Application for Property (Financial Separation) Orders to be filed in the Family Court of Australia / Federal Circuit Court

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What are Property (Financial Separation) Orders^?

Property Orders are a set of orders made by a court under Part VIII (for marriages) or Part VIIIAB (for de facto relationships) of the Family Law Act 1975 (FLA) about financial separation arrangements including spousal maintenance + superannuation splitting.

Property Orders can be made:

1️⃣  By consent; or

2️⃣  Following a Court hearing or trial.

This document can be used to generate Property Orders to suit either purpose.

Property Consent Orders or Binding Financial Agreement?

When there is an agreement between yourself and your ex-spouse/de facto partner, you can both:

1️⃣ Jointly file proposed Property Consent Orders with the Family Court of Australia / Federal Circuit Court.

The Court will review the proposed Property Consent Orders, and proceed to make or vary the Property Orders sought based on what the Court considers is "fair + equitable" in all of the circumstances;

2️⃣ Rely upon a previously made + validly executed Binding Financial Agreement.

We strongly recommend you both seek + obtain independent legal advice before selecting this option; or

3️⃣ Make + validly execute a new or updated Binding Financial Agreement.

In order for the Binding Financial Agreement to be valid, you must both seek + obtain a certificate of independent legal advice before signing the BFA.

Important: It should be noted that a Binding Financial Agreement does not need to be "fair + equitable" to be enforceable.

Late Applications

An Application can be filed with the Court at anytime after separation.

In the case of a married couple

An Application is considered timely if it is filed with the Court within:

✅  12 months of a divorce (in the case of a married couple).

If the Application is late, the consent (the legal term is "leave") of the Court is required for the Application to be filed.

➲ The Court will generally grant consent, provided that the Application includes a full explanation of the reasons for the delay, and a proposed Order granting leave for the Application to proceed.

In the case of a de facto couple

An Application is considered timely if it is filed with the Court within:

✅  2 years of the breakdown of a de facto relationship.

➲ The Application will generally be allowed to proceed if it includes a proposed Order that you both consent to making orders out of time.

Ongoing Duty to make timely, full and frank disclosure

Parties to a financial case have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute.

There may be serious consequences for failing to disclose, including punishment for contempt of court.

The Court’s ‘Duty of Disclosure’ brochure provides more information.

In summary, parties should promptly exchange copies of documents in their possession or control relevant to an issue in the dispute before as well as after starting a case.

Please refer to the following FAQ for more information:

What documents does a party need to disclose to meet their duty to make timely, full and frank disclosure?

What happens if a party breaches their duty of full and frank disclosure in negotiating Binding Financial Agreements / Family Law Court Proceedings?

Property Orders following a Court Hearing or Trial

If the parties cannot reach an agreement between themselves, the Court can make Property Orders following a court hearing or trial.

What should Property Orders include?

Property orders need to assist you both to make a "clean break" and may deal with:

✅ The transfer or sale of property, including cash payments;

✅ Splitting of superannuation; and

✅ Spousal maintenance.

The “Clean Break” Principle

Section 81 (or 90ST for de facto relationships) of the FLA introduces the "clean break" principle:

➲ That the role of Property Orders is to determine the financial relationships between the parties and avoid further proceedings between them.

Practically, this means that the Property Orders should, to the maximum extent possible, end the financial relationship of the parties.

For example:

✅ Ending any joint ownership of property through sale or transfer; and/or

✅ Refinancing liabilities standing in the parties joint names into one name.

Embedded Lawyer-Logic™ ⚖️

This document contains built-in embedded lawyer-logic™ which has been carefully crafted by hand-picked expert Australian Family lawyers to ask the same questions your lawyer would normally ask you, then to automatically adapt + generate Property Orders based on your responses so they are customised to your situation.

✅ Create specific instructions for the sale or transfer of the following classes of property:

➲ Real estate;

➲ Partnership, company or trust property;

➲ Motor vehicles;

➲ Funds in the bank;

➲ Investments, such as shares and term deposits;

➲ Flexibility to add other custom property descriptions.

✅ Create specific instructions to refinance or discharge the following liabilities:

➲ Mortgages;

➲ Motor vehicle and other loans;

➲ Credit cards;

➲ Flexibility to add other custom liability descriptions.

✅ Includes customised provisions for superannuation splitting.

✅ Allows for the provision of spousal maintenance in the following forms:

➲ One-off settlement payment;

➲ Transfers of property;

➲ Periodic cash payments; +/or

➲ Payment of expenses.

Important Notes:

This document is not intended for use in the Family Court of Western Australia as this Court uses its own versions of the equivalent Family Court of Australia / Federal Circuit Court forms generated by this process. Western Australia is unique amongst Australian states in being the only state with its own Family Court.

^ Reading Prescribed by the Court: Compulsory Pre-action Procedure for Financial Cases

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We have separated or are thinking about separation. What do we need to read + understand first about seeking assistance, child custody + financial matters?

The Family Court of Australia prescribes as mandatory reading the following Fact Sheets.

Whilst it may appear counter-intuitive, starting here will maximise the chances of you resolving your differences +/or settling matters outside of the Family Court.

Marriage, families and separation

This brochure provides information for people considering, or affected by separation or divorce.

It includes information about:

  • the social and legal effects of separation;
  • the services provided to families by the Family Court of Australia and Federal Circuit Court of Australia and by government, community and other agencies, and
  • some of the steps involved in court proceedings.

Pre-action procedure for parenting cases

This brochure provides information for people considering applying to a court for parenting orders.

Pre-action procedures apply to financial cases.

This brochure provides information for people considering applying to a court for financial orders.

Compulsory Family Dispute Resolution
➲ Court procedures and Requirements

For more free information + resources generally

Please refer to our Australian Family Law Resources + Dispute Resolution -> Smart List

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This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Which Court do I/we make an application to? the Family Court of Australia / Federal Circuit Court / Family Court of Western Australia?

Family Court of Australia / Federal Circuit Court?

The general rule (judicial resources permitting) is that unless special or exceptional circumstances apply (refer below) your application will most likely be heard by the Federal Circuit Court (“FCC”).

Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court*

"The Chief Justice and the Chief Judge have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them.
The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Circuit Court (“FCC”).
1️⃣ International child abduction;
2️⃣ International relocation;
3️⃣ Disputes as to whether a case should be heard in Australia;
4️⃣ Special medical procedures (of the type such as gender reassignment and sterilisation).
5️⃣ Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6️⃣ Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7️⃣ Complex questions of jurisdiction or law.
8️⃣ If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.

NOTE: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

Family Court of Western Australia

Western Australia is unique amongst Australian states in being the only state with its own Family Court.

This may change in the future as we understand there are discussions regarding a future merger with the Family Court of Australia.

If your matter has a nexus (i.e., connection) to Western Australia, then you may make an application to the Family Court of Western Australia.

If you are unsure whether you matter is connected to Western Australia, please contact our legal team to seek legal advice specific to your circumstances.

To provide some general background to what constitutes connection the threshold tests differ for parenting and financial matters.

Parenting Matters

The test for the required connection Western Australia differs depending upon the specific orders being sought.

Financial Matters

The threshold test is specified in s. 205X of the Family Court Act 1997 (WA):

205X. People to whom this Part applies — connection with WA

Despite section 36(5), before making an order under this Division a court must be satisfied —
(a) that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and
(b) that —
(i) both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or
(ii) substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant.

*Source: Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

We are not married. When will Australian law impose a "de facto” relationship.

When can an application for a financial Property Settlement be made to the Family Court?

The circumstances governing whether a "de facto” relationship will be imposed by Australian law for the purposes of making an application to the Family Court for a financial property settlement generally can only arise when one of the following legally prescribed circumstances is present [1]:

1️⃣ Two adult persons who are not married or related by family live together as a couple in a "genuine and permanent domestic relationship” for at least two years (this can include more than one period providing it totals at least 2 years);

2️⃣ There is a child of the relationship;

3️⃣ There have been significant contributions made and a serious injustice would result if the court did not make an order or declaration; or

4️⃣ The de facto relationship has been registered in a State or Territory under laws for the registration of relationships.

When does a “de facto” relationship exist?

In the recent case of Radecki & Fairbairn [2020] FamCAFC 307 the Full Court of the Family Court of Australia at Sydney in their judgment dated 11 December 2020, confirmed the relevant law to determine the existence of a de facto relationship from para. 26 as follows:

A de facto relationship exists where a Court finds that the parties were “a couple living together on a genuine domestic basis” (s 4AA(1)(c) of the Act), which is to be decided by reference to the matters set out in s 4AA(2) of the Act, which are as follows:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
In addition, the Court “is entitled to have regard to such matters… as may seem appropriate to the court in the circumstances of case” (s 4AA(4) of the Act).
In a passage which has been frequently quoted and applied when determining the existence of a de facto relationship (see, for example, Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair & Whittaker”) at [55] and Cadman & Hallett (2014) FLC 93-603 (“Cadman”) at [48]), albeit in a different legislative context, Fitzgerald J said in Lynam v Director-General of Social Security(1984) FLC 91‑577 at 79,663:
Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship.
Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation.
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.
What must be looked at is the composite picture.
Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.
The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.
In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
Although not expressly mentioned in s 4AA(2) of the Act, an intention to enter into a de facto relationship or to end one is powerful evidence to be taken into account under s 4AA(4) of Act, in determining whether such a relationship exists or has ended.
Whilst evidence of such intention is not required and, in many cases, is not present, where such an intention can be identified, it can be telling.

Q: Is the definition of de facto relationship different in Western Australia?

A: Technically Yes, as the definitions are not identical. However they are largely similar.

The definition of a de facto relationship in Western Australia is set out in section 13A of the Interpretation Act 1984 (WA).

Footnotes:

[1] s. 90SB of the Family Law Act 1975 (Cth.).

[2] Joint judgment of May, Strickland & Ainslie-Wallace JJ reported at 86,682.

[3] Paragraph 94 of the joint judgment of Bryant CJ, Thackray & Aldridge JJ reported at 87,398.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is the effect of a Binding Financial Agreement (BFA)?

A legally valid* Binding Financial Agreement (BFA) will operate to prevent the Court from being able to make property adjustment orders under the Family Law Act 1975.

A Binding Financial Agreement (BFA) can also deal with spousal maintenance and prevent your former partner from filing an application for spousal maintenance.

Important Note:

* In order to be legally valid and actually in fact “legally binding”, a Binding Financial Agreement (BFA) must not be susceptible to being set aside by the Court for any reason.

For a detailed discussion of when a Binding Financial Agreement (BFA) can be set aside, please refer to the separate FAQ on this topic.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

When can a Binding Financial Agreement (BFA) be set aside?

Can the BFA be set aside if it represents a “Bad Deal” for one of the parties?

In the case of Hoult & Hoult [2013] FamCAFC 109 Strickland and Ainslie-Wallace JJ opined at para. [310]:

“ … The point of the legislation is to allow the parties to decide what bargain they will strike, and provided the agreement complies with the requirements of section 90G(1) they are bound by what they agree upon.  

Significantly, in reaching agreement, there is no requirement that they meet any of the considerations contained in section 79 of the Act, and they can literally make the worst bargain possible, but still be bound to it."  

Setting aside a Binding Financial Agreement (BFA)

If any of the following apply the Binding Financial Agreement (BFA) can be set aside by the courts:

1️⃣ A party did not receive independent legal advice prior to signing the BFA

2️⃣ A party has received inadequate or wrong legal advice from their lawyer prior to signing the BFA

3️⃣ A party was advised by a lawyer but they were not an Australian Lawyer

4️⃣ The BFA was signed under duress

Make sure there is plenty of time.

Watch out for the looming wedding date which could provide a basis for a claim of undue influence or duress.

5️⃣ The BFA was signed under undue influence

If a party does not have a good command of English, DO NOT allow the intended partner or a relative to act as an interpreter.

This may lead to allegations of undue influence or duress or that the party did not understand the BFA.

6️⃣ Fraud/Unconscionable conduct was involved

Failure to make full and complete disclosure of all material matters constitutes “Fraud”

If a party to a Binding Financial Agreement (BFA) is aware of relevant information and does not disclose it to the other party, whether intentionally or non-intentionally, the Court may set the agreement aside at a later date, under section 90K of the Family Law Act:

"A court may make an order setting aside a financial agreement if and only if, the court is satisfied that: the agreement was obtained by fraud (including non-disclosure of a material matter)…"

What might constitute “Fraud” in the context of a BFA?

❌ If a party fails to disclose the true extent or value of his or her assets.

This might occur, by way of example, if a party:

➲ Hides assets;

➲ Mistakenly assumes the assets don't need to be disclosed, such as property held in the name of a Trust which they directly control, or property held overseas which the other party knows nothing about, or cryptocurrency they have forgotten they own but could become worth a material sum;

❌ Not disclosing the true value of assets, or material information which could assist to determine the true value of assets;

❌ Failure to disclose other material information which would impact on a person's decision to enter into the Binding Financial Agreement; or

❌ Deceiving the other party in some way, in order to induce them to sign the Binding Financial Agreement.

In such a case, he or she would create an inherent weakness in the Binding Financial Agreement, leaving the possibility open for it to be challenged at a later date by the disgruntled ex-partner.

7️⃣ There has been a material change in circumstances relating to the care. welfare and development of a child …

Family Law Act 1975 (Cth.)
90K         Circumstances in which court may set aside a financial agreement or termination agreement
(1)          A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
(d)          since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

8️⃣ Lawyers' Laundry List of Avoidable Mistakes

These avoidable mistakes made by one or both of the parties lawyers were incapable of rectification by the Court.

This meant that the Court had no choice but to invalidate and set aside the BFA in the following situations:

➲ The wrong type of Binding Financial Agreement was entered;

➲ There were mistakes in one or both of the Lawyer's Certificates;

➲ The BFA was executed by a party before receipt of legal advice;

➲ Out-dated Lawyer Certificates were used;

➲ The lawyer failed to record the advice provided and have the party sign an acknowledgement of having received the advice;

➲ There were other legally technical matters wrong regarding the BFA such as it being signed in counterparts or a translator was delegated to provide the legal advice.

9️⃣ The BFA was entered to defraud or defeat the interests of third parties

❌ If a party enters a BFA for the purpose of defrauding or defeating the interests of creditor/s or another person who might claim rights due to the existence of an additional de facto relationship.

What is the effect of setting aside the BFA?

If a Binding Financial Agreement (BFA) is set aside, it means that it is “as if” the original agreement never existed.

Either party is then free to commence proceedings seeking a property settlement and/or spousal maintenance.

By Mutual Agreement: Update BFA or file Consent Orders with the Court

If at anytime, for any reason both parties agree, the parties could decide to replace the BFA with an alternative or updated BFA.

Important: All of the above notes regarding setting aside a BFA, apply to any alternative or updated BFA.

The same rigor must be applied. New certificates of independent legal advice must be obtained, etc.

If the parties have separated, it is also possible for the terms of a BFA to be overridden by consent orders filed with the Court (subject to amendment by the Court if they are deemed not to be fair and equitable).

Note:  

The legal term “set aside” means to declare a legal agreement, decision or process to be invalid.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

‍Is a Binding Financial Agreement (BFA) the same as a Prenup?

The legal term Binding Financial Agreement (BFA) is the correct wording to use in Australia for this kind of agreement.

Q: It's the same thing as a prenup right?
A: Yes, sort of …

In order to provide some context, a Binding Financial Agreement (BFA) has in the wider community (including overseas and in the media) commonly and historically been referred to as a Prenuptial agreement or Prenup.

A Binding Financial Agreement (BFA) can be entered at any time

1️⃣ As a Prenup, Postnup, after the parties have separated, or in the case of de facto relationships, at any time in the absence of nuptials altogether; and could alternatively be

2️⃣ Called a Separation Agreement, Cohabitation Agreement or Divorce Agreement.

Just because the name uses the word “Binding” does not make it so!

Whilst the parties may include the word binding in the name or within the body of the agreement, simply using the word binding does not of itself make the agreement legally binding.

Whether a Binding Financial Agreement (BFA) is in fact legally binding* is a determination which can only be made by the Court.

Important Note:

* In order to be legally valid and actually in fact “legally binding”, a Binding Financial Agreement (BFA) must not be susceptible to being set aside by the Court for any reason.

For a detailed discussion of when a Binding Financial Agreement (BFA) can be set aside, please refer to the separate FAQ on this topic.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What documents does a party need to disclose to meet their duty to make timely, full and frank disclosure?

Disclosure and exchange of correspondence^

Parties to a case have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute.

There may be serious consequences for failing to disclose, including punishment for contempt of Court.

The Court’s ‘Duty of Disclosure’ brochure provides more information.

In summary, parties should promptly exchange copies of documents in their possession or control relevant to an issue in the dispute before as well as after starting a case.

Examples of documents may include:

✅ A schedule of assets, income and liabilities

✅ A list of documents in the party’s possession or control that are relevant to the dispute, and

✅ A copy of any document required by the other party, identified by reference to the list of documents.

In particular, parties are encouraged to refer to the Financial Statement and Rules 4.15, 12.02, 12.05 and 13.04 as a guide to what information to provide and documents to exchange.

Rule 13.12 sets out documents that do not need to be produced.

These include documents where there is a claim for privilege from disclosure or documents that have already been disclosed and where there has been no change likely to affect the result of the case.

The documents that the Court would consider as appropriate to be exchanged include:

In a maintenance case

✅ The party’s taxation return and taxation assessment for the most recent financial year;

✅ The party’s bank records for the previous 12 months;

✅ The party receives wage or salary payments, the party’s three most recent pay slips;

✅ The party owns or controls a business, the business’s Business Activity Statements for the previous 12 months; and

✅ Any other document relevant to determining the income, expenses, assets, liabilities and financial resources of the party.

In a property settlement case

✅ The party’s three most recent taxation returns and assessments;

✅ Documents about any relevant superannuation interest, including;

➲ The completed Superannuation Information Form;

➲ For a self-managed superannuation fund, the trust deed and the last three financial statements;

➲ the value of the superannuation interest, including how the value has been calculated and any documents working out the value;

✅ For a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04;

➲ Financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

✅ For the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04;

➲ Any Business Activity Statements for the 12 months ending immediately before the first court date;

➲ For any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s constitution;

➲ For any trust, the trust deed;

➲ For any partnership, the partnership agreement, including amendments, and

✅ Unless the value is agreed, a market appraisal of any item of property in which a party has an interest.

Where a party is unable to produce a document for inspection, it is reasonable for the party to be required to provide written authority authorising a third party (for example, an accountant) to provide a copy of the document to the other party, where this is practicable.

Parties should agree to a reasonable place and time for the documents to be inspected and copied at the cost of the person requesting the copies.

Parties must not use a document disclosed by another party for any purpose other than to resolve or determine the dispute for which it was disclosed.

That is, in seeking the documents through the pre-action procedure, the party receiving them is considered by the Court to have given an undertaking that they will be used for the specific purposes of the case only.

Where there are disagreements about disclosure, it may be appropriate for an application to be filed with the Court.

FAMILY LAW RULES 2004 - RULE 13.04

Full and frank disclosure (emphasis added)

(1) A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:

(a)  the party's earnings, including income that is paid or assigned to another party, person or legal entity;

(b)  any vested or contingent interest in property;

(c)  any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

(d)  any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

(e)  the party's other financial resources;

(f)  any trust:

(i)  of which the party is the appointor or trustee;

(ii)  of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

(iii)  of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;

(iv)  over which the party has any direct or indirect power or control;

(v)  of which the party has the direct or indirect power to remove or appoint a trustee;

(vi)  of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

(vii)  of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

(viii)  over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;

(g)  any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

(i)  in the 12 months immediately before the separation of the parties; or

(ii)  since the final separation of the parties; and

(h)  liabilities and contingent liabilities.

(2)  Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.

(3)  In this rule:

"legal entity " means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.

Note: The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case.

Source: ^ Extracted from "Before you file - pre-action procedure for financial cases" (prescribed brochure)

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What happens if a party breaches their duty of timely full and frank disclosure in negotiating Binding Financial Agreements / Family Law Court Proceedings?

The parties to any Binding Financial Agreement or Family Law Court Proceedings must make full and frank disclosure of their financial circumstances.

Binding Financial Agreements

Consequences of Non-Disclosure

If a party can show that the other party to the Binding Financial Agreement has not provided full and frank disclosure of their true financial position, the Binding Financial Agreement may not be enforceable.

At the very minimum the Binding Financial Agreement would be subject to a valid legal challenge in Court where the non-disclosing party would bear the onus of proof of showing the the non-disclosure was not material.

This is especially the case where the Binding Financial Agreement (in light of the true financial position of the parties) is not "fair + equitable".

Family Law Court Proceedings

Consequences of Non-Disclosure

If the non-disclosure is clear to the Court, or disclosure is made in a confusing manner with little or no effort made to respond to requests for clarification: the most likely result will be the Court making Property Orders unfavourable to the non-disclosing / non-cooperating par­ty.

If the non-disclosure is discovered after Court pro­ceed­ings have completed there may be valid grounds for the Court to set aside the original Prop­er­ty Orders and make new orders to replace them based on the true finan­cial position.

The Court may use its discretion to order that all or part of the legal costs incurred by the innocent party in both the original and subsequent Court proceedings are payable by the non-disclosing party, and in some cases the Court may order the non-disclosing party in contempt of Court.

Delay caused by Late Disclosure

In the marriage of Briese, Smithers J. at para. [2] described the ongoing duty of full and frank disclosure^ [emphasis added] in Family Law Court Proceedings as:

"… A positive obligation to set out at an early stage their financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure.
The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance.
Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding."

Consequences of Late Disclosure / Evasive Conduct

In the marriage of Briese, Smithers J. at para. [6] provided an example of the cost consequences in Family Law Court Proceedings where a party eventually provides full and frank disclosure, but only after unduly prolonging the proceedings + being evasive as to their financial circumstances [emphasis added]:

In the unreported decision of Nygh J. in Marinko (29 October 1982) the learned Judge made an order for costs against the husband, in part because of his conduct of the proceedings.
He found that the husband had unduly prolonged the proceedings and further that he had been evasive as to his financial circumstances.
At p. 3 of his reasons for decision his Honour said:
"It is quite clear that under reg. 97, there is an obligation on the parties to make a full and fair disclosure of all their financial assets; it is also expected of the parties that they shall co-operate with the conduct of the proceedings in order to bring them to an early and prompt conclusion with a minimum of expense.
This obligation is incumbent upon the Court under sec. 97(3) of the Act, and by inference, it lies upon the parties and their legal advisers to co-operate in that goal.
It is, therefore, not an answer to say that the wife did not succeed fully, or that the evidence which she finally obtained out of the husband was not all helpful, or essential to her case.''

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

How do I eFile and access my case documents and information online incl. Court Dates in the Family Court of Australia / Federal Circuit Court of Australia / Federal Court of Australia?

The Commonwealth Courts Portal

The Commonwealth Courts Portal is an initiative of the Family Court of Australia, Federal Court of Australia and Federal Circuit Court of Australia.

It provides online services for registered litigants (you) +/or your lawyer enabling you/your lawyer to eFile/eLodge + access case documents & information incl. Court Dates.

How do I?

How do I eFile?

How do I navigate through the Commonwealth Courts Portal?

How do I register for the Commonwealth Courts Portal?

Federal Law Search

The portal also includes Federal Law Search which provides selected information on cases filed in the:

  • Federal Court of Australia; and
  • General Federal Law jurisdiction of the Federal Circuit Court of Australia.

The information is real time and includes all cases that have commenced since 1 January 1984.

As the database is continually updated, the results of a search may vary from time to time as new information is entered.

Matters where a pseudonym has been assigned to a party are not searchable in Federal Law Search.

Source: Commonwealth Courts Portal.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

We have separated. We have no Binding Financial Agreement (BFA) in place. Should we enter a BFA or seek Court Orders? Can we agree between ourselves?

Can we agree verbally or in writing between ourselves?

We trust each other and don't want to go through the additional paperwork/expense.

Can we sort it out and agree verbally or in writing just between the two of us?

In short, the answer is Yes.

However, doing so runs the real risk of a potential costly + lengthy legal dispute at some point in the future.

This is because whatever is agreed verbally or in writing between a couple (without first obtaining independent legal advice) is not binding or enforceable in Court.

Which is better: A Binding Financial Agreement or Court Orders?

The Binding Financial Agreement (BFA) has to be in writing and each party needs to have sought independent legal advice before signing for it to have any legal effect.

These agreements, which are commonly known as/referred to as a prenuptial agreement, can be challenged on many grounds such as being outdated due to change in the parties’ circumstances.

The Court Orders made are final and binding (other than via the usual Court Appeal process) which makes this the best option for the separated couple to make a "clean break" with as much certainty as possible.

Just & Equitable v. Bad Bargain

Q: If the Binding Financial Agreement (BFA) represents a "Bad Bargain" can it be set aside?

A: No

Court Orders are made in the discretion of the Court such that they are "Just & Equitable".

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

We have separated. What date is used to value our net asset pool for settlement between us?

Any property orders made by the Court are made "as at the date of the Court Orders"!

A common misconception parties have is that financial property settlements are finalised by the Court as at the date of separation or divorce (if applicable).

The false belief is that what they earn/gain/lose and what their ex. earns/gains/loses after they are separated is somehow set aside from the net asset pool that existed as at the date of separation and does not form part of the property settlement.

Be prepared to continue sharing everything after separation … at least until you can make a "clean break".

The best way to highlight the potential outcomes which could occur if your property settlement is delayed is to provide some extreme scenarios.

If you win the lotto or inherit a fortune after your are separated but before you reach a final and binding settlement then you need to be prepared to share your windfall with your ex!

Likewise, if for example, your ex. incurs debts after separation, be prepared to share these debts as well (at least until the date the final and binding settlement is made).

You need to be fully aware that any savings you or your ex. set aside after separation (incl. superannuation contributions), gains you or your ex. make or debts or losses you or your ex. incur after separation are included in the net asset pool to be settled between you both.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

We have separated. Do we need to be officially divorced or wait a prescribed time before our financial settlement can be finalised?

A: No.

A Binding Financial Agreement (BFA) can be entered into before or after the separation of a couple, including before, during, or after marriage or a de facto relationship.

Court Orders can only be applied for and made after the separation of a couple.

There is no prescribed waiting time or need to wait to be officially divorced.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.