Divorce & Family law

An increasing form of dispute resolution in family law financial matters is arbitration. Arbitration is defined as a confidential ‘process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute’.[1] 

After proceedings are commenced in the Federal Circuit and Family Court of Australia, parties are referred to a privately funded dispute resolution process. The Court can refer parties to arbitration in relation to property and spousal maintenance disputes, but only with the consent of both parties. If proceedings have not commenced, separating spouses can still agree to arbitrate their financial settlement.

If your matter relates to property and parenting, you will be referred to an alternative dispute resolution process such as mediation which aims to facilitate an agreement between parties. However, there is no decision-maker in the mediation process. In contrast, arbitration is a determinative mode of dispute resolution where the arbitrator, jointly chosen by the parties, is required to determine the issues in dispute and impose a decision.

The arbitration process is confidential and occurs in private. Together the parties and the arbitrator decide upon how the arbitration will be conducted – for example as a full hearing with cross-examination of the parties.

Registering an Arbitral Award

You may register an arbitral award pursuant to section 13H of the Family Law Act 1975 (Cth). Once registered, the award takes effect as an order of the Court. The award sets out reasons and the arbitrator’s findings of fact in the matter. An application to register the award can be filed in the Court to give the award force and effect as if it were an order of the Court.

If you do not agree to the arbitral award being registered, you have 28 days to ‘bring to the attention of the court any reason why the award should not be registered’ as provided for under regulation 67Q(3) of the Family Law Regulations 1984. This would occur through the filing of an affidavit.

Objecting to the Registration of an Arbitral Award

If you do not bring anything to the court’s attention under regulation 67Q(3), the Court must register the award. Conversely, if you bring reason to the court’s attention, the court must:

• give all parties a reasonable opportunity to be heard in relation to the matter; and
• then determine whether to register the award.

Once an award is registered, a party may seek to challenge the award and seek that the award be reviewed, varied or set aside.

Challenging an Arbitral Award

A party to an arbitral award may apply under section 13J of the Family Law Act for a review of the award on one or more questions of law. The award must first be registered before any application for review may be brought. If the Court is satisfied that there has been an error of law, it has the power under section 13J of the Family Law Act to affirm, vary or reverse the arbitral award.

Alternatively, under section 13K of the Family Law Act, a party to an award may seek that the Court make a decree affirming, reversing or varying the arbitral award on one of the following grounds:-.

• the award or agreement was obtained by fraud (including non-disclosure of a material matter);
• the award or agreement is void, voidable or unenforceable;
• in the circumstances that have arisen since the award was made it is impractical for some or all of it to be carried out; or
• the arbitration was affected by bias or there was a lack of procedural fairness in the way the arbitration process, as agreed between the parties and the arbitrator, was conducted.

Advice

Arbitration is an effective means for resolving your dispute in a way that minimises costs and delays which parties often face through the court process. If you are affected by a property settlement dispute and require further information about ways of resolving your dispute and the arbitration process Dorter Family Lawyers & Mediators are experienced family lawyers and can provide specialist advice to you.

When there is a dispute about the value of an asset in your property pool, it may be prudent, if not necessary, to obtain expert evidence from a valuer.

The most common valuations undertaken in family law proceedings are real estate valuations, determining the value of the former matrimonial home or other properties owned by either of the parties, either jointly or separately, or business valuations for one or both of the parties’ businesses.

In other cases, an expert opinion may be required if an issue lies outside of the experience of the Court.  To name a few, these could include; special tax implications of disposing or transferring an asset in international jurisdictions; remuneration specialists in analysing party’s earnings and their income/earning capacity; and structural integrity of the home which will affect the market value of the home.

Family Court Procedures

Although Courts may be inclined to consider, if not accept, the Expert’s report, there are rules that guide both the expert and litigants, if the Court is asked to rely upon the Expert report. Presently, until the Rules for the Federal Circuit Court of Australia and the Family Court of Australia are amalgamated, there are separate Rules governing these Family Law Courts.

The purpose of these Rules is to ensure that primarily:

1. experts are only engaged where there is a significant issue in dispute;
2. the evidence is prepared in a manner which the Court can rely upon; and  
3. the parties avoid unnecessary costs of appointing more than one expert witness.

Family Court of Australia

In simple terms, the Family Court of Australia only allows the parties to jointly appoint a single expert for a particular valuation issue in question. Once appointed, a party may seek leave for the appointment of an adversarial expert, or to rely upon adversarial evidence to put the single expert evidence into question.

However, this can only be done with Court’s permission. In the matter of Bloxham & Bloxham (No. 3) [2021] FamCA 70, Dorter Family Lawyers & Mediators were successful in defending an application seeking to rely upon an adversarial report. In that case, the parties’ interests in a business were sold (in conjunction with other business entities). The Applicant Husband was unsuccessful in obtaining permission to rely upon this valuation report because:

1. the report was not a single expert report;
2. there was no single expert appointed to value the parties’ interest in the business and therefore the report could not be relied upon as an adversarial Expert; and
3. the issue of a valuation of the parties’ interest in the relevant corporate entities, at a date 12 months after separation, and at a date 12 months prior to the sale of those interests, at market value, was not necessary for the resolution of these proceedings.

Federal Circuit Court of Australia (‘FCCA)’

The FCCA allows for a Court-appointed Expert for children’s matters and adversarial experts to be appointed in other matters. However, it is common practice that a Single Expert is appointed to minimise the costs and time in engaging multiple adversarial expert witnesses.

Dissatisfied with the Expert Report?

In circumstances where a single expert is appointed through joint instructions, you may feel like you are bound by their opinion presented in their report. However, you are entitled to ask questions to clarify the report within 21 days of receipt.

In the event the expert proffers an opinion outside of their expertise, and/or fails to consider relevant information, and/or has made assumptions that should not have been made, the expert’s opinion can be tested through the cross-examination process at a Trial.

Do you have valuation disputes in your financial settlement and require expert advice?

To obtain specialist family law advice in all areas of family law, including obtaining and disputing expert evidence, contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.   

Rebekah Dorter
Principal

Julie Cheung
Associate

Annulment of Marriage

If you have separated and wish to legally end your marriage in Australia, you need to apply to the Federal Circuit and Family Court of Australia (‘the Court’) for a Divorce Order. You can only do so if you have been separated for at least 12 months.  

The effect of a divorce order is that two parties who were married are no longer married. The divorce process does not decide issues about property division, parenting arrangements or child support. You must make separate applications for parenting and/or property orders or child support. There are time limits to commence property proceedings after a Divorce Order is made.

How do I obtain a Divorce Order?

To successfully obtain a Divorce Order, you must file an Application for Divorce and prove to the Court:

1.You and your partner were validly married.

This is demonstrated by the production of your marriage certificate (or a translated copy if it is not in English). If you do not have your marriage certificate, you can order a certified copy from the Registry of Births, Deaths & Marriages.

If your marriage certificate is not in English, you will need to have your marriage certificate translated into English by a certified translator.

2. Your marriage has “irretrievably” broken down and you will not be reconciling.

3.You were separated for 12 months before the date you filed your application for divorce.

The Court considers that you and your partner have separated from the day you decide your marriage is over and you communicated this to your partner. 

This does not necessarily mean the day you (or your partner) move out of the home. You may be able to get a divorce if you and your spouse have separated but still live in the same house for financial or other reasons.

For there to be a separation, there should be communication of the fact from one party to the other, and some action to confirm that intention. In cases where a party moves out of the matrimonial home it may be said that the move is both communicated and acted upon, depending on the circumstances. When parties remain living under the one roof, however, the court will need to be satisfied that there has been an intention to separate by at least one person followed by a communication of that intention with some form of action following the communication to confirm the intention.

4. You are one of the following:

• An Australian citizen;

• A permanent resident; or

• You were living in Australia for 12 months before the date you filed your Application for Divorce.

5. That proper arrangements in all the circumstances have been made for the care, welfare and development of any child of the marriage (under the age of 18 years of age).

This is demonstrated by providing to the Court a brief overview of each parties’ time and communication with the child, financial support provided by each party, the child’s health, and education.

Is there anything else I need to consider?

You should consider the following issues when deciding whether (and when) to apply for divorce: 

1. Once your divorce becomes final, you must apply to court within 12 months if you require a property settlement or spousal maintenance. Generally, it is better to implement a property settlement first or at the same time as applying for a divorce.
2. Once your divorce becomes final, certain terms in your respective Wills and Powers of Attorney will be automatically voided (whether you wish or not).
3. Any appointment of you as an executor of your partner’s estate or as your partner’s power of attorney will also be voided. The same applies to such gifts/bequeathment and appointments in your Will or Power of Attorney. 
4. The current filing fee for an Application for Divorce in the Federal Circuit and Family Court of Australia is $1100. If you cannot afford this filing fee, you can apply for a reduced fee by filing a Reduction of Fees (Financial Hardship) application. The Court will consider whether a reduced fee is appropriate, based on your personal circumstances.
5. You may make an application for divorce either jointly with your partner or individually on your own behalf.
6. If you file a sole Application for Divorce:

• You will be required to serve a hard copy of the application on your partner and then provide evidence to the Court that the other party has received the application.
• If you have children under the age of 18 years, you (or your legal representative) will be required to attend Court to satisfy the Court that proper arrangements have been made for each child.
• You will be required to pay 100% of the filing fee.

If you file a sole Application for Divorce:

• You do not need to serve a hard copy of the Application for Divorce on your partner.
• You are not required to attend the Divorce Hearing (even if you have children under the age of 18 years).
• You can agree to share the costs of the filing fee equally.
• If you have been married for less than 2 years, you need to see a Family Counsellor to discuss the possibility of reconciliation before you can apply for divorce.
• When the Court makes the Divorce Order it is known as a Decree Nisi. The Divorce Order becomes a final order, one (1) month and one day later and is known as a Decree Absolute.

If you would like any assistance with the above or would like to retain us to prepare your Application for Divorce,  Dorter Family Lawyers and Mediators are expert family lawyers who specialise in Divorce and can assist. Please contact us on (02) 9929 8840.

Rebekah Dorter | Principal

Maeve Cooper | Solicitor

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Family law is complex and often leaves people with a number of questions. Here are three of the most common questions our family lawyers are asked.

How do I get a divorce in Australia?

Australia operates under a ‘no fault’ divorce regime. This means that there is only one ground for divorce, being the ‘irretrievable breakdown of marriage’. This is proven by there being a period of 12 months separation between the parties to the marriage. This separation can occur even while the parties are still living under the same roof. After these 12 months have passed, either party, or the parties jointly, can successfully apply to the court for a divorce.  There are important consequences to obtaining a divorce, however, and you should seek legal advice before proceeding.

How do I obtain a fair property settlement arising from my marriage or de facto relationship?

In broad terms, in Australia property settlements are determined by following a 4 step process:

Step One involves identifying and valuing the pool of assets between both parties to the relationship. This includes all assets, including houses, cars, business assets, trusts, and superannuation.

Step Two involves assessing the contributions of each party to obtaining, conserving or maintaining the property pool. Contributions do not only include direct financial contributions, but also include indirect financial contributions (such as offering ones’ house as security for the purchase of other property), non-financial contributions (such as assisting with renovations on the matrimonial home), homemaking contributions and parenting contributions. Based on these contributions, an initial percentage division of the property pool determined in Step 1 will be determined.

Step Three involves considering whether the division contained in step 2 should be varied on the bases of a number of different factors, including the age and health of the parties, the financial resources of the parties, the care of children, eligibility for social security benefits, the earning capacities of each of the parties, and any other factor relevant matter.

Step Four involves determining whether the division of the asset pool is just and equitable in all the circumstances. Every relationship is different, meaning what is just and equitable in the circumstances differs in every case.

It is important to seek legal advice as each of the steps in this process are multifaceted and can be complex, depending greatly on the individual circumstances of each case.

How do I know how to divide time with a child between parents?

Australia takes a children’s rights approach to family law, rather than a parental rights focus. This means that in any decision about a child, the best interests of the child must be a paramount consideration. The primary considerations in determining the best interests of the child are the benefit to the children of having a meaningful relationship with both children’s parents and the need to protect the child from being exposed to abuse, neglect, or family violence. There are, however, a number of additional considerations, such as the views of the children (depending on their maturity), the ability of the parents to cooperate, and other practical considerations.

Every family relationship is different, so it is important to seek legal advice to know the best solution for you when it comes to family breakups.