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It Just A Simple Agreement: Financial Agreement

“I just want a Financial Agreement, it’s just a simple one to say that we will each keep our own assets”.

If I (and most family lawyers gold coast I am sure) had $1 for every time they had a client say this to them, we all would be retired!

To put it simply, there are no “simple” Financial Agreements and particularly no simple Financial Agreements that are being entered into at the commencement of a relationship.

To illustrate just how and why these agreements need to be carefully considered, properly drafted and advised upon, below are just some of the many questions (and questions within questions) and queries that I have when discussing Financial Agreements with a client:

1. Will your assets be kept strictly separate? Will you keep your financial contributions towards these assets strictly separate? Do you now or do you intend to acquire any assets together (this can be any form of asset, from a property to a car, caravan, shares or investments)? If so, what will be the financial arrangements for the acquisition and ownership of this asset?
2. If there are co-owned assets, how will these be divided if you separate? How gets to keep them? If there is an argument about who gets to keep them, how will this argument be resolved?
3. Will the agreement cover all assets in their entirety? Or is the intention of the agreement just to “quarantine” certain assets from a claim upon separation? If only certain assets are dealt with then the specific assets not covered will need to be dealt with in accordance with usual family law principles and as such you may end up in negotiations regarding these matters. If you want to specifically avoid all forms of family law application, then the agreement must cover ALL assets.
4. If there is to be a payment made at payment is to be made from one partner to the other upon separation then how is that calculated? Is it by reference to years of the relationship or number of children? Is there a sliding scale to a maximum amount? Is it based on dollars or percentages? Does the dollar amount increase over time? Is that increase based on CPI or another figure? When is the payment due, is it in one lump sum or over time? What are the consequences of non-payment?
5. Do you plan to have children? If so, what do you intend to do with the terms of the agreement at that time? Does it terminate or do you put in place different payment arrangements? How will you re-consider the terms of the agreement at that time to consider what is fair and reasonable?
6. If there is a significant difference between one partner’s income and financial position, will there be provision for support for the lesser financial spouse if the parties separate? If so, how is that to be calculated? How long is it to go on for? Will it decrease over time?
7. What about your pets? How will they be considered in the agreement? Who will have possession of them at separation? Will you have shared possession? How will their food and veterinary expenses be dealt with?
8. Do you wish to trigger a review of the agreement? If so when? Is it by reference to years, or events (such as children being born or houses being purchased)?
9. Do you anticipate receiving an inheritance in the near future? Is this to be quarantined? What will you do if the funds are intermingled with joint assets?

So if you are considering a Financial Agreement at the commencement of your relationship, please consider it as a detailed and complex document that needs careful consideration and most importantly, expert legal drafting.

Taking the time to get proper legal advice about these types of agreement is of utmost importance. Utilising a specialist Family Lawyer is the best way to ensure that your agreement is drafted as you want it to be and is carefully considered and deals with as many of the “ifs, buts and maybes” that could arise.

The specialist family law team at OMB Solicitors can guide you through this process to ensure that your needs are met and your agreement drafted promptly and properly.

What does the Family Law Amendment Bill 2023 mean for Family Law in Australia?

In late January 2023 the Family Law Amendment Bill was released by the Attorney-General’s Department, sparking significant debate around the proposed amendments and what that might mean for past, present and future separated families.

On the back of the number of Family Law inquiries over recent years and most significantly that of the Australian Law Reform Commission, the Government developed a draft Family Law Amendment Bill 2023 to address some of the most important issues in relation to children and parenting matters as an urgent priority.

A summary of the proposed changes and their potential impact are as follows:

Parental Responsibility

Under the proposed reforms, the Government is repealing the presumption of ‘equal shared parental responsibility’ and the resultant requirement to consider specific time arrangements.

The current legislative regime with respect to parental responsibility is very commonly misunderstood and misinterpreted as parentings having an entitlement to equal shared time with their children. This is incorrect and has never been the case. This misunderstanding can lead to parents entering discussions assuming they MUST have particular arrangements, even if they may not consider them appropriate for their children. Furthermore, it has been found that this provision is oft used to continue domestic and family violence post separation.

Importantly, the Court will still be able to make Orders for both equal shared parental responsibility and equal time, but the decision-making process to get there will be significantly different.

Simplified list of best interests’ factors

The current list, contained within s60CC of the Family Law act has two primary factors and thirteen additional factors the Court must consider when deciding about what is in the best interests of a child.

Under the proposed amendments, the list of best interests’ factors will be reduced to six for all children and an additional specific factor for First Nations children. The intention of the changed factors is to provide a more contemporary framework for decision making by the Court.

The proposed new factors will be:

• What arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm
• Any views expressed by the child
• The development, psychological and emotional needs of the child
• The benefit of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so
• The capacity of each proposed carer of the child to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring; and
• Anything else that is relevant to the circumstances of the child

In relation to First Nations children, whilst there has always been a factor specifically relevant to their cultural needs, there will now be a standalone factor to ensure this consideration is prominent. An expanded definition of member of family will be applicable to ensure that the court is being more inclusive of the Aboriginal and Torres Strait Islander concepts of family and kinship, which are wider than those currently recognised in the Act.

Simplifying the Court’s enforcement process for parenting orders

The Australian Law Reform Commission identified that the current parts of the Family Law Act relating to enforcing parenting orders and consequences for breach of them are too complex. The redraft provides clearer and more straightforward provisions about the consequences of breaching a parenting order. The intention of the amendments is to assist in parties understanding the importance of complying with parenting orders.

Giving clearer understanding of when a parenting order can be changed

The current amendments will provide for clarity about when a Parenting Order can be changed. The draft bill uses the case law that exists around this issue to put into the legislation what the courts should be look at in deciding whether it would be in the child’s best interests to reconsider the parenting Orders.

Changing how children’s views are heard

The draft amendments make it a requirement, in majority of cases in matters where an ICL (independent children’s lawyer) is appointed to meet with children to explore their views. Currently it is not a requirement, but an option for an ICL to meet with children.

Enabling the discussion of proceedings with family members or friends

Currently, the provisions of s121 of the Family Law Act prohibit the publication in any way of information that identifies people involved in family law proceedings.  Strictly interpreted, this means that a party to court proceedings cannot discuss them with their parents, current partner or trusted confidante. The amendments will remove this strictness and allow private communications between parties and their family members and extending this to a professional, academic or researcher. The amendments will further confirm that public communication by social media, is not allowed.

Protections from harmful effects of litigation

Currently, the only way that a party can be stopped from the filing of many applications is by way of a “Vexatious Litigant” order, the obtaining of which can be expensive and time consuming and only after a significant number of applications have been made. The amendments open up these restrictions and allow the court to stop further applications where it would be harmful to the other party, or the children involved. The amendments reflect that a history of frequently instituting court proceedings is not the most important consideration when protecting a party or a child from the effects of litigation.

The second aspect of these protections extends to the capacity to issue subpoena to and use documents produced under subpoena addressed to medical, counselling or psychological services.

The amendments mean that these records could still be used, but only in certain circumstances. It will be the responsibility of the person seeking to rely upon the documents to establish that the information will not have a harmful impact on the person who’s record they are, if the court admits them into evidence.

Regulatory Regime for Family Report writers

The Australian Law Reform Commission recommended that there be a regulatory regime implemented for Family Report writers involved in parenting matters. This was considered necessary to ensure the quality and safety of these important experts.

The amendment Bill allows only for the power to exist and thereafter the Government will have to take steps to develop and implement the regulations and standards.

So, what does this mean for:

1. 1. Parents with existing Orders?
      If the proposed amendments become law, nothing will change about existing Orders, they will remain valid and enforceable.
   2. Parents with current Court proceedings
      For the most part, the new law (if amendments are passed) will only apply to proceedings started AFTER the commencement of the amendments.  Thus, if there are already court proceedings on foot, the new law will NOT apply.

When will it all start?

If the amendments are passed into law, there is likely to be a 6 month lead in time before most of the changes come into effect. This will allow family law professionals to become familiar with the changes and the impact upon their advice to clients.

There is currently a consultation process being undertaken, allowing the public and family law professionals to comment on the proposed changes. This process will end on 27 February 2023 after which time the Bill will be considered by Parliament.

Watch this space!

If you have any concerns or questions about these proposed amendments and what they may mean for you, or any Family Law related enquiries or issues, contact the Gold Coast Family Lawyers team at OMB Solicitors for a free initial consultation.

Why Is January The “D” Month?: Divorce Month

Statistically and practically, for family lawyers, January every year sees an influx of inquiries from new clients seeking advice on their relationship breakdown.

Why is that so?  Quite simply it is the holiday season and the stress and disillusionment that can follow from the Christmas period.

Some of the boiling points over the holiday period that contribute to the end of the relationship are:

Financial Pressure

There is no doubt that 2022 brought about significant financial pressure on families and when you combine the interest rate hikes of 2022 with the associated costs of Christmas such as gifts, socializing, family gatherings etc, the pressure on household budgets is immense. The pressure to keep up with those around us or not let our kids down with the presents they want, often sees families living beyond their means.

Extra spending can result in significant relationship stress and take a toll on your relationship. When your relationship is already undressed and stress the Christmas spending can take things over the edge and the already difficult relationship becomes unrepairable.

Extra time with Family

Sometimes dealing with our family is a massive headache at the best of times. Christmas sees an increase in the amount of time spent with our immediate and extended families (including the dreaded in-laws). It is often the unrelenting pressure to “get along” with family with whom we have an already strained relationship that ends up with huge arguments and relationship breakdowns.

Different parenting styles

Holiday mode takes us out of our routines and usual daily life. Often the “non-primary caregiver” is at home, and may want to just do the fun stuff, causing the parent who is trying to keep a semblance of routine and order to feel upset and angry that their routines and arrangements are not being respected.

Changes in routines and behavior impact both child and parent stress levels and can result in sleep disruption. Sleep disruption results in tiredness and tiredness results in short tempers and short tempers result in arguments. Simply having more time in the home together makes more opportunities for conflict and one little argument is often enough to become the breaking point for a relationship.

“Just one more Christmas”

When someone has in their own mind resolved to end their relationship, often they try to keep it together just for Christmas “for the sake of the kids”. This means that after Christmas and when lawyers get back to business, they soon after consulting with a lawyer about ending their relationship.

New Year New Me

The start of a new year brings about the opportunity for self-reflection and re-evaluation of your life and your goals.

If we no longer consider our relationship to be serving our needs, then January seems to be the most logical time to decide to move on.

No matter the time of year, OMB Family Law are available to guide you through your separation. A specialist team of Gold Coast Family Lawyers within OMB Solicitors, OMB Family Law have the resources to help you resolve your Family Law matter. Contact us on 5555 0000 or via our website for an information pack and to arrange a free in initial consultation.

Top 5 Tips for Christmas Holidays to Surviving the Holidays by OMB Family Law’s

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 particularly important if seeing both parents would cause the children to spend a significant amount of time travelling between households. A common solution is to alternate the year in which the child spends Christmas or Christmas Eve with each parent.

Remember that Christmas is for the children first and foremost, so put your personal feelings, opinions and wants to the side and make arrangements that benefit your children primarily.

Changeover should be stress-free – do not fight in front of the children.

Exposure to conflict has lasting effects on children and can damage the relationship between a child and their parent.

If you believe that it likely that the other parent will become verbally or physically abusive to you when delivering or collecting the children then you must consider safe alternatives such as having a trusted friend or relative assist with changeover, or depending on the age of the children allowing them to enter their parent’s property and you remaining outside in the car or at the kerb side.

Do not prevent a child contacting the other parent.

It is important for children to have a meaningful relationship with both of the parents where at all possible. If your child wants to call their mother or father in their time with you, use your discretion as to whether timing is appropriate but otherwise you should encourage regular contact especially if the child expresses the wish.

Let them enjoy telling their other parent about all the wonderful things that have occurred in your household and allow their other parent to experience that joy. It is only a small imposition on your time, but will mean the world to the other parent.

Communicate and be flexible

Keeping an open communication with the other parent is best for the children as long as that communication is respectful. You should try to provide information to the other parent on anything to do with the children that is relevant to the other parent’s time with the children or regarding the children’s activities, schooling, health or wellbeing. Also if changes need to be made to arrangements from time to time, try to accommodate if possible provided enough notice is given.

Allow your child to take items of comfort or gifts between homes.

Particularly for young children, having favourite and familiar items with them can assist them to settle in the other parent’s home, such as teddy bears, blankets, or favourite toys, provided that there is a clear understanding between the parents that these items travel with the child and if something is left behind and the child becomes distressed, how that item will be delivered back.

Making children keep their toys and gifts at your house creates a circumstance whereby the children think something is wrong with their other parent’s home.  Allowing free passage of toys and belongings ensures that the children feel they have two homes rather than two “houses” – the difference is immense

Where problems arise, consider mediation as a first option.

Unhelpfully many services including legal services close over the Christmas and New Year period. Unless there are very urgent circumstances or there is a significant risk of harm (in which case you can contact the police), you should contact a mediation service in the New Year to arrange for Family Dispute Resolution so that 2024’s holiday period doesn’t suffer from the same hiccups that 2023 did.

If you anticipate issues, then please engage with your legal team now, to ensure that steps can be taken to progress matters and agreements reached, prior to the Christmas 2023 closure.

From the OMB Family Law family to yours, we hope that your 2023 holiday period is filled with joy and wonderful memories.  We remain available to assist you until 23 December 2022 and from 9 January 2023.  Urgent matters arising in the holiday period can be attended by contacting our Family Lawyers office on 55550000 and leaving a message or reaching out to us via our website.

Ownership Of A Pet In A Family Law Dispute

Despite pet ownership being a hallmark of Australian life, it is not very common to see the Full Court of the Federal Circuit and Family Court of Australia, in an appeal judgement, making a specific comment on the ownership of a pet in a family law dispute.

In Grunseth & Wighton [2022] FedCFamC1A 132 (26 August 2022) the de facto Wife appealed an order which provided for the division of assets after a relationship of just under three years in the proportions 47.5% to her and 52.5% to the de facto Husband, as well as requiring the transfer of ownership of a pet dog.

The primary judgement devoted some 25 paragraphs to the determination of who was to own Roxy, and it concluded that the de facto wife was to transfer ownership of the dog to the de facto husband.

In reaching that conclusion the primary judge found that the de facto Wife was the registered owner of Roxy, had paid for Roxy and was at law her legal owner. However, the Court went further to state:

• Roxy was joint de facto property.
• It was conceded by her that the parties had purchased Roxy to be with the de facto husband’s daughter, who had chosen her from the litter, named her and been with the de facto wife when they had collected her.
• It was not appropriate to make an order to transfer ownership of Roxy to a third party who was not a party to the proceedings.
• However, given that Roxy was joint property, purchased at a time when the parties were intermingling funds and given the de facto husband had an emotional interest in the ownership of Roxy, the “justice and equity” resulted in it being appropriate to transfer ownership to the de facto husband.

In considering the de facto Wife’s appeal of those orders. The court considered the competing evidence and concluded that the de facto wife:

• Paid for Roxy’s purchase
• Paid for her desexing, registration, food, vaccinations, medications and grooming

Referring to the “emotional interest” referred to by the primary judge, the Full Court commented (commencing at 63):

As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant, and the Court is not, in effect, to undertake a parenting case in respect of them.

If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal and that can simply be dealt with in the ordinary course.

It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.

The appellant submitted that the primary judge erred in taking into account the emotional attachment of the respondent and his daughter Ms T, to Roxy and in failing to take into account the attachment of the appellant to Roxy.

These submissions are fundamentally inconsistent. However, we do not need to resolve them. For the above reasons, all the orders will be set aside, and the fate of Roxy determined as part of the re-exercise of discretion.

In ordering that Roxy should remain with the de facto Wife, the Court also considered the financial cost of Roxy and required the de facto Wife to pay the de facto Husband $800 which was Roxy’s purchase price, with the suggestion that he use this to assist his daughter to purchase another dog.

This case illustrates both the extent to which Australians are prepared to litigate for their beloved pets, but also the clear position of the court that issues such as emotional attachment and connection with an animal are irrelevant. Parties should take on board the wise words of the Full Court and if they genuinely wish to retain the pet, then they should put their money where their mouth is and make an offer to retain it, at a significant value.

What Mistakes In Family Law Proceedings?

Being involved in a Family Law dispute is stressful, emotionally taxing, and expensive. At all times, it is important that you follow the advice of your legal representative, who is best placed to guide you strategically through the minefield of a Family Law matter.

We are often asked, what can I do to make this easier? And often the answer to this is to advise you what NOT to do. Here are some top tips on what mistakes in Family Law are.

Involving your children in your matter

It is unfortunately common for parents to involve their children in a matter unnecessarily. This is a massive mistake. It does not help your child’s emotional development and can in fact be completely disastrous for their long-term emotional health and relationship with you and their other parent.

Undoubtedly it will affect the Judge’s view of you and does not promote your parenting skills.

Involving a child in the dispute, by speaking badly about the other parent or the other parent’s family to the child or telling the child about the areas of dispute between the parents, are an indication of lack of insight into the child’s best interests. IF the Judge thinks you lack insight then they will not consider you to be the kind of parent that a child should live with or spend a lot of time with, which would be the worst-case scenario.

Not being open and transparent about your assets

The long and the short of it is, you must disclose your assets. This disclosure must be full and complete and transparent. Thinking you can hide your assets or transfer them to another person to make sure that your ex cannot claim on them, is engaging in conduct which will leave you open to your entire property settlement agreement being re-opened.

Non-disclosure of financial circumstances can shatter a party’s credibility before the court. It is not only against the law not to disclose your financial circumstances, but failure to disclose often prevents a matter from being resolved early and by agreement. Your ex’s lawyer will advise them against reaching an agreement if you have not been open about your financial circumstances.

The court will assume, if you do not disclose everything, that you have something to hide and therefore that you are dishonest and therefore not a credible witness.

Often, if the Court concludes that you are hiding assets or that you have not been transparent with your disclosure, it will make property settlement Orders which are not in your favour. When in doubt – disclose!

Social Media use and abuse

Facebook is often the biggest source of evidence for Family Lawyers. It seems to be the place that parties go to vent about every aspect of Family Law – from the Court, to their ex, to their lawyers.

Publishing any information about your family law proceedings is a contravention of section 121 of the Family Law Act 1975. This section makes it an offence to publish information which could identify someone involved in a family law matter being determined by the court.

With one click of your phone or computer, and by publishing that rant, not only are you breaching the law, but you are strategically giving your ex great evidence to use against you.

It is advisable to deactivate all social media profiles until after the family law matter is complete in order to avoid this common pitfall.

Expecting your Ex to Change

You cannot make a person change. Simple but true. You cannot force them to agree with you. You cannot force them to be what you consider “reasonable”. It is important to focus on your conduct, your case and your strategy and let them run their own race.

Not formalising your agreement

If you do not formalise your agreement, then you have a ticking time bomb in your pocket. In the absence of a formal agreement for your property settlement or parenting matter, then you run the risk of your ex popping up in years to come asking for a property settlement despite you having divided your assets years ago.

In some cases, the Court will not disturb an informal property settlement, but more often than not, they will not. This means that the assets the Court looks at will be the CURRENT assets, valued at the CURRENT value, not what they were one, two or five years ago.

Now whilst you may think that you can trust their word not to come back for more, it is far better to assume the worst and formalise your agreement. Even if you do not consider yourself to have any assets of significance NOW, you may have in the FUTURE and if you don’t tie things up, then you are leaving yourself open to having to deal with claims against your future assets.

Don’t let your emotional drivers take over

Family Law disputes are inherently emotional. But what is important is that you don’t let your emotional drivers impact upon your capacity to make commercial decisions about resolution of your property matter. Put your business hat on and be commercially sensible.

Obviously parenting disputes are vastly different, but it is important in that space, not to let your hurt over your relationship issues and unresolved feelings of hurt and disappointment, to drive a dispute about your children’s living arrangements.

Resolution and the control that it affords you is worth its weight in gold. Be realistic in your expectations and get advice from a Family Lawyer who will guide you around those expectations. Whilst the advice you receive may not be what you want to hear, it is likely to be what you need to hear.

Not getting advice when you need it

When someone says to you, oh you don’t need a lawyer, they will only make it worse, that should set off alarm bells for you.

It is akin to trying to diagnose your illness via google.

So, unless you have a law degree, then getting advice is simply ensuring that you are proceeding on an informed basis, armed with skills and information that you ordinarily do not have. A good Family Lawyer is not your warrior, they are your shield, protecting you from making decisions which are contrary to your interests and guiding you towards a sensible, safe outcome.

The specialist-led team at OMB Family Law are available to guide you through the Family Law minefield and our family lawyers help you avoid these mistakes and possibly many more. For strategic, sensible and sensitive Family Law advice, contact OMB Family Law on 5555 0000 or via our website or social media including our Partner Abbi Golightly’s Instagram @divorcinglightly

Yes — Bank Statements (not just balances) are required (and more!)

“Please send me your bank statements, tax returns, pay slips, superannuation statements ……” This is one of the most common, but arguably important emails you will get from your Family Lawyer during the conduct of your property settlement matter.

Undoubtedly, financial disclosure is tedious, time-consuming and often feels like an invasion of your privacy. However, it is, undoubtedly, the most important aspect of ensuring your property settlement matter has the best chance of prompt resolution in a way that is safe from challenge down the track.

Financial disclosure is where you provide all information relevant to an issue in your case. The duty you owe to disclose is owed both to the Court and to the other party. The duty begins before Court proceedings are filed and continues until such time as the matter is finalised. The requirement is to provide all documents that you have in your possession (i.e., physical documents), power or control (i.e., you have the capacity to obtain them, such as downloading bank statements or requesting your accountant provide them).

If you are involved in Court proceedings regarding property settlement and you do not provide full and frank financial disclosure, the Court may:

• Refuse to allow you to use information or evidence to support your case
• Suspend or dismiss the case
• Make a costs order against the non-disclosing party

Financial disclosure is daunting. Getting expert family law advice is an important aspect of understanding what is required of you.

The Federal Circuit and Family Court of Australia Rules 2021 sets out specifically some documents that a party is required to provide PRIOR to the first Court event. These are:

• Three most recent tax returns AND assessments;
• Documents showing your superannuation interests
• If you have an ABN, your four last BAS statements
• If there is a partnership, trust, or company (other than public company) in which you have an interest – copies of the three most recent financial statements and last four BAS statements.

Other more general requirements include the obligation to disclose all documents which would establish:

• Your earnings and income
• Any interest in any property
• Any interest in any financial resource (such as a Trust or deceased estate)
• Your liabilities

These more general obligations require disclosure of bank statements, pay slips and the like. It is important that you gather these documents promptly when requested by your lawyer and ideally prior to your first consultation with your Family Lawyer.

The consequences for failing to disclose and your matter being finalised without full and frank financial disclosure can include your agreement being set aside or “voided” by the Court and allowing your former partner to make further claims for property settlement.

Alternatively, if you have not resolved your property settlement matter and the Court considers that you have intentionally withheld relevant information from the other party and the Court when it makes its decision about the division of your assets, the Court may give your ex more of your assets. This is because there is an assumption that you are hiding assets if you do not provide full and frank disclosure.

If you are involved in a property settlement matter and you are not sure of what is required of you, contact the team at Gold Coast Lawyers who will guide you through your obligations and assist in getting you a prompt and safe resolution of your property settlement. Contact Family Lawyers us on this 5555 0000, via our website or through our social media.

Recently, Olivia Wilde was in a midst of a press conference when suddenly, on stage, someone appeared with an envelope. They approached her and handed her documents. And with an instant, that person highlighted exactly the wrong way to go about serving your former partner with notice of upcoming Court proceedings. Now whether Jason Sudeikis knew that this was about to occur or not is the subject of much internet debate, however, what is clear, is that Olivia was properly served.

When you commence proceedings in Family Law matter, it is necessary to ensure that the other party is aware of the requirement to appear in Court on the listed return date. The process of ensuring they are aware is called “serving” them with the documents. In accordance with the Federal Circuit and Family Court of Australia Rules 2021, in the case of an Initiating Application, service is required to be “personal”. This means the documents must physically be handed to the named Respondent. Personal service often requires the appointment of a professional person, known as a Process Server, to attend at the Respondent’s place of work or home and seek to locate and identify the Respondent and hand them the necessary documents.

If the Respondent has a Solicitor appointed, that Solicitor can accept the documents on their client’s behalf, which is a far more efficient and cost-effective way of serving Court materials.

However, what do you do when you don’t know where your former partner lives or works? What if it has been many, many years since you have had any contact with them? The Court will not allow a matter to continue and possibly be resolved in the absence of the Respondent unless it is completely certain that all steps have been taken to locate and serve the Respondent and that they have chosen not to participate in the legal proceedings.

In these circumstances, it is necessary to make an Application for Substituted Service or for the requirement to serve the documents to be dispensed with.

Other ways that service can be properly affected on a Respondent to an Initiating Application, or an Application for Divorce can include:

1. Service by registered post to their last known address – a search of the electoral roll is often required to establish this.
2. Service by email.
3. Service by Facebook messenger (very rarely ordered, but can occur); and
4. Service by way of provision of the documents to a family member or new partner, with the expectation that they will bring the documents to the named Respondent’s attention.

The court will require good evidence that you have taken all steps necessary to locate the Respondent before allowing Substituted Service and in this regard, it is necessary to ensure that your Application for Substituted Service and supporting material is completed correctly and appropriately detailed.

If you are considering commencing proceedings for parenting orders, property settlement or divorce, and you are having concerns about locating and serving your former spouse or partner, then the expert Gold Coast Family lawyer team at OMB solicitors can assist you– contact us on 5555 0000 or via our website or social media.

Whilst the majority of the legal profession was and remains staunchly opposed to the merger of the Family Court and Federal Circuit Court, the reality is that it will be upon us soon and we must adjust to the new systems in place. It is important also that our clients know the changes that are soon to occur in the system that they may be litigating in, or considering entering.

With thanks to Jacky Campbell at Forte Family Lawyers Gold Coast (published via www.cch.com.au) here are the ten most important things to know about the merger:

1. The Court will now be known as The Federal Circuit Court and Family Court of Australia.
2. The new Court will commence operation on 1 September 2021.
3. There will only be one Court, but there will be two divisions of that Court. What is currently known as the Family Court of Australia, will become the Federal Circuit Court and Family Court of Australia (Division 1).  The Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).
4. All proceedings will be commenced in Division 2. All appeals will be filed in Division 1.
5. Division 2 will also hear general federal law matters as well as Family law.
6. Whilst all Appeals will be heard in Division 1, the Chief Justice can also direct that a matter be transferred from Division 2 to Division 1 in particular circumstances.
7. There is no appeal from the decision of the Chief Justice to transfer or refuse to transfer a matter from Division 2 to Division 1.
8. There will be new Rules of Court to abide by.
9. The Federal Government has indicated that there will be 35 specialist Judges in Division 1 and 43 in Division 2 (nationwide).
10. There is a diversity of view on whether or not this new system will be better than our current one. Most of us agree that the new court won’t be better unless the Government provides it with more resources.

To a greater or lesser extent, we are very much in wait and see mode.  Watch this space.

In 2021 Australia, pets are without doubt an integral part of the majority of families. With the decision to defer having children until later in life or not at all, couples after separation are often faced with the decision about who gets “custody” of the dog (or cat or both!).

If parties can reach a private arrangement about what happens with the family pet, then that is one thing, but what happens when you can’t?

In a recently published decision of the Federal Circuit Court of Australia in Brisbane, Her Honour Judge Turner has looked carefully at the capacity of the family law courts to determine disputes, on an interim basis about the “custody” of pet dogs.

On 10 February 2021, the Court published Davenport & Davenport (No.2) [2020] FCCA 2766 (8 October 2020) (austlii.edu.au) in which the Court was tasked with deciding a self-represented Husband’s application for an interim “shared custody” arrangement for a dog.

For reasons that we will explore, Her Honour decided there was no jurisdiction to make any such Order.

After a short relationship, during which no children were born, the Wife made an Application for property adjustment Orders under s79 of the Family Law Act.  These types of applications fall within the definition of “matrimonial cause” under s4 of the Family Law Act which defines a ‘matrimonial cause” as

Proceedings between the parties to a marriage with respect to the property of the parties to the  marriage or either of them, being proceedings (i) arising out of the marital relationship.

The wife, on a final basis, sought to retain possession of the dog, conveniently referred to “D”.  There was a dispute between the parties regarding who paid for him etc but that was a matter for a final decision.

Dogs have long been treated by the family law courts as “personal property” which is defined in the Butterworths Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds).  Personal property is traditionally divided into two classes: chattels real and chattels personal. A “chattel” is a movable possession and can be considered something capable of being the subject of action possession (a “chose” in possession”) or something that cannot be physically possessed but recoverable by a course of action (“a chose in action).

Importantly, as the Wife sought Orders on a final basis regarding possession of the dog, the Court confirmed that it had jurisdiction to hear that final application, but the Husband’s application was an interim one, which brought with it different considerations.  The Court considered that the interim application was not one for the adjustment of property interests and did not therefore fall within Part VIIII of the Family Law Act.  The Court further relied upon the decision (one of many!) in Strahan and Strahan (interim property orders) within which the Court determined that there must be jurisdiction to make interim property orders before they could be considered.

The Husband did not assist the Court in providing any authority or legislation which addressed whether the Court had jurisdiction to deal with “shared custody” of “D” the dog. The Family Law Act previously referred to “custody” however it pertained to children, the definition of which, obviously does not include dogs.  The Application therefore did not fall within the category of interim parenting decisions, which the Court could have entertained.

The Court relied upon the authority of Gaynor & Tseh [2018] FamCA 164 when confirming that the Court had no jurisdiction to make the Orders sought by the Husband.  In that authority the Court stated:

Th Family Law Act makes no reference to pets.  It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alteration of a property interest on an interim basis.

Whilst sympathizing with the Husband and dismissing his application for want of jurisdiction, Her Honour concluded by saying:

The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creates that we share the planet with that would empower the court to make orders for shared custody of a pet.

The case highlights further why reaching an agreement (which can include matters which otherwise the Court may not permit) is the best outcome for all concerned, including your dog! Contact Gold Coast family lawyer for your free preliminary discussion about your family law issues (pet-related or otherwise).