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    Treatment of Trusts in Family Law Proceedings 1024 682 Dorter

    Treatment of Trusts in Family Law Proceedings

    Following the breakdown of a relationship, the characterization of Trusts, and the assets they hold, can be hugely influential in property proceedings

    Due to this, the characterisation of the Trust and Trust assets can be a fiercely debated issue between parties.

    What is a Trust? 

    Trusts are financial structures frequently used to hold assets for the benefit of others, and for a variety of tax related purposes. Whilst there are a variety of Trusts that exist and which are seen in Family Law matters, the most common Trust structure encountered is known as a discretionary ‘Family Trust’. 

    While no two trusts are ever the same, discretionary trusts are usually established through the implementation of a Trust Deed, which sets out the functions of the Trust and importantly will confirm who holds the following roles: 

    1. An ‘Appointor’ who has the ability to appoint or remove Trustees. 
    2. A ‘Trustee’ (or multiple Trustees) who has control of the Trust assets. They have the authority to decide what happens with the Trust assets, including what distributions/payments are made to the Beneficiaries of the Trust. 
    3. The ‘Beneficiaries’ receive the benefits of the Trust. Usually, the Trustee has the discretion as to what benefit they will receive unless the Trust Deed specifically sets this out. 

    It is often the case that parents will set up Trusts for the benefit of their children or grandchildren. It is common that the Trust will own either Real Property (houses and land) or other valuable assets such as shares or other forms of investments. 

    So how do these assets get handled when a party to a trust separates from their spouse? 

    Separation and Family Trusts

    When dealing with property in any Family Law matter, the Court will follow a four-step process, which can be simply stated as: 

    Step 1: Identify and value the assets, liabilities and financial resources of the parties;

    Step 2: Consider what contributions that each party made throughout the relationship; 

    Step 3: Consider and identify what the future needs of each party may be; and 

    Step 4: Determine whether the property settlement is ‘just and equitable’ in all the circumstances. 

    The identification and characterisation of the parties’ assets and resources is where Trusts, and the assets that they hold, may come into question. Mostly, the identification of what assets a Trust actually holds, and their value can usually be easily determined. However, it can be a lot more difficult to determine whether these assets are an actual Financial Asset available to the parties for sale or transfer or whether they are a Financial Resource which can’t be sold or transferred. 

    The classification of a Trust can be hugely significant in determining what assets are available for distribution when parties separate. If it is the case where a Trust and its assets are determined to be the Financial Assets of one of the parties, it can result in larger property pool available to the parties. On the other hand, if the Trust and its assets are determined to be a Financial Resource of one of the parties, then the property pool will be smaller as the Trust assets will not be seen as available to the parties for distribution. 

    As Family Law is a discretionary jurisdiction, there is no magic formula when determining whether a Trust should be seen as a Financial Asset or Financial Resource. Due to this, it is common that one party will want Trust assets to be viewed as a Financial Asset whereas the other will want it to be classified as a Financial Resource.

    However, in many cases if one of the parties has had a controlling position in the Trust, such as being an Appointor and a Trustee, then the Trust and its assets are usually seen as property of the marriage as that party has control over the assets owned by the Trust.

    If a party only has an interest in a Trust that is determined at the discretion of someone else, like when someone is a discretionary beneficiary, then their interest in any assets will likely be seen as a Financial Resource. This is because there is usually little to no control for that party to make any decisions relating to the asset in questions, let alone selling or transferring it.

    In cases where Trusts are determined to be a Financial Resource, the Court does not simply disregard this interest. Rather, the Court will consider it when determining a party’s future needs. For example, if a party has previously received distributions from a Trust, or they will in the future, the Court will take this into account and will likely determine that that party’s future needs are not as great as they otherwise might have been, had they not had any interest in the Trust. 

    It is also important to note that liabilities owed to a Trust also need to be considered. Trusts, just like companies or banks, can loan parties money. If this has occurred, and the loan has not been repaid prior to separation, then it is likely the loan will be viewed as a liability that needs to be repaid.

    Have you separated while having an interest in a Trust?

    To obtain specialist advice about property matters and the impact that an interest in a trust may have, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.

    Anthony Shaw – Associate 

    Rebekah Dorter – Principal 

    Expert Evidence in Parenting Matters: Court Reports 1024 576 Dorter

    Expert Evidence in Parenting Matters: Court Reports

    During parenting proceedings in the Federal Circuit and Family Court of Australia (“the Court”), the Court usually requires independent expert evidence to assist in determining orders that are in the children’s best interests. There are two main ways the Court will obtain this evidence. 

    Child Impact Reports

    Section 11F of the Family Law Act 1975 (Cth) gives power to the Court to order the parties to attend interviews with a Family Consultant, being a qualified psychologist or social worker, who will prepare a Child Impact Report. The purpose of a Child Impact Report is to address the views of the parents and the children in the earlier stages of the proceedings, and to assess the issues at hand. 

    The Family Consultant interviews each party separately and will interview the children, if they are old enough. The discussions held with the Family Consultant are used for the purpose of the Report. The Family Consultant also reviews the Court material filed in the proceedings including the Orders sought by the parties, the Notice of Risk, the Parenting Questionnaires and any relevant Affidavits. 

    The Family Consultant considers the issues of the parties and examines factors such as:

    • the nature of children’s relationship with each parent
    • any risks to the children (for example, family/domestic violence or abuse)
    • the children’s wishes and views;
    • any practical difficulty in implementing time arrangements with either parent; and
    • the likely effect of any change in circumstances on the children.  

    Family Report

    If proceedings are not resolved following the making of a Child Impact Report, the Court will order a “Family Report” to be prepared. This is another independent assessment of the relevant issues in the parenting dispute and is more detailed than a Child Impact Report. The Family Report makes recommendations for the Court as to what orders are in the children’s best interests. 

    The Family Report writer is jointly instructed by the parties and the Independent Children’s Lawyer, if one has been appointed. 

    The parties jointly agree on what material the report writer is to be provided with from the Court proceedings and a detailed letter of instruction is provided. The Family Report writer will similarly meet with all relevant parties and the children. If either party has re-partnered, the Family Report writer will often interview that partner. The Family Report writer may also interview grandparents or other adults who are significantly involved with the children’s care. Some Family Report writers also contact the children’s teachers and any treating specialists the children or parents are attending upon. This is so the Family Report writer can have the best understanding of the children’s circumstances and make an informed and holistic opinion about their best interests and the future care arrangements based on all relevant material. 

    The Family Report involves a more thorough assessment of the parties and the capacity of each party than a Child Impact Report, but makes the same enquiries. The Family Report writer will usually opine on the following:

    • the parent’s attitude towards the responsibilities of parenthood and caring for the children.
    • the capacity of the parents to provide for the children’s needs. This includes not only physical needs but emotional needs; and
    • the relationship of the parents and their ability to coparent and facilitate the relationship between the other parent and the children; 
    • Risk issues, including mental health, family violence, drug and/or alcohol misuse, and physical, emotional and/or psychological abuse.

    Family Reports are required in the more complex proceedings. The report writer can be appointed internally by the Court, ordinarily a Family Consultant, if for financial reasons the parties are unable to appoint a private expert. A private expert is otherwise engaged by the parties themselves and is usually a clinical psychologist or psychiatrist. These reports can take many months to be completed due to minimal resources of the Court, and private experts are often booked out many months in advance.  

    The conversations held with the Family Report writer are not confidential. The Family Report writer includes in the Report what they consider to be relevant to provide the Court with a greater understanding of what will be best for the children’s welfare in each matter. 

    Both Child Impact Reports and Family Reports are unable to be disseminated to anyone without the Court’s permission and the Court only releases copies of the Reports to each party, their lawyers and the Independent Children’s Lawyer. 

    Need Advice?

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

    Antonia Cacopardo 

    Out of time applications 1024 683 Dorter

    Out of time applications

    The Family Law Act 1975 (“the Act”) states that married parties have 12 months from the date a Divorce is in effect to file an Application for property orders. In respect of de facto matters, the Act requires an Application to be made to the Court within 24 months since the date of separation. Following this date, a party will need to seek leave from the Court if they intend to file an Application.

    When determining whether leave should be granted to a party commencing proceedings out of time, the Court considers the following:

    1. Whether the party has a prima facie case and whether the party seeking permission would experience undue hardship if the property proceedings were not commenced; and
    2. The reason for the delay in commencing proceedings;
    3. Whether the other party would be prejudiced if proceedings were commenced. 
    1. Undue Hardship and a Prima Facie Case

    To establish hardship the Court must be satisfied that your case has real prospects of success. This is known as a “prima facie” case. This is not providing to the Court the strengths of your case and whether you believe it would be successful, rather it is a determination that there would be a case to hear at all.

    The Act allows the Court to grant permission to apply for a property settlement out of time if hardship would be caused to the party or a child if permission were not granted.

    In the matter of Edmunds & Edmunds [2018] FamCAFC 121, the full Court found an error where Court refused the Applicant Wife leave to commence property proceedings 6 years out of time in circumstances where the parties were married for 15 years and separated for 10 years. The Wife had primarily cared for the three children since separation.

    In the first instance the Court dismissed the Wife’s Application for permission as they assessed that the Wife held approximately 31.2 to 32.9 percent of the current pool and when dismissing her Application stated that she had not established a prima facie case in circumstances where she sought an adjustment of between 57 to 61 percent of the pool.  

    The Full Court found that “the primary judge erred by not considering whether the wife had a prima facie case for, or a real probability of, obtaining a property settlement order that may well have fallen short of the outcome sought by her but nonetheless would see her obtain a greater share of the property available for division than the 31.2 to 32.9 per cent currently held by her.

    The Full Court considered the contributions of the parties and although the Husband had made a greater financial contribution to the asset pool, the Wife had made a greater non-financial contribution to that property and to the welfare of the family. Since separation, the Wife had the primary care of the three children.

    The Full Court took these factors into consideration and found that was a prima facie case, being there was a real probability that the wife would obtain a property settlement order that will give her a significantly greater benefit than the 31.2 per cent to 32.9 per cent to which she is currently holding.

    The wife’s appeal was allowed and she was granted leave to issue property proceedings.

    2. Reason for delay

    When making an Application out of time, the Court must be satisfied as to the reason for the delay.  The applying party must demonstrate to the Court an adequate reason for their delay. The Court’s discretion is used when determining out of time applications and reasons for delay can differ from case to case. For example, in the matter of Ordway & Ordway [2012] FMCAFAM 624, the Applicant Wife sought to file an Application 26 years out of time due to the fact the parties had an informal arrangement between themselves and the Wife did not want to disrupt the ‘status quo’. The informal arrangement saw that the Wife remained in the former matrimonial home, where the Husband was the sole registered proprietor, with the two children of the marriage. The Husband had represented to the Wife that the property was to be transferred to her.  The Wife also obtained employment with the Husband’s company and was concerned if she pushed the issue, it could jeopardise her employment.

    The Court accepted the Wife’s evidence and stated that “it is obvious when considering the parties’ financial circumstances that there was a significant power imbalance.” The Court was satisfied that appropriate steps were taken in these circumstances and that an adequate reason for delay had been established.

    3. Prejudice

    In respect of prejudice, the Court also considers whether the other party has reorganised their affairs with reasonable expectation that property proceedings would not be brought against them or if they were led to believe that no application was going to be made against them.

    In the matter of Ordway & Ordway [2012] due to the continued informal agreement between the parties, the Court found that “the husband was always aware that his financial affairs with the wife had not been concluded”. The Court stated they did not accept that granting permission to the Wife would prejudice the husband due to the fact the informal arrangement enabled him to further his financial position as he continued to use the equity from the property for his own financial gain. The property was agreed to be transferred to the Wife in due course, forming part of the informal arrangement between the parties.

    If you have any questions about commencing proceedings out of time and would like to know how this may impact your family law dispute, please contact us on (02) 9929 8840.

    Antonia Cacopardo
    Andrew Johnson

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

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

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

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

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

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

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

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

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

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

    Amending Final Parenting Orders 700 466 Dorter

    Amending Final Parenting Orders

    What are Final Parenting Orders?

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

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

    How to Vary Final Parenting Orders?

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

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

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

    What is the Rice & Asplund Threshold Test?

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

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

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

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

    What Constitutes a Significant Change in Circumstances?

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

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

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

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

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

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

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

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

    Need Advice?

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

    Brittany Meehan

    Andrew Johnson

    Complex Assets in Property Settlements 940 672 Dorter

    Complex Assets in Property Settlements

    Cryptocurrency & Property Settlements

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

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


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

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


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


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

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

    Family Law Proceedings and Protection Orders 770 376 Dorter

    Family Law Proceedings and Protection Orders

    It is an unfortunate reality that an increasing number of Family Law matters have some form of Protection Order in place to protect a party and/or children.

    Protection Orders

    The most common form of protection orders seen in family law matters are either Apprehended Violence Orders and/or Apprehended Domestic Violence Orders (‘AVO’).

    These orders are used to put restrictions on a particular person (the defendant) to provide protection for the person in need of it. In most circumstances, these orders are initially put in place by the police following a domestic violence related event or report being made. The defendant will then be required to appear before a Magistrate of the Local Court, usually a few days later.

    All AVOs will have the following ‘standard’ conditions for the protection of the person in need of it and anyone they are in a domestic relationship with:-

    That a person must not:
    a. assault or threaten;
    b. stalk, harass or intimidate; or
    c. intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the protected person.

    Additionally, other common orders relevant to family law matters are:-

    • The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises. This order can also be adapted to include a person’s place of work.
    • ​The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.
    • The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs.

    When the matter appears in the Local Court, it is commonplace for the defendant to simply accept the terms of the AVO, particularly if the length and conditions proposed by the police are not too onerous. This is mainly due to defendants being able to agree to the AVO on a “without admissions” basis. This means that no findings of fact are ever made against the defendant and that the AVO is not recorded as a criminal offence. It is only if the terms of an AVO are breached that a criminal offence is committed.

    If the AVO is contested, then the Local Court will adjourn the matter and list the matter for hearing as well as setting a timetable for the filing of evidence. If there is a related criminal charge(s), the AVO will usually follow the criminal charges without a timetable being implemented.

    At the hearing, a Magistrate will decide whether an AVO is appropriate by assessing whether the person in need of protection holds genuine fears of the defendant. It is important to note that the Magistrate only needs to be satisfied of this on the Balance of Probabilities rather than the much higher standard of Beyond Reasonable Doubt.

    Effect on Family Law Proceedings 

    Despite AVOs being viewed as a less serious alternative to a criminal charge, and that no findings of fact are usually made against a defendant, they are often given significant weight in family law proceedings. 

    The main reason for this is that the Family Law Act dictates that the paramount consideration is always what is in ‘the best interest of the child(ren)’. Furthermore, section 68CG of the Family Law Act requires that when determining what is in the best interest of the child(ren), the Federal Circuit and Family Court of Australia (“the Court”) must ensure that any order it makes does not expose any party to an unacceptable risk of family violence. This, coupled with the ever-increasing concern and public awareness of domestic and family violence, means that the Court will take a cautious approach in most matters, but this is especially the case in circumstances where an AVO is in place.

    It is therefore vital that if a party is issued with an AVO that they also keep in mind the possible ramifications that it could have on any family law proceedings. With that in mind, it is also important for family lawyers to remember that a significant amount of AVOs are put in place with the consent of the defendant and without any findings of fact made against them.

    What else can the Court do?

    If an AVO is not currently in place, or it does not provide adequate protections, then section 68B of the Family Law Act empowers the Court to make an injunction protecting the child(ren) of a relationship and their family members.

    While an injunction pursuant to section 68B is an effective tool at the court’s disposal, there is currently a bill before Parliament which will allow for a nationally recognised order of the court, rather than an injunction.

    If passed, the Family Law Amendment (Federal Family Violence Orders) Bill will introduce a Family Violence Order which, according to the Hon. Daniel Thomas, will:

    “Establish federal family violence orders and provide for their criminal enforcement. This reinforces the government’s recognition of family violence as not a private matter but a criminal matter of public concern. Victims of family violence who have matters before the family courts will no longer need to separately go to a state or territory court to seek enforceable protection and will be able to apply for a federal family violence order”.

    As these orders would grant even more powers to the Court, they will allow for further protection and recognition to the victims of family and domestic violence. This increase of powers and options will have the correlating effect of increasing complexity in matters with any sort of protection order, especially in relation to parenting matters and any arguments about who may pose an unacceptable risk.

    If you or anyone you know are suffering from domestic or family violence, the following organisations which can provide help and support:

    • Rape & Domestic Violence Services Australia.

    • 1800Respect.

    • Domestic Violence Line (Ph 1800 656 463).

    • No to Violence.

    • Relationships Australia.

    • Women’s Legal Services NSW.

    • LawAccess NSW.

    • Legal Aid.

    We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 where we can arrange for a confidential discussion.

    What is Jurisdiction and Accrued Jurisdiction? 1024 673 Dorter

    What is Jurisdiction and Accrued Jurisdiction?

    It is becoming increasingly common for litigation to be initiated in multiple jurisdictions about the same subject matter and involving the same litigants.

    Accordingly, it is important for litigants to understand what is meant by: – 

    1. Jurisdiction; and 
    2. Accrued Jurisdiction. 

    What is Jurisdiction? 

    The term jurisdiction refers to the authority of a court to hear and determine specific types of cases.

    Some examples of court jurisdiction include: – 

    1. The Federal Circuit and Family Court of Australia can hear and make determinations of civil matters relating to family law issues in all States and Territories, except Western Australia; 
    2. The Federal Court of Australia has a broad jurisdiction and can hear and determine almost all civil matters and some criminal matters; and 
    3. The Supreme Court of New South Wales has unlimited civil jurisdiction and also hears serious criminal matters in the State of New South Wales. 

    The jurisdiction that is given to each court will usually depend on the purpose for which the court was established, and it is usually defined in the relevant legislation. 

    Jurisdiction is important because it limits the power of a court to hear certain types of cases. If the courts did not exercise appropriate jurisdiction, then every court could conceivably hear every case brought to them, which would ultimately lead to confusing and conflicting results for litigants. 

    What is Accrued Jurisdiction? 

    The concept of accrued jurisdiction has played an important function in broadening the court’s power and in preventing jurisdictional disputes.

    The term ‘accrued jurisdiction’ within the context of the Australian legal system, refers to the power held over state matters by federal courts. 

    Accrued jurisdiction will occur where multiple relevant cases are brought before the courts and the courts are competing for jurisdiction between them. 

    An Example 

    A de-facto couple separated in 2006 and finalised the division of their property in the Supreme Court of New South Wales. Prior to 1 March 2009 the Supreme Court of New South Wales held jurisdiction in relation to the property division of de facto relationships. 

    After the orders were made, the parties reconciled and continued their relationship for a number of years before finally separating again. 

    After this final separation, the de facto Wife initiated proceedings in the Family Court of Australia to set aside the Orders of the Supreme Court of New South Wales, as the Family Court of Australia now held jurisdiction to determine property disputes of de facto couples (which came into effect on 1 March 2009). 

    However, the de-facto Husband disputed that the Family Court of Australia held this jurisdiction. 

    At Hearing the central issue was whether or not the Family Court of Australia had accrued jurisdiction to determine whether the Orders made by the Supreme Court of New South should be set aside.  

    Ultimately it was found by the Full Court of the Family Court of Australia, that the Family Court of Australia does have accrued jurisdiction to vary or set aside the Supreme Court of New South Wales Orders made in 2006. 

    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.

    Rebekah Dorter

    Brittany Meehan

    Grandparents and Access to their Grandchildren 1024 576 Dorter

    Grandparents and Access to their Grandchildren

    The Federal Circuit and Family Court permits parents to apply to the Court for orders to enable them to ‘spend time’ with their children, when a parent is not facilitating time with the child.  Similarly, a grandparent or other person ‘concerned with the care, welfare or development of a child’ may apply to the Court to ‘spend time’ with their grandchild.

    Our legislation acknowledges that a child’s wellbeing does not only entail a ‘meaningful relationship’ with their parents, but also recognises the importance of a child having a relationship with their grandparents and other carers. This right exists whilst a child’s parents are in the process of separation or if the child’s parents’ relationship is ‘intact’.

    Our Court has made orders to facilitate children having contact for a myriad of reasons, including:

    • As a consequence of the parent’s separation;
    • As a consequence of a strained relationship with a parent(s);
    • A parent has died;
    • Concerns are held for a child’s safety;
    • The mental health of a parent has declined;
    • It is no longer safe for a parent to care for the child;
    • One or both parents suffer from alcohol or drug addiction problems;
    • There is violence in the child’s home.

    The Court priority remains the ‘best interest of a child’. In deciding what is in ‘the best interest of a child’, our legislation requires the Court to assess two (2) tiers of considerations, known as the primary considerations and the additional considerations. 

    The Primary considerations include:

    • The benefit to the child of having a meaningful relationship with both parents.
    • 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 is required to give greater weight to the consideration of the need to protect the child from harm.

    The Additional considerations include:

    • The child’s views (if age-appropriate) and factors that might affect those views, such as the children’s maturity and level of understanding.
    • The child’s relationship with each parent and other people, including grandparents and other relatives.
    • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
    • The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
    • The practical difficulty and expense of the child spending time with and communicating with a parent.
    • Each parent’s ability (and that of any other person) to provide for the child’s needs.
    • The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
    • The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
    • The attitude of each parent to the child and to the responsibilities of parenthood.
    • Any family violence involving the child or a member of the child’s family.
    • Any family violence order that applies to the child or a member of the child’s family, if: 
      • the order is a final order, or
      • the making of the order was contested by a person.
    • Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child.
    • Any other fact or circumstance that the Court thinks is relevant.

    Grandparents Rights

    The Court also considers that a way of ensuring the best interests of the child is to consider that the child has a “right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”   

    Grandparent’s therefore need to demonstrate to the Court that the reduced (or withheld) time between them and the child is detrimental to the child and results in a negative effect on their wellbeing.  

    The Court also considers the grandparent’s history of their relationship with the child, the nature of the breakdown, the child’s wishes (if age-appropriate), and the grandparent’s personal and financial circumstances. 

    In many instances the Court considers whether there is hostility between a grandparent and the parent/s, the physical and emotional needs of the grandchild and whether the grandparent is physically able to care for the child and ensure the child remains safe at all times. 

    The Court has demonstrated it will be cautious facilitating time between grandparents and a child/ren where there is acrimony between a parent and grandparent because of the effect it has on the child.

    What process do I take?

    If a grandparent wishes to commence proceedings, they apply to the Court after having complied with the pre-action procedures required by the Court, including attending Family Dispute Resolution (mediation). 

    They may also have a right to ‘join’ proceedings as an additional party, when proceedings are already ‘on foot’. 

    To obtain specialist advice about family law, children, separation and your legal rights, contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you. ‘ 

    The Family Court and Federal Circuit Court Merger 1024 683 Dorter

    The Family Court and Federal Circuit Court Merger

    The Federal Government has recently passed legislation to merge the Family Court of Australia (“FCOA”) and the Federal Circuit Court of Australia (“FCC”) to create the Federal Circuit and Family Court of Australia (“FCFCOA”).

    The new FCFCOA will officially commence operations on 1 September 2021.

    To facilitate these changes the Commonwealth Government has provided more than $100 million in new funding, which has enabled the Court to increase the number of highly skilled Registrars and Judges.

    The architecture of the merger begs the question; Will the FCFCOA be a smarter, quicker and more cost-effective way for litigants to separate without the expenses and stressors of protracted family law litigation?

    What is the aim of the merger?

    The FCFCOA aims to: –

    1. provide a single point of entry for family law matters;
    2. provide a quick and fair litigation process without undue delays;
    3. encourage parties to settle their disputes, where it is safe to do so, before proceedings are commenced;
    4. provide opportunities for parties to settle their dispute, where it is safe to do so, during the course of proceedings
    5. provide a more modern, collaborative and transparent system of justice;
    6. improve case management to reduce undue delays;
    7. provide a set of harmonized rules and forms;
    8. improve the court’s Child Dispute Services; and
    9. efficiently deal with Applications regarding breach of Orders and impose appropriate penalties or sanctions where the breach has been proved and the breaching party has failed to demonstrate a reasonable excuse.

    Pre-Action Dispute Resolution

    Parties will be required to participate in dispute resolution prior to filing property or parenting proceedings in the FCFCOA, in circumstances where it is safe to do so.

    In the event dispute resolution is unsuccessful, parties will be required to provide evidence of participation in the dispute resolution prior to filing in the court.

    Court Process

    Matters filed in the FCFCOA will follow a nationally consistent case process. This process will proceed in the following manner:-

    1. Step 1 – The first court event is to take place within 6 to 8 weeks from the date of filing.
    2. Step 2 – The matter will be listed for an Interim Hearing (if required).
    3. Step 3 – The matter will be referred to dispute resolution within 5 to 6 months from the date of filing.
    4. Step 4 – If parties are unable to settle the dispute, the matter will be listed for a Final Hearing within 12 months from the date of filing.
    5. Step 5 – The matter will come before the Court prior to the Final Hearing for a Compliance and Readiness Hearing and, if required, a Trial Management Hearing.

    The above process aims to resolve up to 90% of cases within 12 months from the date of filing.

    If you have any questions about the merger of the Family Court of Australia and Federal Circuit Court of Australia or would like to know how this may impact your family law dispute, please contact us on (02) 9929 8840.