Family Law

Families are all different. Your story, your situation, your needs are unique. We can help you. That’s what Streeterlaw Sydney Lawyers do — help people find answers.

Family Law Case Studies

Defaulting on property orders can be disastrous

13-November-2017

Case study: Blackwell & Scott [2017] FamCAFC 77 (28 April 2017) Family Law orders frequently involve a cash payment from one party to the other when a jointly owned property is to be retained by one person as part of a property adjustment. However, if the property’s value increases after the orders are made, is there any grounds for an appeal or are you stuck with feeling ‘ripped off’? In the case of Blackwell & Scott [2017] FamCAFC 77 (28 April 2017) the parties obtained consent orders for an equal division of their...

Risks associated with challenging a Binding Financial Agreement

29-November-2016

Section 90K(1) of The Family Law Act 1975 (“The Act”) provides for a number of grounds upon which the Family Court of Australia can set aside (alter or remove) a Financial Agreement, including the power to set aside an agreement that is “void, voidable or unenforceable”. Quite often, separated couples who have entered into a Binding Financial Agreement will seek advice as to whether or not their Agreement could be set aside. One matter, which is generally overlooked by a party seeking to apply to set aside a Financial Agreement,...

At what age can a child decide who they want to live with?

17-June-2016

At Streeterlaw, we are often asked ‘at what age can a child decide where they want to live?’ Unfortunately, there is no simple answer to that question. When there is a dispute about where or with whom a child will primarily live, the child’s wishes are just one of a number of factors a Court must consider when making a decision. Technically, a Court has the power to make orders for any child under the age of 18 years. Generally, although not always, a Court will not make orders against the strongly held views of a child if that child...

Top tips to protect your assets in a de facto relationship

30-March-2016

Couples who decide to move in together and share in one another’s lives need to understand the potential legal ramifications of such a decision. The relationship could now be defined as “de facto" and as such, may incur financial obligations for both parties should they separate in the future. To protect your assets while in a de facto relationship, it is wise for couples to consider doing the following: Draw up a Financial Agreement regarding the assets each has at the beginning of the relationship and how they will divide their...

Obligations to a spouse can overturn a property transaction

17-February-2016

The issue of estate planning and Family Law are closely connected and it is imperative that people receive advice regarding their rights and obligations to their spouses before writing out their will (entering into succession planning arrangements). There is a risk that certain transactions may be overturned in court if it can be proved they were designed to defeat an existing or anticipated order in Family Law proceedings. Case Study: Tabussi (As Executor of the Estate of the late Mr Tabussi Senior (Deceased) & Ors [2015] FCWA 108 (8...

Timing is crucial when filing for property orders

13-January-2016

Couples who separate need to understand the importance of properly documenting their property settlement. This can be done with a consent order or Financial Agreement. It is essential that separated parties carefully note the following ‘critical dates’: The date that is 24 months following separation for de facto relationships; The date that is 12 months following a divorce for married relationships. Streeterlaw’s Simone Green, a specialist in Family Law, said the above dates are critical in determining how any assets are...

Children’s education fund accessed for ex-wife’s self-support

19-February-2015

When a couple separates, the financial resources that used to be available for the benefit of both parties now need to be stretched to provide for separate living expenses. The issue of spousal maintenance comes into play when one party is in a weaker financial position through unemployment or caring for children. In these circumstances, it is common that the court makes extra provisions for the personal maintenance of that spouse. In many cases, a pool of money may have been set aside for the couple’s children, but now it is evident...

Husband excluded from wife’s lottery windfall



When Mr and Mrs Eufrosin went to court to have the division of their assets finalised, the judge did not look favourably upon the husband’s claim to a portion of his wife’s $6 million in lottery winnings. Facts of Eufrosin and Eufrosin [2014] FAMCAFC 191 * Full Court Family Court Appeal case Mr Eufrosin and Mrs Eufrosin had been married for 20 years and had two adult children at the date of the hearing. Following their separation in 2009, Mrs Eufrosin purchased lottery tickets, funded by various sources, including amounts of...

Court can adjust property allocations in favour of victims of family violence

18-February-2015

The violent history of a husband towards his ex-wife can be relevant in deciding the value of the wife’s contributions in property proceedings cases. While evidence of violence in a relationship does not always influence the outcome of these cases, there are some circumstances where it has certainly been considered by the court to be relevant. Facts of Friar & Friar and Anor [2014] FAMCA 689 The Applicant (the wife) and the Respondent (the husband) were in a relationship for 35 years, spending the initial 12 years as a de...

Definition of ‘living together’ can also include couples mostly living apart!

6-December-2014

A recent case in the Family Court of Australia has determined the need for a de facto couple to clearly communicate with one another when their relationship ends. Cadman & Hallett [2014] FamCAFC 142 (11 August 2014) involved a gay couple who began a relationship in 1991 and for the next 19 years, had a close relationship, albeit not exclusive and not always living under the same roof. The issue to be determined by the trial judge, and then the Full Court on appeal was at what point the relationship ended, as the two parties...

Family property dispute signals need for living arrangements to be in writing

14-August-2014

A case involving a farmer and his daughter and son-in-law (Milling v Hardie [26 May 2014] NSWCA 163) is a reminder of the need to put property living arrangements, even between family members, in writing. Mr Milling is a farmer who lives in one of several rural properties he owns in central west NSW. In 1992, Mr Milling invited his daughter Mrs Hardie and her husband to move into a homestead on one of the nearby properties. Over the following years, the Hardies carried out various improvements to the homestead and its grounds. They...

Good stewardship will no longer count in division of assets

3-March-2014

In Kane v Kane, the Family Court ignored the often-used “special contribution” principal in property settlements. This meant that the husband’s decision to invest the couple's superannuation in a certain way, which led to considerable gains, was not taken into consideration in the split of the couple’s assets. This Family Court decision means that future cases which involve the division of a wealthy couple’s assets will likely follow the lead taken in this case and result in a 50:50 split of all assets. The...

High Court gives some clarity to relocation of children of divorced parents

10-January-2014

‘Relocation’ of children following a separation is a very hot and controversial issue for many parents and a common theme of applications to the Family Court. One parent may seek to move away for various reasons including financial hardship, to be closer to family, a new relationship or for employment reasons. Problems arise when both parents don’t agree to the move. The High Court had the opportunity to review the issue in the matter of MRR v GR in March 2010. In that famous matter, the mother was essentially ‘stuck’ in Mount...

Division of assets in divorce at judges’ discretion

3-January-2014

Sometimes, parties to a divorce appeal the division of assets decided by a Federal Magistrate. In this case (Bishop & Bishop 2013 FamCAFC 138) heard on 6 September 2013, the division of assets had been decided after a 23-year marriage. The husband’s appeal to the Full Court was based on a number of grounds:  the contributions of both parties  the exclusion from the property pool of an inheritance to the wife received two years prior to separation  the improper treatment of the parties’...

Child’s best interests override ‘rights’ of parents in custody dispute

8-December-2013

A recent case in the Family Court of Western Australia saw the primary care of three children aged 13, 12 and 11 awarded to the father’s ex-de facto partner rather than the children’s mother. This unusual outcome demonstrates that the child’s best interests rather than any perceived ‘rights’ of natural parents is the overarching principle applied by the Family Courts.     In the case, (Whithall Richardson and Powles [2013] FCWA 54) Ms Powles, the father’s ex-de facto partner, joined...

Solicitor who had acted for both parties showed no conflict of interest

28-June-2013

The Family Court can legally restrain a solicitor from acting for a client on the basis of a conflict. In a recent property proceedings case, (House & Altimas [2012] FamCA 625, 3 August 2012), the applicant husband applied for an order restraining the respondent wife’s solicitor from representing her. The application was based on the fact that 14 years ago, the wife’s solicitor represented the husband in a claim arising from a road accident. In practical terms, for there to be a conflict, the applicant has to prove...

Don’t wait to finalise your property settlement

5-April-2013

If you have recently divorced, you only have 12 months to negotiate, settle and formalise a property settlement with your former spouse. If you have not finalised your property settlement and it has been more than 12 months since your divorce, you will be prevented from commencing settlement proceedings without seeking leave of the court, which is an extension of time from the Family Court to settle the matter with your former spouse. In determining whether leave should be granted, the Court must have regard to...

Case highlights importance of financial disclosure in property settlement

20-March-2013

A recent case in England has highlighted the need for parties involved in property settlement proceedings in the Family Court to be frank with their finances and disclose all financial information. A property tycoon in London was sentenced to six months imprisonment for contempt of court in January 2013, having repeatedly and purposely failed to make full and frank financial disclosure. The judgment of Young and Young [2013] EWHC 34 has been welcomed by family lawyers in the UK as a deterrent towards uncooperative behaviour when...

Can parents’ money be factored into Family Law litigation between spouses?



The recent case of MacDowell and Williams and Ors has raised an interesting ethical and legal question regarding how far the Courts should interfere in the private financial affairs of third parties when determining the future financial resources of the parties to a marriage or relationship. In this case, the issue was a subpoena served on the wife’s parents to provide any current and revoked wills and any relevant testamentary documents regarding corporate trust structures to which the wife was a beneficiary. The counsel...

Does your pre-nup meet legal requirements?

5-February-2013

On December 31, 2012, Olympic swimmer Grant Hackett began legal action against his lawyers in relation to a pre-nuptial agreement they prepared on his behalf. The Australian swim star claimed the botched Financial Agreement, with pop star wife Candice Alley, had left him with financial losses following their separation last year. His financial loss is due to the agreement having “defects” and because it did not comply with legal requirements and therefore was not enforceable. This high-profile case is a reminder...

High Court clarifies property rights of elderly couple living apart

24-January-2013

The High Court recently provided clarification on a controversial decision in the Family Court regarding the court’s power to order the division of assets when a couple have separated involuntarily, due to the deteriorating health of one or both parties (Stanford & Stanford [2012] FAMCAFC 1 (19 January 2012).)  Streeterlaw Principal Mark Streeter said the High Court’s decision to overturn the Family Court of Australia's property settlement orders means the court must in future consider the individual...

Can illegal drug use impact parenting orders?

30-July-2012

In Vokic & Vlass [2012] Fam CA 56 (15 February 2012) issues arose in relation to both the parenting of the children and the parties property interests.    The mother had a history of drug and alcohol abuse. The husband claimed that the wife’s parenting capacity was compromised by her drug and alcohol use. Fowler J considered evidence from a medical specialist in addiction medicine and a family consultant and made orders enabling the children to spend regular time with the wife subject to orders requiring her to...

Poor legal advice invalidates Binding Financial Agreement



For a Binding Financial Agreement to be valid, or binding, certain conditions must be considered. Section 90G(1)(b) requires that each party be provided with independent legal advice from a qualified practitioner about the effect of the agreement, the rights of that party and the advantages and disadvantages to that party of making the agreement.   The court's decision in Hoult [2011] FamCA 1023 provides an example of why a financial agreement may be declared not binding.   In Hoult the wife alleged that she was not able to...

Expense of subpoenas reimbursed

9-May-2012

In Lavell the wife issued a subpoena to produce documents to the husband’s accountancy firm. The wife paid $43 by way of conduct money. The husband’s accountant sought reimbursement of $4000 for “substantial loss and expense” incurred as a result of compliance with the subpoena pursuant to Regulation 15.23(3) of the Family Law Rules. Under Regulation 15.23(3) of the Family Law Rules a “named person” may be reimbursed if they incur a substantial loss or expense that is greater than the amount of the...

Prenup included $2 million engagement ring

9-November-2011

The public breakup of two high profile celebrities in 2011 highlighted how valuable assets can be specifically included in Prenuptial Agreements. "Kim can keep her ring” so  says Kris, but only if she pays him a handsome US$2 million!  As the celebrity marriage between Kim Kardashian and Kris Humphries ends, it highlights for those of us on the sideline the wisdom of a pre-nuptial agreement (called a Financial Agreement in Australia under the Family Law Act). A prenuptial agreement appears to have been a wise...

Child funeral arrangements fought over in Supreme Court

26-October-2011

When couples with children separate it can mean additional complexity over custody and shared parental responsibilities. Yet what if the child dies? Who decides who can arrange the funeral. A NSW Supreme Court judgment resolved a very difficult situation in which the parents of a deceased 14-month-old baby were arguing about the organisation of the funeral and the burial site for their little child. Sadly, each year the Family Law Courts see a number of very serious disputes about the care of children. In this case, the child died as...

Failure to transfer properties causes complications in defacto case

30-November-2010

When a Dad lovingly gives his daughter two properties it seems simple enough. But what happens when he fails to sign a transfer, pay stamp duty nor change the registration details on the Department of Lands Torrens Title Registry? It gets complicated. After the giving the gift, the Dad enters into a de facto relationship. Time passes. The Dad and his de facto separate. After the separation, the ex-de facto claims the properties as part of the ‘pool’ of assets to be divided. The daughter approached Streeterlaw Sydney Lawyers and we...

Court helps wife pay for expensive divorce legal fees

29-November-2010

Family Law Court grants wife interim costs to help cover her $10.5 million in divorce legal fees When separating it is often the husband who moves out and the wife stays in the matrimonial home. In many cases the husband has the higher income plus access to financial resources including the ability to borrow money. Often the wife has limited access to cash and has the added time burden of caring for children. This financial disparity and inequality becomes more significant when legal fees for a divorce are considered. There can often be a...

Can legal fees be recouped when chasing outstanding strata levies?



Can a strata Body Corporate recover all of the legal costs it incurs when chasing outstanding strata levies? It is quite common for civil legal action to leave successful plaintiffs out-of-pocket in respect to their legal expenses, even if they obtain an order for the defendant to pay their legal costs.  An order for costs does not ordinarily cover the full cost of providing the legal service to the plaintiff in the proceedings.  The usual costs order is on a “party/party” basis, which translates into...

Husband’s fraud undermines Binding Financial Agreement



New wife wins case against forceful husband Imagine being pregnant, facing deportation and being given a Binding Financial Agreement by your fiance five days before your wedding and told to sign or the wedding is off. The situation In Blackmore and Webber [2009] FMCA FAM 154, the couple entered into a Binding Financial Agreement (under Section 90G of the Family Law Act 1975) on 11 November 2004 just days before being married on 14 November 2004. This judgment arose following an application by the wife to set aside a binding financial...

When is a marriage not a marriage?



A surprise trip to the Philippines reveals a few surprises for a husband. A recent Family Court decision of 11 October 2010 considered the very technical and legal requirements of an legal application to declare a marriage null and void (MONTY & VILLAMONT). There are very few grounds by which the Family Court may declare a marriage void. Section 23B of the Marriage Act 1961 provides a limited ground. The full text of this section 23B is available here. The ground applicable in this case 23B(1)(a) either of the parties is, at the time...

Family Court threatens imprisonment



Family Court takes the Compliance of Orders seriously On January 10, 2006, following their divorce, Mr Rand + Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property.  On June 25th, 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia” .... potentially  for the term of his natural life! Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and...

Family Court takes the compliance of orders seriously



On 10 January 2006, following their divorce, Mr Rand and Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property.  On 25 June 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia”.  Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and didn’t travel outside Sydney. Three years later on 20 April 2010, Mr Rand’s appeal...

Castration decided in Best Interests of Children

18-November-2010

Most parents want what is best for their child. If a child breaks their arm parents need no special permission to have it operated on and fixed. However consent to perform surgery on special medical conditions is not so easy. In a recent Family Law case [Sean and Russell (Special Medical Procedures)] the castration of two boys was presented to the Courts for a decision. With headlines of “Judge Allows Parents to have Boys Castrated”, Kim Arlington, journalist for The Sydney Morning Herald sensationally reports on a Family...

Surveillance reveals more than expected

19-October-2009

The Situation A wife suspected that her husband was having an "affair" online. The Solution By use of lawful surveillance methods it was ascertained that it was much worse than this. The husband was viewing child pornography. The matter was reported to the police and urgent action taken in the Family Court to preserve and protect the child of the relationship. Testimony - Mark Streeter Sydney Lawyer I recently agreed on a property settlement with my spouse. During the preparation beforehand and negotiation during the mediation, Mark...

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