Divorce & family law

Expert Opinions and Reports in Financial Matters 1024 683 Dorter

Expert Opinions and Reports in Financial Matters

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.

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

My partner and I have separated. How do we legally end our marriage? 1024 683 Dorter

My partner and I have separated. How do we legally end our marriage?

If you have separated and wish to legally end your marriage in Australia, you need to apply to the Federal Circuit Court (‘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 Court of Australia is $930. 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.

7. 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.

Role and Responsibility of the Independent Children’s Lawyer 768 432 Dorter

Role and Responsibility of the Independent Children’s Lawyer

An Independent Children’s Lawyer has been appointed. What does this mean?

An Independent Children’s Lawyer (“ICL”) may be appointed by the Family Court in parenting matters involving complexity, such as issues of risk, family violence and abuse. The ICL is appointed to represent the “best interests” of the child(ren). It is important to note that this does not mean that the ICL represents the child(ren). An ICL is not bound by instructions from a child(ren) and does not represent them in the same manner as the parents to the proceedings are represented. The ICL’s ultimate duty is to the Court.

When an ICL is appointed, the standard procedures undertaken are as follows: –

  1. The parties provide a copy of their respective Court documents to the ICL;
  2. A copy of all Orders are provided to the ICL; and
  3. The ICL is provided permission from the Court to issue subpoenas to obtain independent evidence.

Does my matter need an ICL?

An ICL is appointed in matters where there is complexity. Some examples include, but are not limited to, the following:-

  1. When there are allegations of abuse (physical, verbal, emotion or sexual);
  2. Where there is an intractable dispute between the parties;
  3. When there are allegations of mental health concerns for the child(ren); or
  4. When there are allegations that one or both parents are suffering from mental health issues.

These issues are usually identified in a party’s Affidavit or Notice of Risk / Notice of Child Abuse, Family Violence or Risk.

The appointment of the ICL can be made by the Court of its own volition, or one or both of the parties may make an application to the Court.

What is the Role and Responsibility of the ICL?

The ICL’s role is effectively to: –

  1. Act in the bests interests of the child(ren);
  2. Ensure that the Court is aware of the child(ren)’s wishes (pending the age of the child(ren));
  3. Collect expert evidence relevant to the child(ren);
  4. Act upon the evidence;
  5. Assist the Court in the determination of the parenting dispute.

Should the ICL meet with my Child(ren)?

It is not required that the ICL meet with the child(ren). The ICL is required to make an assessment of the facts of each case and identify whether or not it is appropriate to meet with the child(ren). Some examples when an ICL will not meet with a child(ren) are: –

  1. Very young children who may be unable to express a view (generally under school age);
  2. There are exceptional circumstances such as a risk of systems abuse; or
  3. Where there are practical limitations on meeting the child such as geographical remoteness. However, this issue is becoming less relevant in the current landscape where electronic communication is ever increasing.

Who Pays for the ICL?

Generally, an ICL is appointed by Legal Aid NSW and it is expected that the parties to the proceedings meet the costs of the ICL in equal shares, unless you are in receipt of a grant from Legal Aid. This amount is currently $3,300.00 up to the Defended Hearing, however, the specific facts of the matter may cause this figure to change.

Legal Aid NSW has the ability to waive the ICL’s fee, however, this is only in exceptional cases.

The Family Court of Australia has developed a document titled “Guidelines for Independent Children’s Lawyers (2013)”. These guidelines are the basis upon which ICL’s act and may be accessed here.

If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 99298840.

Rebekah Dorter
Principal

Should we mediate our family dispute? 1024 695 Dorter

Should we mediate our family dispute?

Mediation is a quick, economical and effective means of resolving family law disputes regarding property and/or custody.

Should we mediate?

If you and your ex-partner are experiencing conflict and wish to resolve your dispute with less intervention from a third party, mediation is a forum which ensures you and your ex-partner drive the process and the outcome.

What is Mediation?

Mediation is a negotiation process in which an independent third party, known as the mediator, assists parties to identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement which reflects the key objectives of the parties.

What are the benefits?

Mediation:

  • offers parties more control over the outcome;
  • is less formal and less intimidating than appearing in Court; and
  • provides an efficient, speedy and significantly less expensive method to empower parties to settle their matter.

Settlement of a dispute through mediation can assist to preserve a working relationship and is, therefore, particularly beneficial for separated parents who will continue to communicate and care for their children together.

Mediation can also be helpful if there is the potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision, or if there is a possibility that a judge’s decision will not end the dispute.

Confidentiality

Confidentiality is the hallmark of mediation. As far as permitted by law, all discussions during the course of a mediation are private and confidential. If a matter is in Court, the judge is not informed of any information disclosed during the mediation.Do we mediate?

Dorter Family Lawyers

Rebekah Dorter is an Accredited Mediator with LEADR (The Resolution Institute), an international organisation promoting mediation for conflict resolution. In her role as a Mediator, Rebekah acts as a neutral facilitator by asking questions, encouraging open discussion, offering different perspectives, expressing issues in alternative ways and presenting her view as to how a Court might determine the issues.

Parties can attend mediation alone, or with their legal representatives present.

If you would like to book a mediation or would like to make further enquiries, please call our office on (02) 9929 8840 or email rebekah@inst1045122-8984.ozhosting.com or sabrina@inst1045122-8984.ozhosting.com

Three common questions about family law 1024 683 Dorter

Three common questions about family law

How do I get a divorce?

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.