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    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

    Complex financial proceedings in the Federal Circuit and Family Court of Australia 724 483 Dorter

    Complex financial proceedings in the Federal Circuit and Family Court of Australia

    On 30 September 2021, the Hon William Alstergren, Chief Justice of the Federal Circuit and Family Court of Australia (Division 1 and Division 2) announced the commencement of the Major Complex Financial Proceedings List.

    The new list is part of a pilot program within the Court’s Sydney, Melbourne and Brisbane Registries which commenced on 1 October 2021. The purpose of the new list is to assist in the management of the most complex cases so that the proceedings can be resolved efficiently.

    To be referred to the Major Complex Financial Proceedings List, the case must satisfy a criteria established by the Court:-

    • involve a contested net asset pool of $20 million or more; and
    • involve a complex disputed issue such as:
      • serious allegations of non-disclosure;
      • serious disputes in relation to valuations or other expert reports;
      • substantial assets held through a trust/corporate entity or offshore;
      • substantial third-party claims to the asset pool;
      • serious allegations of fraud; or
      • other complex questions of law or novel points of law; and
    • not involve a parenting dispute, or if it does, the parenting dispute can be considered and determined separately at a discrete hearing, or referred to Dispute Resolution, such as a Parenting Dispute Resolution Conference.

    Parties can apply to be a part of the pilot or the Court may direct that a matter be referred to the new list on its own initiative.

    The expectation of the Court on the parties and their lawyers is that all steps will be taken to ensure the case progresses within a strict timetable dealing with disclosure issues and expert reports so that the matter proceeds to dispute resolution at the earliest appropriate opportunity.

    The Team at Dorter Family Lawyers & Mediators welcomes the introduction of the pilot program. We understand the detrimental effect that prolonged litigation has on our client’s and their families, and we are encouraged by the Court’s proposal to increase the pace at which complex matters proceed within the Court.

    If you have any questions about the introduction of the Major Complex Financial Proceedings List or would like to know how this may impact your family law dispute, please contact us on (02) 9929 8840.

    divorce-mediation-sydney
    Amending Final Parenting Orders 700 466 Dorter

    Amending Final Parenting Orders

    What are Final Parenting Orders?

    Final Parenting Orders are family law orders made on a final basis in the Federal Circuit and Family Court of Australia that detail the parenting arrangements for a child or children and are intended to remain enforceable until the child or children attain the age of 18 years.

    Final Parenting Orders can be made by a judicial officer at a final hearing after hearing evidence and submissions or by way of consent if the parties are agreeable to the orders to be made.

    How to Vary Final Parenting Orders?

    Parenting Orders are never ‘technically’ final. Parenting Orders can be varied either by consent of the parties or by further determination of the Federal Circuit and Family Court of Australia.

    Where the parties do not consent to varying the Parenting Orders, the party seeking to vary the Final Parenting Orders must file an Initiating Application and supporting documents setting out the variation sought and the significant change in circumstance.

    The Court will only consider varying the Final Parenting Orders if the threshold test set out in the case of Rice & Asplund (1979) is satisfied.

    What is the Rice & Asplund Threshold Test?

    In the case of Rice & Asplund, the Court made Final Parenting Orders which provided for the child to live with the Father and spend time with the Mother. Approximately nine months after the Final Parenting Orders were made, the Mother filed an Initiating Application seeking to vary the Order to the effect that the child live with her and spend time with the Father.

    The Mother’s Application was ultimately unsuccessful on the basis that there had not been a “significant change in circumstances” since making the Final Parenting Orders.

    Chief Justice Evatt made comment at [78,905-06] that if the Court were to entertain every Application to vary Final Parenting Orders without evidence of a significant change in circumstances, it would “…invite endless litigation for change is an ever present factor in human affairs”.

    In other words, a change alone will not be enough to satisfy the Rice & Asplund threshold test. The change must be significant.

    What Constitutes a Significant Change in Circumstances?

    While there are no specific changes to circumstance that automatically satisfy the Rice & Asplund threshold test, there are a number of situations where parties may have a greater chance at successfully varying Final Parenting Orders, including but not limited to: –

    1. Where the child is exposed to an unacceptable risk pursuant to the current Orders;
    2. Where it would be in the best interests of the child or children to entertain the Application;
    3. Where a party is seeking to relocate with a child or children;
    4. Where the parties have agreed to a new parenting arrangement, such as a Parenting Plan, following the Orders being made;
    5. Where the Final Parenting Orders were made without all the relevant information being available for consideration by the Court, for example where the either party has not provided full and frank disclosure pursuant to Rule 6.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; or
    6. Where an extended period of time has elapsed between the making of the Final Parenting Orders and the Application to vary such Orders.

    How we applied the Rice & Asplund Threshold Test in a Recent Matter?

    Dorter Family Lawyers and Mediators recently acted for the Mother in the matter of Bloxham & Bloxham (No 2) [2020] FamCA 1040, regarding the variation of Final Parenting Orders.

    In this matter Final Parenting Orders were made by consent in March 2020.

    Notwithstanding the Final Parenting Orders, the Father filed an Initiating Application seeking a variation. The Mother filed a Response seeking that the Father’s Application be dismissed on the basis that there had not been a significant change in circumstances and his Application did not meet the Rice & Asplund threshold test.

    The parties were ordered to file Submissions setting out their arguments in respect of the Rice & Asplund threshold issue and Justice Foster ultimately found in favor of the Mother.

    At [113] the Justice Foster found that there were no circumstances that would justify the re-litigation of parenting issues as sought by the Father and that the same would not be in the children’s best interests. The Father’s Initiating Application was dismissed.

    Need Advice?

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

    Brittany Meehan

    Andrew Johnson

    cryptocurrency-complex-assets
    Complex Assets in Property Settlements 940 672 Dorter

    Complex Assets in Property Settlements

    Cryptocurrency & Property Settlements

    The nature of property has changed over time and digital currencies are increasingly becoming part of the pool of assets available to be divided upon separation. Digital assets are those held in electronic form – they cannot be seen or touched. Cryptocurrency is a digital currency secured by cryptography, such as blockchain, across a decentralized network.

    Cryptocurrencies are an asset and are treated the same as other assets such as real estate or cars in Australian family law. However, they pose a number of unique challenges to family lawyers including:-

    Discovery

    Cryptocurrency holdings cannot be subpoenaed, and records are usually stored digitally and accessible by only one party. It follows that in the absence of full and frank disclosure these assets can be “hidden” and ownership needs to be carefully traced. Traditional currency will usually initially acquire the digital asset, so retrospective banking records will need to be sought in the discovery process together with ledgers of all transactions for each wallet, exchange or cryptocurrency account.

    In Powell and Christenson [2020] Fam CA 944 the Husband was found to have failed in his duty of disclosure about his cryptocurrency investments. The Husband provided almost no documents to the Court in relation to the acquisition, disposal and/or current value of his Bitcoin and ultimately the Court found that the purchase should be the subject of an add-back to restore its full purchase value, where it was done unilaterally and in disregard of interim orders that restrained the use of funds.

    Value

    Cryptocurrency holdings are extremely volatile. They can result in significant profits, and dramatic losses. Great care needs to be taken when considering who will ultimately take possession of the digital assets. In Balsam and Lackner [2020] FCCA 1115 the Husband produced disclosure of his cryptocurrency the Thursday prior to the trial. He gave evidence the holdings had been originally purchased for $60,000, yet were now worth only $2,000. The Judge noted that “in the fullness of time they might, but only might, re-accrue, but in the current COVID-19 environment and the associated economic downturn I cannot give the Bitcoins any greater value than that.” What has since followed is an enormous growth in the value of the asset.

    Risk

    In addition to being volatile, these unique assets are high risk by their design. Transactions cannot be reversed; passwords can be lost and unrecoverable; wallets can be the subject of cybercrime, and security can be inadequate. There is significant commentary that holders of cryptocurrency need to be prepared to lose all of their investment.

    If you or your partner has held or holds cryptocurrencies  Dorter Family Lawyers & Mediators are expert family lawyers who specialize in all areas of family law and can assist. Please contact us on (02) 9929-8840.