been separated from your partner for 12 months.

    You may make an Application for Divorce either jointly with your former partner or individually on your own behalf. Please note if you file a sole Application for Divorce:-

    1. You will be required to serve a hard copy of the application on the other party and then provide evidence to the Court that the other party has received the application.
    2. You will be required to pay 100% of the filing fee.
    3. You will be required to attend Court (electronically) and make submissions to satisfy the Registrar that proper arrangements have been made for the children.

    An Application for Divorce legally ends your marriage to your former spouse in Australia. It does not end your financial relationship with your former partner. This can only occur by entering into an Application for Consent Orders and Minute of Consent Order or a Binding Financial Agreement (in some circumstances). 

    If you or your former partner wish to commence Court proceedings for a property settlement or spousal maintenance, then the person wishing to apply must commence court proceedings within twelve (12) months of your divorce becoming final. In limited circumstances, permission can be obtained from the Court to start proceedings after the limitation period.

    If you would like assistance with the process after separation, mediation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Maeve Cooper
    Associate

    Rebekah Dorter 
    Principal

    Treatment of Trusts in Family Law Proceedings 1024 682 Dorter

    Treatment of Trusts in Family Law Proceedings

    Following the breakdown of a relationship, the characterization of Trusts, and the assets they hold, can be hugely influential in property proceedings

    Due to this, the characterisation of the Trust and Trust assets can be a fiercely debated issue between parties.

    What is a Trust? 

    Trusts are financial structures frequently used to hold assets for the benefit of others, and for a variety of tax related purposes. Whilst there are a variety of Trusts that exist and which are seen in Family Law matters, the most common Trust structure encountered is known as a discretionary ‘Family Trust’. 

    While no two trusts are ever the same, discretionary trusts are usually established through the implementation of a Trust Deed, which sets out the functions of the Trust and importantly will confirm who holds the following roles: 

    1. An ‘Appointor’ who has the ability to appoint or remove Trustees. 
    2. A ‘Trustee’ (or multiple Trustees) who has control of the Trust assets. They have the authority to decide what happens with the Trust assets, including what distributions/payments are made to the Beneficiaries of the Trust. 
    3. The ‘Beneficiaries’ receive the benefits of the Trust. Usually, the Trustee has the discretion as to what benefit they will receive unless the Trust Deed specifically sets this out. 

    It is often the case that parents will set up Trusts for the benefit of their children or grandchildren. It is common that the Trust will own either Real Property (houses and land) or other valuable assets such as shares or other forms of investments. 

    So how do these assets get handled when a party to a trust separates from their spouse? 

    Separation and Family Trusts

    When dealing with property in any Family Law matter, the Court will follow a four-step process, which can be simply stated as: 

    Step 1: Identify and value the assets, liabilities and financial resources of the parties;

    Step 2: Consider what contributions that each party made throughout the relationship; 

    Step 3: Consider and identify what the future needs of each party may be; and 

    Step 4: Determine whether the property settlement is ‘just and equitable’ in all the circumstances. 

    The identification and characterisation of the parties’ assets and resources is where Trusts, and the assets that they hold, may come into question. Mostly, the identification of what assets a Trust actually holds, and their value can usually be easily determined. However, it can be a lot more difficult to determine whether these assets are an actual Financial Asset available to the parties for sale or transfer or whether they are a Financial Resource which can’t be sold or transferred. 

    The classification of a Trust can be hugely significant in determining what assets are available for distribution when parties separate. If it is the case where a Trust and its assets are determined to be the Financial Assets of one of the parties, it can result in larger property pool available to the parties. On the other hand, if the Trust and its assets are determined to be a Financial Resource of one of the parties, then the property pool will be smaller as the Trust assets will not be seen as available to the parties for distribution. 

    As Family Law is a discretionary jurisdiction, there is no magic formula when determining whether a Trust should be seen as a Financial Asset or Financial Resource. Due to this, it is common that one party will want Trust assets to be viewed as a Financial Asset whereas the other will want it to be classified as a Financial Resource.

    However, in many cases if one of the parties has had a controlling position in the Trust, such as being an Appointor and a Trustee, then the Trust and its assets are usually seen as property of the marriage as that party has control over the assets owned by the Trust.

    If a party only has an interest in a Trust that is determined at the discretion of someone else, like when someone is a discretionary beneficiary, then their interest in any assets will likely be seen as a Financial Resource. This is because there is usually little to no control for that party to make any decisions relating to the asset in questions, let alone selling or transferring it.

    In cases where Trusts are determined to be a Financial Resource, the Court does not simply disregard this interest. Rather, the Court will consider it when determining a party’s future needs. For example, if a party has previously received distributions from a Trust, or they will in the future, the Court will take this into account and will likely determine that that party’s future needs are not as great as they otherwise might have been, had they not had any interest in the Trust. 

    It is also important to note that liabilities owed to a Trust also need to be considered. Trusts, just like companies or banks, can loan parties money. If this has occurred, and the loan has not been repaid prior to separation, then it is likely the loan will be viewed as a liability that needs to be repaid.

    Have you separated while having an interest in a Trust?

    To obtain specialist advice about property matters and the impact that an interest in a trust may have, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.

    Anthony Shaw – Associate 

    Rebekah Dorter – Principal 

    Expert Evidence in Parenting Matters: Court Reports 1024 576 Dorter

    Expert Evidence in Parenting Matters: Court Reports

    During parenting proceedings in the Federal Circuit and Family Court of Australia (“the Court”), the Court usually requires independent expert evidence to assist in determining orders that are in the children’s best interests. There are two main ways the Court will obtain this evidence. 

    Child Impact Reports

    Section 11F of the Family Law Act 1975 (Cth) gives power to the Court to order the parties to attend interviews with a Family Consultant, being a qualified psychologist or social worker, who will prepare a Child Impact Report. The purpose of a Child Impact Report is to address the views of the parents and the children in the earlier stages of the proceedings, and to assess the issues at hand. 

    The Family Consultant interviews each party separately and will interview the children, if they are old enough. The discussions held with the Family Consultant are used for the purpose of the Report. The Family Consultant also reviews the Court material filed in the proceedings including the Orders sought by the parties, the Notice of Risk, the Parenting Questionnaires and any relevant Affidavits. 

    The Family Consultant considers the issues of the parties and examines factors such as:

    • the nature of children’s relationship with each parent
    • any risks to the children (for example, family/domestic violence or abuse)
    • the children’s wishes and views;
    • any practical difficulty in implementing time arrangements with either parent; and
    • the likely effect of any change in circumstances on the children.  

    Family Report

    If proceedings are not resolved following the making of a Child Impact Report, the Court will order a “Family Report” to be prepared. This is another independent assessment of the relevant issues in the parenting dispute and is more detailed than a Child Impact Report. The Family Report makes recommendations for the Court as to what orders are in the children’s best interests. 

    The Family Report writer is jointly instructed by the parties and the Independent Children’s Lawyer, if one has been appointed. 

    The parties jointly agree on what material the report writer is to be provided with from the Court proceedings and a detailed letter of instruction is provided. The Family Report writer will similarly meet with all relevant parties and the children. If either party has re-partnered, the Family Report writer will often interview that partner. The Family Report writer may also interview grandparents or other adults who are significantly involved with the children’s care. Some Family Report writers also contact the children’s teachers and any treating specialists the children or parents are attending upon. This is so the Family Report writer can have the best understanding of the children’s circumstances and make an informed and holistic opinion about their best interests and the future care arrangements based on all relevant material. 

    The Family Report involves a more thorough assessment of the parties and the capacity of each party than a Child Impact Report, but makes the same enquiries. The Family Report writer will usually opine on the following:

    • the parent’s attitude towards the responsibilities of parenthood and caring for the children.
    • the capacity of the parents to provide for the children’s needs. This includes not only physical needs but emotional needs; and
    • the relationship of the parents and their ability to coparent and facilitate the relationship between the other parent and the children; 
    • Risk issues, including mental health, family violence, drug and/or alcohol misuse, and physical, emotional and/or psychological abuse.

    Family Reports are required in the more complex proceedings. The report writer can be appointed internally by the Court, ordinarily a Family Consultant, if for financial reasons the parties are unable to appoint a private expert. A private expert is otherwise engaged by the parties themselves and is usually a clinical psychologist or psychiatrist. These reports can take many months to be completed due to minimal resources of the Court, and private experts are often booked out many months in advance.  

    The conversations held with the Family Report writer are not confidential. The Family Report writer includes in the Report what they consider to be relevant to provide the Court with a greater understanding of what will be best for the children’s welfare in each matter. 

    Both Child Impact Reports and Family Reports are unable to be disseminated to anyone without the Court’s permission and the Court only releases copies of the Reports to each party, their lawyers and the Independent Children’s Lawyer. 

    Need Advice?

    To obtain specialist advice about parenting matters, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.

    Antonia Cacopardo 

    Conflation of Best Interests and Reasonable Practicability Considerations 612 408 Dorter

    Conflation of Best Interests and Reasonable Practicability Considerations

    Best Interests of the Child

    When determining a parenting matter, the Court must regard the ‘best interests of the child’ as the paramount consideration, pursuant to Section 60CA of the Family Law Act (“the Act”).

    In determining what constitutes the ‘best interests of the child’, the Court must consider the matters set out in Section 60CC of the Act.

    The primary considerations under Section 60CC(2) of the Act include: –

    1. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. The Court gives greater weight to this consideration; and
    2. the benefit of the child having a meaningful relationship with both of the child’s parents.

    The Court must also consider the secondary consideration under Section 60CC(3) of the Act, depending on the factual circumstances of each case.

    Equal Shared Parental Responsibility

    In matters dealing with parenting orders, the Court is required to apply the presumption, that it is in the best interest of the child for the child’s parents to have ‘equal shared parental responsibility’ for the child, that is, they will both have a role in making decisions about major long-term issues such as schooling, religion and major health issues.

    That presumption does not apply if there are reasonable grounds to believe that either a parent or person living with a parent has engaged in abuse of the child, or in circumstances of family violence.

    Living Arrangements

    Where the Court makes an order for equal shared parental responsibility, then the Court is required to consider what living arrangements are in the best interests of the child.

    The Act requires the Court to first consider providing ‘equal time’ to each parent and thereafter is to consider ‘substantial and significant’ time.

    Reasonably Practicable

    In determining whether an equal shared time or substantial and significant time arrangement is appropriate, the Court must look at whether such an arrangement is in the best interests of the child and consider whether it is ‘reasonably practicable’.

    When considering what is reasonably practicable, the Court will weigh up various factors, including but not limited to: –

    1. The distance between the two parents’ homes – for example, if the Mother lives in New South Wales and the Father lives in Victoria; and
    2. The present and future availability of the parents – for example, if one parent has onerous or comprehensive work commitments.

    Recent case of Miley & Miley

    In the recent case of Miley & Miley (2021) FedCFamC1A 62, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction opined on the ‘best interests of the child’ and the ‘reasonably practicable’ considerations.

    In this case, the Mother and Father commenced cohabitation in 2012 and were married in 2013. There was one child of the relationship, who was six (6) years of age at the time of the decision.

    The Mother and Father initially resided in South Australia before relocating to Western Australia.

    The Mother and Father separated in September 2017 and the child was living with the Mother in Western Australia. The Father spent very little time with the child following separation. The Father contended this was due to the acrimonious relationship between him and the Mother.

    In September 2019, the Father relocated to undertake country service as part of the conditions of his employment. The Father purchased a property in Western Australia at this time, as he intended to return to Western Australia after his two-year service.

    In August 2020, the Father advised the Mother that he intended to return to Western Australia to live and work.

    On 7 January 2021, the Mother relocated with the child to Victoria, without prior notice to the Father. The Mother argued that she relocated in circumstances where she was unable to obtain employment in Western Australia and that she had found employment in Victoria.

    On 22 January 2021, the Mother informed the Father that she had relocated from Western Australia to Victoria with the child.

    Shortly thereafter, the Father commenced proceedings in the Family Court of Western Australia seeking interim and final parenting orders, including that the child be returned to Western Australia.

    The Magistrate ultimately made orders to the effect that: –

    1. The child be returned to Western Australia;
    2. The parties have equal shared parental responsibility for the child; and
    3. The child live with the Mother and spend time with the Father in Western Australia.

    The Mother filed an appeal on the following grounds: –

    1. The Magistrate failed to determine as a question of fact that it was reasonably practicable that substantial and significant time be spent with each parent, in circumstances where a serious economic, personal and emotional burden would be placed on the Mother by refusing her permission to relocate to Victoria and effectively requiring her to live in Western Australia to be available for the Father’s contact with the child;
    2. The Magistrate failed to provide adequate reasoning and thereby failed to accord the Mother procedural fairness; and
    3. The Father did not provide sufficient evidence to support his contention that if he was required to relocate to Victoria his employment and that his financial position would be negatively impacted.

    The appeal was ultimately allowed in part, on the basis that the Magistrate failed to determine as a question of fact that it was reasonably practicable that substantial and significant time be spent with each parent (ground 1). The Court set aside various orders, including the order requiring the Mother and child to return to Western Australia. The Court acknowledged that the issue required urgent rehearing.

    Need Advice?

    To obtain specialist advice about parenting matters, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.

    Brittany Meehan                                                                  Rebekah Dorter

    Solicitor                                                                                 Principal

    Dorter Family Lawyers and Mediators

    Law and justice concept - Themis statue, judge hammer and books. Courtroom.
    Thinking of filing Court Proceedings 612 408 Dorter

    Thinking of filing Court Proceedings

    Thinking of filing Court Proceedings?

    When the Federal Circuit Court of Australia and the Family Court of Australia merged on 1 September 2021, the Federal Circuit Court of Australia Rules 2001 and the Family Law Rules 2004 were amalgamated to form the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (New Rules).

    A major change was to introduce single entry point for filing all proceedings in the the new Court, the Federal Circuit and Family Court of Australia (FCFCOA). Previously, you could file in either the Federal Circuit Court of Australia or the Family Court of Australia, depending on the complexity of your matter and the rules for filing in either Court differed.

    This article briefly sets out what documents now are generally required when you file proceeding for parenting and/or property proceedings.

    Before you consider filing proceedings, have you undertaken the Pre-Action Procedures or is there a reason that you have not? Find out more about Pre-Action Procedures. There are also time restraints on when you can file proceedings. More information can be found here.

    Financial Proceedings

    If you are seeking final orders only in relation to a property settlement, you will need the following documents:

    1. Initiating Application
    2. Financial Statement
    3. Financial Questionnaire
    4. Genuine Steps Certificate
      If you are seeking interim orders, such as an interim property distribution, sale of an asset, spouse maintenance or any other injunctive, interlocutory or procedural relief you will also need to file:
    5. Affidavit in support (of no more than 10 pages and 5 exhibits).
      Before the first Court event, you will also need to be prepared to file an Undertaking as to Disclosure.

    Parenting Proceedings

    If you are seeking only final orders in respect of parenting matters, you will need the following documents:

    1. Initiating Application
    2. Section 60I Certificate or Affidavit for non-filing of dispute resolution certificate
    3. Parenting Questionnaire
    4. Notice of child abuse, family violence or risk
    5. Genuine Steps Certificate
      If you are seeking interim parenting orders such as urgent parenting orders, orders in respect of your personal protection or the children’s protection, or any other injunctive, interlocutory or procedural relief, you will also need to file:
    6. Affidavit in support (of no more than 10 pages and 5 exhibits).
      Before the first Court event, you will also need to be prepared to file an Undertaking as to Disclosure.

    Both parenting and property proceedings

    If you are seeking both parenting and property proceedings, the documents required are consolidation of both:

    1. Initiating Application
    2. Section 60I Certificate or Affidavit for non-filing of dispute resolution certificate
    3. Parenting Questionnaire
    4. Notice of child abuse, family violence or risk
    5. Genuine Steps Certificate
      Similarly, if any interim orders are sought, an affidavit in support will need to be filed of no more than 10 pages and 5 exhibits.

    Can I commence proceedings in Division 1?

    There is one entry point to file proceedings in the Court. Your matter will be triaged and assessed at a compliance or readiness hearing. To be transferred prior to this event, you are required to justify why an immediate transfer is necessary.

    If you have any questions about commencing proceedings, seeking urgent relief or need assistance with completing these documents, please contact us on (02) 9929 8840. Dorter Family Lawyers & Mediators are expert family lawyers who specialise in all areas of family law and can assist.

    Julie Cheung
    Senior Associate

    Rebekah Dorter
    Principal

    Pre-Action Procedures and Family Law 960 640 Dorter

    Pre-Action Procedures and Family Law

    When the Federal Circuit Court of Australia and the Family Court of Australia (FCFCOA) merged on 1 September 2021, the Federal Circuit Court of Australia Rules 2001 and the Family Law Rules 2004 were amalgamated to form the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (New Rules).

    A major change was to focus on Alternative Dispute Resolution (ADR) and ensuring Court proceedings were the last resort. The procedures to ‘action’ prior to commencing Court proceedings are known as ‘Pre-Action Procedures.’

    In the former Rules, the Federal Circuit Court of Australia had no requirement for litigants to undertake any pre-action procedures, save for obtaining a section 60I certificate which stated the parties ‘attempted mediation’.  Under the New Rules the Pre-Action Procedures are mandatory before filing in the FCFCOA.

    Pre-Action Procedures existed prior to the new Rules being implemented, but only in the Rules of the Family Court of Australia. The FCFCOA Rules now require a ‘Genuine Steps Certificate’ to be filed.  

    However, you are only required to undertake the Pre-Action Procedures if it is safe to do so, and if your matter is not urgent. We discuss ‘exemptions’ further below.

    What are the Pre-Action Procedures?

    Schedule 1 of the New Rules require the following to be completed prior to commencing proceedings in the FCFCOA:

    1. In the 12 months prior to commencing parenting proceedings, you need to have made a genuine effort to resolve your family law matter with a Family Dispute Resolution Practitioner (FDRP). The FDRP will issue a Section 60I Certificate.
    2. A copy of the prescribed Pre-Action Procedure Brochure and a copy of Schedule 1 of the New Rules is to be provided to the other party.
    3. In financial proceedings, financial disclosure is required to be exchanged.
    4. In parenting proceedings, disclosure of all relevant matters is to be provided, including medical reports.
    5. Enquiries are to be made about ADR,(including mediation). A FDRP is not required for financial proceedings.
    6. An invitation to participate in ADR is made and the other party must cooperate for the purposes of agreeing to an appropriate family dispute resolution service or mediation.   
    7. If you are unable to resolve the matter by ADR  and are considering filing proceedings, then you must:
      • Provide the other party with 14 days notice that you intend to commence proceedings;
      • Provide a genuine offer of settlement to resolve the matter;
      • Advise the issues in dispute if proceedings are to be commenced; and
      • Set out the orders sought if proceedings are to be commenced.
    8. The other party must respond to this notice within the 14 days or failing which, proceedings can be commenced.
    9. Complete a Genuine Steps Certificate.

    What is a Section 60I Certificate?

    This is a certificate issued by a FDRP to indicate whether there has been a genuine effort to resolve a parenting dispute. This is a mandatory requirement under the Family Law Act 1975 prior to commencing Court proceedings.

    There are five types of section 60I certificates that can be issued:

    1. you did not attend because the other party refused or failed to attend;
    2. you did not attend because the FDRP was of the view that your circumstances were not appropriate for Family Dispute Resolution;
    3. both parties attended but one or both did not make a genuine effort to resolve the issues; or
    4. you did attend and made a genuine effort to resolve the issues, but was not resolved;
    5. You and the other party started the mediation process, but the practitioner considered that it would not be appropriate to continue.

    You are required to file the Section 60I Certificate with the Court when you commence proceedings.

    Not all mediators are qualified Family Dispute Resolution Practitioners. It is prudent to confirm with your nominated mediator.

    Exemptions to providing a Section 60I certificate or undertaking Pre-Action Procedures

    You do not need a Section 60I certificate for financial matters.

    If your matter is urgent and/or there has been, or is a risk of, child abuse or family violence, this may exempt you from the Section 60I certificate and/or the pre-action procedures requirement.

    A Section 60I Certificate is not required for filing Consent Orders.

    What if I just don’t comply:

    If you file proceedings without complying with the Pre-Action Procedures and where there is no exemption, you may be exposed to cost penalties and risk the proceedings of your matter not proceeding until there has been compliance.

    If you would like assistance with the process after separation, mediation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Julie Cheung
    Senior Associate

    Treatment of total and permanent disability insurance in Family law 722 406 Dorter

    Treatment of total and permanent disability insurance in Family law

    What is total and permanent disability insurance?

    Total and permanent disability (“TPD”) insurance is insurance received by an individual in circumstances where permanent illness or injury has rendered that person unable to work in their occupation or any occupation for which they are suited by training, education or experience.

    Following making a claim and being accepted, TPD insurance is received by the individual in a lump sum payment or in reccurring payments, based on the terms of the policy.

    What is Property in Family law?

    Section 4 of the Family Law Act 1975 (Cth) defines property in relation to a marriage or de facto relationship, as “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”.

    Property includes assets, liabilities and superannuation.

    Assets

    In the family law context, an asset is any property of the relationship (whether tangible or intangible) regardless of whose name the assets are held in.

    Examples of assets include cash at bank, shareholdings and cryptocurrencies, real property, motor vehicles and other personal property such as jewellery and furniture.

    Liabiltiies

    It is important to understand that property also consists of liabilities. A liability is a type of debt including unsecured and secured liabilities.

    Examples of liabilities include mortgages, car leases, credit card debts, personal loans and unpaid taxes.

    What is a Financial Resource in Family Law?

    A financial recourse is a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency.

    Financial resources are taken into consideration by the Court pursuant to Section 75(2)(o) of the Family Law Act.

    Examples of a financial resource include overseas superannuation, future pension entitlements, long service leave and retirement benefits, tax losses or an anticipated inheritance.

    Recent Case of Tomaras & Tomaras

    In the recent case of Tomaras & Tomaras (2021) FedCFamC1A 82, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction decided in respect of the treatment of a TPD insurance policy in Family Law.

    In 1997, Mr Tomaras (“the Husband”) took out a TPD insurance policy which included a component for loss of income. The Husband, who was a healthcare provider, ultimately injured his wrist in December 1997 and received some intermittent payments under the TPD insurance policy. From 2002, the Husband received a regular income protection payment under the policy of up to $150,000 per year, based on the consumer price index, provided he was permanently disabled from returning to work as a health care professional. In addition to the regular payments received, the Husband also received a lump sum payment in November 2008 in the sum of $709,201.

    Ms Tomaras (“the Wife”) contended that the Husband’s entitlements under the TPD insurance policy were “property”, and therefore divisible under Section 79 of the Family Law Act and that an order should be made to the effect that the insurer pay to her an amount equal to 80 percent of the TPD payment entitled to be received by the Husband each month.  

    The Husband contended that his entitlements under the TPD insurance policy were not property or a financial resource. The Husband relied upon the decision in Raine & Creed (2013) FamCA 362, where the Judge found that a weekly disability payment was neither property nor a financial resource in circumstances where the benefits under the policy were not transferrable.

    Primary Proceedings

    In the primary proceedings, the Judge rejected the Wife’s contention that the TPD entitlement was “property” on the following basis: –

    1. The Husband had a right to receive the disability income insurance and be assessed for income tax purposes;
    2. The Husband’s right to receive the TPD payments arose only where he met certain obligations. Therefore, if he did not meet these obligations the payments ceased;  and
    3. Pursuant to the terms of the policy, the entitlement was capable of being reduced or terminated at the insurer’s discretion.

    It followed that the primary proceedings were ultimately dismissed because the primary Judge found there was no property or financial resource to be divided.

    Appeal Proceedings

    The Wife filed an Appeal of the decision of the primary judge in August 2020. On the day of the hearing the Wife did not press the Application and accordingly it was dismissed.

    The Wife filed a further Appeal of the decision of the primary judge in April 2021 to adduce a bundle of documents that the Wife argued show the Husband’s lack of disclosure and attempts to mislead the court. As this was filed out of time the Wife was required to seek leave, which was successful.

    The Wife argued that the TPD policy could be commuted and the Husband’s entitlement assigned. To ‘commute’ an insurance policy means the right of a beneficiary of the policy, in this case the Husband, to exchange one type of income for another (for example exchanging the monthly payments to a lump sum payment).

    The Full Court of the Family Court of Australia ultimately dismissed the Wife’s Appeal and did not depart from the relevant authorities on the following basis: –

    1. While the TPD policy is commutable, the Husband and the insurer would need to agree to commute the TPD policy. The Husband’s position was that he would not agree to commuting the TPD Policy; and
    2. The insurer is permitted to alter the benefits provided for in the contract, and the TPD policy is not a continuous disability policy for the purpose of the Life Insurance Act and thus is not assignable.

    Need Advice?

    To obtain specialist advice about what is “property” in your family law matter, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.

    Brittany Meehan

    Out of time applications 1024 683 Dorter

    Out of time applications

    The Family Law Act 1975 (“the Act”) states that married parties have 12 months from the date a Divorce is in effect to file an Application for property orders. In respect of de facto matters, the Act requires an Application to be made to the Court within 24 months since the date of separation. Following this date, a party will need to seek leave from the Court if they intend to file an Application.

    When determining whether leave should be granted to a party commencing proceedings out of time, the Court considers the following:

    1. Whether the party has a prima facie case and whether the party seeking permission would experience undue hardship if the property proceedings were not commenced; and
    2. The reason for the delay in commencing proceedings;
    3. Whether the other party would be prejudiced if proceedings were commenced. 
    1. Undue Hardship and a Prima Facie Case

    To establish hardship the Court must be satisfied that your case has real prospects of success. This is known as a “prima facie” case. This is not providing to the Court the strengths of your case and whether you believe it would be successful, rather it is a determination that there would be a case to hear at all.

    The Act allows the Court to grant permission to apply for a property settlement out of time if hardship would be caused to the party or a child if permission were not granted.

    In the matter of Edmunds & Edmunds [2018] FamCAFC 121, the full Court found an error where Court refused the Applicant Wife leave to commence property proceedings 6 years out of time in circumstances where the parties were married for 15 years and separated for 10 years. The Wife had primarily cared for the three children since separation.

    In the first instance the Court dismissed the Wife’s Application for permission as they assessed that the Wife held approximately 31.2 to 32.9 percent of the current pool and when dismissing her Application stated that she had not established a prima facie case in circumstances where she sought an adjustment of between 57 to 61 percent of the pool.  

    The Full Court found that “the primary judge erred by not considering whether the wife had a prima facie case for, or a real probability of, obtaining a property settlement order that may well have fallen short of the outcome sought by her but nonetheless would see her obtain a greater share of the property available for division than the 31.2 to 32.9 per cent currently held by her.

    The Full Court considered the contributions of the parties and although the Husband had made a greater financial contribution to the asset pool, the Wife had made a greater non-financial contribution to that property and to the welfare of the family. Since separation, the Wife had the primary care of the three children.

    The Full Court took these factors into consideration and found that was a prima facie case, being there was a real probability that the wife would obtain a property settlement order that will give her a significantly greater benefit than the 31.2 per cent to 32.9 per cent to which she is currently holding.

    The wife’s appeal was allowed and she was granted leave to issue property proceedings.

    2. Reason for delay

    When making an Application out of time, the Court must be satisfied as to the reason for the delay.  The applying party must demonstrate to the Court an adequate reason for their delay. The Court’s discretion is used when determining out of time applications and reasons for delay can differ from case to case. For example, in the matter of Ordway & Ordway [2012] FMCAFAM 624, the Applicant Wife sought to file an Application 26 years out of time due to the fact the parties had an informal arrangement between themselves and the Wife did not want to disrupt the ‘status quo’. The informal arrangement saw that the Wife remained in the former matrimonial home, where the Husband was the sole registered proprietor, with the two children of the marriage. The Husband had represented to the Wife that the property was to be transferred to her.  The Wife also obtained employment with the Husband’s company and was concerned if she pushed the issue, it could jeopardise her employment.

    The Court accepted the Wife’s evidence and stated that “it is obvious when considering the parties’ financial circumstances that there was a significant power imbalance.” The Court was satisfied that appropriate steps were taken in these circumstances and that an adequate reason for delay had been established.

    3. Prejudice

    In respect of prejudice, the Court also considers whether the other party has reorganised their affairs with reasonable expectation that property proceedings would not be brought against them or if they were led to believe that no application was going to be made against them.

    In the matter of Ordway & Ordway [2012] due to the continued informal agreement between the parties, the Court found that “the husband was always aware that his financial affairs with the wife had not been concluded”. The Court stated they did not accept that granting permission to the Wife would prejudice the husband due to the fact the informal arrangement enabled him to further his financial position as he continued to use the equity from the property for his own financial gain. The property was agreed to be transferred to the Wife in due course, forming part of the informal arrangement between the parties.

    If you have any questions about commencing proceedings out of time and would like to know how this may impact your family law dispute, please contact us on (02) 9929 8840.

    Antonia Cacopardo
    Andrew Johnson