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    Information About Family Law

    hammer_court_dollar_dollar_sign_fine_justice_judge_case_law
    With the rising cost of living becoming a common topic in many news and media outlets and a very real problem for many families in Australia, an increasingly asked question to family lawyers is “Can the other party help to pay my legal fees?” 1024 768 Dorter

    With the rising cost of living becoming a common topic in many news and media outlets and a very real problem for many families in Australia, an increasingly asked question to family lawyers is “Can the other party help to pay my legal fees?”

    Many families in Australia feature traditional roles with one party being the primary breadwinner and the other party being the primary homemaker and parent. If a couple decides to separate, payment of legal fees to help obtain a fair settlement can cause stress for the party who has sacrificed their career to stay at home and care for the children. This can be particularly problematic if the separation is acrimonious.

    Sometimes, parties are able to obtain loans from friends and family members for payment of legal fees, however for many, this is not the case.

    Generally the Family Law Act requires each party to bear their own costs in a family law matter, regardless of the outcome of the case.

    However, there is long standing authority in the Family Court that recognises the need for an “equal” or “level playing field”, particularly in cases where there is significant financial disparity between the parties.

    Section 117(2) of the Family Law Act allows the Court to make orders for the payment of legal costs in some circumstances.

    If the Court does make an order requiring one party to provide a payment to the other for legal fees, (often referred to as “litigation funding”) the Court can make different types of litigation funding orders for example, a lump sum payment, or a “dollar for dollar” order.

    A costs order can be made requiring one party to make a one-off lump sum payment to the other party, if there is sufficient liquid assets in the property pool. The quantum of that lump sum payment can depend on the complexity of the case.

    A “dollar for dollar” order is an order requiring each dollar that is paid to one party’s solicitor, to be paid to the other party’s solicitor. While this may not be ideal in all cases, this type of order can assist if there is a smaller property pool with little to no liquid assets, but the other party has a significant income.

    When considering whether to make a costs order in a family law matter, the Court must have regard to factors such as the financial circumstances of each party, whether either party is in receipt of legal aid, the conduct of the parties, whether proceedings have been commenced due to non-compliance with previous orders, whether written offers have been exchanged, whether one party has been wholly unsuccessful with their case or any other relevant matter. The notion of a “level playing field” is one which is fundamentally in the interests of justice and an important matter to consider when deciding whether it would be appropriate to make an order for the payment of legal costs.

    If parties own a property and do not want to commence proceedings to obtain litigation funding, another option is to obtain a loan for litigation funding. These finance providers look at the prospects of that party’s case and can provide a loan for payment of legal fees, which is usually secured by a caveat on the title of that property.

    If you would like assistance with securing funds to obtain a fair settlement after separation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Maeve Cooper
    Associate

    Rebekah Dorter
    Principal

    What is a de facto relationship? 1024 683 Dorter

    What is a de facto relationship?

    Whether a de facto relationship exists or existed can depend on what purpose the de facto status is being decided. 

    The criteria for a de facto relationship changes in various settings depending on whether the de facto status is being considered for the purpose of Family Law, Migration Law or Succession Law. For example, in the Federal Circuit and Family Court of Australia (“FCFCOA”), the Court applies the definition in the Family Law Act which appears in Section 4AA.

     A person is in a de facto relationship with another person if:

    1. the persons are not legally married to each other, but this does not prevent a person from being legally married to someone else; and
    2. the persons are not related by direct lines of family descent or by adoption; and
    3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

    The circumstances that may be considered by the Court include any or all of the following:

    1. the duration of the relationship;
    2. the nature and extent of the person’s common residence;
    3. whether a sexual relationship exists;
    4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
    5. the ownership, use and acquisition of their property;
    6. the degree of mutual commitment to a shared life;
    7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
    8. the care and support of children;
    9. the reputation and public aspects of the relationship.

    No particular finding in relation to any of the above circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship. A Court determining whether a de facto relationship exists has discretion to consider all the circumstances of the particular case.

    A de facto relationship can be between people of the same gender or different genders. A person can be married to one person, but in a de facto relationship with another person. A person can also be in more than one de facto relationship.

    Section 90SB of the Family Law Act applies to all de facto financial cases. The legislation requires that the relationship must have been of at least two years’ duration for proceedings to be brought. If the relationship is less than two years, then proceedings may only be instituted if: 

    1. there is a child of the relationship, or 
    2. the applicant made substantial contributions to property such that serious injustice would be caused if the proceedings were not permitted to proceed, or 
    3. the relationship is or was registered under a prescribed law of a state or territory.

    For the purpose of Succession Law in NSW, a person is not required to be in a relationship for 2 years to be considered de facto. Similarly, Migration Law in Australia does not have a prescribed minimum period to be considered de facto.

    In making an application for property settlement or spousal maintenance, family law legislation applies geographical limitations on applicants. It is required that either:

    1. both parties must be ordinarily resident in a participating jurisdiction (e.g. NSW) when the relationship breaks down, or
    2. either or both of them are ordinarily resident in such a jurisdiction at the date the application is made, and:
      1. the parties have been ordinarily resident in such a jurisdiction for at least one third of the relationship; or
      2. the applicant has made substantial contributions in the jurisdiction.

    In NSW, de facto relationships can be registered at any time subject to a 28-day cooling off period. Similarly, the end of a de facto relationship can be registered by either person in the relationship provided that they serve notice on the other party.

    To apply to register a relationship in NSW both partners must be:

    1. over 18 years of age;
    2. not married to each other or anyone else;
    3. not already in a registered relationship under this Act or in another state or territory in Australia;
    4. not in a relationship with another person; and
    5. not related by family.

    The requirements for registration can vary between the States and Territories.

    If you require advice in relation to de facto relationship law, for example, you are living with someone else and you are uncertain about your rights, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Christopher Palumbo 

    Partner 

     My partner and I have just separated and we are trying to remain amicable. What do we do now?  1024 914 Dorter

     My partner and I have just separated and we are trying to remain amicable. What do we do now? 

    Separation can be a very difficult time and it can be hard to know where to start when sorting arrangements for your children, division of property and finances. Often, parties try and remain amicable, especially when children are involved, although sometimes this is not possible. Attending counselling or family therapy can assist separating couples try to remain amicable while negotiating the steps which need to be taken to finalise their separation.

    If you have decided to separate and you and your partner are amicable, you may wish to:

    1. Consult with a specialist family lawyer and obtain advice in relation to your rights and entitlements following the breakdown of your relationship. 
    2. Attempt to reach agreement in relation to parenting and/or property matters with your former spouse directly. 
    3. If you cannot reach agreement, you should consider attending family dispute resolution or mediation. You can organise a private mediation or, in some circumstances, through a not-for-profit agency such as Relationships Australia. If you require assistance with negotiating, you should consider attending with a specialist family lawyer to negotiate on your behalf. If you can reach agreement, it is in your best interests to document the agreement you have reached with your former partner sooner rather than later. You can document the agreement you have reached by entering into the documents below: 
      1. Application for Consent Orders and Minute of Consent Order – These documents are filed with the Federal Circuit and Family Court of Australia and once approved by the Court they sever your financial ties with your former partner on a final basis. These documents must be filed to end your financial relationship with your former spouse. Entering into these documents seeks to ensure that your former partner does not file an application in the Federal Circuit and Family Court of Australia seeking a property settlement at a later date. It is not necessary for either party to obtain their own legal advice to prepare or enter into these documents, although it is strongly recommended. You can also include parenting Orders in this document. However, if you wish to remain flexible with your parenting agreement, then a Parenting Plan may be more suitable. Sometimes parties elect to enter into a Binding Financial Agreement instead of an Application for Consent Orders and Minute of Consent Order to document arrangements made in relation to property
      2. Deed of Release – this document seeks to provide that you and your former spouse will release each other from a future ‘family provision claim’ on each other’s estate and further, that you will not challenge the other’s Will. This document is not necessary to end your financial relationship with your former partner, but is often recommended to afford your estate greater protection when you pass away. If you wish to enter into a Deed of Release with your former partner, both parties are required to obtain legal advice from their own lawyer. 
      3. Binding Financial Agreement for NIL spousal maintenance – this document seeks to prevent a successful claim for spousal maintenance (also referred to as ‘alimony’ in the United States) against each other now or in the future. This document seeks that neither you, nor your former partner will be able to make an application to the Federal Circuit and Family Court of Australia requesting payment of spousal maintenance unless the Binding Financial Agreement has been first set aside. This document is not necessary to end your financial relationship with your former partner, but is often recommended if you are the spouse with the greater income. If you wish to enter into a Binding Financial Agreement, both parties are required to obtain legal advice from their own lawyer.
      4. Child Support Agreement – If you reach a private agreement with your former partner in relation to financial arrangements for your children that is separate or in addition to a child support assessment issued by Services Australia (Child Support), you should consider documenting this arrangement by way of a Child Support Agreement. A Child Support Agreement documents arrangements made for payment of expenses such as school fees, private health insurance, medical expenses or extra-curricular activities. There are two different types of child support agreements – a Limited Child Support Agreement and a Binding Child Support Agreement. If you wish to enter into a Binding Child Support Agreement, both parties are required to obtain legal advice from their own lawyer.

    Application for Divorce
    A property settlement is separate from an Application for Divorce and this can be filed once you have been separated from your partner for 12 months.

    You may make an Application for Divorce either jointly with your former partner or individually on your own behalf. Please note if you file a sole Application for Divorce:-

    1. You will be required to serve a hard copy of the application on the other party and then provide evidence to the Court that the other party has received the application.
    2. You will be required to pay 100% of the filing fee.
    3. You will be required to attend Court (electronically) and make submissions to satisfy the Registrar that proper arrangements have been made for the children.

    An Application for Divorce legally ends your marriage to your former spouse in Australia. It does not end your financial relationship with your former partner. This can only occur by entering into an Application for Consent Orders and Minute of Consent Order or a Binding Financial Agreement (in some circumstances). 

    If you or your former partner wish to commence Court proceedings for a property settlement or spousal maintenance, then the person wishing to apply must commence court proceedings within twelve (12) months of your divorce becoming final. In limited circumstances, permission can be obtained from the Court to start proceedings after the limitation period.

    If you would like assistance with the process after separation, mediation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Maeve Cooper
    Associate

    Rebekah Dorter 
    Principal

    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.

    divorce-mediation-sydney
    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

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    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:-

    Discovery

    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.

    Value

    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.

    Risk

    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.

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    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.