By convention, barristers are grouped into four broad categories.

Reader

Upon being admitted as a barrister, they must “read” for a period of twelve months under a more senior barrister – referred to as a tutor.

A barrister in this category is referred to as a reader . There may be restrictions on what work a reader can do.

Readers charge in the vicinity of $2,000 a day in family law matters.

Junior

Junior counsel are those barristers with two to five years’ experience. Juniors commonly charge between $2,500 to $4,000 a day.

Senior junior

A senior junior barrister is counsel with more than five years’ experience as a barrister.

Rates for senior junior barristers start at about $4,000 day.

Queen’s Counsel and Senior Counsel

Queen’s Counsel (QC) and Senior Counsel (SC) are colloquially referred to as “silks.” This is because their robes include a gown made of silk whereas the gown of other barristers is of cotton.

Silks are those barristers who are recognised by the Bar Association as being outstanding advocates and legal advisers.

There is no difference between QCs and SCs. After 1992, the Bar Association decided to change the designation of all new appointments to Senior Counsel from Queen’s Counsel.

Family law silks currently charge in the vicinity of $9,000 to $13,000 per day.

Which barrister should I choose?

Ordinary Mums and Dads cannot afford a $13,000 a day silk. However, if their case goes to a final hearing, they will need a specialist advocate – with sufficient skill, knowledge and experience – to represent them.

Some examples of where a more experienced barrister may be crucial in a case include:

• The credibility of witnesses is central to determining the outcome of the case. In such cases, counsel accomplished in the art of cross-examination is essential.
• The case involves complex legal issues such as trusts, equitable interests in property, indeterminate business interests or disputed overseas property.
• Presenting or challenging complex expert evidence.
• The case may turn on the admission or rejection of particularly significant evidence.

At Opal Legal , we regularly brief barristers in hearings and appeals after providing the client with a range of options based on their affordability and the nature of the case.

When can a barrister charge reservation fees?

In their joint submission to the Senate Legal and Constitutional Affairs Legislation Committee, the Law Council of Australia and the NSW Bar Association, explained the rationale for reservation fees:

A barrister is not entitled to charge a “reservation fee” unless it is covered by the fee disclosure and costs agreement with the client. Reservation fees are not charged by all barristers and are intended to promote the administration of justice by ensuring Counsel set aside sufficient time to exclusively prepare for and appear in the client’s case, for the duration of the client’s matter.

Settlements late in the piece are not uncommon and are actively encouraged by barristers where appropriate to best promote clients’ interests. If a barrister is able to obtain further work for the remainder of the unused days, the barrister will not charge for that period. If, however, the barrister is not able to obtain alternative work, the commercial opportunity to generate fees which would otherwise have been generated has been lost. Reservation fees therefore seek to promote access to justice by offering improved certainty and comfort to clients that a barrister will be exclusively available to them for the duration of the matter, while providing greater certainty for self-employed practitioners.

What did Justice Benjamin say?

Simic & Norton was a family law case involving property and child custody.  An independent children’s lawyer also intervened in the proceedings.

The case finally settled on the seventh day of the hearing. By that time, the husband and wife had incurred a total of about $860,000 in legal costs between them. Justice Benjamin described the quantum as, “outrageous levels of costs for ordinary people involved in family law proceedings”.

His honour also observed:

In the Sydney Registry of the Family Court I have observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation. Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know.

Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial wellbeing of the parties and their children. It must stop.

So concerned was Justice Benjamin with the amount of costs incurred in that case, that he took the unusual step of referring the solicitors for both parties to the NSW Legal Services Commissioner to ask him to investigate and consider whether the conduct of the solicitors, in terms of their fees and approach, could amount to professional misconduct or unsatisfactory professional conduct.

What does the future hold?

A Joint Select Committee on Australia’s Family Law System was appointed by resolution of the Senate on 18 September 2019 and resolution of the House of Representatives on 19 September 2019.

On 5 December 2019, the Federal Government introduced legislation to reform the federal family law courts. Under the legislation, the Family Court of Australia and the Federal Circuit Court of Australia is to be merged into a Federal Circuit and Family Court of Australia (FCFC). The FCFC will comprise two divisions: the FCFC (Division 1) will be the current Family Court, and the FCFC (Division 2) will be the current Federal Circuit Court.

In a joint statement on 23 October 2020, the Law Council of Australia, Women’s Legal Services Australia, Community Legal Centres Australia and the National Aboriginal and Torres Strait Islander Legal Services called on the Parliament to abandon this bill.

On the other hand, in November 2020, a Senate committee gave its support for the government’s bill to merge the family courts.

Meanwhile, the Joint Select Committee will not present its final report by 7 October 2020, as scheduled. On 31 August 2020, both Houses of Parliament agreed to extend the reporting date to the 25 February 2021.

2021 will be a crucial year for changes to family law. It is likely that significant changes to the family law system will be implemented next year. What final form those changes will take is still unsettled.

How long after the interim hearing will the Judge deliver his/her decision?

In many matters, the Judge will deliver his/her decision immediately following the interim hearing.

In matters which are more complex, the decision may be delivered at a later point in time.

In most interim hearings, the judge will provide reasons for his/her decision.

How long do interim orders last for?

The orders made at an interim hearing are temporary and will remain in place until they are replaced by one of the following:

• further interim court orders
• some other agreement between the parties
• final orders.

What are the advantages of an interim hearing?

• Interim orders can ensure that assets of the marriage (eg, real estate, savings) are preserved and that one party does not sell, give away or make disappear those assets.
•  
• Interim orders can compel an unwilling parent to allow the other parent to spend at least some time with their children, until the final hearing – which can be years away.
•  
• Interim orders can be a trigger for final settlement of a matter as it may narrow the issues of dispute between the parties.

Are there any disadvantages in seeking an interim hearing?

• Because there is usually no cross-examination of witnesses in an interim hearing, the party at the receiving end of serious allegations (eg, domestic violence) is unable to test that evidence.
•  
• The cost of an interim hearing is an extra cost that has to be borne by the parties.

How do I go about obtaining interim orders?

• Interim orders can be sought in your Initiating Application or Response; or in an Application in a Case.

Should I seek interim orders or not?

A party should carefully weigh up the pros and cons of an interim hearing in consultation with his/her lawyer before deciding whether to seek interim orders or not.

Before seeking interim orders, you should seek the advice of an experienced family lawyer.

Our principal – Namrata Singh regularly conducts interim hearings in the Family Court and Federal Magistrate’s Court. She can be contacted on (02) 8798 0457 or namrata@opallegal.com.au for a free initial consultation about whether or not to apply for interim orders.

If the ICL is satisfied that a particular course of action is in the best interests of a child, then they are to make a submission to the court suggesting that that course of action be adopted.

The role of the ICL is not to act on instructions from a child and they are not bound to act in accordance with a child’s wishes.  An ICL is expected to consider the weight to be given to any views expressed by a child by taking into account factors, including:

• a child’s age and maturity;
• the strength of the child’s view;
• the basis for the child’s view.

What are the duties of an ICL?

The duties of an ICL are outlined in section 68LA(5) of the Family Law Act and the National Legal Aid Guidelines for Independent Children’s Lawyers which can be accessed here:

The duties of an ICL is to:

1. act impartially and in consideration of the best interests of the child;
2. evaluate the degree of involvement of the children in decision making about the proceedings;
3. be truly independent of the court and the parties;
4. work with any external experts to promote the children’s best interests,e.g. a family consultant;
5. place the views of the child before the court in an admissible form;
6. if the ICL has formed a view, provide admissible evidence from which such view has been drawn from;
7. bring to the court’s attention matters in any relevant reports relating to the child that the ICL considers to be most significant to determine the child’s best interest;
8. endeavour to minimise the trauma to the child associated with the proceedings;
9. facilitate a resolution of the proceedings that is in the child’s best interest;

make a submission to the court to adopt a course of conduct that the ICL is satisfied is in the best interests of the child.

How does an ICL assist the court?

In interim hearings,an ICL may issue subpoenas to obtain evidence to assist the court to determine any interim issues. Subpoenas are often issued to police, FACS, the child’s school,and doctors.

Where the matter is proceeding to a final hearing, an ICL should identify the issues the parties have agreed upon and which issues are in dispute; as well, s/he should identify the evidence required at the final hearing to assist the court to determine the issues in dispute.

How is an ICL appointed?

The court has power pursuant to s68L of the Family Law Actto appoint an ICL. The appointment can be made based on:

1. an application by:
   1. a child;
   2. an organisation concerned with the children;
   3. any other person
2. The court on its own initiative

Importantly, simply because an application is made to the court seeking an ICL be appointed, itwill not mean that the court will do so. The court considers the matters in each case to determine whether it is appropriate to appoint an ICL.

When will a court appoint an ICL?

The Full Court of the Family Court of Australia in the case of Re K (1994) 17 Fam LR 537 set out a non-exhaustive list of matters to consider when deciding whether appointing an ICL would be appropriate. The matters include:

• allegations of sexual, physical, or psychological child abuse
• intractable conflict between the parents
• the child is alienated from one or both parents
• issues of cultural or religious difference affecting the child
• the sexual preferences of either or both parents or another person who has significant contact with the child is likely to impinge upon the child’s welfare
• conduct of either or both parents or another person who has significant contact with the child is alleged to be anti-social to the extent that it seriouslyimpinges on the child’s welfare
• there are issues of significant medical illness, psychiatric illness, psychological illness or personality disorder in relation to either party or a child or another person who has significant contact with the child
• a party seeks to relocate and their proposal would restrict or exclude the other parent from having contact with the child
• a child of mature years expresses a view which supports changing a long-standing arrangement or a complete denial of contact with one parent
• proposal to remove the child from the jurisdiction
• neither party is legally represented
• a proposal to separate siblings
• neither party is a suitable carer

The Court may also order an ICL in matters where orders have previously been made in the Children’s Court under State Welfare legislation

Will an ICL meet the child?

There is an expectation from the Court that anICL will meet the child in every case unless:

1. the child is under school age;
2. it may not be practical to do so,e.g. due to geographic remoteness;
3. exceptional circumstances exist.

Can an ICL help with issues after my case is over?

In most matters,an ICL’s appointment will end once final orders are made (see rule 8.02(5) Family Law Rules 2004 – insert link to rule here:

In some matters,an ICL may be required to explain the final orders to the child.

Once final orders are made, an ICL is not required to monitor the orders, ensure they are being followed, or take any steps toenforce the orders.

If you want to know more about whether an ICL could be appointed to your case, you can contact our senior lawyer.

The couple separated in 2013. At the time, the family was living in Australia. Upon separation, the husband returned to Dubai while the wife and child continued to reside in Australia.

Wife commences Australian proceedings

Later that year, the wife instituted proceedings in the Family Court of Australia -seeking parenting orders. That application was later amended to include property and spousal maintenance orders.

Husband commences proceedings in Dubai

In 2014, the husband commenced divorce proceedings in the Personal Status Court of Dubai. He also sought the extinguishment of all other marital rights of the wife.

A year later, the Dubai court granted the husband an “irrevocable fault-based divorce.” This meant that the marriage was dissolved and the wife could not seek property orders under the law of Dubai. The Dubai court also made an order that the wife pay the husband AED $100,000. This corresponded to a “deferred” dowry payment the wife had agreed to pay the husband upon death or divorce in a written contract at the time of their marriage.

Husband seeks stay of Australian proceedings

Responding to the wife’s Australian application, the husband applied to the Family Court of Australia to have the property settlement and spousal maintenance proceedings permanently stayed. He relied on the principles of res judicata and cause of action estoppel.

Decision of single judge of Family Court

At first instance, Hogan J dismissed the husband’s stay application.

Her honour found that in relation to the property settlement proceedings, the Personal Status Law of the United Arab Emirates (unlike the Family Law Act) made no provision for altering the interests of the parties in real property located outside the United Arab Emirates.

As to the spousal maintenance proceedings, the trial judge found that the law of Dubai only provided a limited right of alimony and that the Dubai court did not, in fact, deal with the wife’s rights to alimony.

The husband appealed to the Full Court of the Family Court of Australia.

Full Court overturns single judge decision

The Full Court unanimously allowed the husband’s appeal and ordered that the property and spousal maintenance proceedings be permanently stayed.

Their honours, took the view that:

2. The Dubai proceedings had determined the same cause of action as that sought in the property proceedings in Australia. This gave rise to a “res judicata estoppel”.
3. Implicitly equating spousal maintenance with alimony, the Full Family Court concluded that the wife’s failure to press for alimony in the Dubai proceedings precluded her from pursing a claim for spousal maintenance by the operation of the “Henderson extension” (see Henderson v Henderson (1843) 3 Hare 100; 67 ER 313).

High Court takes different approach

Special leave was granted to the wife to appeal to the High Court.

Unanimously allowing the wife’s appeal with costs, the High Court held that the Dubai court determination could not give rise to a res judicata because the right to seek orders for property and spousal maintenance orders under section 79 and section 74  of the Family Law Act could only “merge” in the final judicial orders of a court having jurisdiction under the Act to make such orders (and the Dubai Court did not have such jurisdiction).

Keifel CJ, Bell & Gagelar JJ stated:

“26. Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under ss 79(1) and 74(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia[31]. The rights created by ss 79(1) and 74(1) cannot “merge” in any judicial orders other than final orders of a court having jurisdiction under the Act to make orders under those sections. The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted[32].”

Their honours took the view that:

• As to the property proceedings, the Dubai court decision was not capable of founding a cause of action estoppel or anshun estoppel because the right to seek a share in joint investment property in the Dubai proceedings was not the same as the rights available under the Family Law Act.
• With regard to spousal maintenance, although alimony in the Dubai law and spousal maintenance under the Australian law were substantially similar, there was a significant difference because it was not shown that alimony can be claimed after the date of divorce while spousal maintenance can be. The wife’s choice not to claim alimony in Dubai could not be the basis for the operation of an anshun estoppel.

The High Court also confirmed that the common law doctrine of estoppel continued to apply to proceedings under the Family Law Act.

“27.    For the ruling made by the Dubai Court to preclude the wife from pursuing the property settlement proceedings and the spousal maintenance proceedings, that preclusion can occur, if at all, through the operation of the common law doctrine of estoppel. No argument is made that the operation of that common law doctrine is excluded by the scheme of the (Family Law) Act.”

 Other useful cases

Other family law cases that deal with inter-country disputes include:

• Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
• In the Marriage of Caddy and Miller (1986) 84 FLR 169
• Jasmit v Jasmit [2014] FCCA 972
• Hughes & Hughes [2014] FamCA 12

Some words of warning

• There are varying degrees of difference and similarity between Australian family law legislation and that of other countries.
• Each case depends on its own facts. The nature of the overseas family law legislation and the particular legal proceedings instituted overseas are crucial to the issue of jurisdiction.
• Where parties have a choice of which jurisdiction to commence proceedings in, they should obtain legal advice from a family law solicitor experienced in inter-country family law litigation before commencing or responding to proceedings.

Following a five-day contested arbitration, in which 12 witnesses were cross-examined, the Arbitrator accepted almost entirely the version of the de facto relationship given by Opal Legal’s client.

What is a de facto relationship?

Section 4AA of the Family Law Act 1975 provides that a person is in a de facto relationship with another person (of the same or opposite sex) if:

• the persons are not legally married to each other; and
• the persons are not related by family; and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
•  

How does the court work out if a relationship exists as a couple?

In determining whether the persons have a relationship as a couple, the court may look at some or all of the factors found at s4AA (2) of the Family Law Act. The factors are:

• 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 degree of mutual commitment to a shared life;
• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• the care and support of children;
• the reputation and public aspects of the relationship.

Importantly:

• no particular finding in relation to any circumstanceis necessary to determine whether a de facto relationship exists
• the court can have regard to such matters and place weight on such matters as may seem appropriate in each case
• a de facto relationship can exist even if one person is legally married to someone else or is in another de facto relationship

If you are looking for advice or representation following a breakup, feel free to contact our highly experienced de facto relationship lawyers for a FREE CASE EVALUATION or REQUEST A QUOTE now.

Your first consultation will be free.

Approximately 8 months later, while the husband was hospitalised due to a suspected heart attack and under pressure from the wife, he signed a transfer of land that gave the wife a further 40% interest in the property.

The transfer was subsequently registered and the parties became joint tenants.

Neither of the documents signed by the husband were binding financial agreements.

Sometime there after the parties signed a deed of gift which provided that if the husband survived the wife while they remained joint tenants of the property then he would pay one half of the value of the property to the wife’s siblings. The deed further provided that such payment should be taken into account if the parties were to separate or divorce.

In August 2016 the parties married which lasted some 23 days.

What happened initially?

In November 2016, the husband commenced proceedings in the Family Court seeking that there be an adjustment of property such that the wife’s interest in the property be transferred to him.  The wife did not appear at the trial and it proceeded on an undefended basis.

At trial, Cronin J:

• severed the joint tenancy;
• ordered the wife to transfer her interest in the property to the husband; and
• ordered the husband to pay the wife $100,000.

Deciding that it was just and equitable to make a property adjustment order, the judge found that although the wife received the initial 10% as a gift, her conduct in acquiring the further 40% could not be seen in the same light as the initial gift. His Honour also noted the short term of the marriage and that the wife’s financial and non-financial contributions to the acquisition, conservation and improvement of the property were modest.

What happened on appeal?

The wife appealed to the Full Court of the Family Court arguing that the trial judge had erred by failing to identify the existing legal interest of the parties, incorrectly treating the further 40% transfer as vitiated by pressure and sought to adduce further evidence on the circumstances by which she obtained the further interest.

Her appeal was unsuccessful. The Full Court,in upholding that it was just and equitable to make the property adjustment orders, stated that none of the evidence – which the wife had deliberately not filed before trial – would have produced a different result; and it was not in the interest of justice to receive such further evidence on appeal.

The wife’s High Court appeal

Taking her case to the highest court in Australia –  the High Court, the wife argued that the deed- which contained a provision that payment was to be made to her in the event that the parties separated or divorced – was a material consideration that trial judge failed to take into account.

The High Court considered the principles set out in its  seminal decision in Stanford (Stanford v Stanford) [2012 HCA 52 – , particularly whether it was just and equitable to make a property order altering the interests of the parties.

In rejecting the wife’s argument, the majority of the High Court stated that her argument was based on a misconstruction of the deed and it that it was open to the trial judge to be satisfied that it was just and equitable to adjust the parties’ property interests. Further, that it was open for a finding to be made that the wife’s financial contribution to the property was no greater than 10%.

The majority said in relation to the deed and whether Cronin J had erred (at [53]):

“….His Honour’s reasons reflected the arguments that were put to him. The trial was the place to adduce such evidence and put such arguments as might favour a different finding as to the parties’ respective financial contributions for the purposes of s 79(4)(a). 

The trial was not some preliminary skirmish which the appellant was at liberty to choose not to participate in without consequence. Her right of appeal was a right to have the Full Court review whether the primary judge’s discretion to make a property settlement order had miscarried, applying the well-established principles expressed in House v The King ((1936) HCA 40. It was not an opportunity for the appellant to make a case that she chose not to make at the trial. The Court is invested with a wide discretion under s 79(1) to make such order as it considers appropriate. It should not be concluded that his Honour’s assessment of the parties’ respective financial contributions, in this singular case, was not open.”

As to the wife’s argument that the Full Court had erred in refusing to receive further evidence on the appeal, the majority of the High Court confirmed that the Full Court was correct to not  receive the wife’s further evidence and said at [43]:

“…The trial was the opportunity for the appellant to put her case and the appellant chose not to participate in it.”

Dismissing with costs,the wife’s appeal,the High Court (by majority):

• found that the Full Family Court was not in error in making property adjustment orders under s79(1) of the Family Law Act 1975; and
• refused to exercise its discretion to receive further evidence on appeal.

Lessons to be learnt

• It is crucial for a party to not only participate in proceedings from the beginning, but to provide all available evidence to the court.
• A party’s right to appeal is not a right of a party to make their case on appeal that they chose not to make at trial.
• Agreements that seek to divide property of parties must be drafted carefully and there is no certainty that any such agreement will be upheld by the Court.
• There is always a risk of a costs order being made against anunsuccessful party.
  The High Court recently upheld a Family Court’s decision that ordered that the wife’s 50% interest in a property be transferred back to the husband.In the recent decision of Hsiao v Fazarri[2020] HCA 35 , the High Courtconsidered the case of a husband who had initially gifted the wife 10% interest in the property and later signed a transfer giving the wife a further 40% interest in theproperty.Upholding the lower Family Court’s ruling, the High Court agreed that it was “just and equitable” that the husband’s 50% interest be returned to him, despite him earlier signing a document giving that interest to the wife.The facts In August 2012 the parties commenced a relationship but were living separately.The husband purchased a property in 2014 for $2,200,000 and made a gift to the wife of a 10% interest in that property.Approximately 8 months later, while the husband was hospitalised due to a suspected heart attack and under pressure from the wife, he signed a transfer of land that gave the wife a further 40% interest in the property.The transfer was subsequently registered and the parties became joint tenants.Neither of the documents signed by the husband were binding financial agreements.Sometime there after the parties signed a deed of gift which provided that if the husband survived the wife while they remained joint tenants of the property then he would pay one half of the value of the property to the wife’s siblings. The deed further provided that such payment should be taken into account if the parties were to separate or divorce.In August 2016 the parties married which lasted some 23 days.What happened initially? In November 2016, the husband commenced proceedings in the Family Court seeking that there be an adjustment of property such that the wife’s interest in the property be transferred to him.  The wife did not appear at the trial and it proceeded on an undefended basis.At trial, Cronin J:
  • severed the joint tenancy;
  • ordered the wife to transfer her interest in the property to the husband; and
  • ordered the husband to pay the wife $100,000.

  Deciding that it was just and equitable to make a property adjustment order, the judge found that although the wife received the initial 10% as a gift, her conduct in acquiring the further 40% could not be seen in the same light as the initial gift. His Honour also noted the short term of the marriage and that the wife’s financial and non-financial contributions to the acquisition, conservation and improvement of the property were modest.

  What happened on appeal?

  The wife appealed to the Full Court of the Family Court arguing that the trial judge had erred by failing to identify the existing legal interest of the parties, incorrectly treating the further 40% transfer as vitiated by pressure and sought to adduce further evidence on the circumstances by which she obtained the further interest.

  Her appeal was unsuccessful. The Full Court,in upholding that it was just and equitable to make the property adjustment orders, stated that none of the evidence – which the wife had deliberately not filed before trial – would have produced a different result; and it was not in the interest of justice to receive such further evidence on appeal.

  The wife’s High Court appeal

  Taking her case to the highest court in Australia –  the High Court, the wife argued that the deed- which contained a provision that payment was to be made to her in the event that the parties separated or divorced – was a material consideration that trial judge failed to take into account.

  The High Court considered the principles set out in its  seminal decision in Stanford (Stanford v Stanford) [2012 HCA 52 – , particularly whether it was just and equitable to make a property order altering the interests of the parties.

  In rejecting the wife’s argument, the majority of the High Court stated that her argument was based on a misconstruction of the deed and it that it was open to the trial judge to be satisfied that it was just and equitable to adjust the parties’ property interests. Further, that it was open for a finding to be made that the wife’s financial contribution to the property was no greater than 10%.

  The majority said in relation to the deed and whether Cronin J had erred (at [53]):

  “….His Honour’s reasons reflected the arguments that were put to him. The trial was the place to adduce such evidence and put such arguments as might favour a different finding as to the parties’ respective financial contributions for the purposes of s 79(4)(a). 

  The trial was not some preliminary skirmish which the appellant was at liberty to choose not to participate in without consequence. Her right of appeal was a right to have the Full Court review whether the primary judge’s discretion to make a property settlement order had miscarried, applying the well-established principles expressed in House v The King ((1936) HCA 40. It was not an opportunity for the appellant to make a case that she chose not to make at the trial. The Court is invested with a wide discretion under s 79(1) to make such order as it considers appropriate. It should not be concluded that his Honour’s assessment of the parties’ respective financial contributions, in this singular case, was not open.”

  As to the wife’s argument that the Full Court had erred in refusing to receive further evidence on the appeal, the majority of the High Court confirmed that the Full Court was correct to not  receive the wife’s further evidence and said at [43]:

  “…The trial was the opportunity for the appellant to put her case and the appellant chose not to participate in it.”

  Dismissing with costs,the wife’s appeal,the High Court (by majority):

  • found that the Full Family Court was not in error in making property adjustment orders under s79(1) of the Family Law Act 1975; and
  • refused to exercise its discretion to receive further evidence on appeal.

  Lessons to be learnt

  • It is crucial for a party to not only participate in proceedings from the beginning, but to provide all available evidence to the court.
  • A party’s right to appeal is not a right of a party to make their case on appeal that they chose not to make at trial.
  • Agreements that seek to divide property of parties must be drafted carefully and there is no certainty that any such agreement will be upheld by the Court.
  • There is always a risk of a costs order being made against anunsuccessful party.

What can a court make orders for?

Property orders relate to property (assets and liabilities) of parties, including items such as real estate, savings, motor vehicles, jewelry, superannuation, business interests, trust interests and mortgages, loans and taxation liabilities.

Property includes lump sums received by a party during the relationship including inheritances, gifts, lottery winnings, redundancy payments and compensation pay-outs.

Importantly, the court also takes into account assets a party brings into the relationship as well as post-separation contributions.

Can the court decline to make orders?

Before making orders, the court must be satisfied that it is just and equitable to make any property orders altering the interests of the parties.

While in most cases the court ends up making property orders altering the interests of the parties, in unusual cases it will decline to make any orders. This is because court is not satisfied that it is just and equitable to make property orders. This would be the case where the court finds that the ownership of property of each party should stay as it is. An example would be a short relationships where parties have kept their finances separate, do not own any asset or liability jointly and have no children.

How much will I get?

The court `engages in the following four-step process before deciding on final property orders:

1. Identify the net matrimonial pool. That is, the assets of the parties less the liabilities of the parties. The pool includes property that may not necessarily be in the names of the parties, but in reality belongs to a party. Examples of this include interests in a business or benefits under a trust. The court may consider the superannuation of the parties either separately or together with the matrimonial pool, depending on certain factors.

• Identify and evaluate the contributions made by each party (financial and otherwise)

Financial contributions include direct contributions (for example, to purchase of assets and repayment of debts), as well as indirect contributions. Non-financial contributions include care of children and homemaker responsibilities.

The court may, or may not, make adjustments based on contributions in favour of one party.

For example, the court may make an adjustment of 5% in favour of one party for greater contributions.

• Determine what, if any, adjustment should be made based on future needs of a party.

There are a wide range of factors that can be taken into account including age, health, earning capacity, financial resources and care of children.

For example, the court could make an adjustment of 5% in favour of one party by reason of that party having future care of a child.

• Determine whether it is just and equitable to make property orders.

The court then steps back and looks at the final split it has arrived at and asks itself, “Is this split just and equitable?

Upon the court being so satisfied, it makes final orders, in which it stipulates the percentage of the net pool that is to be distributed to each party (eg 50/50, 60/40 etc).

It then stipulates what items of property each party will receive and/or the manner in which property is to be sold.

Time limits for property applications

• You do not have to be divorced to apply for property orders. You can apply for property orders if your marriage has broken down ie you and your spouse have separated.

• If you are divorced then, you have 12 months from the date of your divorce to apply for property orders (including spousal maintenance orders)

• If your de facto relationship has broken down, then you have two years from the date of separation to apply for property orders (including de facto maintenance)

Timing of application to court

The court works on the values the matrimonial property as at the date it hears the matter. It is often the case that the values of matrimonial property change significantly between the date of separation and the date of the court case. This may negatively affect one party more than the other.

It is thus desirable that you obtain advice about a property dispute from an experienced family lawyer as soon after separation as possible.

Our principal – Namrata Singh can be contacted on (02) 8798 0457 or namrata@opallegal.com.au for a free initial consultation to answer your questions about property orders.

Opal Legal: Lawyers you can trust in Liverpool, Parramatta & Sydney to resolve your property dispute.

Jurisdiction

1. Either you or your spouse:

a) Are an Australian citizen; or

b) Regard Australia as your home within which you intend on indefinitely residing; or

c) Live in Australia and have done so for the 12 months before filing for divorce.

Relationship

2. You have been married for at least 2 years;

3. You have been separated for at least 1 year (this includes separated and living under the same roof); and

4. The marriage has broken down and there is no reasonable likelihood that you will reconcile.

Children

5. There are suitable arrangements in place for any children of the marriage under 18.

Filing fee

The court has a fixed filing fee for divorce applications.

Unless you are eligible for a fee reduction or suffer financial hardship, the application will not be processed until filing fee is paid.

Service

Service is the process of providing filed documents to the other party in accordance with the court rules.

Joint applications do not need to be served.

For an application filed by one spouse, the filed application must be served on the other party or their lawyer if their lawyer has instructions to accept the divorce application.

An applicant cannot serve the other party. Another person over 18 must serve them by post or hand.

The court must be satisfied that the other party has been served before a divorce can be granted.

Importantly, time limits for service apply depending on if the other party is in Australia or overseas.

If there is difficulty in service, you can apply to the court that you do not have to serve the other party (service be dispensed with) or that another person be served instead (substituted service).

Change of name

If the name of a party has been changed since marriage the court will require an affidavit explaining the change.

Responding to a divorce

Opposing

If you do not want the divorce application granted you can only oppose the application through a Response if:

• you do not agree there has been 12 months separation; or
• you dispute that the court has jurisdiction.

You should attend court if you file a Response opposing the divorce.

Disputing facts

If you want the divorce to be granted but disagree with facts set out in the application, you can file a Response setting out the facts you do not agree with. Examples of disputed facts are dates of birth and spelling of names.

You should not need to attend court if your Response corrects factual errors.

A Response must be filed within certain time limits; otherwise it may not be considered by the court.

Hearing date

Once a divorce application is filed the court will provide a hearing date.

Court appearance is required if:

• only one party has applied; and
• there is a child of the marriage under 18.

Other circumstances where a party should attend court include:

• service difficulties
• you wish to provide additional information
• a Response has been filed

If the court requires further information then another court date will be provided. The court will inform the parties whether attendance at the next date is required.

Granting divorce

If the court grants a divorce then it will come into effect 1 month and 1 day after the date of the order. You can only remarry after this date.

Withdrawing an application 

If you no longer wish to proceed with a divorce once it has been filed, a Notice of Discontinuance can be filed with the court.

You will need to attend the hearing date unless the court notifies you before that the matter has been discontinued.

Importantly:

• In Australia, the principle of no fault divorce applies which means that the court will not consider why the marriage has ended.
• Applications for divorce relate only to the marriage. The divorce hearing will not deal with parenting or property matters. If there are parenting and/or property issues in dispute, a separate application will need to be made to the court.
• There are time limits to commence property proceedings once a divorce order is made.

A divorce application can be refused or delayed if the rules and legal requirements are not complied with.

At Opal Legal, we can provide advice on the divorce process including your eligibility for divorce and your rights and obligations.

We are usually able to quote you a fixed fee for the entire divorce process.

An Apprehended Domestic Violence Order: this covers the immediate family members and relatives of the defendant.
An Apprehended Personal Violence Order: this covers persons other than the above.

Should I consent to an AVO?

Defendants are often told by police and others that an AVO is not a criminal conviction and that there is no legal penalty if they consent to an AVO on a “without admissions” basis.

What they are usually not told about is the grave consequences that can flow from consenting to an AVO:

If, after an AVO is made against you, the PINOP alleges that you have breached a condition of an AVO, police will usually charge you with the criminal offence of contravening an AVO, regardless of whether the allegations may turn out to be false. You have no say in the charging process.
If you are involved in family law proceedings, you should be aware that there are a number of sections of the Family Law Act that restrict the rights of a parent who has engaged in family violence. Thus, the making of a provisional, interim or final AVO against you may be relied by a family court to restrict or deny you access to your children or to deny you having equal shared responsibility for your child/ren with your partner (see for example, section 61DA(2) of the Family Law Act 1975..

What conditions does a court impose in an AVO?

All AVOs have the following standard conditions:

1. You must not do any of the following to [the PINOP], or anyone they have a domestic relationship with:

assault or threaten them,
stalk, harass or intimidate them, and
intentionally or recklessly destroy or damage any property that belongs to or is in the possession of [the PINOP].

For example:

You must not do any of these things in person, through another person, or through electronic communication and devices (for example, by phone, text messages, emails, Facebook or other social media, or GPS tracking).

You must not do or say anything that may make [the PINOP] feel frightened, or feel that you may harm them or damage their belongings in any way, including any jointly owned property and pets.

An AVO can include additional conditions, such as:
You must not approach the PINOP.
You must not go near his/her home or place of work.
You must not damage his/her property.
A sample AVO can be viewed here https://www.lawaccess.nsw.gov.au/Documents/sample_interim_advo.pdf

Who is protected by an AVO?

An AVO will:

Protect the PINOP
Usually protect all persons he/she has a “domestic relationship” with – this means all persons who are living with the PINOP.

What is the difference between a provisional AVO, an interim AVO and a final AVO?

A provisional AVO is usually made before the first court date of a case. It continues until another order is made by a court. A provisional AVO can be made by certain police officers, registrars and magistrates.
An interim AVO is usually made on the first date that a case comes before a court. It continues until another order is made by a court. Only a court can make an interim AVO.
A final order is made after a court hears evidence from relevant witnesses or if it is consented to by a defendant.

How long does an AVO run for?

The most common length of an AVO is two years.
However, AVO’s can be made for lesser or longer periods.

Can an AVO be revoked or varied?

There are special rules for anyone wanting to revoke or vary an AVO:

A PINOP or a defendant can apply to vary or revoke an interim or final AVO.
Leave of the court is required to vary or revoke an AVO where the PINOP is a child (see section 72B of the Crimes (Domestic and Personal Violence) Act 2007).
Only a police officer can apply to vary or revoke a provisional AVO where the PINOP is a child (see section 33A(2) of the Crimes (Domestic and Personal Violence) Act 2007).
Police are empowered to apply to vary or revoke any type of AVO. However, in our experience, police rarely exercise this power

The wife had also alleged that our client had sent her 50 text messages in one day. However, under cross-examination she conceded that the text messages were in fact part of an exchange of text messages between her and our client.

In dismissing the application, the Magistrate found that on the evidence before her, an AVO was not warranted.

The making of an AVO against your client can have significant consequences, particularly if concurrent family law proceedings are on foot.

Further, your client can be exposed to malicious or frivolous claims of breaching an AVO.

It is thus important to strenuously challenge AVO applications that mala fide.

What does the court take into account when deciding relocation cases?

In AMS v AIF (1999) CLR 160 the High Court considered the case of a mother who wanted to move to Darwin from Perth with her child.

The High Court ultimately returned the case to the Family Court of Western Australia to be re-heard.

Kirby J, in his judgement in the case, summarised the factors the court takes into account in relocation cases.

Put in simple terms, these are the factors:

• The facts of each case are unique. Those facts must be carefully and delicately analysed.
• No single factor decides where a child will live.
• If there is a conflict between the welfare or best interests of the child and the legitimate interests and desires of the parents, priority must be given to the child’s welfare and rights. However, the latter cannot be viewed in isolation, separate from the circumstances of the parent with whom the child resides.
• Adults have a right to decide for themselves where they will live. However, ultimately the welfare or best interests of the child are paramount, and not, the wishes and interests of the parents.
• A more relaxed approach should be adopted to relocation within Australia than relocation overseas.
• If a parent seeks to change arrangements affecting the residence of, or access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of or in the best interests of the child.