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Family Law

Families are all different. Your story, your situation, your needs are unique. We can help you. That’s what Streeterlaw Sydney Lawyers do — help people find answers.

Family Law Articles

Separation and where to start – 5 first steps towards untangling the financial relationship

13-August-2020By Simone Green

One of the most common statements Family Lawyers hear from their clients is “I’ve never done this before. I don’t even know where to start!” Breaking down tasks into small steps can help. Streeterlaw’s Accredited Specialist Family Lawyer Simone Green explains what you need to prepare, preferably prior to your first meeting with your family lawyer, for discussions about property settlement. Step 1: Make A List (Lists Are Your Friends!) Make a simple list of the ‘big ticket’ items, for example properties, bank accounts,...

Separation made Simpler – there’s a new App for that!

4-August-2020By Simone Green

On 30 June 2020, the Commonwealth Attorney-General, the Hon. Christian Porter announced the introduction of a new online government funded digital service for separated couples; designed to assist couples to organise their parenting and financial affairs amicably and cost effectively without going to Court. Developed by National Legal Aid at a cost of $3 million, ‘amica’ is a starting point for separating couples who feel they can communicate effectively to discuss and negotiate issues around separating finances and parenting...

Separated Parenting in the Pandemic – what the Covid-19 restrictions mean for family law

12-May-2020By Simone Green

Contact arrangements The severe and restrictive changes brought about by the Covid-19 pandemic have been difficult for all but especially hard for separated families. Provided that all family members are well however, the restrictions in New South Wales do not prevent children travelling between households as part of the usual parenting agreement or Court orders, so long as all other Government protocols for are adhered to. The situation is currently different however for those whose children reside interstate as some Australian States...

How to prepare for your first meeting with a Family Lawyer and the benefits of early advice

21-February-2020By Simone Green

When a relationship breaks down, emotions can be so overwhelming that planning the next step can become quite challenging. At Streeterlaw, we recognise that seeing a lawyer is a significant step for people in this process and unfortunately often delayed until well after problems arise. Getting early advice from a Family Law Specialist however is the best thing you can do to provide you with both a clear direction and importantly, confidence that the advice you receive is accurate, practical and helpful. When it comes to family law, don’t...

Child relocation after separation – the geographical threat undermining parent/child relationships

30-January-2020By Simone Green

Few things are more emotionally devastating than family separation. Maintaining a strong parental relationship with a child after separation is difficult, particularly for young children, when they live a significant distance away, inter-state or overseas. The Family Courts hear many Applications each year of parents seeking to move the children away against the wishes of the other parent, often to be closer to family support, re-marriage or employment opportunities. What does the law say about relocation? Family Lawyer and Accredited...

Nips & Tucks, Holidays and Facelifts – Financial Obligations Beyond Separation and Divorce

5-December-2019By Simone Green

While it seems extraordinary that an ex-partner should be obliged to provide for the cosmetic ‘needs’ and entertainment of their ex, this very scenario recently played out in a Family Court appeal against an interim order that the husband, Mr Garston pay spousal maintenance for his ex-husband Mr Yeo of $1,000 per week. Fascinatingly, the Court was responding to an Application that Mr Garston pay Mr Yeo a weekly sum of $2,500 for his expenses, including $550 per week for travel and $350 per week for skincare! The Full Court appeal...

When Christmas cheer turns to tears – 7 tips for separated families on surviving Christmas

18-November-2019By Simone Green

‘Tis the season to be jolly! Or is it? The Christmas period can be particularly challenging for separated families, especially if this is the first Christmas apart. It is also one of the busiest times for family lawyers as people rush to negotiate arrangements for the children over the holiday period. Streeterlaw Accredited Specialist in Family Law, Simone Green shares some tips on how to manage the chaos. 1. Plan Ahead Communication is the key. Have the conversation with the other parent as early as possible as to what you wish to happen...

Beware the Financial implications of De Facto Relationships

2-November-2019By Simone Green

The phrase de facto relationship is a term often used loosely in society to refer to a couple living together in a romantic relationship. The term ‘de facto’ however has a legal meaning, and with that come certain rights and obligations which may in fact never have been intended by the couple. When separation of a de facto relationship occurs, it is critical that you obtain advice from a family law expert on the financial implications for your relationship before it is too late; or even better, protect yourself and your assets before you...

5 common misconceptions about Family Law

18-October-2019By Simone Green

When ending a relationship, you will most likely receive ‘family law’ advice from many well-meaning but unqualified sources either based on their own personal experience, a friend of a friend, or the perilous depths of social media. Streeterlaw Accredited Specialist in Family Law, Simone Green warns of the dangers of placing your faith in such advice as there are many misconceptions and urban myths about who gets what in a property settlement. Every case is different and is heard on its own facts. Ensure you get advice from a family law...

Untying the knot – Divorce vs Annulment – What makes a valid marriage and how to end it

5-September-2019By Simone Green

Difference Between Annulment and Divorce Confusion abounds about the difference between obtaining a divorce and obtaining an annulment of marriage. The two are very different things legally; and different again from a religious annulment of marriage. Streeterlaw’s Accredited Specialist Family Lawyer explains the differences. A marriage may be legally annulled in Australia by making an Application for a Decree of Nullity in the Family Court of Australia. This effectively declares the marriage void, as though it never occurred. Whereas a...

Have you brought property into a relationship? Be aware that you may be required to share an increase in the property value with your partner!

29-August-2019By Simone Green

In the case of Jabour & Jabour [2019] FamCAFC78, the parties were married in 1991 and separated (on a final basis) in May 2015, making it a 24-year marriage. Before entering into the relationship, the husband had an interest in three blocks of land as he had acquired a half-interest in each of them from his father, when he was 12 years old. After the marriage, two of the blocks were sold, and from the proceeds, the husband bought the third block of land outright. It is important to note that the remaining net proceeds of the sale of the...

Should I stay or should they go? The battle for sole occupation of the family home

5-August-2019By Simone Green

Simone Green, Family Lawyer and Accredited Specialist regularly assists her clients in dealing with this common and often hotly contested issue of who should move out of the jointly owned home. This is especially emotive when children are involved, finances are tight and may not stretch comfortably, or even at all, across two households for the payment of rent and/or a mortgage. After all, few adults want to move back in with parents or ‘couch surf’ at the mercy of friends. So, what does the law say? Section 114 (1)(f) of the Family Law...

For better or for worse OR until hardship strikes and the pre-nup fails – How to get it right.

12-July-2019By Simone Green

Pre-nups are made in the good times, generally to file and forget, with a shared optimism for the future. The danger is, no-one can predict the future with 100% accuracy. Things happen; markets rise and fall, people lose jobs, get sick, have children or a host of other issues, the true impact of which, may not have been properly considered in happier times. While lawyers try their best to provide for the various ‘vicissitudes of life’ within the Agreement there are no hard and fast guarantees the Agreement will withstand later challenge...

How to Avoid the Pitfalls of Parental Alienation in Family Law

9-July-2019By Simone Green

Rejection of a once loved parent by a child following separation is devastating for both the rejected parent and child alike. In the most extreme cases, where the Family Courts determine the ‘favoured parent’ is responsible directly or indirectly for what has been termed ‘parental alienation’, the favoured parent may lose ‘custody’ and have greatly restricted time with the child. There is a wealth of literature and research on what has been referred to as “Parental Alienation” where a child becomes enmeshed with the...

Secret recordings – evidence or criminal offence?

5-July-2019By Simone Green

These days, just about everyone has a smart phone and therefore, instant access to record events as they unfold. As tempting as it may be to hit record to gain that evidence that will finally prove that ex-partner behaving badly; think again- you may just be breaking the law and it can have serious consequences! The Family Courts are inundated with cases alleging a great range of heinous behaviour towards ex-partners and children including family violence. It is often a slippery slope in how you get that evidence to be considered in a...

Why a financial agreement might become void without you knowing

11-June-2019By Simone Green

Both married and de facto couples can contract out of going to Court if their relationship breaks down by way of a private legal deed. These Agreements are sometimes referred to as Pre-Nuptial Agreements, Financial Agreements, or Binding Financial Agreements (‘BFA’). The Family Law Act 1975 (“the Act”) has separate provisions for married and de facto relationship Agreements and again for the different stages at which an Agreement can be made; but the effect is similar.   Financial Agreement in Family Law For married...

What does a divorce lawyer / family lawyer do?

7-June-2019By Simone Green

Family lawyers, commonly referred to as divorce lawyers, assist people in the process of family separation and/or divorce, financial, spouse maintenance, child support and parenting disputes both at Court and out of Court; but being an excellent family lawyer involves so much more. The best family lawyers do the following: Listen to the needs of their client and understand their issues; Focus on the outcomes important to the client; Help to create a plan; Generate options to achieve those outcomes; and Achieve an efficient...

Everything you need to know about Family Law

By Simone Green

Separation is a difficult, emotional and often vulnerable time when obtaining specialist family law advice is the most critical. Knowing your options and next steps are key to avoiding costly mistakes and parting ways as amicably as possible. Searching for a divorce lawyer can be overwhelming. Streeterlaw’s holistic, tailored approach to assisting clients and their families through separation and divorce can make all the difference to the outcome. Our family law experts and NSW Law Society Accredited Specialists will guide you through...

What is Family Law property settlement?

24-May-2019By Simone Green

The term ‘property settlement’ in a Family Law context means a financial agreement reached between a separated couple by mutual consent rather than a decision imposed by a Court or an arbitrator. Property settlement can occur at any time which is why you need to to arrange orders or a financial agreement as soon as possible. You do not need to wait 12 months after separation to finalise your financial interests. You can finalise your property settlement via: Consent Orders  This can be done by way of an Application for Consent...

What is a de facto relationship and what you need to know

By Simone Green

The term ‘de facto’ has the common meaning of “living together” in a marriage-like situation but has a stricter definition in Family Law legislation. Many myths surround the treatment of de facto relationships in Family Law. Here’s what you need to know. According to the Family Law Act 1975 (Cth) a de facto relationship is one that is characterised by the following features: The couple are not legally married to each other The couple are not related by family They have a relationship as a couple living together on a...

How a Balanced Mediation May Tip the Scales in your Favour…

13-May-2019By Simone Green

Mediation is an alternate dispute resolution process that offers a non-litigated pathway to resolving disputes. Mediation attempts to reach mutually beneficial outcomes for those involved in a dispute (‘the parties’). Mediation is generally voluntary and undertaken prior to court proceedings but a matter may be referred to mediation by a Judge prior to a final Court hearing. The decision to engage in Mediation, is often made to avoid the substantial costs and time-consuming nature of ongoing litigation. The main advantages of Mediation...

Investing with your partner: are equity and equality synonymous?

26-March-2019By Jamal Bakalian

Typically, when investing in property together, couples aim for equality in the equity of an investment. The financial reality is that equal contributions are often difficult to maintain. What impact does inequality in investment have on your equity? It’s a common love story with a modern twist: boy and girl meet, boy and girl fall in love, boy and girl enter into a Deed to buy an investment property together and live together in domestic bliss. That was the story of Ms Zhang and Mr Metcalf until they separated around a decade...

Child Support – Recent changes to the law regarding Binding Child Support Agreements

18-February-2019By Simone Green

Did you know that on the 1st of July 2018, significant changes were made to Family Assistance and Child Support legislation ? Importantly, these changes can act retrospectively for anyone with a Binding Child Support Agreement. How do the changes affect me? Some things stay the same… A Binding Child Support Agreement (‘Agreement’) remains a private, written legal document that allows separated parents to agree to their own arrangements for the amount and nature of child support payments. As the name suggests, it is binding...

Bankruptcy and Family Law – not as clear cut as you would imagine!

18-January-2019By Simone Green

Did you know that upon bankruptcy, the bankrupt person’s property becomes ‘vested’ in the trustee in bankruptcy which strips them of their legal claim to property including the right to commence or defend legal proceedings? So, what does that mean for separating couples where one party is or is about to become bankrupt? Streeterlaw’s Accredited Specialist in Family Law, Simone Green explains the intersection of Bankruptcy and Family Law and what can be done to protect both parties’ interests. Property according to the...

Christmas – Top tips and pitfalls for separated parents.

3-December-2018By Simone Green

Christmas is coming, and so too are some difficult times for separated families. It is the time of year when the pain of separation is felt most by each member of the family. There is a reason that the Christmas season and its aftermath is the busiest period of the year for family lawyers. There are some things you can do however to reduce the risk of something going wrong over the holiday period. See 5 top tips from Streeterlaw’s Accredited Specialist Family Lawyer, Simone Green. 1. Plan well ahead Where possible, have the...

Ding Dong – the Family Court is dead!

29-November-2018By Simone Green

Streeterlaw explains the biggest changes to Family Law in Australia since 1975. Radical family law reform sits in the form of two Bills currently before the Federal Parliament being: Federal Circuit and Family Court of Australia Bill 2018; and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. (‘the Reform Bills’) The Reform Bills are over 500 pages long (not light reading) and essentially propose the following changes: New name, same game - Despite the...

Collaborative Law – Stay out of Court and Save Money!

10-November-2018By Simone Green

There is a very fine line between love and hate and it comes as no surprise to those of us who work in Family Law that some people who once loved each other passionately now seek to destroy their former partner with an equal intensity. The good news is that it doesn’t have to be that way however. Ask a family lawyer if they would ever go to court themselves and you will hear a resounding ‘no way’! This is not because we family lawyers are in any way different to you or are somehow immune from the trials and tribulations of family...

How binding are Child Support Agreements?

10-May-2018By Simone Green

Binding Child Support Agreements (BCSAs) are an increasingly common method of formalising agreements for the payment of child support, often as part of a package of documents that finalise all the issues at separation, including property consent orders, spousal maintenance agreements and parenting orders. BCSAs allow for parents to enter their own private agreements for the payment of child support, which as the name suggests, are legally binding. Part of the attraction of a BCSA is that it can require a parent to pay over and above an...

Collaborative law – the hope for the future of Australian Family Law

5-March-2018By Simone Green

Collaborative Law is emerging as a very strong and successful alternative dispute resolution process which can ultimately save parties hundreds of thousands of dollars by keeping them out of Court. In September 2017 the Australian Law Reform Commission (‘ALRC’) received Terms of Reference to undertake the first in depth review of the Australian family law system since the Family Law Act commenced in 1976. With the changing composition of ‘family’, the enormous strain and delays and resulting significant costs currently experienced...

Children’s wishes in Family Court – High Court says wishes of child not only factor to consider despite their age

5-February-2018By Simone Green

When making decisions about where children should live (‘custody’) the Court needs to consider a number of factors in determining what is in the child’s best interest – not necessarily what is best for the parent/s or even what the child themselves wants to do. The Family Law Act 1975 (‘the Act’) sets out both primary and additional considerations when determining what is in the child’s best interest. The ‘primary considerations’ are the benefit to the child of having a meaningful relationship with both of the child’s...

Family Law Christmas Survival Guide – What to do and what to avoid as a separated family

18-December-2017By Simone Green

Christmas can be a very hard time of year for separated families and especially the children. When negotiating arrangements for who will see the Children over Christmas, Accredited Specialist in Family Law, Simone Green recommends you consider the following: The world will not end if the children do not see both parents on Christmas Day. It may be best to allow the children to spend Christmas Day with one parent and Boxing Day with the other, allowing the children to enjoy time with both sides of the family without feeling rushed. This is...

High Court intervenes in private Family Law Agreement

7-December-2017By Simone Green

Anyone considering making a Financial Agreement in circumstances where there is unequal bargaining power and a significant proposed imbalance in assets and income should obtain specialist Family Law advice before proceeding. The High Court recently considered the issue of unconscionable conduct and duress in relation to financial agreements. The facts of Thorne v Kennedy [2017] HCA 49 (8 Nov 2017) involved two financial agreements, one being a ‘pre-nup’ made very close to the date of the marriage; and the second one made during the...

An inheritance after separation can be added to asset pool

28-November-2017By Simone Green

When couples separate, they frequently need to attend Court to have the division of their assets decided by a judge. Since it can take a long time to progress through the Courts to a hearing, it is common for the asset pool’s value to change considerably. People often acquire further assets, increase or decrease the value of their assets and liabilities, increase their superannuation and even receive inheritances in the period between separation and the date of hearing. Since the assessment of the asset pool takes place at the date of the...

Defaulting on property orders can be disastrous

13-November-2017By Simone Green

Case study: Blackwell & Scott [2017] FamCAFC 77 (28 April 2017) Family Law orders frequently involve a cash payment from one party to the other when a jointly owned property is to be retained by one person as part of a property adjustment. However, if the property’s value increases after the orders are made, is there any grounds for an appeal or are you stuck with feeling ‘ripped off’? In the case of Blackwell & Scott [2017] FamCAFC 77 (28 April 2017) the parties obtained consent orders for an equal division of their...

Recording a private conversation for evidence can be risky

19-October-2017By Simone Green

A recent case in the Federal Circuit Court of Australia, Jasper and Corrigan (no.2) [2017] FCCA1467, was disputing the nature of a de facto relationship. The applicant, a 33-year-old woman, at the very last minute, presented evidence in the form of private recordings between herself and the respondent, a 77-year-old man. The Court had to decide whether the recordings that the applicant had secretly obtained could be admissible in Court. Between them, the couple had a three-year-old daughter. The applicant claimed that they were in a de...

Divorce – what you need to know

26-September-2017By Simone Green

There are many misconceptions surrounding just what divorce is and the process of obtaining one. In fact, the process of obtaining a Divorce is the most straightforward process involved in the broader Family Law context. The Courts have attempted to make the process as accessible as possible for the average person to deal with their own divorce, however legal representation is advised if your matter is more complicated. Streeterlaw’s Accredited Specialist in Family Law Simone Green explains what you need to know about the process of...

How to avoid delays in the Family Court system

31-August-2017By Simone Green

The Federal Circuit Court, which incorporates Family Law cases, continues to experience extreme delays. Financial matters filed today in the Sydney Registry are unlikely to receive a final outcome until 2019 or later. It is virtually impossible to have your matter heard by a judge on an urgent interim basis, except for the most desperate parenting or financial matters. Even parenting cases are experiencing significant delays, with a nine-month wait for a Family Report from the Court’s counselling services. A Family Report is generally...

Key considerations when a Court decides to divide a couple’s assets

27-August-2017By Simone Green

The division of a couple’s assets by the Family Court is not simply a case of making a mathematical assessment of their relative financial contributions. The Court’s objective is to try and deliver an outcome that is just and equitable to both parties, so this is not necessarily a 50 per cent split. While each case is decided on its own circumstances, there is a common approach applied by the Court in working out who gets what. The Court’s approach is broken down into the following steps: Defining the “property pool” The...

How to ensure your Financial Orders are effective

25-August-2017By Simone Green

The focus of most Family Law matters is on getting a legal agreement (Financial Orders) in place regarding how property is to be divided by the separating couple. The execution of those orders is often forgotten in the process, so it is important that those involved take some initial key steps to ensure the orders are smoothly implemented. First steps in the implementation of your Financial Orders If your orders require the transfer of a property from one party to another, this will generally require the parties to sign a “transfer”...

How to resolve your dispute out of court

19-August-2017By Simone Green

One thing most Family Lawyers can agree on is that the Court system is broken. The Family Courts are struggling under the burden of funding cuts, fewer judges, and increases in the number of cases coming before them resulting in overcrowded lists and extreme delays in obtaining hearing dates. Streeterlaw’s Family Law Accredited Specialist Simone Green said: “While going to Court is unavoidable in some cases due to issues of conflict, family violence, or other complex financial arrangements, a vast majority of cases before the Courts do...

How to escape family violence – the first legal steps to take

2-July-2017By Simone Green

Violence within relationships continues to be a significant cause of homelessness, particularly for women and children. The Family Law Act expanded its definition of family violence in 2011 to include psychological violence such as repeated derogatory taunts, intentional destruction of property, unreasonably denying financial autonomy and/or financial support to meet reasonable living expenses and restriction of liberty. This is in addition to physical assault. It can be very difficult for a victim of family violence to obtain legal...

Who gets the family pet when couples separate?

23-June-2017By Simone Green

One of the questions we are often asked in a family law context, is “What will happen to our pets?” From a family’s point of view, a pet is often considered part of the family. The legal principle, however, with respect to pets, is that a pet (any animals, including companion animals) remain classified as the personal property of their owner (otherwise referred to as a chattel). In a recent Federal Circuit Court of Australia matter, known as Downey & Beale [2017] ACCA 316, the Court had to consider this very issue. The parties had...

The dangers of delaying property settlement

20-June-2017By Simone Green

De facto couples have two years from the date of their separation to bring an application to the Court for property adjustment, or otherwise formally settle their property by way of a Binding Financial Agreement or a Consent Order. Married couples have just one year from the date of divorce to similarly formally settle their property interests or make an application to the Family Courts. Not all married couples choose to divorce following separation. However, problems can arise if no formal legal arrangements have been made regarding jointly...

Funding for new, faster hearings announced in 2017-18 Budget

11-May-2017By Mark Streeter

Attorney General George Brandis has announced an investment of $12.7 million to establish Parenting Management Hearings (PMH) in the Family Court and Federal Circuit Court in the 2017-18 Federal Budget. The hearings are designed to be “fast, informal and less adversarial for resolving non-complex family law disputes between self-represented parties”. In NSW, these hearings will initially take place at the Parramatta Registry. Moving many non-complex matters to these PMH should not only relieve the wait-times of families seeking to...

How to support someone going through separation or divorce

30-March-2017By Simone Green

Family separation and divorce are painful and emotional times for all concerned. The parties are often under a great deal of pressure and distress and the support of family and friends is vital. A friend or family member may assist or support in the following ways: Offer to attend meetings with the person and their solicitor (a) It can be a great comfort to your friend or family member to have someone to provide emotional support and listen in to the legal advice provided. (b) Often in emotional situations, the client can have...

How is property divided at the end of a de facto relationship?

11-March-2017By Simone Green

While de facto relationships are like marriage; and the law treats them in a similar way concerning parenting and property distribution, the intention behind entering into a de facto relationship is widely variable, and this impacts the treatment of a division of assets in the Family Court. For some, living together is a convenient way to trial compatibility before making any longer term commitment, believing that if it goes wrong it is simpler to go their own way and cut ties. For others, commitment may never exist in any real way but the...

Child support – everything you need to know

By Simone Green

Everything you need to know about how to apply, challenge or opt out of a Child Support Assessment Child support is a particularly sensitive topic for parents involved in the process, as few people are satisfied with the level of support they either pay or receive for their children following separation. Streeterlaw Accredited Specialist in Family Law, Simone Green explains the process and how to apply, challenge or opt out of a Child Support Agreement. Child support can be determined in two ways: An assessment via the Department...

Does a short relationship make any difference in a property settlement decision?

10-March-2017By Simone Green

Generally speaking, Family Law considers a relationship as ‘short’ if lasts less than five years. As with every property matter, however, the distribution of assets, superannuation and liabilities depends on the individual circumstances of the case and the level of financial and non-financial contribution to the asset pool by each party. Streeterlaw’s Simone Green, an Accredited Specialist in Family Law, said: “In circumstances where one party has brought in significantly more assets, it is more likely in a short marriage or...

Collaborative law process – how does it work?

4-February-2017By Simone Green

Collaborative Law is different way of practising Family Law that focuses on the needs of the entire family rather than on the individuals. Family breakdown is not purely a legal issue; rather it is an emotional journey which may require assistance from a variety of non-legal professionals. As such,  the Collaborative Law practice is a more holistic, less adversarial and less expensive option to settle disputes than going to Court, as the parties, their solicitors and third parties such as accountants, financial planners, psychologists, child...

Social media tips for separating parents

29-January-2017By Simone Green

By Simone Green The widespread use of social media has presented new opportunities and challenges for people experiencing family separation and/or parenting disputes, and can frequently change the nature of evidence in the family courts. Family Law Accredited Specialist Simone Green shares some of the positives and negatives of social media in Family Law cases. Beneficial use of social media in Family Law One of the benefits of the widespread use of social media is that the courts can serve documents via Facebook or similar social media...

Risks associated with challenging a Binding Financial Agreement

29-November-2016By Simone Green

Section 90K(1) of The Family Law Act 1975 (“The Act”) provides for a number of grounds upon which the Family Court of Australia can set aside (alter or remove) a Financial Agreement, including the power to set aside an agreement that is “void, voidable or unenforceable”. Quite often, separated couples who have entered into a Binding Financial Agreement will seek advice as to whether or not their Agreement could be set aside. One matter, which is generally overlooked by a party seeking to apply to set aside a Financial Agreement,...

Top 5 tips for surviving Christmas as a separated family

By Simone Green

Streeterlaw's Principal Solicitor in Family Law, Simone Green, has come up with the following five tips to avoid some of the anxiety attached to family Christmas celebrations when you are separated from your former spouse: 1. Negotiate early and communicate In the event that you do not have a current parenting plan or parenting orders, of if you need to make changes to the existing plan, begin the conversation with the other parent as early as possible to avoid the stress of last-minute pressure. Government funded mediation services are...

Five tips to reduce the pain of parenting disputes

By Simone Green

Streeterlaw’s Solicitor in Family Law, Ms Simone Green, has a wealth of experience to share with clients. Here she provides five insights about the Family Law process that can help couples take steps to avoid as much financial and emotional pain as possible in resolving parenting disputes. 1. The Courts cannot solve your problems The best outcomes are those that you can work out together through a collaborative process for the benefit of the entire family. A judge does not know you or your family. Court applications should be the...

Celebrating 40 years of family law reforms

26-November-2016By Simone Green

Last month, family lawyers from around the country, including Streeterlaw’s Simone Green, celebrated the 40th anniversary of the Family Law Act at the Biennial National Family Law Conference in Melbourne. The Family Law Act 1975 was a major social reform allowing a no-fault and accessible system of obtaining a divorce. From this time on, families were no longer put through the indignity of having evidence presented in court to prove one of the 14 grounds for divorce, which included adultery, habitual drunkenness and being of ‘unsound...

How alienated parents can take steps to reconnect with their children

22-July-2016By Simone Green

Separation is a difficult and confusing time for children of any age. A child commonly adopts some of the emotions felt by one parent towards the other parent, thereby impacting the relationship between the and the separating parent. This is particularly true if the child feels an obligation to align with the parent with whom they are living. So what can be done to repair the relationship between the separated parent and a child and what is the Court’s approach? The difficulty is that by the time some of these cases come before the...

How is Superannuation dealt with in Family Law?

By Simone Green

Superannuation is a type of ‘property’ which can be divided or ‘split’ between couples (married or de facto) when they separate. When a couple separates and divides their assets, the Court considers all the contributions of each person to the pool of assets, including superannuation. Judges have a lot of discretion in how to divide a couple’s superannuation beyond mere monetary contributions where they feel it necessary to achieve a just and equitable outcome. Superannuation can either be considered alongside the other assets...

At what age can a child decide who they want to live with?

17-June-2016By Simone Green

At Streeterlaw, we are often asked ‘at what age can a child decide where they want to live?’ Unfortunately, there is no simple answer to that question. When there is a dispute about where or with whom a child will primarily live, the child’s wishes are just one of a number of factors a Court must consider when making a decision. Technically, a Court has the power to make orders for any child under the age of 18 years. Generally, although not always, a Court will not make orders against the strongly held views of a child if that child...

How the ‘justice and equity principle’ is applied to the division of assets in the Family Courts

30-March-2016By Simone Green

When the Family Court is asked to decide how property should be divided, the first thing it will consider is whether it is “just and equitable” to do so. In the great majority of cases, the Court has no hesitation in finding that it is just and equitable to alter the property interests of the parties. However, it is not an absolute certainty that an order splitting property will be made, even in very long relationships. Such was the case in the recent matter of Chancellor & McCoy [2016] FCCA 53 (25 January 2016). The case involved a...

Top tips to protect your assets in a de facto relationship

By Simone Green

De Facto Relationship Meaning Couples who decide to move in together and share in one another’s lives need to understand the potential legal ramifications of such a decision. The relationship could now be defined as “de facto" and as such, may incur financial obligations for both parties should they separate in the future.   Protecting Your Assets in a De Facto Relationship To protect your assets while in a de facto relationship, it is wise for couples to consider doing the following: Draw up a Financial Agreement regarding...

Streeterlaw offers Collaborative Law process to clients

By Simone Green

Streeterlaw is pleased to announce an exciting new development within the Family Law team. In keeping with our firm’s motto of “excellence with integrity” and our focus on the needs of the client, we can now offer our clients the option to settle their matter through the Collaborative Law process. This allows our clients to maintain their dignity without the expense and delays of the Family Courts. Collaborative law is a method of Alternative Dispute Resolution and involves a commitment by each of the parties to avoid...

Obligations to a spouse can overturn a property transaction

17-February-2016By Simone Green

The issue of estate planning and Family Law are closely connected and it is imperative that people receive advice regarding their rights and obligations to their spouses before writing out their will (entering into succession planning arrangements). There is a risk that certain transactions may be overturned in court if it can be proved they were designed to defeat an existing or anticipated order in Family Law proceedings. Case Study: Tabussi (As Executor of the Estate of the late Mr Tabussi Senior (Deceased) & Ors [2015] FCWA 108 (8...

Family courts in crisis

12-February-2016By Simone Green

Backlog of cases in under-resourced Family Courts Massive delays are now being experienced in the Family Court System as retiring judges in the Family Courts and Federal Circuit Courts are not being replaced. Currently the Wollongong Registry of the Family Court has no sitting Family Court judge, meaning that those cases must be heard in the Parramatta, Sydney or Canberra registries. The one sitting Federal Circuit Court judge in the Wollongong Registry may be moved to the Sydney registry unless further judges are appointed, as the load is...

What’s the difference between getting divorced and the process of dividing a couple’s assets?

10-February-2016By Simone Green

People often confuse the process of divorce (the termination of the marriage) with the process of separating and adjusting a couple’s property interests. The two issues are completely separate. It is not necessary to wait until you are divorced to enter into property settlement negotiations, nor do they need to happen at the same time. You can have a property settlement, or file an application in court where there is no agreement on the division of property, any time following the separation. In fact, it is best to enter...

Timing is crucial when filing for property orders

13-January-2016By Simone Green

Couples who separate need to understand the importance of properly documenting their property settlement. This can be done with a consent order or Financial Agreement. It is essential that separated parties carefully note the following ‘critical dates’: The date that is 24 months following separation for de facto relationships; The date that is 12 months following a divorce for married relationships. Streeterlaw’s Simone Green, a specialist in Family Law, said the above dates are critical in determining how any assets are...

How to decide who gets to spend time with the children at Christmas?

30-November-2015By Simone Green

The stress of separation can be made even more apparent around holidays such as Christmas when special arrangements are required for each parent’s time with the children. Consequently it is also a very busy time for family lawyers! It is natural that both parents want to share time with their children on Christmas Day and/or Christmas Eve and this is a common area of significant dispute among parents negotiating a parenting plan or parenting orders for their children. There is no set rule for who should have the children at...

Steps needed to secure passports and travel overseas with children of separated parents

By Simone Green

Overseas travel with children is often a contentious issue among separated parents and is a common application in the Family Courts. An application for a child’s passport must be made to the Minister responsible for Citizenship, under section 11 of the Australian Passports Act 2005. The application requires the signatures of both parents, except in circumstances where parental responsibility has been removed by way of a court order. The problem emerges when one parent refuses to sign the application. Parents may withhold their...

Incidence of domestic violence rising

28-November-2015By Mark Streeter

With more than one woman dying every week in Australia this year as a result of domestic violence, the Federal Government recently pledged more than $100 million to create awareness, educate support staff and even provide for “duty solicitors” at selected hospitals to provide legal advice to female victims of domestic violence. Streeterlaw reports on the emerging trends in Apprehended Domestic Violence Orders (ADVOs) and shares some important survival tips for victims of emotional and/or physical abuse. What is an ADVO? An ADVO is a...

Bankruptcy and its impact on separating couples

27-November-2015By Simone Green

Since 2005, the Family Courts have had the power to alter the property interests of bankrupt and non-bankrupt spouses. Some interesting points of law that have become clear in recent years include the fact that: The Family Courts can alter property interests even when property has already been handed over to the trustee in bankruptcy. The Family Courts may even make orders for spousal maintenance against the trustee in bankruptcy for the benefit of the non-bankrupt spouse. In some circumstances, it is now possible for the...

Family violence and its impact on children

24-November-2015By Simone Green

The effects of family violence on children are far-reaching. Family violence is more than physical violence and includes coercive and controlling violent behaviour. If you are in an abusive relationship, it is essential that you leave and get help for your children’s sake, as well as your own. The Family Courts take the issue of family violence very seriously and have a number of systems in place to protect vulnerable parties who have experienced or fear violence. If you need court orders to regulate your children’s time with...

How the Family Court decides which school your child will attend

23-November-2015By Simone Green

Education and the choice of school can often become a topic of bitter contention between separated parents. Disputes typically are over a public versus private school, a religious versus non-religious school or even the choice of public school based on data obtained from the highest Higher School Certificate rankings. Naturally, the Court does not have a preference for any particular type of school. Its decision will always depend upon the evidence and what the court considers is in the best interest of the child in all of the...

Prenuptial Agreements

27-October-2015By Simone Green

Prenuptials and Agreements for Property and Maintenance Planning to marry or move in? Separating and have joint property? Changes in your marital situations often require new financial arrangements. Prenuptial agreements, often called a prenup, are an increasingly common method to clarify a couple's intention in regard to their property and finances. While the media often focuses on the prenuptial agreement of a celebrity, they are now more accepted as a practical and legally binding way of recognising the different roles played by...

The importance of fully disclosing your finances in a property settlement

25-September-2015By Simone Green

The first step in negotiating a property settlement between a separating couple is for them to accurately identify all their assets and liabilities. This is often referred to as the ‘property pool’. All assets and liabilities should be placed into a balance sheet no matter how big or small; and at the current value so a net value can be easily identified. In order to create a balance sheet, however, the parties need to exchange what is known as ‘full and frank financial disclosure’. Streeterlaw Accredited Specialist in Family...

Same sex de facto couples have same legal rights as married couples in the Family Courts

24-September-2015By Simone Green

With much public debate recently emerging on the issue of same sex marriage and marriage equality, it is worth looking at the existing rights of same sex couples when it comes to the Australian family law system. The Australian Constitution (in Section 51 [xxi]) gives the Commonwealth Government exclusive power to make laws in respect to marriage. State and Territory governments do not have this power. This was made very clear by the High Court in The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55, which ruled...

Benefits and pitfalls of entering into a parenting plan

23-September-2015By Simone Green

There are two ways to record the parenting agreement between separated parents. The first is a parenting plan; the second is a consent order. What is a parenting plan? This is a document that records an informal agreement between parents about matters concerning their children. It must be in writing, signed by both parents and dated. Parenting plans can deal with one of more of the following issues: Where a child will live; The time the child will spend with each parent or any other relevant person; Allocation of parental...

Tips on reaching a settlement (without litigation)

18-July-2015By Simone Green

While the Family Court and the Federal Circuit Court (the Family Courts) have the job of ruling on disputes concerning property and children, they should be viewed only as a last resort for the vast majority of separating couples. One Federal Circuit judge frequently advises the people appearing before him that “the Family Courts don’t do happiness”. In the end, in this jurisdiction there are no clear winners. Streeterlaw’s Simone Green, an Accredited Specialist in Family Law, said with the right advice and assistance, it is...

How is an inheritance treated in a property settlement case?

25-May-2015By Simone Green

The division of property at the end of a relationship is often emotional but when some of that property is from one party’s inheritance, it can become particularly contentious. The law applying to the division of inherited property is not clear cut. Some will argue it should be treated differently or excluded from the division of assets altogether. But unfortunately the law cannot simply exclude an inherited property from the asset pool available for division. The main factors a court will consider are: the length of the...

When is a child support agreement binding?

By Simone Green

Binding Child Support Agreements are becoming a more popular option as separating parents seek to make arrangements for the financial support of their children outside of any assessment from the Child Support Agency (CSA). The idea of these agreements is to stop any interference by the CSA once they are signed, other than on rare occasions when the collection of money needs enforcement. There are great benefits to these agreements when there are no significant changes to care arrangements, but what happens if there are significant changes...

Top 10 tips to reduce your legal costs

By Simone Green

Engaging a lawyer to help you with your family law matter is a big step and depending on the circumstances, can be very expensive. There are many things that you can do, however, to minimise your costs along the way. Below is a list of things that you can do prior to your first meeting with your solicitor to significantly reduce the time and legal costs associated with your case: Prepare your financial records and bring along a balance sheet of your assets and liabilities., with recent bank, loan and credit card statements for...

Relocation of children in parenting disputes still comes down to what is in the child’s best interest

22-March-2015By Simone Green

When parenting disputes come before the Federal Circuit Court of Australia or the Family Court of Australia, parents are usually seeking to determine the amount of time children are to spend with each parent, how the children are to communicate with their parents (eg. by telephone, email, Skype) and where the children are primarily to live. One of the more complex issues that can arise in parenting disputes is when one party, usually the primary carer for the children, wishes to “relocate” the children’s residence to a new, more...

How can I change my property settlement orders?

By Simone Green

While property settlements for married and de facto couples are intended to be final, there are occasions when they can be changed or set aside by the court. Property settlements for married and de facto couples are governed by section 79 of the Family Law Act 1975 (Cth) (FLA). Section 81 of the Act states: “the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”. However, Section 79A of the FLA...

Breaching parenting orders can be costly

21-March-2015By Simone Green

How do I file a contravention application? Before commencing proceedings in court for parenting orders, each party is required to make a genuine attempt to resolve the matter by Family Dispute Resolution (FDR). Once a party has attended FDR, they would usually be issued with a certificate. This certificate needs to be filed with the court documents as evidence of attending FDR. In special circumstances, where there has been child abuse, family violence or there is urgency, FDR may not be required. In these circumstances, the party must...

Interim relocation of children can be key to success in final relocation

4-March-2015By Simone Green

One of the more complex issues that can arise in parenting disputes is when one party wishes to “relocate” the children’s residence to a new, more distant location. In most cases, this means the non-resident parent may feel disadvantaged by not being in close proximity to their children. In these circumstances, the court is faced with making a decision as to whether to allow the parent and his/her children to relocate. One of the key considerations in relocation cases is what happens in the interim. And commonly, what is acceptable in...

Children’s education fund accessed for ex-wife’s self-support

19-February-2015By Simone Green

When a couple separates, the financial resources that used to be available for the benefit of both parties now need to be stretched to provide for separate living expenses. The issue of spousal maintenance comes into play when one party is in a weaker financial position through unemployment or caring for children. In these circumstances, it is common that the court makes extra provisions for the personal maintenance of that spouse. In many cases, a pool of money may have been set aside for the couple’s children, but now it is evident...

Posting sexually explicit images on social media can be costly

By Mark Streeter

A man who posted sexually explicit images and videos of his ex-girlfriend on Facebook has been forced to pay her almost $50,000 for the distress and embarrassment caused. The case, heard in the ‘Supreme Court of Western Australia in December 2014, is a major ruling in privacy law and the first of its kind in more than six years where compensation has been awarded for a breach of confidence that lead to emotional distress. Ms Caroline Wilson ended her relationship with former work colleague Mr Neil Ferguson soon after allegedly...

Husband excluded from wife’s lottery windfall

By Simone Green

When Mr and Mrs Eufrosin went to court to have the division of their assets finalised, the judge did not look favourably upon the husband’s claim to a portion of his wife’s $6 million in lottery winnings. Facts of Eufrosin and Eufrosin [2014] FAMCAFC 191 * Full Court Family Court Appeal case Mr Eufrosin and Mrs Eufrosin had been married for 20 years and had two adult children at the date of the hearing. Following their separation in 2009, Mrs Eufrosin purchased lottery tickets, funded by various sources, including amounts of around $20...

Court can adjust property allocations in favour of victims of family violence

18-February-2015By Simone Green

The violent history of a husband towards his ex-wife can be relevant in deciding the value of the wife’s contributions in property proceedings cases. While evidence of violence in a relationship does not always influence the outcome of these cases, there are some circumstances where it has certainly been considered by the court to be relevant. Facts of Friar & Friar and Anor [2014] FAMCA 689 The Applicant (the wife) and the Respondent (the husband) were in a relationship for 35 years, spending the initial 12 years as a de facto...

How can victims of family violence avoid confrontation in court proceedings?

By Simone Green

Going to court can be a very intimidating experience for all involved but particularly in Family Law proceedings where there is a history of family violence. The perceived imbalance of power between parties due to either past or present domestic violence creates unique problems in this area of litigation. Family violence has a wide definition in the Family Law Act 1975 (s4AB). For example, it includes violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family...

Definition of ‘living together’ can also include couples mostly living apart!

6-December-2014By Simone Green

A recent case in the Family Court of Australia has determined the need for a de facto couple to clearly communicate with one another when their relationship ends. Cadman & Hallett [2014] FamCAFC 142 (11 August 2014) involved a gay couple who began a relationship in 1991 and for the next 19 years, had a close relationship, albeit not exclusive and not always living under the same roof. The issue to be determined by the trial judge, and then the Full Court on appeal was at what point the relationship ended, as the two parties...

ATO permitted to use Family Court documents for tax audit

5-December-2014By Simone Green

Usually, documents filed in the Family Court cannot be viewed or used for purposes other than the proceedings before the Court, without express permission by the Court. There exists an ‘implied obligation’ not to make use of these documents for any other purpose. This rule was articulated by the High Court decision of Hearne v Street in 2008. Just last month, the case of Commissioner of Taxation & Darling and Anor [2014], in the Full Court of the Family Court on appeal, resulted in the Commissioner of Taxation successfully...

What is the definition of ‘shared parental responsibilities’?

28-November-2014By Simone Green

A common misconception for parties in family law disputes is the difference between an order for equal shared parental responsibility and an order for equal time with the children. The two orders, while separate, are not mutually exclusive. Parental responsibility is given naturally to any parent of a child. It can only be taken away by a subsequent court order. Parental responsibility in relation to a child is defined by the Family Law Act 1975 (‘the Act’) as: all the duties, powers, responsibilities and authority...

Trust capital can be accessed for spousal maintenance

22-August-2014By Simone Green

A recent judgment in spousal maintenance proceedings in the Family Court, in which trust capital was accessed to meet the husband's obligations to pay spousal maintenance, reaffirms that the powers of the Family Court are far reaching. Spousal maintenance is a sum of money paid periodically or in a lump sum by one spouse to another for living expenses. It is different from child support payments, which are designed to help cover the living expenses of children. The Family Law Act allows a spouse to make an application for their own...

Danger in delaying financial settlement

19-August-2014By Simone Green

While there is no legal requirement to finalise a property settlement with your former partner or spouse immediately upon the breakdown of that relationship, there are many benefits in not waiting too long to do so. Divorcing couples must finalise a property settlement within 12 months of the date of divorce. Following the 12-month deadline, a property settlement application cannot be made to the courts without a separate threshold application (for being late). This is a costly exercise with no guarantee of success, however, if successful,...

Family property dispute signals need for living arrangements to be in writing

14-August-2014By Mark Streeter

A case involving a farmer and his daughter and son-in-law (Milling v Hardie [26 May 2014] NSWCA 163) is a reminder of the need to put property living arrangements, even between family members, in writing. Mr Milling is a farmer who lives in one of several rural properties he owns in central west NSW. In 1992, Mr Milling invited his daughter Mrs Hardie and her husband to move into a homestead on one of the nearby properties. Over the following years, the Hardies carried out various improvements to the homestead and its grounds. They...

Marriage financial agreements need to be finalised well ahead of wedding

15-June-2014By Simone Green

If you are getting married and are looking to enter into a Section 90B Financial Agreement, make sure you finalise and sign the agreement well before the wedding date otherwise you could face the risk of it being set aside (disregarded) by the Court. In the case of Parkes & Parkes (24 January 2014), the Court set aside the Section 90B agreement that had been signed two days before the wedding on the basis that the husband exercised duress, undue influence and unconscionable conduct. Details of the Parkes & Parkes case The...

Elderly a target for financial abuse

12-May-2014By Simone Green

A recent study has revealed that more than half of the calls made to the NSW Government’s Elder Abuse Helpline related to financial abuse. Many elderly people reportedly put up with or give into their children’s financial demands because they do not want to ‘rock the boat’. They often tolerate this bullying behaviour due to the fear they will damage or lose contact with their family members. But there are also instances of partnerships or marriages where an elderly man or woman is deceived by a younger partner whose motivation to...

Definition of a de facto relationship

10-May-2014By Simone Green

The Family Law Act has devised a threshold that a couple must satisfy before they can be defined as de facto in the eyes of the law. While it relies on each couple’s circumstances, the following factors must be taken into account: the duration of the relationship; the nature and extent of their common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence, and any arrangements for financial support, between them; the ownership, use and acquisition of their property; the...

Strict definition of separation for divorce to take place

2-April-2014By Simone Green

Did you know that provided a couple meets all the criteria, divorces are quite easy to obtain in Australia? Unlike the United States, you do not have to prove that one party was at fault. However, you do have to ensure that you and your partner have been separated for at least 12 months. How is separation defined? Three elements are required to demonstrate that separation has occurred and the marital relationship has broken down: The Intention of one or both of the parties to sever or not to resume the marital relationship; The...

Pets’ rights ignored in Family Law Act

24-March-2014By Simone Green

When couples separate, family lawyers are often called upon to negotiate the division of assets and to assist in formalising arrangements for the care of dependent children. However, we have observed a growing trend in clients requesting orders or agreements in relation to family pets, commonly called their “fur babies”. These legal requests are usually to create an agreement regarding the pets’ division of time between households. As people often treat their pets as members of their family, decisions concerning who becomes the...

Trusts can be included in property settlements

20-March-2014By Simone Green

Are you going through a property settlement with your former partner? If you or your partner has a Testamentary Trust, you may be keen to know how the Family Court will treat your interests in this kind of trust. (A Testamentary Trust is one that is created under a will, which gives trustees greater control over the distribution of assets to beneficiaries). While the tendency of the Court is to view a Testamentary Trust as a financial resource, the Court can consider a Testamentary Trust to be part of the couple’s combined assets, as...

Under what circumstances is family dispute resolution not required?

17-March-2014By Simone Green

(How to gain an exemption from a Section 60I Certificate) Before you can file an application in the Family Law Court in relation to parenting, you and the other parent must attend family dispute resolution (FDR) to try and resolve the issues. If the matter does not resolve out of court, or the other party does not attend, you will be issued with a Section 60I Certificate, which will allow you to then file an application to have the case heard in Court. However, there are exceptions to this requirement. These include: Sensitive cases...

Good stewardship will no longer count in division of assets

3-March-2014By Simone Green

In Kane v Kane, the Family Court ignored the often-used “special contribution” principal in property settlements. This meant that the husband’s decision to invest the couple's superannuation in a certain way, which led to considerable gains, was not taken into consideration in the split of the couple’s assets. This Family Court decision means that future cases which involve the division of a wealthy couple’s assets will likely follow the lead taken in this case and result in a 50:50 split of all assets. The facts of Kane v...

Family violence can include denying financial autonomy

1-March-2014By Simone Green

In light of the recent high profile murder case involving Simon Gittany *, we thought it was timely to look at the definition of violence in the Family Law Act and how the Court deals with issues of domestic violence. When we hear the phrase family violence we usually think of physical abuse against a partner and/or children of the relationship. The family violence provisions within the Family Law Act were expanded in recent years to broaden the definition of family violence to also include psychological and financial violence. Violence of...

Property orders time limit does not apply to couple divorced overseas

7-February-2014By Simone Green

In Australia, married parties must settle their property interests prior to the 12-month anniversary of their divorce. They can be settled by way of a consent order or Binding Financial Agreement, and where an agreement cannot be reached, an application must be commenced in Court for property orders. In the event that property proceedings are not commenced within 12 months of a Divorce Order, it is necessary to seek leave of the Court to hear the matter “out of time”, which is not guaranteed and adds to the expense of litigation. While...

No hard or fast rule when it comes to division of assets

31-January-2014By Simone Green

It is a common occurrence that one party to a marriage or relationship makes a significantly higher financial contribution either prior or during the relationship. Many people are often under a mistaken belief that in a relatively short relationship, a split will mean both parties take away with them whatever they brought to the relationship originally. Conversely, it is often believed that in any relationship split, there will be an equal division of all assets. Both assertions are wrong. Streeterlaw Family Law specialist Simone Green said...

Case guardian’s divorce application successful

20-January-2014By Simone Green

The Full Court of the Family Court of Australia chose to approve the divorce of Ms Price and Mr Underwood even though it was Mr Underwood’s case guardian who put forward the application for divorce. [Price & Underwood (Divorce Appeal) [2009] FamCAFC127 (14 July 2009)] The circumstances in this case were rare in that Mr Underwood had previously applied for a divorce but was unsuccessful, so this second case, when Mr Underwood was very ill, was undertaken more than a year later by his case guardian. The case details In summary, the...

High Court gives some clarity to relocation of children of divorced parents

10-January-2014By Simone Green

‘Relocation’ of children following a separation is a very hot and controversial issue for many parents and a common theme of applications to the Family Court. One parent may seek to move away for various reasons including financial hardship, to be closer to family, a new relationship or for employment reasons. Problems arise when both parents don’t agree to the move. The High Court had the opportunity to review the issue in the matter of MRR v GR in March 2010. In that famous matter, the mother was essentially ‘stuck’ in Mount...

When is a Recovery Order needed?

By Simone Green

When the responsibility for a child’s care is shared between parents or care-givers under parenting orders, issues can still arise over the child’s care arrangements. And in the event that a parent fails to return the child to the primary caregiver, how should the primary caregiver respond? Seeking a recovery order from the Family Law Courts may be required. A recovery order normally occurs in conjunction with a police officer assisting in the process of having a child recovered to the usual carer of the child. A recovery order...

Division of assets in divorce at judges’ discretion

3-January-2014By Simone Green

Sometimes, parties to a divorce appeal the division of assets decided by a Federal Magistrate. In this case (Bishop & Bishop 2013 FamCAFC 138) heard on 6 September 2013, the division of assets had been decided after a 23-year marriage. The husband’s appeal to the Full Court was based on a number of grounds: the contributions of both parties  the exclusion from the property pool of an inheritance to the wife received two years prior to separation  the improper treatment of the parties’ superannuation by way of...

Be careful when entering a long-term parenting orders agreement

24-December-2013By Simone Green

This case in 2013 involved the decision of the mother of a nine-year-old child to apply to change parenting orders made by consent in 2008, when the child was four. The father applied to the Full Court of Appeal to dismiss the application of the mother to set aside the 2008 orders, relying on what is commonly called the principle in Rice & Asplund, which states you cannot bring a case back before the court on the same issues without there having been a significant change in circumstances. The rule applies to orders arrived at by...

Child’s best interests override ‘rights’ of parents in custody dispute

8-December-2013By Simone Green

A recent case in the Family Court of Western Australia saw the primary care of three children aged 13, 12 and 11 awarded to the father’s ex-de facto partner rather than the children’s mother. This unusual outcome demonstrates that the child’s best interests rather than any perceived ‘rights’ of natural parents is the overarching principle applied by the Family Courts. In the case, (Whithall Richardson and Powles [2013] FCWA 54) Ms Powles, the father’s ex-de facto partner, joined the court proceedings against the natural...

Parenting orders – know your obligations



Have you recently obtained parenting orders? The law requires you to take an active role in encouraging your children to attend and live with or spend time with the other parent, which goes beyond merely ensuring that the children are available. It is sometimes forgotten that parenting orders come with obligations and if a parent fails to comply with the obligations, you may also be failing to comply with the parenting orders – which could have serious consequences. A recent case in January 2013 (Krinos & Krinos...

How to change your parenting orders

By Simone Green

  Are your Family Law Court orders no longer relevant? Do you wish to change them? With changing circumstances, orders that have been made by the Court may no longer be practical or be in the best interests of the affected children. So it is possible to vary parenting orders after a final hearing, but the factors must be significant for the application to vary orders to succeed. The Court has found that it is not in the best interests of the children for parties to constantly re-litigate parenting proceedings. So, in order to bring an...

Legal roadblock to relocating with your children

10-September-2013By Simone Green

    It is very difficult for a parent to move interstate or overseas with their children if their former spouse does not give permission. If the other parent opposes the move, the parent seeking to relocate will need to obtain an order from the Family Court authorising it. But the Court never authorises such a relocation without full consideration of the consequences of the move on the children.    When an application to relocate comes before the Court, there are a number of factors that are taken into consideration. Heath...

ATO can access Family Law documents

9-August-2013By Mark Streeter

It may be surprising to discover that the Australian Taxation Office has access to financial information disclosed in Family Court proceedings. But whether or not the ATO is permitted to use the information they discover from Family Court proceedings is another matter entirely and one that was investigated in a recent decision of the Family Court of Australia (Commissioner of Taxation v Darling & Anor [2013] FamCA 118 [1 March 2013]). Justice Macmillan dismissed an application by the Commissioner of Taxation in which the Commissioner...

Secretive affair of 17 years fails de facto test

7-August-2013By Simone Green

Since 2009, de facto relationships have been included and defined in the Family Law Act 1975. Previously, when de facto couples had a legal dispute, it was handled by State law. The 2009 amendments provided for the family courts to have jurisdiction over same sex couples within the definition of ‘de facto’, but until the following case came along, it was unclear whether long standing affairs, where one or both of the parties are married to other people, could also be defined as de facto relationships. The case of Jonah v White (2012)...

Checklist for a property buyer’s final inspection

31-July-2013By Mark Streeter

If you have ever purchased a property, you would have faced that nervous day three days prior to settlement, where you were invited to inspect the property. But what is it that you looked for when you did your inspection? And did you have any regrets days or weeks later, realising that you could have resolved a problem you are facing with the property if you’d been more thorough in that final inspection? Under the provisions of the standard contract for the sale of property, the purchaser is entitled to make one inspection of the property...

Solicitor who had acted for both parties showed no conflict of interest

28-June-2013By Simone Green

    The Family Court can legally restrain a solicitor from acting for a client on the basis of a conflict. In a recent property proceedings case, (House & Altimas [2012] FamCA 625, 3 August 2012), the applicant husband applied for an order restraining the respondent wife’s solicitor from representing her. The application was based on the fact that 14 years ago, the wife’s solicitor represented the husband in a claim arising from a road accident. In practical terms, for there to be a conflict, the applicant has to prove that...

Valuing property leans towards highest value approach

27-June-2013By Simone Green

In many property cases, a business’s plant and equipment may need to be valued. But which valuation method should be used – an ad hoc sale approach or market value? Such a situation arose in a recent case (Martin & Crawley [2012] FamCA 1032 on 10 December 2012), where there was a dispute over the value of machinery, trucks and plant and equipment. The husband contended that auction value was appropriate whereas the wife contended that the value should be determined upon the basis of market value in continuing use. Justice Coleman...

Adjusting a property settlement is not mission impossible

12-June-2013By Simone Green

We are commonly approached by people who are unhappy with orders that they have agreed to with their former spouse but now consider to be unjust.  This is particularly so in respect to property settlements. Once orders have been made, however, it is particularly difficult to have the court set them aside or vary the orders without the consent of the other party. The law will not necessarily do anything about rectifying a bad bargain, however, if there are genuine reasons to suggest that there has been dishonesty in negotiations or one...

Global family disputes on rise

5-June-2013By Simone Green

In recent years, the number of international family disputes has significantly increased. As a result, the number of international family law cases coming before the courts has also jumped dramatically. The increase in the breakdown of marital relationships, together with the increasing frequency of intercultural marriages and the accessibility of international travel have been identified as factors contributing to increasing rates of international parental child abduction. International Social Service Australia says the high rate of...

Shared parenting arrangements a major stress for young children

10-May-2013By Simone Green

How often and for how long can young children stay with the non-resident parent? This is a common question in Family Law custody disputes. Studies have been conducted which seek to answer three related practical questions:  At what age and in what circumstances is it appropriate for infants and very young children to stay overnight with the non-resident parent? To what extent is it appropriate to make arrangements for substantially shared care between parents of young children? What orders should be made if the parents of a young...

Allegations of tax evasion could decrease matrimonial asset pool

9-May-2013By Mark Streeter

It is not uncommon in marriage breakdowns, particularly in cases where one partner owns a business enterprise, for the estranged spouse to make allegations in respect to their ex-partner’s fraudulent use of cash from that business or incorrect accounting practices. The estranged spouse is aiming to discover a higher turnover of profit, which would translate to a higher valuation of the business. But proving the fraudulent accounting practices may backfire for the spouse making the allegation if it leads to a tax department audit. An audit...

Don’t wait to finalise your property settlement

5-April-2013By Simone Green

    If you have recently divorced, you only have 12 months to negotiate, settle and formalise a property settlement with your former spouse. If you have not finalised your property settlement and it has been more than 12 months since your divorce, you will be prevented from commencing settlement proceedings without seeking leave of the court, which is an extension of time from the Family Court to settle the matter with your former spouse. In determining whether leave should be granted, the Court must have regard to Section 44 (4)...

Case highlights importance of financial disclosure in property settlement

20-March-2013By Simone Green

A recent case in England has highlighted the need for parties involved in property settlement proceedings in the Family Court to be frank with their finances and disclose all financial information. A property tycoon in London was sentenced to six months imprisonment for contempt of court in January 2013, having repeatedly and purposely failed to make full and frank financial disclosure. The judgment of Young and Young [2013] EWHC 34 has been welcomed by family lawyers in the UK as a deterrent towards uncooperative behaviour when...

Can parents’ money be factored into Family Law litigation between spouses?

By Simone Green

The recent case of MacDowell and Williams and Ors has raised an interesting ethical and legal question regarding how far the Courts should interfere in the private financial affairs of third parties when determining the future financial resources of the parties to a marriage or relationship. In this case, the issue was a subpoena served on the wife’s parents to provide any current and revoked wills and any relevant testamentary documents regarding corporate trust structures to which the wife was a beneficiary. The counsel for the...

First steps after a relationship breaks down

19-February-2013By Simone Green

Separating from a relationship can be a difficult and emotional time in people’s lives, but there are some practical first steps worth taking to prevent protracted legal arguments and expense when the time comes to finalise a property settlement. If you feel capable of discussing a financial settlement directly with your former partner, we recommend that you have an early but very general discussion in respect to interim arrangements. These may include who will pay any joint debts until a settlement is finalised and what funds can be...

Family Law Act improves protection of children

By Simone Green

In June 2012, several changes were made to the Family Law Act to better protect children and families at risk of violence and abuse. Amendments made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) seek to improve the protection of families by: Prioritising the safety of children in parenting matters; Changing the definitions of “abuse” and “family violence” to better capture harmful behaviour; Strengthening adviser’s obligations by requiring family consultants, family...

Does your pre-nup meet legal requirements?

5-February-2013By Simone Green

  On December 31, 2012, Olympic swimmer Grant Hackett began legal action against his lawyers in relation to a pre-nuptial agreement they prepared on his behalf. The Australian swim star claimed the botched Financial Agreement, with pop star wife Candice Alley, had left him with financial losses following their separation last year. His financial loss is due to the agreement having “defects” and because it did not comply with legal requirements and therefore was not enforceable. This high-profile case is a reminder to all...

High Court clarifies property rights of elderly couple living apart

24-January-2013By Mark Streeter

The High Court recently provided clarification on a controversial decision in the Family Court regarding the court’s power to order the division of assets when a couple have separated involuntarily, due to the deteriorating health of one or both parties (Stanford & Stanford [2012] FAMCAFC 1 (19 January 2012).) Streeterlaw Principal Mark Streeter said the High Court's decision to overturn the Family Court of Australia's property settlement orders mean the court must in future consider the individual needs and concerns of both parties...

Why it’s important to legally document your financial separation

21-January-2013By Simone Green

When couples decide to separate, many believe they can "sort things out" themselves without resorting to a family lawyer to finalise the division of their property. But a “do-it-yourself” agreement often does not meet strict legislative requirements and therefore cannot be considered legally binding. Simone Green, who specialises in family law at Sydney law firm Streeterlaw, said while it is beneficial for parties to work together in reaching a settlement, a document that is not legally binding could be worthless. “We...

What is the role of a case guardian in the Family Court?

9-January-2013By Mark Streeter

Do you have a friend or relative that suffers from a physical or mental disability and currently has a matter in the Family Court? Are they having difficulty understanding and communicating? If so, then they may lack the capacity to manage their own affairs and may need a case guardian to assist them in the Family Court. The general legal test for capacity is described by Justice Powell in PY v RJS & Others [1982] NSWLR 700 as follows: “A person is not shown to be incapable of managing his or her own affairs unless, at the least,...

How to prepare for mediation after a family breakdown

4-December-2012By Simone Green

    Christmas is a time of year when couples often reconsider their future together, deciding the best way forward for all concerned is to split up. But where children are involved, the process of dividing parenting care and costs can be complex. Sydney lawyer Simone Green, a Family Law expert with Streeterlaw, says it’s important parents understand and prepare for what lies ahead when going through the divorce process. “Participation in Family Dispute Resolution (FDR), commonly known as mediation, is compulsory for...

Divorce can get messy with the division of international assets

2-December-2012By Simone Green

In a world where couples can live and work in several countries during the course of their married life, it is important to be aware of how international assets can be divided in the case of divorce. Couples considering divorce need to take note of a little known legal doctrine. If you have property in another country, your spouse can file proceedings in that country and you may find yourself being subject to a jurisdiction that is more favourable to your spouse.  If this is you, it’s important you apply now for a stay of the...

Balancing children’s wishes in parenting disputes

31-October-2012By Simone Green

Family separation is a difficult and stressful time for all involved, particularly any dependent children. Every child will vary in their ability to cope with the changes in their family situation.  The Family Law Act is focussed upon the best interests of the child; in fact it is the paramount consideration in determining parenting applications by the Court but the wishes of the child are only part of the wider considerations of the Court when making parenting orders.  As a first step in any parenting dispute, separated parents are...

Can illegal drug use impact parenting orders?

30-July-2012By Simone Green

In Vokic & Vlass [2012] Fam CA 56 (15 February 2012) issues arose in relation to both the parenting of the children and the parties property interests. The mother had a history of drug and alcohol abuse. The husband claimed that the wife’s parenting capacity was compromised by her drug and alcohol use. Fowler J considered evidence from a medical specialist in addiction medicine and a family consultant and made orders enabling the children to spend regular time with the wife subject to orders requiring her to undertake...

Poor legal advice invalidates Binding Financial Agreement

By Simone Green

For a Binding Financial Agreement to be valid, or binding, certain conditions must be considered. Section 90G(1)(b) requires that each party be provided with independent legal advice from a qualified practitioner about the effect of the agreement, the rights of that party and the advantages and disadvantages to that party of making the agreement. The court's decision in Hoult [2011] FamCA 1023 provides an example of why a financial agreement may be declared not binding. In Hoult the wife alleged that she was not able to fully...

Binding Financial Agreements [BFAs] – Benefits and Pitfalls

23-May-2012By Simone Green

The Family Law Act now allows all people to make agreements at 3 different stages of a relationship: Prior to marriage (also known as a ‘Prenuptial Agreement) During a marriage (even if the relationship has not yet ended) After a divorce. Did you know that agreements can also be made prior to entering into a defacto relationship, during a defacto relationship and after a defacto relationship has ended? Helpfully, the legislation also now provides for such agreements to be made by same sex couples. The advantages...

When does the law acknowledge a de facto relationship?

15-May-2012By Simone Green

    Interestingly, the length of a de facto relationship is not the only criteria for determining its legitimacy in the eyes of the law. Did you know that you can be in a de facto relationship provided that you meet the criteria in the Family Law Act?  There are a number of indicative factors identified by Justice Powell in the case of Roy v Sturgeon (1986). These criteria are: The duration of the relationship  The nature and the extent of the common residence Whether or not a sexual relationship existed The degree...

Expense of subpoenas reimbursed

9-May-2012By Simone Green

In Lavell the wife issued a subpoena to produce documents to the husband’s accountancy firm. The wife paid $43 by way of conduct money. The husband’s accountant sought reimbursement of $4000 for “substantial loss and expense” incurred as a result of compliance with the subpoena pursuant to Regulation 15.23(3) of the Family Law Rules. Under Regulation 15.23(3) of the Family Law Rules a “named person” may be reimbursed if they incur a substantial loss or expense that is greater than the amount of the conduct money payable. The...

Be Careful When Structuring Discretionary Trusts

8-May-2012By Mark Streeter

A judgment of the Full Family Court (Harris & Harris [2011] FamCAFC 245) delivered 22 December 2011 illustrates the treatment of discretionary trusts in Family Law. The judgment of the Appeal was from a single Judge who had assessed the net value of the parties’ assets at $4,269,180.00. This figure included an agreed figure of $1,500,000.00 for the net value of a discretionary trust known as the Harris Family Trust. The Trial Judge split the property 45:55 in favour of the Wife. A significant issue at trial was whether or not the...

Is there ever a good divorce?

29-April-2012By Simone Green

    New research by Paul Amato, a professor of sociology at Pennsylvania State University, suggests that a “good divorce” is no better than an unhappy marriage!  When a range of wellbeing measures were examined the children of parents with ‘amicable’ divorces fared the same as children of parents with ‘unpleasant’ divorces. When the results were showed to members of the public by The Sydney Morning Herald in February, responses were mixed. Barrister Dixie Coulton agrees with Amato’s research, that there will...

Is living in a nursing home legally separation?

By Simone Green

    In short, the answer is "yes". But a recent decision of the Family Court has raised issues regarding how ageing couples may be affected by property settlements should they be physically separated due to declining health. Mr Stanford purchased a house in 1962 with his first wife. Seven years later he divorced and remarried and his second wife moved into the home.  Both Mr and Mrs Stanford had children from previous marriages. In 2008 Mrs Stanford suffered a stroke and was placed in full-time care while Mr Stanford remained...

Wife gets 100 per cent of asset pool by application of Family Law principles

By Simone Green

We are often asked the question what percentage will I get of the matrimonial property after separation?  A decision of the Family Court enabled a wife to receive 100 per cent of the matrimonial asset pool because she chose to follow four crucial steps closely. Read on to discover more about the way in which matrimonial property is divided. Step 1: Identification and valuation of assets The first step involves determining what assets are to be divided between the parties. The general rule is that all assets must be taken into account...

Share float complicates Binding Financial Agreement

24-November-2011By Simone Green

    The case of Nyles & Nyles highlights the importance of giving full and frank financial disclosure at the time that terms of settlement are being entered into of any circumstance which may impact the future value of an asset even if that event has not yet occurred and its future worth is unknown. In this case the parties entered into consent orders and a Binding Financial Agreement  (BFA) dealing with the adjustment of property interests in 2004. According to the terms of settlement the husband was to receive 60 per...

Prenup included $2 million engagement ring

9-November-2011By Simone Green

The public breakup of two high profile celebrities in 2011 highlighted how valuable assets can be specifically included in Prenuptial Agreements. "Kim can keep her ring” so  says Kris, but only if she pays him a handsome US$2 million!  As the celebrity marriage between Kim Kardashian and Kris Humphries ends, it highlights for those of us on the sideline the wisdom of a pre-nuptial agreement (called a Financial Agreement in Australia under the Family Law Act). A prenuptial agreement appears to have been a wise precaution. Did you know...

Child funeral arrangements fought over in Supreme Court

26-October-2011By Simone Green

When couples with children separate it can mean additional complexity over custody and shared parental responsibilities. Yet what if the child dies? Who decides who can arrange the funeral. A NSW Supreme Court judgment resolved a very difficult situation in which the parents of a deceased 14-month-old baby were arguing about the organisation of the funeral and the burial site for their little child. Sadly, each year the Family Law Courts see a number of very serious disputes about the care of children. In this case, the child died as the...

Who gives consent for Special Treatment of children?

30-August-2011By Simone Green

    Who decides what is right for a child? The parents or the Government? Both! By Australian law parents jointly share the responsibilities concerning the care, welfare and development of their children. Parental responsibility is clearly defined in the Family Law Act 1975 under Section 61B. This includes, in relation to a child: “(a) All the duties, powers and responsibility and authority which, by law, parents have in relation to children.”   However the Courts can legally override a parent’s decision. Section...

Grandparents rights to their grandchildren

4-March-2011By Simone Green

Many grandparents who have been actively involved in the lives of their grandchildren are affected when their children divorce or separate. A restriction on the time spent with their grandchildren, or a refusal to allow access to their grandchildren due to a relationship breakdown between the parents of the children, can be quite a traumatic experience for both themselves and their grandchildren. Under such circumstances, what visitation rights do grandparents have to see their grandchildren? All grandparents will be pleased to know that...

Failure to transfer properties causes complications in defacto case

30-November-2010By Mark Streeter

When a Dad lovingly gives his daughter two properties it seems simple enough. But what happens when he fails to sign a transfer, pay stamp duty nor change the registration details on the Department of Lands Torrens Title Registry? It gets complicated. After the giving the gift, the Dad enters into a de facto relationship. Time passes. The Dad and his de facto separate. After the separation, the ex-de facto claims the properties as part of the ‘pool’ of assets to be divided. The daughter approached Streeterlaw Sydney Lawyers and we...

Court protects Russian bride

29-November-2010By Mark Streeter

A Russian bride's binding financial agreement turns out not to be binding The facts The husband living on the North Coast of NSW developed a relationship with a lady in Russia. He travelled to Russia, married her and brought her back to Australia as his wife.  The relationship was unstable.  The husband was the wife’s only sponsor and the relationship was the sole basis for the wife to be able to stay in Australia. Upon return from Russia, the parties entered into a binding financial agreement.  No copy was provided to the wife. The...

Court helps wife pay for expensive divorce legal fees

By Mark Streeter

Family Law Court grants wife interim costs to help cover her $10.5 million in divorce legal fees When separating it is often the husband who moves out and the wife stays in the matrimonial home. In many cases the husband has the higher income plus access to financial resources including the ability to borrow money. Often the wife has limited access to cash and has the added time burden of caring for children. This financial disparity and inequality becomes more significant when legal fees for a divorce are considered. There can often be a...

Changes to prenuptial agreements for de facto relationships

By Mark Streeter

Six types of prenuptial agreements On 1 March 2009 the previously state based de facto laws in NSW were transferred to the Federal jurisdiction. This has brought changes to defacto agreements (often referred to cohabitation agreements). Changes have been made to the Family Law Act 1975 (CTH) in respect to de facto property and financial matters in the Family Court of Australia and the Federal Magistrates Court.  These changes included expanded definitions of “matrimonial causes”. There are now six types of “financial agreements”...

Can I lock my ex-partner out of our home?

By Simone Green

Who has the legal right to remain living in the jointly owned home? This area of law is known as Right of Occupancy. Before you go and change the locks take care to know the possible consequences. Properties are often owned “jointly” by married or de facto partners. Subject to any express written agreement, both parties have a concurrent legal right to occupy the premises. So can you lock your ex-partner out? The answer is maybe.  You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry...

Beware of illegal Covert Surveillance

By Mark Streeter

When is Covert Surveillance illegal and when does it serve a Legitimate Forensic Purpose? Have you ever wanted to record a phone conversation as evidence for a family law dispute. How about discretely filming a video of a meeting of a spouse meeting someone else? What about recording what your children say when you are not there? Take care before you press record as you may be in breach of the law. It all comes down to consent. Some legal court cases throw up cross-jurisdictional issues in which Federal Courts need to have regard to State...

Benefits to register your de facto relationship

By Simone Green

The NSW Attorney General launched the NSW Relationships Register in 2010. This Register is managed by the NSW Registry of Births, Deaths & Marriages and allows unmarried couples in a committed, exclusive relationship to formally prove that they are in a committed or de facto relationship. The Register is open for either unmarried heterosexual or same sex couples. Registrants will be provided with a document which helps to prove their relationship, avoiding the burden of constantly having to supply government agencies voluminous...

Definition of an irretrievable marriage breakdown

By Simone Green

From 1975 the Divorce Law in Australia has stipulated only one ground for a Decree of Dissolution on Marriage – i.e. that the marriage has broken down irretrievably [s48(1) Family Law Act FLA]. The sole evidence for establishing the breakdown is that the parties to the marriage have separated and continue to be separated for a continuous period of 12 months prior to the filing of the Application for Divorce [s48(2) FLA]. The jurisdiction of the courts exercising powers under the Family Law Act is enlivened if either of the parties to...

De-facto relationship interim maintenance agreement

By Mark Streeter

The Situation A couple in a de-facto relationship were seeking to make an "interim" agreement for spousal maintenance pending final discussions and negotiations in respect of a property division. The Solution Streeterlaw were retained on an urgent basis in May 2009 to draft a binding financial agreement for a defacto couple under the new provisions of the Family Law Act which became effective 1 March 2009. The parties to the agreement were proposing to be traveling overseas for extended periods of time in the near future. Accordingly the...

Protecting women and children from violence

By Simone Green

Protecting people from violence is a significant role of Australian laws. The protection of women and children from domestic violence is a topic often covered in the media. Sexual assault is another. A report into the various Federal and State laws and their effectiveness was delivered to the Attorney General in October 2010 by the Australian Law Reform and NSW Law Reform Commissions. This report was a step forward in addressing inconsistencies or areas for improvement in our State and Federal laws. Many Family laws intersect or cross over...

Prenuptial Agreement – who, when and why

By Simone Green

Prenuptial agreements have become more common and accepted in our society, yet many couples intending to marry feel they don't need a prenup. But it is worth considering and below, we look at some of the key questions surrounding prenuptial agreements. Yes a prenup is not for everyone, but they are appropriate for a wide variety of people and you may find it applies to your personal situation. Importantly a prenuptial agreement is a legally enforceable contract. It does require each party to receive independent legal advice. It is not a quick...

One night stand impacts child support case

By Mark Streeter

Man pays child support for six years before DNA reveals he is not the father An expensive child support case shows it is not always worth recovering funds even if they are overpaid or incorrectly paid. The facts of Forsythe & Latimer & Anor [2010] FMCAfam 478 (8 June 2010) A recent decision in the Federal Magistrate’s Court (8 June 2010) concerned an application by the Child Support payer who had made payments over a number of years unaware that he was not the father of the child at the time that he made payments of child...

Is a doctor held responsible for failing to diagnose something?

By Simone Green

The case of TABET V GETT [2010] in the High Court of Australia (12 April 2010) investigated this.   Facts behind the case On 11 January 1991, the appellant was admitted to the Royal Alexandra Hospital for Children with symptoms of headaches, vomiting and nausea after suffering from the chickenpox.  She was examined by the paediatrician respondent and provisionally diagnosed as suffering from chickenpox, meningitis or encephalitis. On 14 January 1991, the appellant suffered a seizure, and was diagnosed with a brain tumour following a...

Independent legal advice required for Prenuptial Agreements

By Mark Streeter

The situation: prenup not binding A financial, or prenuptial agreement, had been entered into by a couple. The agreement did not expressly state that both parties had received independent legal advice. As it is a requirement of Financial Agreements that independent legal and financial advice has been received, the agreement was found to be not binding. The changes to protect Prenuptial Agreements The legislation relating to prenuptial agreements was amended on 4 January 2010 (the Federal Justice System Amendment (Efficiency Measures) Act...

Independent lawyer to represent child’s best interests

By Mark Streeter

Why can't children use the same lawyer as their parents? Unfortunately parents often take adversarial and diametrically opposed positions in respect of what is in the “best interests” of children in Family Law parenting cases.    As a result children are required to have separate legal representation in the Courts. Accordingly it is practice for the Court to appoint an “ICL”  or Independent Children’s Lawyer to represent the children’s best interests in any contested hearing before the Court. The ICL operates as a...

Husband’s fraud undermines Binding Financial Agreement

By Mark Streeter

New wife wins case against forceful husband Imagine being pregnant, facing deportation and being given a Binding Financial Agreement by your fiance five days before your wedding and told to sign or the wedding is off. The situation In Blackmore and Webber [2009] FMCA FAM 154, the couple entered into a Binding Financial Agreement (under Section 90G of the Family Law Act 1975) on 11 November 2004 just days before being married on 14 November 2004. This judgment arose following an application by the wife to set aside a binding financial...

High Court overturns Family Court’s child custody decision

By Mark Streeter

Parenting order was impractical in interstate custody battle The long term effects of divorce on children can be significant. One of the most contentious issues is child custody. This is especially important when parents wish to live in different cities, states or even countries. Courts are required to make decisions in the best interest of a CHILD rather than the parents. Equal access for parents may not be in the best interests of a child if it is not reasonably practical.    This case highlights the absurd situation that eventuated as...

Will a Court refuse parent access to their child?

By Simone Green

There are times when Unsupervised Child Visitation will be denied. An issue often raised in disputed children’s cases is whether or not there is an “unacceptable risk of abuse” to the child if time the child spends with one of the parents is not supervised. This language comes from the High Court Decision M v M. In that respect it mirrors the language of the legislation in Section 60CC(2)(b).  Behaviours that have been found to constitute unacceptable risk include history of physical abuse, illicit drug use or abuse of prescription...

Full and frank financial disclosure

By Mark Streeter

Handing over financial documents to an ex is hard The need for full and frank disclosure by the courts often makes divorcing couples nervous. A common question is "Why do I have to give all my financial documents up to my ex-partner?  I’ve been told I’ve got to get my tax returns and my bank account statements and give them to the other side!" The reason behind this requirement is referred to as Full & Frank Disclosure. Family Law Dispute Resolution seeks to resolve disputes before they get expensive, adversarial and litigious....

When is a marriage not a marriage?

By Mark Streeter

A surprise trip to the Philippines reveals a few surprises for a husband. A recent Family Court decision of 11 October 2010 considered the very technical and legal requirements of an legal application to declare a marriage null and void (MONTY & VILLAMONT). There are very few grounds by which the Family Court may declare a marriage void. Section 23B of the Marriage Act 1961 provides a limited ground. The full text of this section 23B is available here. The ground applicable in this case 23B(1)(a) either of the parties is, at the time...

Family Court threatens imprisonment

By Mark Streeter

Family Court takes the Compliance of Orders seriously On January 10, 2006, following their divorce, Mr Rand + Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property.  On June 25th, 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia” .... potentially  for the term of his natural life! Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and didn’t travel...

Family Court takes the compliance of orders seriously

By Mark Streeter

    On 10 January 2006, following their divorce, Mr Rand and Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property.  On 25 June 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia”.   Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and didn’t travel outside Sydney. Three years later on 20 April 2010, Mr Rand’s appeal was presented to the...

Family business fraud in marriage separation

By Simone Green

Attempt to reduce family business profit backfires Fraud may occur in any jurisdiction and unfortunately the area of Family Law is no exception. The situation A family company was controlled by one party in a marriage separation. The company engaged in a complicated arrangement with a foreign company in Asia. The company bought services from this foreign company at inflated prices, with the aim of decreasing the profitability of the domestic company. This consequentially reduced the value for the purposes of the Family Law proceeding...

What is equal share parent responsibility?

By Simone Green

When you separate who makes the decisions about your children? As a parent you have responsibility for your child. When couples divorce or separate, deciding who looks after the child is determined by what is in the child's best interest. Equal shared parental responsibility is one arrangement in what is usually referred to as child custody. Parental responsibility in relation to a child is defined by s61B of the Family Law Act 1975 as “all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to...

Wastage of family assets becomes a court Issue

By Mark Streeter

Shared property gambled away may need to be repaid An issue may arise as to one person’s conduct either during the marriage or after separation when they dispose of matrimonial property. The Family Court is a Court of Equity, that is, they will not permit a party to take an unfair advantage because of unilateral action for their own benefit without bringing these funds to account. This concept is often called “wastage”. The most common example alleged to constitute “waste” in the context of Family Law property resolutions is...

Separating as a result of domestic violence

By Simone Green

Domestic family violence is a crime. What should you do and what you should take when separating? Separation can occur by agreement or can occur as a consequence of one party arbitrarily denying the other party access to the primary residence. The law relating to occupation as “joint tenants” of a house can be complex with many unique and particular factual issues to be considered by a judge who is asked to rule on a dispute. Often in separation there will be accusations of domestic violence, abuse or threats. Often it is violence...

Castration decided in Best Interests of Children

18-November-2010By Mark Streeter

Most parents want what is best for their child. If a child breaks their arm parents need no special permission to have it operated on and fixed. However consent to perform surgery on special medical conditions is not so easy. In a recent Family Law case [Sean and Russell (Special Medical Procedures)] the castration of two boys was presented to the Courts for a decision. With headlines of “Judge Allows Parents to have Boys Castrated”, Kim Arlington, journalist for The Sydney Morning Herald sensationally reports on a Family Court...

Surveillance reveals more than expected

19-October-2009By Mark Streeter

The Situation A wife suspected that her husband was having an "affair" online. The Solution By use of lawful surveillance methods it was ascertained that it was much worse than this. The husband was viewing child pornography. The matter was reported to the police and urgent action taken in the Family Court to preserve and protect the child of the relationship. Testimony - Mark Streeter Sydney Lawyer I recently agreed on a property settlement with my spouse. During the preparation beforehand and negotiation during the mediation, Mark...

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