Category: Family Law

What Happens If One Party Goes into Aged Care? [caption id="attachment_16637" align="alignright" width="300"] Family Law in Later Life Relationships[/caption] The High Court decision in the case of Fairbairn v Radecki [2022] HCA 18, is relevant in considering how a settlement might occur if one party were to enter aged care. The facts of Fairbairn v Radecki are as follows: The female appellant and male responded were in a later life relationships commencing in 2010 in the state of New South...

What is the Evatt List [caption id="attachment_15920" align="alignright" width="300"] The Evatt List – Federal Circuit and Family Court of Australia[/caption] Brisbane registries of the Federal Circuit and Family Court of Australia have a specialist list for “parenting only” cases, called the “Lighthouse Project” whereby matters classified as “high risk” are referred to the Evatt List.  The Evatt List is a specialist Court list for eligible cases that are classified as ‘high risk’ are managed using intensive case management processes and...

Paid Domestic Violence Leave For Employees [caption id="attachment_16616" align="alignright" width="300"] Paid Domestic Violence Leave For Employees[/caption] Paid Domestic Violence Leave: 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,...

Family Dispute Resolution The merger of the courts on 1 September 2021 brought with it a shift in how family law cases proceed, with a greater emphasis on dispute resolution both before and during a proceeding, and new rules to facilitate that shift.  See brochures: “Before you file – pre-action procedure for parenting cases” and “Before you file – pre-action procedure for financial cases” In both thee FCFCA and FCWA lawyers must assist their clients to comply with their duty...

Matrimonial Home Principles which are Applicable to Sole Use and Occupation The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the injunctive powers of this section of the Act. They may be summarised as follows: a) the Court may make such an order as it thinks proper; b) there are no words...

5 Key Traits of a Female Narcissist Narcissistic personality disorder (NPD) is a mental health condition characterized by a grandiose sense of self-importance, a need for admiration, and a lack of empathy. While both men and women can have NPD, research suggests that female narcissists may use different tactics than their male counterparts to get what they want. Here are five traits of a female narcissist to watch out for in a relationship. Self-absorption One of the hallmarks of NPD...

What are the Principles under Section 114(1) of the Family Law Act in Australia? The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the injunctive powers of this section of the Act. They may be summarised as follows: a) the Court may make such an order as it thinks proper; b) there...

PARENTING – Schooling – Where the parents seek that their children attend different schools The relevant authorities set out some of the applicable principles as follows: Schooling disputes are not resolved by the application of a “blanket presumption” or preference for the views held by the residential parent. The Court is required to apply the objects and principles of Part VII of the Family Law Act and to consider the statutory criteria in forming conclusions about the child’s best interests. Section...

Application for undefended proceedings [caption id="attachment_16383" align="alignright" width="350"] Application for undefended proceedings[/caption] The Court can make Orders where a party has been given an opportunity to participate in the proceedings but fails to do so. Principles The Family Law Rules provide mechanisms that allow the Court to determine a case if a party does not comply with the Rules, Family Law Regulations, or procedural orders. Family Law Rules 1.33 states: Failure to comply with a legislative provision or order (1)...

Legal Costs in family law proceedings: Overview and Legal Framework [caption id="attachment_16375" align="alignright" width="350"] Legal Costs in family law proceedings: Overview and Legal Framework[/caption] The law relating to costs in family law proceedings is well settled and set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke. General Presumption and Exceptions An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the...

Breaches of Financial Court Orders and Enforcement [caption id="attachment_14773" align="alignright" width="350"] Breaches of Financial Court Orders and Enforcement[/caption] Breaches of Financial Court Orders are common, though not ideal in Family Law matters, especially for property matters where large sums of money are to be paid and transfer of property is to be arranged. In general, financial orders require payment of a sum of money or the transfer of property/chattels. When a party refuses or fails to pay the sum or...

Property proceedings - Family Court of Australia - Full Court [caption id="attachment_11763" align="alignright" width="350"] Property proceedings - Family Court of Australia - Full Court[/caption] Barnell & Barnell [2020] FamCAFC 102  This case looked at the principles relevant to the assessment of contributions determining property proceedings pursuant to s 79 of the Family Law Act 1975 Applicable principles It is well-settled by the authority that the assessment of contributions under s 79 of the Act is not a mathematical exercise. Evaluating Disparate Contributions Contribution, either direct...

Understanding Defacto Relationships [caption id="attachment_16310" align="alignright" width="350"] Understanding defacto relationships[/caption] 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...

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,...

What is Evatt List? [caption id="attachment_15920" align="alignright" width="300"] The Evatt List – Federal Circuit and Family Court of Australia[/caption] 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...

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...