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    Family Law Articles

      Fraud, Crime & Misconduct – How the Family Law System can deal with these issues 1024 685 Dorter

      Fraud, Crime & Misconduct – How the Family Law System can deal with these issues

      Most people are aware that family law proceedings are generally protected by a variety of laws and principles to ensure the privacy of the parties. Section 121G of the Family Law Act and the principles such as those set in the matter of Harman v Secretary of State for Home Department [1983] 1 AC 280 respectively confirm that parties to family law proceeding cannot be publicly identified, nor can material produced in the family law proceeding be used for any other extrinsic purpose.

      However, it is important to note that there are exceptions to these rules which can lead to serious consequences for not only litigants to a family law matter, but also the solicitor or barrister representing them.  

      Referral of Parties

      Whilst the privacy of parties is generally protected in family law proceedings, and material produced in such proceedings is not allowed to be used for other purposes, there are occasions where the Court can order that the Court file or transcript (sometimes both) is to be provided to an external body or institution.

      One common circumstance when the Court may make a referral in respect of a party is when the Court becomes aware that one, or both, of the parties has potentially committed a criminal offence which the Court cannot deal with as it does not have jurisdiction.  The Court may therefore order that the Court Registry provide to a government agency, such as the Department of Public Prosecution, the Court file as well as the Court transcript. For example, in the matter of Jsing & Kong [2016] FamCA 288, Justice Forster referred the husband to the Commonwealth Department of Public Prosecution after it was determined that the husband had either willingly or reckless committed an act of bigamy. In that matter, his Honour ordered that a copy of his orders, part of the Court file, and his Honour’s reasons for judgment be provided to the Commonwealth Department of Public Prosecution so that the question as to whether the husband should be prosecuted could be dealt with.

      Another common circumstance where the Court may consider referring a party, is where that party may have committed a fraud against the Commonwealth, usually with respect to taxation or a social security entitlement payment, and an investigation is warranted. For example, in the matter of Owens & Owens [2015] FCCA 2823, Judge Reily referred the matter to Centrelink for investigation of whether the wife had defrauded the Commonwealth by receiving a pension she was not entitled to, and whether an associate of hers has aided and abetted in the potential fraud. In this case, her Honour ordered that the Registrar of the Court refer the matter for investigation and that Centrelink be granted access to any document that they may require to complete their investigation.

      Referral of Legal Practitioners

      It is not just parties that are at risk of being referred by the Court. As Officers of the Court, legal practitioners such as solicitors and barristers can also be referred if the Court believes there are grounds to do so.

      As officers of the Court, solicitors and barristers have obligations to the Court, and when those obligations are not met, the Court can refer the practitioner to their regulatory body, such as the NSW Bar Association or the Office of the Legal Services Commissioner. For example, In the matter of Kamano & Kamano [2015] FamCAFC 111, the Full Court referred a barrister to the Queensland Bar Association for making misleading (and thus false) assertions about the integrity of a judge which was an “abdication of Counsel’s paramount duty to the administration of justice”.

      Solicitors have also not been immune from the Court referring them to a regulatory body. In the matter of Percival & Percival (No 3) [2023] FedCFamC2F 670, Judge Coates referred a solicitor to the Legal Services Commission of Queensland due to the solicitor appearing to file a case which fell short of the standard of competence and diligence that members of the public, including the litigants being represented, were entitled to reasonably expect of a reasonably competent solicitor. Importantly for all practitioners to remember, his Honour noted that it is “not the solicitor’s role to merely repeat any and every allegation that a client gives, the role is to represent them and prepare a case with regard to the particular claim the court has jurisdiction to determine”.

      Whilst there is a degree of protection for parties and practitioners in family law proceedings, it is clear that the Court has the discretion to refer matters to external bodies where a person has not acted as they otherwise should.  It is vital to have an experienced team to assist with your family law matters to anticipate, and then handle, any possible issues which could give rise to a potentially ruinous referral to an external body. If you believe you may be at risk of being referred as a result of your family law proceedings, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9100 0633 and we will give you appropriate advice and assist you to resolve your family law proceedings.

        Multiple Jurisdictions 1024 683 Dorter

        Multiple Jurisdictions

        Litigation of issues across multiple jurisdictions involving the same subject matter and parties is becoming increasingly common, particularly in family law. It will often involve a careful analysis of which jurisdiction or Court is preferred and consideration of whether the issues or proceedings can be transferred or consolidated.

        In a family law context it is becoming more common to see third parties, such as Mum or Dad or grandparents, seek repayment of monies they may have advanced to one or both parties or an argument that real estate is held “on trust” for a third party following separation. In these situations a third party may assert certain legal rights to pursue repayment of monies or declarations that the third party is the beneficial owner (real owner) of real estate. What follows is that multiple jurisdictions (or Courts) may have the jurisdiction to decide the issue e.g. Federal Circuit and Family Court of Australia and Supreme Court of New South Wales. Our previous article on “Accrued Jurisdiction” provides an overview on such jurisdiction existing between different Courts and can be found here – What is Jurisdiction and Accrued Jurisdiction?.

        In these circumstances it is necessary to seek specialist advice about:

          1. Which jurisdiction (or Court) may be preferred to determine the issue;

          2. Whether the issue can be cross-vested, or transferred, between jurisdictions (or Courts);

          3. When and how to apply for a transfer of proceedings;

          4. How to deal with different Judicial Officers in different Courts; and

          5. What to do if the transfer does not succeed.

        Dorter Family Lawyers and Mediators specialises in family law disputes that involve multiple areas of jurisdiction and/or multiple Courts. If you require any assistance with the above we can assist.

        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 on (02) 9929 8840.

        Andrew Johnson
        Partner

        Rebekah Dorter
        Principal

          I’m considering separating what should I do? 1024 667 Dorter

          I’m considering separating what should I do?

          The decision to separate from a partner is understandably a very difficult decision. You may be in a situation where you feel confused and your life is out of control.

          It is important to find confidence, gain clarity and take control of your decisions.

          Although every relationship is unique, the one thing you should do is know your rights and entitlements particularly how it affects you,  your children or your financial situation. We identify the top three things to do when considering a separation:

          1. Seeking legal advice

            Although you may know many who have been through a separation, each separation is different and knowing how to navigate your own separation is important.

            Before you separate, you should obtain legal advice to understand your rights and entitlements in the event of any separation. This will empower you with the knowledge of what separation entails and give you the confidence to make the decision on whether or not you wish to separate.

            Depending on your situation, your family lawyers may explain different ways of separating, such as physical separation and obtaining new accommodation or remaining at home and living under the one roof. Each situation involves different implications both financial and non-financial.

            Expert Family Lawyers will guide you and tailor their expert advice to your unique situation.

          2. Seeking help

            “Help is always available, you just need to ask.” Although this may be true, many do not know where to seek help or what help is needed.

            Expert Family lawyers will provide you the guidance to seek help where you may or may not realise it is needed. This could be anything from financial support, counselling support, safety and risk management, or referrals to other experts where needed.

          3. Securing key information

            If you are considering separation you may need to secure key information. This includes securing key documents such as passports, and identification documents. You may also need to protect assets such as ensuring bank accounts require two signatures to operate.

            Your family lawyer would be able to advise you as to what other documents are relevant and how to obtain them, if they are not in your possession. This could include obtaining documents to gain understanding of your finances and financial situation, seeking documents regarding your interests in any properties or assets, or obtaining reports or assessments for the interests of the children.

          If you are considering a separation, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation and can assist you. We can be contacted on (02) 9929 8840.

          Julie Cheung
          Senior Associate

          Rebekah Dorter
          Principal

          hammer_court_dollar_dollar_sign_fine_justice_judge_case_law
            The Rising Cost of Living and Legal Fees 1024 768 Dorter

            The Rising Cost of Living and Legal Fees

            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 Federal Circuit and 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

               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. 
                1. 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. 
                2. 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.
                3. 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

                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

                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

                      fast-tracking-family-law-matters
                        What is a Gett? 1024 683 Dorter

                        What is a Gett?

                        When a couple who practise their Jewish faith separate and wish to “divorce”, there are only two ways to end their status as a married couple – by death or the grant of a Gett.  The issuing of the Gett effects the divorce between the Jewish couple according to Jewish Law.

                        Pursuant to Jewish law (“Halakha”), a “divorce” can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of the bill of divorcement (“Gett”) under the supervision of the Rabbinical Court, namely the Beth Din. The parties are divorced and free to marry again once the Gett has been delivered and accepted.

                        However, outside of Israel, the Beth Din lacks judicial power, therefore, should one spouse seek a Gett and the other refuse, the Beth Din in Australia is unable to assist them. They may however apply to the Family Court for assistance.  

                        What happens if I do not get a Gett?

                        Without a Gett, a woman will be unable to remarry under Halakha and for a man it is extremely difficult to do so.

                        Without a Gett, a woman is termed “agunah”, literally meaning one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of being illegitimate. It may have consequences that flow through the descendants who forever may be unable to rectify their situation.

                        Requirements of a Gett

                        Halakha requires the following specific formalities to be complied with in order for a Gett to be considered valid:

                        1. A divorce document must be written; this is usually done by a professional religious scribe (“sofer”).
                        2. It must have been written on the explicit instruction and with the free-willed approval of the husband, with the specific intention that it is to be used by the man and the wife to that marriage.
                        3. It cannot be initially written with “blanks” to be filled in later.
                        4. It must be delivered to the wife, whose physical acceptance of the Gett is required to complete and validate the “divorce” process.

                        Can the Family Court of Australia order my ex-partner to grant me a Gett?

                        The Family Court must consider two factors in determining whether an order should be made.

                        Firstly, it must be consonant with the requirements of the Jewish Law or otherwise a Gett may be void (for unlawful duress) and the Court’s actions therefore futile.

                        Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.

                        Getting a Gett

                        Where does this leave us?

                        The Family Court of Australia has been hesitant to assist separating Jewish Parties obtain a Gett.

                        The Court has entertained applications in relation to Getts in some circumstances but is yet to make a finding that on a final basis that the court has the power to Order parties to attend a Beth Din and do “all acts and things necessary” to obtain a Gett.   

                        Gett Assistance

                        For many Jewish Couples who separate it is important to obtain a Gett following the breakdown of a marriage. If securing a Gett is important to you, we can assist you by:

                        • Negotiating this element or ‘limb’ of your final settlement through mediation or a round table conference outside of court proceedings and document the agreement reached as a consent order; or
                        • Seeking Orders from the court, to the effect that you and your ex-partner are to attend “when called upon” and declare that such order “not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Respondent or Applicant in making any application”.

                        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 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.