Blog

Partial Property Distribution Sections 79 and 80(1)(h) of the Family Law Act confer power on the Court to make orders for an interim property settlement including for litigation. Funding The relevant legal principles that apply are as follows: (1) Section 79 confers a discrete power to make orders for property settlement and the Court may exercise that power through a succession of orders until the power is exhausted or until a final order dealing with all the known property of...

Matrimonial Property Concepts And Principles Section 114(3) of the Family Law Act relevantly provides that: A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as...

Understanding Defacto Relationships Section 4AA(1) of the Family Law Act sets out the principles that apply to defacto relationships. This Section mandates that regard must be had to all the relationship circumstances in determining whether it is one of a couple living together on a genuine domestic basis. Section 4AA(2) sets out some of the circumstances to be considered, including “whether a sexual relationship exists”, and Section 4AA(3) provides in effect that no particular finding is determinative. Each case falls to...

INTERIM SPOUSAL MAINTENANCE The law – concepts and principles Section 74(1) of the Family Law Act empowers the Court to “make such order as it considers proper for the provision of maintenance” in accordance with Pt VIII of the Act. That primary requirement is set out in s 72(1) of the Act, as follows: (1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so,...

CONSTRUCTIVE TRUST. Their Relevance in Family Law  A trust arises by operation of law where it would be unconscionable for a person who holds an asset to deny the beneficial interest of another person. Viewed in its modern context, the constructive trust can properly be described as a remedial interest which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of the property to the extent that...

Property issues in a de facto relationship Australia The Family Court of Australia has jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) to determine matters relating to property as between parties who have not been married, where the parties have lived in a de facto relationship for a period of no less than two years and the relationship finally ended after 1 March 2009, the date on which the particular provisions of the Act commenced. The touchstone or foundational...

The Role of the Appellant Court in Family Law - Australia The High Court has reiterated many times that orders made in the exercise of judicial discretion under the Family Law Act as to the alteration of property interests can only be set aside on a strictly limited basis in accordance with the principles in House v The King (1936) 55 CLR 499 (“House”) It is not enough that the judges composing the appellate court consider that, if they had been in the...

Consent Orders in Family Law Matters - Australia According to the information provided by Adam Cooper in a paper he has delivered.  Consent orders are a very useful means of obtaining orders from the Family Court in regard to property and children's matters. Consent orders carry many advantages, including the exemption in property matters for roll-over stamp duty and capital gains tax. Being an economical and less invasive means of resolution, an ability to divide superannuation interests between the parties,...

Parenting Orders for Children with Special Needs In Part VII of the Family Law Act (1975), there are not specific distinctions for children without special or higher needs when determining what is in the best interests of said child. These are, however, important in determining Orders that will adhere to the child’s best interests. According to studies, parents of children with developmental disabilities are twice as likely to divorce than parents of children without such conditions (Bak & Dunn, 2022)....

The Basics of Child Support in Australia There are two types of child support in Queensland. Self-managed child support In this type of child support, the parents of the child(ren) manage the child support between themselves. They have the ability and freedom to decide for themselves: how much is paid; when it is paid and how the money is paid. Child support assessment If the parents of the child(ren) are unable to manage their own child support, they can apply...

How Long Does It Take To Get A Divorce? Before granting a divorce, the Federal Circuit and Family Court of Australia must be satisfied that there is no chance of reconciliation and there is no reasonable chance that the parties will get back together. For this reason, parties must be separated for a period of at least 12 months before applying to get a divorce.  Once this period has passed, you may complete an Application for Divorce either solely or...

In a recent decision in the Family Court found that it was very regrettable that the mother did not support the vaccination of children. The Court considered that her opposition to the child being vaccinated, as the child’s principal carer, would likely complicate the process and make it much more difficult for the child. The Court considered that in these circumstances it would be counter-productive for the mother to accompany the father and the child to any medical appointments concerned...

Paid Family and Domestic Violence leave for employees. The Fair Work Ombudsman has introduced Family and Domestic Violence leave for employees. Paid family and domestic violence leave was made available for employees of non-small businesses (businesses with over 15 employees) from 1 February 2023. Employees who work for small businesses (less than 15 employees), will be able to gain access to this paid leave from 1 August 2023, however, they can still access the existing 5 days of domestic and...

What is Evatt List? The Evatt List is an initiative in the Federal Circuit and Family Court of Australia designed to triage and progress matters that are considered high-risk. The list aims to guide families that are going through a separation with high-level risks through the Court system at a much faster rate, given the urgency of their situation. Matters are eligible to be placed onto the Evatt List if it is for parenting orders only and the parties have...

Beware of what you tell to the Judge The Court has the power to award costs for false statement against a party who deliberately misleads the Court  A vengeful spouse in Family Law Matters may seek revenge against a former partner by making a false statement and misleading allegations against his/her former partner, allegations that have no substance or truth.  Be careful what you say. Section 157 of the Domestic and Violence Protection Act (DFVPA) confers discretion to award costs...

We are heading into uncertain times The impact of the war in Ukraine and the affect on our economy The high cost of living Rising interest rates Inflation How is this affecting me? Am I able to financially care for my family?  How is this affecting my partner and my family's relationship? Is the stress too much to bear? Hopefully, there is a solution But what if it becomes too much and causes a breakdown in your relationship with your...

AFFECTS ON PARENTING OF CHILDREN On 26 March 2020, the Chief Justice of the Family Court issued a Statement on Parenting Orders and the affects of COVID-19. The Chief Justice’s statement provided guidance on the listing of matters in the Family Court. It was issued for the purpose of guidance in legal cases and was not a legal principle. It included the following: Parents are naturally deeply concerned about the safety of their children and how the COVID-19 virus will...

The Kennon Principle- Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757 (“Kennon”). Violent Conduct & The Effect On Property Issues. Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled...

The law in regard to Binding Financial Agreement in Brisbane is extensive and complex. The law is governed by the provisions in the Family Law Act 1975 (as amended). Similar provisions are provided in the Act for de-facto relationships. Because it is a complex area of law it is a requirement (as detailed below) that the parties entering into a Binding Financial Agreement must consult a solicitor and obtain legal advice.  The relevant law is detailed as follows: LEGISLATIVE PATHWAY...

Can you use secret audio recordings in family law? As technology continues to evolve, it is becoming more common for clients to ask whether they can use secret audio recordings in their family law matters. Before you consider recording your conversation with the other party, there are several important factors that you need to consider, including: Whether the recording is legal to make in Queensland; Whether a Court will allow the recording to be used as evidence; and  Whether you...