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    Information About Family Law

    The Overlap Between Family and Criminal Law 1000 668 Dorter

    The Overlap Between Family and Criminal Law

    While family law proceedings and criminal law matters operate in separate jurisdictions, with unique laws governing their processes and procedures, there can be considerable overlap between the two. Both family and criminal law matters have the capacity to cause long-term and hugely significant change in people’s lives, often bringing with them high levels of stress and uncertainty for the parties involved.

    Criminal law matters can have significant impacts on family law proceedings, especially when children are involved, and it is not uncommon to see allegations of a variety of criminal behaviour in family law matters. If you have a family law matter on foot, and are also accused of a criminal offence, you may need a separate criminal defence lawyer to give you advice about how to best handle those proceedings.

    Family Violence

    The most frequent interaction between family law and criminal law is where allegations are made of family and domestic violence. ‘Family violence’ can cover a variety of behaviour, including physical abuse, as well as financial and emotional manipulation. It is possible that once a report of domestic violence is made to the police, a provisional Apprehended Domestic Violence Order (“ADVO”) will be put in place, regardless of whether that person is actually charged by the police.

    The purpose of an ADVO may be to protect the alleged victim of the violence, their child(ren), anyone the victim might be in a relationship with, and/or any other named person.  This can have the effect of prohibiting contact between parents or between an accused person and their child. Most commonly, ADVOs require the accused person to refrain from assaulting, threatening, stalking or harassing any of the persons named on the ADVO, though further conditions may also be included. However, an ADVO can also prevent a person from contacting another unless through a lawyer, attending a location (including the matrimonial home), and putting in place restrictions on their behaviour, such as not spending time with a child within 12 hours of drinking alcohol.

    NSW has also recently passed laws to criminalise coercive controlling behaviour, which is likely to come into effect in July 2024. ‘Coercive control’ occurs in a relationship where one party engages in behaviour designed to coerce or control the other person, which may include but is not limited to:

    • Threats to harm another person or child;
    • Economic or financial abuse, like withholding or preventing access to finances;
    • Behaviour designed to isolate the victim from their family or friends;
    • Behaviour that unreasonably controls or regulates a person’s day-to-day activities, including in relation to personal, social or sexual autonomy; and
    • Behaviour that injures or causes death to an animal, or makes use of an animal to threaten a person.

    Regardless of the circumstances of any particular matter, the Federal Circuit and Family Court of Australia (“FCFCOA”) in parenting proceedings must make orders that are in the best interest of the child(ren). When determining this, the Court will consider the need to protect the child from being subjected to physical or mental harm. Given this, the Court will normally take a cautious approach where ADVOs or criminal charges are involved, which may include making orders for the child(ren) to temporarily spend supervised time with the parent subject to the ADVO or charges.

    Drug Charges

    Criminal law and family law might also intersect where one party is facing charges for a drug offence, like possession of a prohibited drug.  

    Within family law proceedings, it may be the case that one party faces allegations of drug and alcohol abuse from the other party. In parenting matters, these allegations are dealt with by assessing the risk to the child with respect to that party’s ability to care for and parent the child(ren). The FCFCOA may make orders for a party to undergo drug and/or alcohol testing, attend a rehabilitation program, or may make an order for the child(ren) to spend supervised time with the parent in question. Similar to circumstances involving ADVOs, Courts will often take a cautious approach where drug use or offences are concerned, particularly in parenting matters.

    Section 128 Certificates

    Section 128 Certificates are awarded under the Evidence Act 1995 (NSW) and protect the person against self-incrimination by preventing a witness’s potentially incriminating evidence being used against them in any other proceedings. These certificates can become quite important if, during the course of proceedings, a person is required to give evidence that would suggest they have broken the law. While a Section 128 Certificate does not create an ‘immunity’ from being prosecuted, it could, for example, allow a party to give evidence in their family law matter without fear of that evidence being used in any concurrent or future criminal proceeding.

    For a Section 128 Certificate to be granted, the following must apply:

    1. The party compelled to give evidence must object to providing the evidence sought, and the objection must have reasonable grounds;
    2. The evidence to be given would prove the commission of an offence;
    3. The interest of justice requires that party to give evidence; and
    4. The party agrees to give the evidence, provided a Section 128 Certificate is issued.

    As set out below, section 128 Certificates are an important part of Family Law proceedings, as the Court has the power to refer matters with suspected breaches of the law to external regulatory bodies (such as the Police).

    Powers of Referral

    Despite the protection offered by Section 128, the Court retains its powers to refer matters to appropriate agencies or departments, where it considers an investigation may be warranted, including to the Director of Public Prosecutions (“DPP”), Australian Tax Office (“ATO”), Centrelink and, for legal practitioners, the Office of the Legal Services Commissioner (“OLSC”).

    The Court in Vasilias & Vasilias [2008] FamCA 34 referred the matter to Centrelink, notwithstanding the issuance of Section 128 Certificates, due to concerns over wrongful Centrelink benefits obtained by the parties and a fear the Commonwealth would be prevented from recovering those funds. Similarly, the Court may refer the parties of a family law matter to the ATO if there are findings made of undeclared income tax avoidance or evasion that are of sufficient concern. Parties referred to the ATO for investigation could also be accountable for any ATO penalties imposed and interest on any tax repayments to be made.

    Talk to our experiences legal team

    Our expert family lawyers at Dorter Family Lawyers and Mediators can help you understand all of your options and resolve your family law dispute, despite any possible criminal issues, in a timely and effective manner. Contact our office on (02) 9929 8840 or book in a consultation with us here.

    Family Law Amendments from May 2024: How will the changes impact you? 1000 667 Dorter

    Family Law Amendments from May 2024: How will the changes impact you?

    From 6 May 2024, a number of changes to the Family Law Act 1975 (Cth) (the Act”) will come into effect. Following an inquiry by the Australian Law Reform Commission into Australia’s family law system, in November 2023, the Family Law Amendment Bill 2003 received Royal Assent.

    The amendments to the Act are aimed at making the family law system “safer and simpler”. The principle of the best interests of a child will continue to be at the forefront of the Act, however, amendments to the current legislative approach to making parenting orders will be implemented. The changes will apply to all new and existing proceedings from that date, except for a final hearing commenced by that date.

    Important changes

    Repeal of the Presumption of Equal Shared Parental Responsibility

    One of the most significant changes to the Act is the decision to repeal the presumption of ‘equal shared parental responsibility’. The presumption has been a major component of the family law system since being introduced into the Act in 2006. The intention of the removal of the presumption is to ensure the focus in family law matter remains on the “best interests of children”, particularly in matters involving allegations of family violence.

    The Court will still have the power to make orders for “joint” decision-making about long-term issues in relation to a child when considering the allocation of parental responsibility, however, this will be dependent on what the Court considers is in the child’s best interests.

    Changes to how the Court is to determine what is in a child’s best interests

    Section 60CC of the Act sets out how the Court determines what is in a child’s best interests. Currently, this is determined by an examination of the primary and additional considerations listed at section 60CC. The primary considerations are currently:

    1. The benefit of the child having a meaningful relationship with both their parents; and
    2. The need to protect the child from physical harm from being subjected to or exposed to abuse neglect or family violence.

    The Act currently provides a long list of “additional considerations” to be considered subsequent to the primary considerations. The changes to section 60CC include a reduction of the list of additional considerations and a removal of the existing two-tier framework of ‘primary’ and ‘additional’ considerations. The aim being to reduce the length and complexity of the considerations which has said to “detract from the focus on the best interests of the child.”

    The amendments to section 60CC also remove the mandatory consideration of specific time arrangements.  Instead the Court is required to take into account the following “general considerations”:

    1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
      a. the child; and
      b. each person who has care of the child.

    In considering this factor, the Court must consider any history of family violence, abuse or neglect involving the child or any person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family

    2. Any views expressed by the child.

    3. The developmental, psychological, emotional and cultural needs of the child;

    4. The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

    5. The benefit of the child being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.

    6. Anything else that the Court thinks is relevant to the particular circumstances of the child.

    In determining what is in a child’s best interests, where the child is an Aboriginal or Torres Strait Islander child, the court must also consider the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to do so.

    Where the Court reconsiders final parenting orders

    The amendments provide for statutory recognition of the common law rule of Rice and Asplund[1], which provides that when final parenting orders have been made, “there must be a significant change of circumstances since the making of the orders” before the Court will reconsider and vary those orders. The Court may, however, reconsider final parenting orders with the consent or agreement of all parties to the final parenting orders.

    Focus on compliance and enforcement of parenting orders

    The amendments attempt to clarify the current provisions pertaining to non-compliance with parenting orders.

    In addition, the Court will be given broader powers to order ‘make-up’ time or ‘compensatory time’ where a parent has not spent time with a child due to non-compliance. This is to assist in rebuilding the relationship between the child and parent that may have been lost due to the contravention.

    One of the main objectives of these amendments is to deter non-compliance without reasonable excuse. The amendments also repeal the previous provisions which provided for ‘less serious’ and ‘more serious’ contraventions and clearly sets out the courts power to impose appropriate sanctions on a respondent who seriously or repeatedly contravenes a child-related order.

    Summary

    In summary, the following major changes will come into effect:

    1. Removal of the presumption of “equal shared parental responsibility”.
    2. Change of “equal shared parental responsibility” to “joint decision making about major long-term issues”.
    3. A change to the list of factors as to “how the court determines what is in a child’s best interests”.
    4. Codification of the common law rule of Rice and Asplund.
    5. The requirement for Independent Children’s Lawyers to meet with children aged 5 and over, unless the child does not wish to do so.
    6. Increased power to the court to protect parties and children from the harm associated with protracted litigation.
    7. Greater focus on ensuring compliance with parenting orders.
    8. The requirement for the Court, in matters involving Aboriginal and Torres Strait Islander children, to consider the child’s right to “connect with, and maintain their connection with, members of their family”. The amendment includes a definition of “member of the family” by amending the definition of “relative” in the Act to include persons who are “related to the child”.

    Family Law Advice

    Dorter Family Lawyers & Mediators is aware that these important changes to the Family Law Act 1975 may appear complicated and confusing. If you are in the process of separating, or require advice on a family law matter, we are well-versed in all areas of family law and can assist you.

    Click here to view the  Family Law Amendment Act 2023

    Is Mediation Appropriate for High Value Asset Divorce? 1000 667 Dorter

    Is Mediation Appropriate for High Value Asset Divorce?

    Separation and Divorce are never easy. When high-value assets are at stake, the process can become even more complex. How do you navigate the labyrinth of financial issues without losing sight of your best interests? One might ask, “is mediation appropriate for high value asset divorce?” With the right guidance and preparation, mediation can provide a path to resolution that’s not just fair, but also amicable.

    Deciphering Mediation for High Net Worth Divorce

    Mediation serves as a powerful instrument to steer through the intricate financial terrain of high-value divorces. A neutral third party (mediator) directs this process, fostering an environment conducive for open dialogue and collaboration. Consequently, each party has an opportunity to vocalise their concerns, aspirations, and objectives in an orderly and respectful context. The role of expert legal counsel is critical, providing direction, support, ensuring fair play and transparency to achieve the right outcome.

    Upon reaching agreement, consent orders are entered into to provide a confidential and legally binding agreement.

    Mediation in Complex Financial Landscapes

    High net worth divorces often involve intricate financial matters. The mediator’s role is to:

    • Facilitate discussions and negotiations around these complexities
    • Foster a collaborative environment where both parties can inquire, express concerns, and negotiate equitably
    • Promote open dialogue
    • Assist both parties in identifying the most suitable resolution for their complex financial circumstances, including matters related to financial support.

    Expert Legal Advice

    In high value negotiations, expert legal advice is not a luxury – it is a necessity. Specialised family lawyers:

    • Advocate for their clients
    • Analyse assets and debts
    • Negotiate a fair settlement
    • Offer guidance, advice and expertise in the law
    • Help clients understand their rights, responsibilities and entitlements
    • Address intricate financial matters

    Moreover, an expert family lawyer ensures a smooth navigation of the mediation process, minimises stress, and safeguards the interests of the parties involved.

    Protecting Assets with Confidentiality in Mediation

    Confidentiality in mediation is essential.  Mediation offers a safe space for parties to discuss their concerns openly without fear of those expressions being used against them in the future. This principle safeguards sensitive financial information and enables the parties to navigate their divorce without the concern of their personal and financial details being disclosed publicly.

    A breach of confidentiality can have significant repercussions, including:

    • Undermining trust
    • Making it challenging to reach a mutually acceptable resolution
    • Exposing sensitive financial information or strategies that could be harmful to one or both parties.

    Tailoring Mediation to Fit High Asset Divorces

    Mediation is not a universal solution and adapting the process to meet the unique needs and situations of the individuals involved is crucial. Here are some strategies to consider:

    • Select an experienced mediator for high-stake divorces
    • Facilitate result-oriented conversations around significant assets
    • Formulate legally binding agreements post-mediation

    These strategies ensure a fair and just outcome for both parties.

    It is vital to establish legally binding agreements post-mediation to guarantee the enforceability of the agreed-upon distribution of assets.

    Identifying Specialised Mediators for High Stakes

    In high asset divorces, the presence of a specialised mediator is crucial. The mediator should have a strong background in family law and a deep understanding of the intricacies associated with high-value assets. They play a crucial role in facilitating the negotiation process and ensuring that both parties achieve a just and fair agreement.

    A mediator handling high net worth divorces should have specific qualifications such as expertise in family law, an understanding of financial matters, and strong communication skills.

    Preparing Agreements Post-Mediation

    Once the mediation process is complete, it’s important to:

    1. Prepare an agreement to formalise the asset distribution.
    2. Formalise the agreement through consent orders.
    3. Have the consent orders reviewed and sealed by the court.

    This agreement becomes legally enforceable when it is formalised through consent orders, which are reviewed and sealed by the court.

    This ensures stability and certainty for both parties following the conclusion of the mediation.

    Financial Intricacies: Mediating Spousal Maintenance and Asset Division

    Spousal Maintenance and Child Support Considerations During Mediation

    Spousal maintenance and child support may be issues on the agenda at mediation.

    An understanding of each party’s financial situation and future needs is required.  Factors such as health, earning capacity and care of children are considered during this process.

    When Mediation May Not Be the Best Path

    While mediation is a powerful tool in resolving high net worth divorces, it may not be suitable for all cases. Certain red flags or contentious issues may make mediation less effective or even counterproductive.

    Recognising Red Flags in High Asset Mediation Scenarios

    Certain red flags can indicate that mediation may not be the best path for high-asset divorces. These can include:

    • High conflict between the parties and/or a history of family violence
    • Lack of transparency
    • Power imbalances
    • Unexpected changes to key financial information
    • Frequent dishonesty

    If any of these red flags are present, it may be more appropriate to seek legal advice and explore other options, including seeking assistance from the Federal Circuit and Family Court of Australia.

    The Role of Court Proceedings in Contentious High Value Cases

    In contentious high-value cases, court proceedings may be necessary to resolve disputes and ensure a fair outcome. This is especially true when there are disputes about disclosure, the division of the assets, determining the value of assets, and resolving financial disagreements.

    While court proceedings can be more time-consuming and expensive, they can provide a more structured and legally binding resolution in certain situations.

    Preparing for High Asset Mediation Sessions

    Preparation before the mediation sessions is key to a smooth and effective process. This preparation involves:

    • The collection and disclosure of all relevant financial documents
    • Setting achievable goals and priorities
    • Comprehending the legal ramifications of property settlements

    These steps can help guide the mediation process and ensure that all parties are well-informed and prepared for the discussions ahead.

    Gathering and Disclosing Financial Documentation

    Collecting and disclosing all relevant financial documents is a key step in preparing for high asset mediation sessions. This includes the parties providing:

    • Proof of income
    • Tax returns and notices of assessment
    • Bank account statements
    • Loan agreements
    • Ownership of assets
    • Superannuation statements

    Providing complete and honest financial disclosure promotes transparency and facilitates reaching agreement.

    Setting Realistic Goals and Priorities

    Setting realistic goals and priorities is another important step in preparing for high asset mediation sessions. This involves:

    • Defining one’s goals, taking into account long-term objectives
    • Evaluating the financial circumstances
    • Prioritising the well-being of the family
    • Upholding confidentiality

    Understanding the Legal Implications of Property Settlements

    Understanding the legal implications of property settlements can help both parties make informed decisions during mediation. This includes:

    • Understanding your rights and entitlements under the Family Law Act
    • Understanding any potential risks of agreements
    • Ensuring adequate support during this difficult period.

    Preparing yourself before the mediation is critical and will help ensure a more effective mediation process.

    Cost-Benefit Analysis: Mediation vs. Court in High Value Cases

    When choosing between mediation and court proceedings in high-value cases, weighing the costs and advantages of each option is important. Mediation can decrease legal expenses and related costs but it does still demand substantial time and emotional commitment.

    By comparing these costs and benefits, parties can make a more informed decision about the best path for their high net worth divorce.

    Litigation can be emotionally taxing and time-consuming, which can add to the overall stress and anxiety of the divorce process.

    In contrast, mediation, an alternative dispute resolution method, often provides a faster and less adversarial path to resolve high net worth divorce disputes, reducing both the emotional and time costs of the divorce process.

    Summary

    Mediation can provide a viable alternative to court proceedings in high net worth divorces. With the right preparation and guidance, we help navigate complex financial landscapes, facilitate productive discussions, and achieve a fair and equitable outcome for you.

    If you are navigating the complexities of a high-value asset divorce in Sydney, Dorter Family Lawyers and Mediators offer the expertise and support you need. Our experienced team of family lawyers specialise in managing intricate financial matters and providing tailored solutions for your unique case.

    Reach out to our team here at Dorter Family Lawyers and Mediators for a no obligation consultation and take the first step towards achieving clarity, confidence and resolution that safeguards your assets and financial future.

    The Involvement of Third Parties in Family Law Matters 1024 670 Dorter

    The Involvement of Third Parties in Family Law Matters

    The complexity of matrimonial property pools is increasing. Third party interests are intertwined in property settlement disputes between married and often de facto couples. This is usually a result of a spouse’s commercial interests through family trusts, companies or debts to creditors.

    The Court is empowered under Part VIIIAA of the Family Law Act 1975 (Cth) to bind third parties by making any order or granting any injunction directing a “third party to do a thing in relation to the property of a party to the marriage” or to “alter the rights, liabilities or property interests of a third party in relation to a marriage”.

    Joining a third party to proceedings

    The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 governs the joinder of third parties together with the Family Law Act. It permits any person whose rights may be directly affected by an issue in the proceedings to participate as a party in order for the Court to determine all issues in dispute. 

    This means that any spouse seeking relief against a third party pursuant to the Family Law Act 1975 (Cth) must join that party as a respondent to the proceedings. The type of relief that can be sought against third parties is set out in detail below.

    Alternatively, the Court may allow third parties to intervene in proceedings in various circumstances in accordance with section 92 of the Family Law Act. If leave (permission) is granted by the Court for a person or creditor to intervene in proceedings, they are considered a third party to the proceedings and are treated as a party.

    Who is considered a third party?

    A third party is any person or creditor who is not party to the proceedings. The Court in Commissioner of Taxation v Tomaras [2018] HCA 62 at [71] confirmed that third parties can be involved in family law proceedings arising out of various arrangements such as ‘…ownership of life insurance products, shares in corporate entities and the creditors of the parties to a marriage whether they are family, friends or financial institutions’.

    In Commissioner of Taxation & Worsnop and Anor (2009) FLC 93-932, the Commissioner for the ATO was joined as an intervenor in the proceedings. The Husband had a tax liability greater than the value of the matrimonial assets as between the parties. The Court held that the Wife was not required to make any contribution towards the debt and ordered for the proceeds from the sale of the matrimonial home to be divided between the Wife and the ATO. The Court sought to balance the interests of the debtor party’s spouse and the third party and confirmed that a weighing up of interests will be done ‘even where that spouse is “innocent” and the liability to the [creditor] exceeds the assets.

    The type of orders the court can make

    Under section 90AE of the Family Law Act, the Court can make the following orders to bind a third party:-

    • an order directed to a creditor of the parties to substitute one party for both parties in relation to the debt;
    • an order directed to a creditor of one party to substitute the other party, or both parties, in relation to the debt;
    • an order directed to a creditor of the parties that the parties be liable for a different proportion of the debt; or
    • an order directed to a director of a company or to a company to register a transfer of shares from one party to the other party.

    Pursuant to section 90AF of the Family Law Act , where proceedings under section 114 are on foot, the Court may make an order “restraining a person from repossessing property to a marriage” or from “commencing legal proceedings against a party to a marriage”.

    Conditions before a third party’s interests can be altered by the court

    Before making an order or injunction that effects a third party, the Court must be satisfied that conditions have been met including the following which are set out under section 90AE of the Family Law Act:

    • That the order or injunction is reasonably necessary, or reasonably appropriate and adapted to effect a division of property between the parties to the marriage:
    • If the order or injunction relates to a debt, that it is not foreseeable that to make the order or grant the injunction would result in the debt not being paid; and
    • The third party has been given procedural fairness as to the making of the or injunction.

    The Court is also required to take into account the following discretionary considerations:

    • taxation effects;
    • social security effects;
    • administrative costs;
    • the capacity of the party to repay any debt; and
    • economic or the legal or other capacity of the third party to comply before making any order binding a third party.

    As a mechanism for protecting third parties, section 90AH of the Family Law Act ensures that a third party will not be deemed liable for loss or damage suffered by any person as a result of things done (or not done) by the third party so long as that third party was acting ‘in good faith in reliance on an order or injunction made or granted by a court’.

    Advice

    Family law matters involving third parties can be multifaceted, often involving aspects of equity and trusts and commercial matters. If you are involved in a property settlement dispute and require further information about the impact of family law matters on third parties, Dorter Family Lawyers & Mediators are experienced family lawyers and can assist you.

    Call us on 02 9929 8840 or book a consultation to discuss your matter here.

    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.

    The Parent’s Guide to Travelling Abroad with Children After Separation 1024 677 Dorter

    The Parent’s Guide to Travelling Abroad with Children After Separation

    Travelling, with its inherent demands of meticulous planning and organisation, is often a complex endeavour.

    Add to this the intricacies of separated parenting, and the complexity multiplies.

    To help you understand the steps you must take as a separated parent taking your child abroad, we have compiled this guide.

    Australian family law and parental rights

    For separated parents taking a child abroad from Australia, it is important to have an understanding of the Family Law Act 1975 (‘the Act’). This Act addresses a wide range of matters, including the concept of parental responsibility, how decisions regarding a child should be made and the rights of the parties involved post-separation.

    Seeking consent for travelling with children after separation

    In the majority of cases, a separated parent must obtain consent from the other parent before travelling with children overseas, after separation.  Written consent is highly recommended as it offers clarity but in some countries is also essential.

    But what happens when one parent withholds consent? Mediation provides a neutral platform for both parents to address their concerns. If at mediation you do not reach an agreement, a court order can be obtained.

    Travelling without the other parent’s consent, especially if in violation of an existing valid court order that outline the terms of a child’s travel, can result in significant legal consequences, sometimes even being categorised as international child abduction under Australian law. Hence, consent is crucial for separated parents contemplating overseas journeys with their children.

    Consequences of travelling without consent

    Australia is a signatory to the Hague Convention, which seeks to prevent child abduction across international borders.

    If your child has been taken to another country without your consent, the Hague Convention provides mechanisms for the child’s return, provided the country is a party to the Convention.

    If you travel without the other parent’s consent, this could result in criminal charges or even a variation to your parenting arrangements

    If you are unsure about your rights to travel with your children, you can contact us at Dorter Family Lawyers and Mediators.  We can provide you with expert family law advice.

    Can I prevent unauthorised overseas travel for my child?

    Family law Watchlist

    This system, operated in conjunction with the Australian Federal Police, can be used to prevent a child from leaving Australia. By placing a child on this Watchlist, alerts are generated if there is an attempt to take the child out of Australia. To place a child on the Watchlist, you should apply to the Court seeking urgent orders.

    Court orders

    Court orders can restrict or define the terms of overseas travel for a child. Such orders can specify conditions of travel, duration, destination, or the need for mutual parental consent before travel.

    If you require assistance about travel orders for your children, please contact us at Dorter Family Lawyers and Mediators.

    Passport restrictions

    Another preventive measure involves holding the child’s passport. If a child does not have a passport, the concerned parent can request the Australian Passport Office not issue one without their written consent. If the child already possesses a passport, a court order might be necessary to prevent its use for unauthorised travel.

    Seek expert family law advice today

    If you require clarity on a child passport application or overseas travel for a child after separation, we are here to help. At Dorter Family Lawyers and Mediators, we provide clarity to help you understand your obligations as a parent – whether you are wishing to travel with your child or you are concerned about your child travelling overseas with their other parent.

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    How is a Business Divided in a Divorce?

    When a couple divorces or separates, a property settlement, also known as the division of assets, is almost always necessary.

    In some cases, this process will involve assets like a home, cars, money, and superannuation and in other cases, it may involve complex and highly valuable assets, such as a business.

    In this article, we’re going to discuss how a property settlement involving a business should be handled, including the various steps that should be taken.

    Property Settlements and Businesses

    The breakdown of a marriage or de facto relationship can have a significant impact on a business. Whether both parties to the relationship own the business or it is owned by one party only, the future of the business could be impacted as the business is considered part of the marital property pool.

    It’s important to be aware that the breakdown of a relationship where a business is involved could impact not only the couple, but also any other owners of the business, as well as anyone else with an interest in the business.

    What happens to the business when a couple breaks up?

    As we touched on above, it doesn’t matter whether the business is owned by one party or both parties to the relationship – in most situations, it is considered to be an asset that could be divided in the property settlement.

    The way assets, property and liabilities are divided in a property settlement involves a 4-step process. These steps are:

    1. Identify all assets and liabilities – during this step the value of the business will need to be identified.
    2. Step 2: Identify the contributions of all parties – contributions can be financial and non-financial, as well as direct and indirect. Even if one party never worked in the business, their contributions to the relationship could make them entitled to a percentage of the business.
    3. Step 3: Work out the future needs of each party – factors such as parenting, health and age can impact the future needs of each party.
    4. Step 4: Review the agreement – the property settlement agreement must be just and equitable.

    Identifying the assets in step one is particularly important and it also involves valuing them too. In the case of valuing a business, this can be complex as many factors determine the value of a business. This can also be an area of contention for separating couples, so it is highly recommended that a professional business valuation expert is engaged to avoid disputes arising.

    The aim of these steps is to work out the percentage of the overall property pool that each party is entitled to.

    Who actually gets the business in a property settlement?

    The way assets are split can be complex and will differ from situation to situation. When it comes to a business, there are many different outcomes that could occur.

    One potential option is that the one former spouse buys out the other spouse’s interest in the business. Another option is that the business is split, with each party receiving part of the business. Selling the business to third party and splitting the proceeds in the property settlement is another option. If there is agreement, there are certain circumstances where former spouses could continue to own and operate the business as is.

    The right option is dependent on the unique factors of your situation and the type of business operated. In some cases, the former spouses may have an amicable relationship where their split hasn’t interrupted the business operations, while in other cases, there has been a significant loss of trust and it’s not possible to come to an agreement.

    It’s best to seek legal advice before making a decision regarding a business in a property settlement as there can be long-term consequences of these decisions that could be overlooked.

    What if the former spouses cannot reach an agreement for their property settlement?

    The family law system in Australia has been designed to allow people to reach agreements together or to use other resources to avoid having to go through Court proceedings. However, while the system allows for this, it’s not always possible to come to agreements, and in matters that involve complex property and assets, like a business, Court intervention may be necessary.

    In this scenario, the parties apply to the Federal Circuit and Family Court of Australia for a property division. The Court will use the same 4-step process we outlined earlier to determine an appropriate split of assets and liabilities, including the business. It’s important to note that the Court may require that an independent valuation of the business takes place where the parties cannot agree on the value.

    As a property settlement is meant to be a way to finalise the financial relationship or sever the financial ties of the former spouses, the Court will be likely to make a decision where one person may receive the business while the other receives other assets that equate to their share of the assets and property, or if this is not possible, the Court may order that the business is to be sold. The aim will be to not only finalise the financial relationship but also to ensure that the property settlement is just and equitable.

    Can you protect a business?

    Protecting a business from being impacted by a relationship breakdown is possible, however, it is highly recommended that a lawyer is engaged.

    Whether you’re considering marriage or in a relationship and own a business, or you’re considering starting a business while in a relationship or marriage, there are various options available to you. A binding financial agreement that outlines how assets are managed in the event of a relationship breakdown is one of these options.

    As many unique factors are at play with relationships and businesses, we highly recommend seeking legal advice if you wish to protect your business or any other asset.

    Talk to our property settlement family lawyers

    If you’ve separated and are having difficulties in determining a property settlement agreement or you’re wanting to protect your assets, talk to our property settlement family lawyers today.

    Our experienced legal team is here to offer advice, guidance and representation for all types of family law matters, including complex property settlements.

    Call us today on 02 9100 0437 or book a no obligation consultation here.

    What Happens to Your Mortgage When You Get Divorced? 1024 648 Dorter

    What Happens to Your Mortgage When You Get Divorced?

    When a relationship comes to an end, there are tough decisions to make and various matters that need to be resolved. One common concern we hear is what happens to loans and mortgages, especially for couples who jointly own property.

    Understanding the impact of these financial ties is crucial. In this article, we will delve into the details of what happens with loans and mortgages following a separation, so that you can make smart choices to protect your financial well-being.

    Who Pays the Mortgage?

    When a couple decides to part ways, the question of who should shoulder the mortgage payments often arises.

    It’s important to understand that regardless of the circumstances of the breakup or where each person is living, if both names are on the mortgage agreement, both parties share the responsibility for the payments. Even if you’ve moved out and are paying for a new place to live, you must still ensure the mortgage is being paid. This financial obligation can create significant pressure, which is why you need to explore your options carefully.

    Clear communication between ex-partners is paramount in navigating mortgage payments post-separation. Openly discussing how to handle financial responsibility can prevent missed payments, credit score damage, and potential legal issues. Whether it involves deciding who will live in the property, how payments will be made, or exploring other arrangements, maintaining a cooperative approach is vital. Shared responsibility can help ease the financial burden and ensure the mortgage remains on track while both parties transition to their new situations.

    Who Gets What: Property Settlement and Division

    Property settlement involves dividing assets and liabilities that were accumulated during the partnership. These assets encompass a wide range of items, including real estate, money, vehicles, superannuation funds, and even pets. This whole process aims to create a fair and equitable distribution of these resources, ensuring both parties are treated justly.

    Keep in mind that the division of assets is rarely a simple 50/50 split. Instead, it’s influenced by various factors that reflect the unique circumstances of each relationship. Key considerations include the financial contributions made by each person, both in terms of income and investments.

    Additionally, non-financial contributions, such as homemaking or childcare, also play a role in determining asset allocation. Earnings and earning capabilities, along with the number of dependent children and the existing agreements like prenuptial arrangements, further shape the division process.

    The impact of these factors can be far-reaching. For example, if one partner has the primary responsibility for childcare following the separation, their ability to work might be hindered, potentially resulting in a larger share of assets to maintain financial stability. Other agreements or arrangements, such as who will live in the family home, can also influence the property settlement outcome.

    Post-Separation Mortgage Management Options

    After a separation, handling mortgages requires careful consideration. There are several options available to manage the mortgage, each catering to different scenarios and needs:

    1. Joint Payment: Some couples choose to continue sharing mortgage payments, particularly if they can maintain a cooperative relationship. Both parties retain ownership of the property and may split generated income if the property is an investment.
    2. Buyout: If one partner wishes to keep the property, they can buy out the other’s share. This involves refinancing the home loan to demonstrate the ability to manage payments independently.
    3. Refinancing: Refinancing involves taking over the mortgage as a single owner. It requires proving financial capability to manage the loan on your own.
    4. Selling: Selling the property and dividing the proceeds can provide a clean break from the mortgage. This is a common choice when neither party can manage the mortgage individually.
    5. Alternative Arrangements: Couples might come up with unique agreements, such as both contributing to the mortgage or one partner paying a larger share if they’re living in the property.

    The right option depends on your specific circumstances. Factors like financial capacity, housing needs, and willingness to cooperate with your ex-partner play a role. Seeking legal and financial advice is crucial to making informed decisions that align with your situation.

    Legal Implications and Court Involvement

    Legal decisions made during separation can significantly impact property ownership and mortgage obligations. Clear legal agreements, like a consent order, can outline who retains the property, who’s responsible for the mortgage, and how payments will be managed. These decisions provide clarity and prevent disputes down the line.

    In situations where ex-partners can’t reach an agreement on mortgage matters, courts may step in to make decisions. Courts assess individual circumstances, financial capabilities, and other relevant factors to ensure a fair outcome. This ensures that property ownership and mortgage responsibilities are determined in line with legal standards.

    Credit and Financial Risks

    When mortgage payments are disrupted due to separation, it can negatively affect your credit score. Late or missed payments can lead to a decrease in your credit rating, impacting your ability to secure favourable loan terms in the future.

    Additionally, consistent non-payment could ultimately lead to foreclosure, where the lender repossesses and sells the property. This not only results in losing your home but also negatively impacts your financial standing for years to come.

    If you’re facing challenges in making mortgage payments, it’s crucial to proactively communicate with your lender. Many lenders have dedicated hardship teams that can assist by adjusting payment schedules or even temporarily pausing payments. Exploring these options can provide breathing room while you navigate the post-separation period.

    What to Do to Secure Your Mortgage Future

    If you are separating, it’s vital to keep your lender informed about your changing circumstances. Inform your lender of your plans and discuss how the mortgage will be managed moving forward. This transparency can help you explore available options and prevent unexpected issues.

    Engaging a legal professional is essential during a separation, especially when it comes to property and family matters. An expert family lawyer can provide guidance on your rights, responsibilities, and the legal implications of various decisions. Having legal advice ensures you make informed choices aligned with your best interests.

    Working closely with expert family lawyers, financial advisors, and other professionals can offer a helpful perspective on your situation. Their expertise helps you navigate the intricacies of property division and mortgage decisions.

    Final Thoughts

    In the course of separation and managing mortgages, the key is to act promptly, communicate openly, and make choices based on well-informed decisions. By addressing these matters early, you can pave the way for a smoother transition and financial stability.

    While the end of a relationship may bring challenges, it also presents an opportunity for new beginnings.

    Our team of expert family lawyers at Dorter Family Lawyers is here to provide the necessary expertise and support during this challenging time. With our guidance, you’re well on your way to making sound choices, protecting your rights, and securing a better future.

    Property Settlements in Australia 1024 651 Dorter

    Property Settlements in Australia

    When a long-term relationship, like a marriage or de facto relationship ends, one of the most challenging aspects to work your way through is deciding how to divide your assets and property.

    The division of assets is known as a property settlement and the family law system has provided people in Australia with a variety of options when it comes to working out how you will divide your assets.

    While this flexibility can be beneficial, it can leave some people not knowing where to begin. The property settlement process involves considering a wide range of factors and a wide range of assets.

    To help you understand property settlements in Australia, we’ve put together an overview of the property settlement process.

    Keep reading to learn more.

    What is a property settlement?

    A property settlement is the process of dividing assets, property, and liabilities between separating or divorcing couples.

    This legal process has been designed to ensure that there is a fair and equitable distribution of the property and liabilities when a relationship ends.

    Property settlements can be reached through various means, including negotiation, mediation, and court proceedings. We will discuss these options in more detail later on, however, it’s important to note that the way a property settlement is resolved in one situation may differ from another as the outcome is dependent on many different factors.

    Who is eligible for a property settlement?

    In Australia, property settlements are available to both married couples and de facto couples (including same-sex couples) who have experienced a breakdown of their relationship.

    Married couples who are seeking a divorce are eligible for a property settlement under the Family Law Act 1975. The entitlement to a property settlement applies to couples who are legally married under Australian law.

    For de facto couples, couples that have lived together in a genuine domestic relationship for a certain period are also entitled to a property settlement. The exact criteria for being considered a de facto couple can vary slightly between different Australian states and territories, but generally, it involves factors such as the length of the relationship, whether the couple lived together, and whether they presented themselves as a couple to the public.

    For more information on de facto relationships, read this article here.

    What is included in a property settlement?

    A property settlement can include many different assets and liabilities. Below, we’ve put together a list of some of the more common types of assets and liabilities, but keep in mind that this list is not exhaustive.

    Assets

    • Real estate, land, and property
    • Trusts
    • Companies
    • Shares
    • Investments
    • Businesses
    • Money
    • Superannuation
    • Inheritances
    • Motor vehicles

    Liabilities

    • Mortgages
    • Car loans
    • Personal loans
    • Credit Cards
    • Other debts

    It’s also important to be aware that the assets and liabilities included in a property settlement include those that are owned individually and jointly, as well as those that were acquired prior to, during and after the relationship has ended.

    To be sure all of your assets have been considered in your property settlement, we recommend speaking to an experienced family lawyer.

    How are assets divided in a property settlement?

    As we mentioned above, the way a property settlement happens and the split of the assets will differ from case to case, however, there is a general 4-step process for property settlements in Australia.

    Below is a summary of this process:

    Step 1: Identify all assets and liabilities

    This first step is very important in the property settlement process because to ensure a property settlement is just and equitable, all assets and liabilities must be identified.

    We recommend creating a master list (balance sheet) of all assets and property owned, as well as any debts and liabilities of each person individually and those that are owned and owed together.

    Failure to include all assets, whether intentional or not, could have serious consequences.

    Step 2: Identify the contributions of all parties

    Contributions incorporate a wide range of things, including financial and non-financial contributions, as well as direct and indirect contributions.

    Contributions include care provided to children.

    Seeking legal advice is beneficial during the property settlement process, particularly when it comes to working out the contributions of the parties as it can be easy to overlook some contributions.

    Step 3: Work out the future needs of each party

    Consideration of the ongoing and future needs of each party is important because there can be factors outside of an individual’s control that could limit their ability to be able to provide for themselves and dependents adequately in the future.

    Things to consider at this point are parenting responsibilities and arrangements, the ability of each party to earn an income, and the heath and age of each party.

    Step 4: Review the agreement

    The final step of the process involves reviewing the proposed agreement to ensure that it is fair and all of the factors we’ve mentioned have been considered.

    It’s a good idea to engage a family lawyer to review a property settlement agreement.

    How can you work out a property settlement?

    Like many other types of family law matters, people in Australia have a number of different options available to them when it comes to making a property settlement agreement.

    These options include:

    • Make a private agreement together

    The family law system in Australia encourages people to resolve matters and disputes between themselves and outside of the Court system where possible.

    In the instance of property settlements, former partners can reach an agreement together however they wish to do so. Once they reach an agreement it can be informal, or it can be formalised by applying to the Court for consent orders or creating a binding financial agreement.

    Before formalising an agreement, we highly recommend speaking to a family lawyer to ensure the agreement is fair.

    • Working with lawyers

    If you’re unable to reach an agreement or you would prefer the support of an experienced family lawyer, you can engage our services to help you negotiate and craft property settlement agreements. We can advise you, as well as negotiate and represent you through any property settlement proceedings.

    • Attend mediation

    Another option former spouses can try is mediation. This is a type of dispute resolution where a third-party mediator, who is impartial, can facilitate discussions and negotiations for property settlements (and other family law matters).

    Mediation is usually required before parties can apply to Court to resolve family law matters.

    • Apply to the court for property settlement orders

    Usually seen as a last resort, the former partners can apply to the Court for property settlement orders if they have exhausted all other options.

    The Court will use the same general 4-step process discussed earlier to create property settlement orders.

    This option ensures that a property settlement will occur, however, it takes away control of the situation from the parties which can result in orders that may not be favourable to you.

    How long do you have to apply for property settlement orders?

    There are strict time limits for applying to the Court for property settlement orders. For couples who were married, an application for property settlement orders must be made within 12 months after the date the divorce order is in effect. De facto couples have 24 months from the date of separation to apply for property settlement orders.

    While this may seem like a long period of time, it’s important to note that applying for property settlement orders cannot occur unless all other avenues have been explored, including mediation. So, it’s important to get moving on your property settlement sooner rather than later in case you do need to apply to the Court.

    If you do miss the time limit for making an application for property settlement orders, it could still be possible to apply for them. You will first need to apply to court for leave(permission) to be able to apply for the property settlement orders. The Court may grant leave, however, it is at their discretion and usually only occurs in exceptional circumstances, such as when a person is likely to experience hardship if the application cannot progress.

    Working with a family lawyer in this situation is also highly recommended as they can provide guidance throughout your various applications.

    Is there a way to protect assets?

    An agreement such as a prenuptial agreement, formally known as a binding financial agreement (BFA) is an option parties have to try to protect their assets from division in a property settlement if the relationship ends.

    A prenup or BFA can outline how assets are to be treated in the event of a separation or divorce and they can be customised to deal with a wide range of assets and matters, or they could be specific to one or two items.

    These agreements are generally enforceable and legally binding, as long as the agreement has been made lawfully. The Court could set aside the agreement if certain conditions have not been met, such as the agreement was made under duress or a party didn’t receive independent legal advice.

    If you’re concerned about protecting your assets, we highly recommend speaking to a family lawyer to understand all of your options.

    Do you need a lawyer to work out a property settlement in Australia?

    No, like most family law matters, you don’t have to use the services of a lawyer in order to come to a property settlement agreement.

    However, while it is not mandatory, working with a lawyer has benefits. For example, a family lawyer can help you to understand all of the options available to you, they can help to know where you stand and the requirements of you, as well as drafting and reviewing agreements and negotiating on your behalf.

    Are you looking for a property settlement lawyer in Australia?

    Whether you’re considering separation, you’re already working on a property settlement, or you’ve hit an obstacle in your separation process, we’re here to help you.

    We have an experienced team of family lawyers who can help you understand all of your options and resolve your disputes in a timely and effective manner.

    You can discuss your situation with us in a no obligation consultation. Book online here or call us on +61 2 9929 8840.  

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    The Interaction of Bankruptcy and Family Law

    It may come as a surprise that bankruptcy issues can be intertwined in your property settlement dispute arising out of the breakdown of your marriage or de facto relationship. This is because section 35 of the Bankruptcy Act 1966 (Cth) (“BA Act”) confers jurisdiction in bankruptcy on the Federal Circuit and Family Court of Australia.

    You are considered bankrupt if a sequestration order has been made against your estate or as a result of a debtor’s petition. A bankruptcy trustee is the person who administers the bankrupt person’s estate, the bankrupt’s property having vested immediately in the trustee.

    The bankruptcy trustee is required to:

    1. Sell all of the vested property and distribute the proceeds amongst creditors (being the person(s) to whom money is owed) and return any surplus to the bankrupt; or
    2. Sell enough property to pay the creditors debt.

    Part VIIIAA of the Family Law Act 1975 (Cth) (“the Act”) provides protection for creditors of parties to a marriage or de facto relationship. As a result, a bankruptcy trustee has the ability to partake in property settlement proceedings ‘as a respondent standing in the shoes of a bankrupt’.[1]

    If I am bankrupt, can I commence family law proceedings against my former spouse?

    If you are declared bankrupt, you still have the right to commence property settlement proceedings against your former spouse. However, you must keep in mind that the bankruptcy trustee has the right to be joined as a party to the proceedings. This means that whether you commence proceedings as a bankrupt, or you become bankrupt in the midst of your property settlement proceedings, you have an obligation to notify the Court, all other parties, and the bankruptcy trustee.

    Notice to the Trustee

    Once notice has been given, the bankruptcy trustee may file an application to become a party to the proceedings. If this occurs, pursuant to section 79 (12) of the Act, the bankrupt party is not permitted to make any further submission to the court in relation to any property vested with the bankrupt without leave (permission) of the court. The Court will only grant leave if exceptional circumstances apply.

    What happens if I am declared bankrupt after I commence property settlement proceedings?

    If you are declared bankrupt while property proceedings are on foot, the proceedings will be stayed in accordance with section 60 of the BA Act until the bankruptcy trustee elects to continue the proceedings. If no election is made by the bankruptcy trustee, the non-bankrupt partner may be able to continue the proceedings or seek to proceed on an undefended basis.

    Standing of the bankrupt party

    In the matter of Warin & Warin (No 4) [2022] FedCFamC1F 160, the bankrupt party had no standing in relation to any of the property vested in the trustees in bankruptcy. The bankrupt party did, however, have standing in relation to the non-vested assets including his interests in the parties self-managed superannuation fund. This is because some property, including most superannuation, is classified as exempt property and does not vest in the bankruptcy.

    If my former spouse or de facto partner has been declared bankrupt, can I commence family law proceedings?

    If your former spouse or de facto partner has been declared bankrupt, you may apply to the Court and seek an injunctive order restraining the bankruptcy trustee from declaring or distributing vested property amongst creditors. Before doing so, it is important to weigh up the competing claims, namely the status of the claim by the bankrupt’s creditors against the evidence of your claimed interest.

    The Courts have accepted that a trustee in bankruptcy may hold matrimonial property on trust for the non-bankrupt spouse due to ‘…the special nature of beneficial ownership of property as between spouses irrespective of the fact that the legal title to the property may stand in one party’s sole name.’[2] The interest in property claimed by a non-bankrupt spouse is generally seen, however, to not have the same status against secured creditors.

    Secured creditors vs non-secured creditors

    In the matter of Gazi & Strobel [2021] FedCFamC 223, Mr Gazi commenced property settlement proceedings against his former partner who was an undischarged bankrupt, represented by the bankruptcy trustee. The parties had been in a de facto relationship for nine years and had three children together. The debt against the bankrupt partner was secured in the sum of $40,798.09.

    The Court considered the rights of the non-bankrupt partner and found that his interest did not have the same status of a ‘secured creditor’. The Court ordered the bankruptcy trustee to pay the secured creditor from funds held in trust for the bankrupt estate on an interim basis for the matter was finally determined.

    Seeking Advice in Australia

    The impact on bankruptcy in family law matters can be extremely complex. Our firm is well-versed in the area of bankruptcy. If you, or your former partner is bankrupt and you are in the stages of separation, you can contact us at Dorter Family Lawyers & Mediators for legal advice.