“You’re out of touch. I’m out of time.”

Sang Hall and Oates in their 1984 hit. Being out of touch (with the legislation) and out of time does not necessarily prevent you from commencing family law property proceedings.

Section 44 of the Family Law Act establishes time limits on commencing family law proceedings with regards to property settlements or spousal maintenance.

  • Under Section 44(3), in matrimonial matters (those which deal with parties to a marriage), an Application for property proceedings must be commenced within one year from the date of divorce being granted.
  • Under Section 44(5), in de facto relationships, an Application for property proceedings must be commenced within 2 years from the date of the end of the relationship.

Despite this, it is not uncommon that parties to a marriage or de facto relationship may not have undertaken an application for property settlement within the time limits imposed under Section 44. Sometimes this can be to the severe detriment of one of the parties in particular.

Fortunately, our adversarial legal system grants discretion to the Federal Circuit and Family Court of Australia (“the Court”) as to whether parties can still undertake a property settlement.

Under Section 44 of the Family Law Act, the Court will consider whether denying the Application will cause “hardship” to either party, or any child or children of the relationship.

The term “hardship” is not defined in the Family Law Act, leaving it up to the discretion of the Court as to whether they will allow proceedings to be commenced.

Over the years, case law has assisted to develop how the Court will use its discretion. The case of Jacenko & Jacenko [1986] FamCA 25 established the following elements to be considered by the Court:

  1. Is there a prima facie case? That is whether at face value the applying party (“Applicant”) would have a property settlement to pursue but for the time limit passing.
  2. Would either party or any children suffer hardship? That is whether granting or denying the application would cause the Applicant or the Respondent to be unfairly prejudiced or suffer an injustice. The Court may consider such facts as the history of the relationship, the conduct of the parties and the possible consequences for the parties.
  3. Is there a ‘reasonable’ explanation for the delay? The Court will consider whether the Applicant has adequately explained the reasons the delay in making the Application.

A more recent case of Slocomb & Hedgewood [2015] FamCAFC 219, an Application for property settlement was granted in favour of the wife despite being 18 years out of time.

The short facts of this matter, the parties were married in 1989, and divorced in 1995. The wife and the three children moved from the matrimonial home where the husband remained after remarrying. The primary judge found it would cause unjust hardship on the husband to enter a property settlement that required the sale of the former matrimonial home, where he resided with his second wife and their children.

The wife appealed to the Full Family Court who, in applying the principles of Jacenko, found that although the wife’s explanation for the delay, being she was self-represented in the divorce and was unaware of Section 44, was inadequate, the hardship faced by the wife outweighed that of the husband. Accordingly, leave to commence proceedings was granted to the wife thereafter.

At Everingham Solomons, we have the expertise and experience to assist you with all matters relating to family law, because Helping You is Our Business.

Click here for more information on Lachlan Ennis.

Superannuation in Family Law Matters

It is not commonly known that during family law property settlements, your superannuation entitlements form part of the matrimonial or de facto asset pool. Superannuation differs from other assets such as real property, money and vehicles because it is technically held in trust by the super fund.

Part VIIIB of the Family Law Act 1975 allows for superannuation entitlements to be included and divided as part of the asset pool. When a parties superannuation is divided under Section 90XT, it is referred to as a ‘splitting order’. To action a splitting order, the party seeking the split must write to the trustee of the super fund to advise them of the proposed split they are seeking. This is referred to as granting the super fund ‘procedural fairness’ by notifying them of the intention and seeking the super fund’s approval.

It is a requirement of family law property matters, that parties disclose their financial positions to each other to allow for informed negotiation over the division of assets.

However, sometimes in family law matters which are particularly acrimonious, parties may attempt to hide their assets, including superannuation, from their former partner. This can lead to unnecessarily lengthy, frustrating and expensive experiences.

In an effort to increase the “visibility” of superannuation in family law matters, the (somewhat wordy) Treasury Laws Amendment (2021 Measure No. 6) Bill 2021 (Schedule 5) came into force on 1 April 2022. As part of this amendment, parties to litigated family law matters can now apply to the Federal Circuit and Family Court of Australia to find out what their former partners superannuation holdings are.

To make such an application, the applicant must be a party to family law property proceedings before the Federal Circuit and Family Court of Australia. The Court, after approving the request, communicates with the Australian Taxation Office, who in turn provide the requested superannuation information back to the Court. The information will typically include:

  1. The name of the owner and their client number.
  2. The identity of the Super fund and their ABN.
  3. The reported balance and the date this was last reported.

This information is generally provided within a period of 7 days, making for a much quicker and simpler means for parties to Court proceedings to find out their former partners superannuation holdings.

On some occasions, parties may agree to exclude their superannuation entitlements from negotiations. However the inclusion of superannuation in the asset pool is important in examples where one party might be a stay-at-home parent, or otherwise not in the workforce for significant periods of time. Further, the older the parties are, the more likely their superannuation is to be high in value and comprising a significant asset.

At Everingham Solomons we have the expertise and experience to assist you with all matters relating to family law matters, because Helping You is Our Business.

Click here for more information on Lachlan Ennis.

Facebook and Family Law

Without doubt, a family law matter can be extremely emotional and stressful times for all parties involved. A reaction by ‘blowing off steam’ social media would be a very natural reaction for a person under such circumstances. However, doing so might land you in gaol.

Section 121 of the Family Law Act 1975 makes it an offence to publish or otherwise disseminate to the public, any account of or part of Court proceedings which makes it possible to identify and of the following:

  1. a) a party to proceedings;
  2. b) a person related to or associated with a party to proceedings; or
  3. c) any witness in the proceedings.

A person found guilty of such offence upon conviction may be in prison for a period up to one year.

The philosophy behind drafting such provision is the right to privacy of the parties and the protection of children.

When the Family Law Act came into force in 1975, the internet, social media and the likes were decades away from becoming the every day reality they are in 2022.

Accordingly, Section 121 of the Act considers “publishing” to mean as in a newspaper, periodical publication, by radio broadcast or television or other electronic means. Whilst these are still prevalent in 2022, the inclusion of the term “other electronic means” encompasses the internet and social media.

In the recent case of Suris & Suris [2021] FedCFamC1, the Respondent, Mr Suris, was referred to the Australian Federal Police by Her Honour Justice Carew for investigation for breaches of Section 121.

During the acrimonious parenting dispute, Mr Suris filmed a documentary about his children and the impact of the Court proceedings, with the hope it would assist his case. Mr Suris had created a website to show the documentary, as well as making numerous social media posts, some of which included the full names and photographs of his children. This is a flagrant breach of Section 121 and it’s overarching goal of the protection of children.

The case of Suris is certainly a more extreme examples of breaching Section 121, however according to the wording, publishing anything that makes it possible to identify a party, a relation or a witness, could be considered to be a breach.

Accordingly, one must stop and consider the above before using social media platforms such as Facebook or Twitter to ‘blow off steam’ about family law matters.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.

Click here for more information on Lachlan Ennis.

Baby Come Back

In my previous articles, I gave a short outline of Section 65Y of the Family Law Act which relates to the removal of a child subject to Family Law Court Orders from Australia. The penalties and preventative measures were discussed.
In some situations, such removal may have occurred before any preventative measures could be implemented. This is a both emotional, stressful time for a parent and members of an extended family.
Australia is one of over 100 signatories to an international law treaty which is referred to as the “Hague Convention on the Civil Aspects of International Child Abduction (1980)”.
This is the Convention which parents will be required to use if their child has been removed from Australia without their consent. Careful consideration needs to be considered prior to making an application for a child to be returned to Australia. Under the convention, the child requires to be under the age of 16. This differs to the Family Law Act which defines a “child” as a young person under the age of 18.
In order to make a successful application a number of elements must be satisfied, some of which are:
1. The child is under the age of 16 years.
2. The child was abducted or kept overseas for longer periods than agreed between its parent or guardian.
3. The country in which the child was removed is a signatory to the convention.

Such applications are made through a number of series of formal agencies such as:
1. The Federal Circuit and Family Court of Australia.
2. The Attorney General’s Department who, will appoint the Central Authority to assist in the return of the child.

If a parent is successful in its plea to the Attorney General to take action to return a child to this country, the Central Authority will make efforts to locate the child and return the child on an amicable basis. In some circumstances, when this cannot be done, the Central Authority may arrest the abductor and commence proceedings in a relevant Court system for the child to be returned.
In circumstances where a child has been taken from a non-signatory intervention country the process is very difficult. Countries which are non-signatories to the Hague are China (with the exception of Hong Kong and Macau), the Maldives, Vietnam, Vanuatu and Indonesia, just to name a few.
Readers may recall in 2016, an Australian mother and Channel Nine film crew were imprisoned in a non-signatory country after attempting to retrieve two Australian children who had been abducted by their father, in an attempt to return them to Australia.
At Everingham Solomons, we pride ourselves in being able to assist our clients in all aspects of matters associated with the Family Law Act. Everingham Solomons is where Helping You is Our Business.

Click here for more information on Lachlan Ennis.

Nothing’s Gonna Stop Us Now

In my previous column published 27 November 2021, we reviewed the law regarding traveling overseas with or removing a child from Australia, when the child is a subject to family law proceedings.

In summary, Section 65Y of the Family Law Act 1975, prohibits the removal of a child unless it is done with the consent of both parties, or by Court Order.

Doing so is a contravention of certain provisions the Family Law Act, and may be looked upon as a criminal offense. The penalty may be up to three years imprisonment.

With the Covid-19 pandemic, which forced a moratorium on international travel, largely ending the opportunity for a parent involved in family law proceedings to unilaterally abscond with a child to proceedings, the recent resumption of international travel has once again opened the door.

We now turn to the remedies available to prevent this situation occurring, and in contrast to the words of 1980’s rockband Starship, something can stop them now.

If a party to a family law proceeding is concerned that the other party is planning to unlawfully remove a child from the country, the Federal Circuit and Family Court of Australia informs us there are three immediate remedies which can be sought to prevent this occurring:

  1. Prevent the issuing of a passport to the child. This is done by Application to the Court for a ‘child alert order’ which warns the Department of Foreign Affairs to prevent issuing a passport. It remains in place for either 12 months, until the child turns 18, or a Court orders otherwise.
  2. Delivery of passport to the Court. In circumstances where a passport has already been issued, a party may present the child’s passport to the Court and the Court will make orders to keep it for a specified amount of time.
  3. Court Order. The Court may make orders which restrain the child from being taken overseas, request the Australian Federal Police put the child on an Airport Watch List, or request the Australian Federal Police assist in enforcing the aforementioned orders.

In certain circumstances however, the horse may have bolted and a party, whether they are an Australian citizen or an international, may have taken the child overseas before any of the above injunctive restraints could be implemented to prevent it.

Matters involving the retrieval of a child from another country are often referred to as ‘Hague Convention Cases’, named for the governing legislation (and somewhat wordy) 1980 Hague Convention on the Civil Aspects of International Child Abduction, to which Australia is a signatory. Part three of this gripping series will discuss how family law practitioners may engage with international law to bring a child to family law proceedings back to Australia.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.

Binding Death Benefit Nominations: Traps to Look Out For

Headshot of Nick Hawkins - Solicitor at Everingham Solomons TamworthA Binding Death Benefit Nomination (BDBN) is a document that allows you to decide who will receive a benefit from any Superannuation you have accrued at the time of your death. Making a BDBN is an essential part of estate planning. A lot of people are not aware that their superannuation will not automatically be distributed through their Will. If you have seen a solicitor to create or update your Will, it is also worthwhile making a BDBN.

There are three main traps to look out for when making a Binding Death Benefit Nomination:

1. Make sure the nomination you have made is in fact binding. Superfunds will often offer binding and non-binding options. If you only have a non-binding nomination your superfund is not bound to follow your directions and they can use their discretion to decide how your superannuation is divided among your family. If you want to take the decision out of the hands of your superfund and ensure your wishes are followed, check the type of nomination you have made to confirm that it is binding.

2. The second trap of BDBNs is that they often lapse every three years. Some superfunds do offer non-lapsing nominations that are also binding. However, just like making a Will, your BDBN also needs to be reviewed every few years. A Binding Death Benefit Nomination that has expired is not enforceable, so it is important that you actively review the nomination and keep it up to date.

3. Not everyone is eligible to be nominated as a beneficiary of your superannuation. You can only nominate someone that is:
a. a dependant;
b. someone who is in an interdependent relationship with you (such as a partner or spouse);
c. your children, including:
i. stepchildren (provided the relationship between the child and their natural parent is not severed by death or divorce);
ii. adopted children; and
iii. adult children; or
d. your legal personal representative (such as the executor of your Will)

If you nominate your legal personal representative your superannuation will be directed to your executor(s) who must distribute it in accordance with your Will. This is the only way to direct your superannuation to someone that does not fall into one of the above categories.

When you make your BDBN your superfund will not know if the people you have nominated fit into one of these categories and will automatically assume you have made a valid nomination. Only once the BDBN comes into effect will the superfund consider your nominations. Anyone nominated that does not come under one of the above categories cannot receive a benefit from your superannuation and your nomination will be invalid.

If you need assistance or advice regarding Binding Death Benefit Nominations or other estate planning issues contact a solicitor at Everingham Solomons because Helping You is Our Business.

Click here for more information on Nick Hawkins.

I’m Leaving on a Jet Plane

As international travel is set to resume after, nearly a two-year pandemic induced hiatus, we turn our attention to the law regarding traveling or removing a child from Australia. Unlike the words penned by virtuoso John Denver in his famous 1966 song, it is not as simple as “I’m leaving on a jet plane” and certainly not “I don’t know when I will be back again.”

Under the provisions of the Family Law Act, parents have a presumption of equal parental responsibility. This presumption remains until a Court orders otherwise.

When separated parents wish to travel internationally with their child or children, they must be aware of the Family Law Act 1975 Section 65Y, which prohibits a parent/guardian from removing a child from Australia unless:
1. It is done with the authorisation and written consent of each of the parents/guardian; or
2. A Court Order has been made to allow such to occur.

Violation or breach of Section 65Y is a criminal offence. The penalty can be imprisonment for up to three years.

The exemptions to Section 65Y depend on the circumstances but generally only occur when the person removing a child from Australia:
1. Believes it is reasonably necessary to prevent the child being subject to family violence; and
2. The conduct is reasonable in the circumstances as the person perceives them.

As previously mentioned, if a parent or guardian cannot agree and written consent is not granted, an application to the Court must be made. Such Court must have jurisdiction to make Orders in accordance with the Family Law Act. The Court will consider, when adjudicating on an application for international travel, inter alia the following:
1. If it is in the best interest of the child to travel internationally;
2. If there a risk of a child’s relationship being disrupted or terminated with the non-travelling parent during the time of travel; and
3. If there a risk that the child will be detained in a foreign country or, not being returned to the child’s primary place of residency.

It is my intention to write a further advertorial where I will examine the remedies available to prevent a parent from removing a child from Australia or, in extreme circumstances, commencing proceedings to return a child from an overseas country.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.


Divorce: What does it mean to be “separated” from your spouse?

Headshot of Emily Cullen - Solicitor at Everingham Solomons TamworthIn Australia, a party to a marriage is able to make an Application for Divorce under Section 48 of the Family Law Act 1975 (Cth).
In order for an Application for Divorce to be granted, the Court must be satisfied of the following:
1. That there is a valid marriage;
2. That you:
a) Are an Australian Citizen; or
b) Live in Australia and regard Australia as your permanent home, or
c) Ordinarily live in Australia and have done so for at least 12 months before filing the Application for Divorce;
3. That the marriage has broken down irretrievably;
4. That the parties to the marriage separated and thereafter lived separately and apart for a period of not less than 12 months; and
5. That there is no reasonable likelihood of cohabitation being resumed.

On occasion, we have been required to consider what it means for parties to be “separated” and to have lived “separately and apart”.

In 1976, the Family Court of Australia considered this concept In the Marriage of Todd (No 2).

The facts relevant to the Application for Divorce were as follows:

  • Mr. Todd married Mrs. Todd in 1960;
  • Mr. Todd and Mrs. Todd has two children;
  • In November 1974, Mrs. Todd relocated from the former matrimonial home with the two children of the marriage;
  • In April 1975, Mrs. Todd and the children returned to the matrimonial home;
  • In 1976, an Application for Divorce was made.

In his judgment, the Late Justice Watson determined the following:
1. ‘Separation’ means more than physical separation – it involves the destruction of the marital relationship. Separation can only occur where one or both parties to the marriage form the intention to sever or not resume the marital relationship and act on that intention. Considering what comprises the marital relationship will vary for each couple.
2. ‘Living separately and apart’ – Unless there is a substantial resumption of the marital state, this element is considered present. It is important to note, casual intimate relations with your estranged spouse do not constitute an interruption to separation.
3. ‘Resumption of cohabitation’ – Once the necessary period of separation has been established, a Divorce should be granted unless the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

In the Marriage of Todd (No 2), the Late Justice Watson found that the marriage had irretrievably broken down and that the parties had lived separately and apart since November 1974. Despite the parties resuming their cohabitation in 1975, Justice Watson determined the matrimonial relationship was never restored and accordingly, it was appropriate for the Court to make and Order for Divorce.

At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.


The Merger of the Family Court of Australia and the Federal Circuit Court of Australia

Headshot of Emily Cullen - Solicitor at Everingham Solomons TamworthIn February 2021, the Senate passed the Federal Circuit and Family Court of Australia Act 2020 providing for the amalgamation of our two specialist Family Law Courts in Australia: The Federal Circuit Court of Australia and The Family Court of Australia.

The Act provides for the establishment of a new Court, the Federal Circuit and Family Court of Australia (FCFCA) comprising of two (2) divisions:

  • FCFC Division 1 will continue the work of the Family Court of Australia, dealing with the more complex matters and exercising appellate jurisdiction; and
  • FCFC Division 2 will continue the work of the Federal Circuit Court of Australia and will be the point of entry for all new family law and child support cases. The FCFC Division 2 will also have jurisdiction over general federal law matters.

In a statement to the media on 23 February 2021, the Honourable Justice William Alstergren, Chief Justice of the Family Court of Australia, said “to improve the system we need a streamlined single point of entry, as well as harmonized rules, forms and case management approaches.”

Under the new framework, the number of specialist Judges will increase. There are currently 33 judges in the Family Court of Australia and 40 judges in the Federal Circuit Court of Australia. The amalgamation will allow for 35 specialist judges in Division 1 and 43 judges in Division 2.

The promising news for those who have current cases before either the Federal Circuit Court of Australia or the Family Court of Australia is that the structural changes should not have an immediate impact on the way cases are conducted and accordingly, should not result in further delays or backlogs.

Despite the structural changes, the core principle of the Court will remain the prioritisation of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate management of risk factors.

At Everingham Solomons we have the expertise to assist you with all legal matters associated with Family Law because Helping You is Our Business.

See articles written by Emily Spence

What’s in a name?

Applying to change your child’s name after separation or divorce.

Under the Family Law Act 1975 (Cth), parents are required to make decisions jointly in regards to all matters concerning their child’s long-term care, welfare and development.

If both parents agree to change their child’s name, the process is simple. In New South Wales, applications to register a change of a child’s name are governed by Section 28 of the Births, Deaths and Marriages Registration Act 1995.

‘The parents of a child may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the child’s name if –

a) The child’s birth is registered in the State, or
b) The child was born outside Australia, the child’s birth is not registered in Australia and the child has been a resident in the State for at least 3 consecutive years immediately preceding the date of the application.’

The approved form is titled an ‘Application to Register a Change of Name for a Child (Under 18)’. Once completed, this form should be lodged with the Registry of Births, Deaths and Marriages for determination. It is noted, if the child in question is over the age of 12 years at the time the application is lodged, that child will be required to sign the application form.

An application for registration of a change of a child’s name may be made by one parent in the following circumstances:

a) ‘the applicant is the sole parent named in the registration of the child’s birth under this Act or any other law (including a corresponding law), or
b) there is no other surviving parent of the child, or
c) a court approves the proposed change of name.’

Expanding on part (c) as described in the above paragraph, prior to making an application to the Court, parents must attend a Family Dispute Resolution Conference in an attempt to resolve their differences. If it is not appropriate for the parents to attend such a Conference, the Family Dispute Resolution Practitioner will issue a certificate pursuant to Section 60i of the Family Law Act, enabling the parent or parents in receipt of the Section 60i Certificate, to make an application directly to the Court.

In the case of Chapman v Palmer (1978), the Full Court of the Family Court of Australia considered in what circumstances it would be appropriate to change a child’s surname. The Full Court determined the following factors should be considered:

1. The welfare of the child is the paramount consideration;
2. The short and long term effects of any change in the child’s surname;
3. Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with custody or care or control;
4. Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
5. The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
6. The effect of frequent or random changes of name.

At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.

Click here for more information on Emily Spence.