Domestic and family violence is a serious issue that affects many people across Australia. A Domestic Violence Order (DVO) is a court order in Queensland designed to protect a person from domestic violence. This article contains information about what constitutes domestic violence, how to apply for a DVO, types of orders, and the consequences of breaching domestic violence orders.

What constitutes domestic violence?

When we think of domestic violence, we most frequently think of physical abuse. However, domestic violence is not limited to physical violence. It can also include emotional, verbal, financial, and sexual abuse, as well as stalking and intimidation. Some common examples of domestic violence include:

• Physical violence, such as hitting, slapping, or punching
• Verbal abuse, such as yelling, insulting, or belittling
• Emotional abuse, such as controlling behaviour or isolation from friends and family
• Sexual abuse, such as forced sexual acts or coercion
• Financial abuse, such as controlling access to money or refusing to provide for basic needs
• Stalking or intimidation, such as following or monitoring someone’s activities.

There are also forms of domestic violence that are less difficult to identify. For instance, it is not well understood that threats of suicide and/or self-harm can also constitute domestic violence. If someone is making these types of threats as a means of controlling or manipulating their partner or family member, this can be very distressing and intimidating for the victim.

How do you apply for a DVO?

To apply for a DVO in Queensland, you can visit your local police station or courthouse. You will need to provide details of the domestic violence you have experienced or witnessed, including any evidence you may have, such as photographs or witness statements.

Once you have applied for a DVO, a court will consider your application and decide whether to issue an order. If the court is satisfied that domestic violence has occurred or is likely to occur in the future, it will make a DVO. A DVO can impose conditions such as prohibiting the offender from contacting you, attending your home or workplace, or possessing firearms. If the offender breaches the DVO, they can face criminal charges and penalties.

In Queensland, a police officer may apply for a DVO on behalf of a victim. To apply for a DVO, a police officer must have reasonable grounds to suspect that domestic violence has occurred or is likely to occur in the future. The application should include details of the alleged domestic violence, and any evidence or witness statements to support the application.

Types of orders

There are a range of different types of domestic violence orders that the courts can issue. These include:

• Orders which prohibit the perpetrator from committing further acts of domestic violence against the victim.
• Protection orders, which are issued to protect victims from harm or to prevent the perpetrator from accessing a shared residence or workplace.
• Ouster orders, which require the perpetrator to vacate a shared residence or workplace. This type of order can be an important safety measure for victims of domestic violence who may feel threatened or unsafe in the presence of their abuser.

Breaching a Domestic Violence Order

It is important for perpetrators of domestic violence to take DVOs seriously and to comply with the conditions set out in the order. A DVO is a civil order and does not result in a criminal record. However, breaching the terms of a DVO is a criminal offence that can result in criminal charges and penalties. Someone who breaches a DVO can expect to be arrested and charged.

The penalties for breaching a DVO vary depending on the severity of the breach and whether the offender has a history of domestic violence, it can result in fines, imprisonment, or both. If you feel that you may be at risk of breaching a DVO, it is important to seek legal advice and support to help you comply with the terms of the order.

An order is breached if any of the conditions listed in the order are contravened. Some examples of breaches of DVOs in Queensland include:

1. Contacting the victim: If the DVO prohibits the offender from contacting the victim, any attempt to contact the victim, whether by phone, text, email, or social media, is a breach of the order.
2. Physical proximity: If the DVO prohibits the offender from being within a certain distance of the victim, entering their home, or attending their workplace or other specified locations, any attempt to approach the victim or attend those locations is a breach of the order.
3. Possession of weapons: If the DVO prohibits the offender from possessing firearms or other weapons, any attempt to possess or use these weapons is a breach of the order.
4. Indirect contact: If the DVO prohibits the offender from indirectly contacting the victim through a third party, such as a friend or family member, any attempt to do so is a breach of the order.
5. Failure to attend court: If the offender has been ordered to appear in court for breaching the DVO or attending a court-ordered program, failure to do so is a breach of the order.
6. Threats of self-harm: A DVO may prohibit someone from making threats of suicide or self-harm. Although such threats may arouse sympathy for the perpetrator, it is important to understand that these actions can be the continuation of the domestic violence.

This information is for general purposes only and we recommend you obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Gender dysphoria can be described as medically diagnosed significant distress or impairment, related to a strong desire to be another gender or change primary or secondary sex characteristics.

A decision by the Family Court in the Kelvin case has set an important and welcomed precedent for children wanting to undergo hormone therapy to bring about puberty in the gender the child identifies with.

Currently, where a child, their parents and doctors are all in agreement that hormone therapy should begin, there will be no need to apply to the Court for approval.

The Kelvin decision has been welcomed as this means less stress and anxiety is placed on a child wanting to start hormone therapy for gender reassignment.

What is Gender Dysphoria?

As mentioned above gender dysphoria is the discomfort a person feels with how their body is perceived and may occur when a person feels their biological or physical sex does not match the sense of their own gender. It’s important to note that not all transgender or gender diverse people experience gender dysphoria.

Gender Dysphoria treatment

There are 3 stages of treatment for gender dysphoria.

Stage 1 treatment involves the child taking “puberty blockers” which prevent the child from going through puberty in their biological sex and therefore time to develop emotionally and cognitively where they are able to give informed consent to the next stage of treatment.

Stage 2 treatment consists of the provision of hormone therapy to the child to bring about puberty in the gender that the child identifies with. Hormone therapy has some irreversible effects so it can only commence when the child has the maturity to provide informed consent.

Stage 3 treatment involves surgical interventions, such as chest reconstructive surgery, phalloplasty and hysterectomy.

The role of the Family Court in the treatment of Gender Dysphoria

In Australia, the Family Law Act 1975 gives the Court authority to make orders relating to the best interests of the child relating to non urgent medical intervention. Before 2017, Australia was the only country where transgender adolescents had to seek permission from the Court to start stage 2 treatment for gender dysphoria.

Stage 2 treatment was only available to transgender adolescents, who the Court believed had reached a ‘Gillick’ level of competency. The Gillick test is used to determine whether a child is legally capable of consenting to medical treatment, without their parents’ knowledge or consent. In 2017, however, the case of Kelvin brought about change to this status quo.

The Kelvin case

As mentioned above, the case of Kelvin set a new precedent for the commencement of stage 2 treatment. Kelvin was born female but diagnosed with gender dysphoria at age nine after identifying as male. Kelvin’s father filed an application to the Court containing evidence from an endocrinologist, psychiatrist and a psychologist that supported Kelvin commencing stage 2 treatment. The court decided that there was no requirement to satisfy the Gillick competence test in Kelvin’s case as all parties, including the parents and treating doctors, agreed that Kelvin should proceed to the next stage of their treatment. Therefore, it was not necessary to make an order approving commencement of stage 2 treatment.

The court also declared that previous case law was decided based on potential health repercussions of new medical treatments. By the time Kelvin’s case was heard in the Court, there was a clearer understanding of gender dysphoria and treatment options.

If you or your child’s treating physicians are unsure if your child is ready to start stage 2 treatment, and would like further legal advice on moving forward, we recommend you speak to one of our experienced family lawyers.

Conclusion

The decision in Kelvin is a triumph for gender and family law as it aligns Australian law with contemporary attitudes held by the medical community at large.

It has also been welcomed by children dealing with gender dysphoria, especially where the child consents and wants to proceed with stage 2 treatment and the child’s parents and treating medical practitioners have no objections to the child commencing treatment.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Settling your family law matter in the court system can be stressful, expensive, and most likely, a lengthy process. Understanding the timeline of court directions and procedure will help you prepare for the process.

This article provides the most important tips to help make the court process as smooth and productive as possible.

It is important to remember that court proceedings should be relied on as a last resort after all attempts made to negotiate a settlement.

We strongly recommend that you seek legal advice from an experienced family lawyer before commencing a court application.

Understanding the timeline for court hearings

Family law matters proceed through the Federal Circuit and Family Court of Australia. There are four types of hearings that usually take place during family law proceedings in the court, these include:

• Direction Hearings or Mentions;
• Interim Hearings;
• Call overs; and
• Final Hearings.

Learning about proceedings in the FCFCA

They say knowledge is power, so we recommend you invest some time educating yourself about procedural issues and the law. If you have a family lawyer managing your matter, ask them to explain the process to you in simple language.

If your proceedings involve a property settlement, you should have a thorough understanding of the likely outcomes and property division. If your proceedings involve the care of children, you should ensure you understand the possible outcomes for orders and arrangements for your children.

If you are unable to pay for a lawyer to represent you, you can request an appointment for representation from a Legal Aid lawyer, or at the very least, seek legal advice in relation to hearings.

Identify the issues in dispute

It is imperative that you work out the legal issues you and your ex-partner cannot agree on.  Clarify what you want to achieve from the hearing, and understand the other party’s wants.

When the differences between each party are clear, make a list of the strengths and weaknesses of your case. Plan how you will respond to any arguments made by the other party in relation to weaknesses in your matter.

Ensure that you:

• have relevant documents ready to hand to the Judge or in your sworn affidavit;
• have prepared written submissions to be handed up to the Judge;
• include a chronology of events, if appropriate;
• write out the orders you are seeking.

Doing the above, even if you have legal representation, will assist your lawyer preparing your case and may even save you costs in legal fees.

Evidence

The court can only consider evidence that is relevant to your matter and ‘admissible’ (i.e., able to be used in court). Evidence is usually admissible if it supports a party’s argument, or helps to weaken the other party’s argument.

Be objective about the evidence required. The evidence must be directly linked to your argument.

Don’t use unnecessary evidence which may be distracting. At the same time, you must keep in mind your duty to disclose material relevant to the issues in dispute.

Sometimes evidence that might seem relevant can’t be used in court.

The rules surrounding evidence can be complex so we strongly recommend you seek legal advice in relation to the evidence you will be relying on.

During the hearing

The general dress code for court is business attire, you should ensure you look neat and tidy. When entering and leaving the court room, it is etiquette to bow to the Judge and always stand when the Judge speaks to you. Ensure that your mobile phone is switched off. Following good court etiquette gives the Judge an indication of your character.

Remaining calm and reasonable in court, regardless of how heated arguments become, is very important as it shows the Judge that you are generally a calm and reasonable person.

When the Judge asks you a question, ensure you directly answer that specific question. Courts are under pressure from time constraints and appreciate direct and straightforward answers to questions.

Video conferencing

The court conducts hearings both in person and electronically via video link and telephone. This is referred to as ‘video conferencing’. The court will advise if your matter is listed for a remote hearing.

Electronic hearings are conducted as proper and formal court hearings which means the usual Rules of Court, court procedures and etiquette are expected to be complied with.

You can request your hearing be conducted electronically (using the relevant form which can be found on the court website). The court may also direct that the hearing be held via video link or telephone.

How do I find out where and how my hearing will take place?

You can usually find the above information by checking court orders, if your hearing was listed when the judge or registrar made the orders, or in emails or letters about your matter from the court.  If your hearing is listed to be heard electronically, the court will send you or your lawyer an email with instructions on how to join the hearing and what documents you will need to provide the court before the hearing date.

  Conclusion

Preparing for a family court hearing involves a lot of work and is time consuming. Ensuring that you have all documentation required and a thorough understanding of court procedures is vital for a successful outcome.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Separated couples unable to resolve matters regarding parenting and finances through mutual agreement can apply for interim orders in the Federal Circuit Court (or Family Court for some more serious and complex cases).

Interim orders are “temporary orders” and usually made as a matter of urgency to determine parenting and financial matters until the final hearing.

Although interim orders are temporary, it is important to ensure you understand your rights and entitlements regarding parenting and property arrangements as a status quo is sometimes set by interim orders.

What are interim orders?

Parties have the option to apply for interim orders as there is a general waiting period of up to 12 months or longer for a final hearing where final orders are made. As such, interim orders are “temporary” orders that are required for urgent matters, mainly regarding the care of children.

For most property matters, there is no need for interim orders, unless there are urgent issues needing to be addressed, for example, which party will remain occupying the former home where the couple resided.

We strongly recommend you speak with one of our family lawyers who can provide you with advice tailored to your situation.

How do I get interim orders?

Before making an application for parenting proceedings, parties must first attempt Family Dispute Resolution (FDR) with a mediator, unless there is history of family violence or child abuse. If no agreement regarding parenting is reached during FDR, or if one of the parties does not participate, the parties will need to apply for interim orders.

When applying for interim orders regarding a parenting application, an Affidavit and a Notice of Risk is required to be filed with your application. You must also file a 60i Certificate with your application for interim parenting orders.

If you are making an application for financial interim orders, you must submit an Affidavit and a Financial Statement with your application.

A fee will need to be paid at the time an application for interim orders is lodged.

Interim hearings usually take place between 2-3 months after an Initiating Application is filed.

Even if the other party has filed an application for an interim order first, you may still file your own application through a Response. Once your Response has been submitted, you will be in the same position as the other party.

An interim hearing may also be used to obtain the following types of Orders:

• Drug testing;
• Recovery Order;
• Restraints on certain behaviours;
• Appointment of an Independent Children’s Lawyer.

There is a lot of work involved in preparing an application for interim orders. To ensure you have included all necessary documents and information for your application and that you have drafted your affidavit correctly, we strongly advise you speak with one of our experienced family lawyers.

What happens during an interim hearing?

In interim hearings, courts do not make rulings on disputed facts because the evidence presented cannot be tested by cross examination. Courts make interim orders based on respective applications, affidavits, relevant reports and/or submissions made by both parties. Interim hearings are generally heard in less than two hours unless there are special circumstances which can cause the hearing to go over 2 hours.

An interim order for parenting may include the following;

• who the children of the relationship will reside with;
• the amount of time the children will spend with each parent and other people, such as grandparents;
• details of parental responsibility;
• how children will communicate with the parent they do not live with (including other people);
• any other factors related to the care, welfare or development of children.

When determining the above, the court will consider what is in the “best interests of the children.”

An interim property settlement (also referred to as “part property settlement”) can generally be described as an “advance” on what a party is likely to receive in a final property settlement. Interim property orders usually provide for funds to be used by one of the parties after separation. These funds may be used for whatever purpose the party seeking the interim order chooses, such as purchasing a property, car, paying legal expenses or for day to day living expenses. It is important to keep in mind that the funds allocated in the interim property order will be treated as part of what that party will receive in the final property settlement, i.e. these funds will be deducted from the final property settlement.

Conclusion

Interim orders are made as a temporary, urgent solution to a separated couples’ parenting and financial situation. At the final hearing, the court will examine all evidence, listen to cross-examination of the parties, and will then make final orders.

If a party wishes to apply for parenting orders, they must attempt ADR before doing so.

Considering the lengthy delays experienced in the Family Law Court, interim orders often remain in place for a long time. This means they can sometimes have an impact upon the final orders that may be made by the court, so it is crucial to seek advice from an experienced family lawyer who can ensure that proper time, care and effort has gone into preparing and presenting your case at the interim hearing.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Financial abuse occurs where a person uses systematic coercion to control another family member’s access to money or assets, whether the victim of the financial abuse is currently in, or was in, an intimate relationship with the perpetrator. Financial abuse is considered a form of domestic violence.

There is recourse and assistance available for people who are experiencing financial abuse.

This information is for general purposes only and we recommend obtaining professional advice relevant to your circumstances.

What is considered financial abuse?

Financial abuse occurs usually between intimate partners, when one controls or manipulates the other person’s access to finances, assets and decision-making to create dependence and control such as:

• restricting another person’s access to bank accounts;
• completely controlling their finances and money or forbidding a partner to work or make their own money;
• not allowing a partner to use their own money or taking it away from them;
• monitoring how a partner spends money or makes financial decisions;
• using a partner’s money without their permission.

Financial abuse can be subtle or overt and is often not the only type of violence perpetuated against a partner. It can be accompanied by other types of abuse such as physical violence. Perpetrators of family violence usually use financial abuse as a means of stripping a victim of resources to leave the abusive relationship.

Examples of financial abuse

An example of financial abuse can occur where a spouse relies on the other spouse to earn an income for their family. The other spouse constantly pretends they’re searching for a job while in actual fact, they are instead at a friend’s house, or out indulging in leisurely activies.

Another example can include a husband insisting his wife provide him with every grocery receipt for his approval. If the husband doesn’t agree with any food purchases, he lectures his wife for hours. This can lead to a person not being able to choose what type of foods they want to eat.

What can I do if I’m experiencing financial abuse by my partner?

The most important thing is your safety and wellbeing. The police may either charge the violent person with assault and/or apply for an Apprehended Domestic Violence Order (ADVO) for your protection. If you prefer to remain in the house with your children, you can ask the police to remove the violent person from your house. If you need to speak to someone about advice on leaving your relationship, you can call the domestic violence hotline. The hotline can refer you to other services available for people in your situation.

If you are experiencing financial abuse, it is important to take legal action as soon as possible which may involve commencing court proceedings to prevent your financial situation worsening. This is because your assets are at a risk of being stripped or all your money being spent by your abuser.

You can apply for an urgent application in the Federal Circuit and Family Court of Australia (FCFCA) to get an injunction to prevent your assets being moved to other accounts, spent or your mutual funds disappearing. An urgent application for an injunction will usually get your matter before the court within weeks as opposed to the three months (plus) it can take to have a non-urgent proceeding heard before the court.

It is important to keep a list of documents that can confirm the existence of financial abuse, and to ensure that collecting this evidence is done safely. For example, credit card statements that can prove that a partner has money even though that partner is refusing the victim access to purchase goods they need. Credit or other financial product/service applications made in the victim’s name without their knowledge, is good evidence to retain safely, preferably in a trusted family member or friend’s home.

This area of law can be complex, especially given the urgent nature of court applications, which is why we strongly recommend you seek advice from an experienced lawyer.

Conclusion

If you are experiencing financial abuse and are worried about your health and safety, it is important to seek help from the police who can assist in applying for an ADVO.

You should also seek advice from an experienced lawyer about ways in which you can protect your wealth and assets being jeopardised and how to collect relevant evidence that can assist in you applying for an urgent injunction if you choose to go down this path.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Crypto currency consists of encrypted digital forms of currency not distributed by banks. It also goes by the name of ‘cryptocurrency’. A popular example of a crypto currency is Bitcoin.

As cryptocurrencies become more commonly used around the world, so too will their appearance in family law property settlements.

This article provides guidance on how you can ensure you receive a fair share in your family law property settlement.

Crypto currency included in the asset pool

Both spouses have an obligation to make full and frank disclosure of their financial circumstances. Cryptocurrencies are as asset that should be disclosed in the asset pool when it comes to family law property settlements.

Discovery of one party’s interest in cryptocurrencies is presenting a big challenge to family lawyers. Unlike bank accounts, ownership of a cryptocurrency is not as obvious. Bitcoin records cannot be subpoenaed, and any records of ownership are usually stored digitally in a person’s mobile or other device.

Cryptocurrencies don’t send out statements, are not usually stored on hard copy or easily accessed by other parties. However, as all cryptocurrency is initially acquired through the use of traditional currency, the ownership of bitcoin may be traced through bank records and transactions related to the acquisition of cryptocurrency. The only exception to this is if the party has been gifted cryptocurrency or paid in cryptocurrency for goods or services.

What type of cryptocurrency documents can be included as part of the discovery process?

• Screenshots showing the current balance of each cryptocurrency in a digital wallet, exchange or cryptocurrency account and ledgers of all transactions for each crypto wallet, exchange or account.
• Copies of bank and credit card statements reflecting transactions for each wallet, exchange or cryptocurrency account and copies of any brokerage account statements.
• Lists of purchases of goods and/or services through the use of cryptocurrency.
• Emails containing cryptocurrency transactions. These emails also will show a time and date stamped trail of the amount and conversion rate.

How to value Cryptocurrency for a family law settlement

Like other currency, cryptocurrency has an exchange rate which can be used to convert the cryptocurrency into dollars. The value of cryptocurrency is volatile and can fluctuate dramatically. Its value can drop by 20% in just a few hours or increase by 98% in one year. This can make valuing cryptocurrency a difficult task for the purposes of a family law settlement. Generally it is easier for crypto assets to be converted into cash first and then contributed to the asset pool. If this is not possible or desirable then the volatility of the asset value may need to be factored into consideration of the division of assets.

Conclusion

It is clear from this article that family law property settlements will become more complicated as cryptocurrency ownership becomes more common in Australia.  Regardless, the rules of discovery still apply to cryptocurrencies as they are accepted as part of the asset pool.

If you are concerned that your partner may be hiding their cryptocurrency details from you, we recommend you speak to an experienced lawyer who can help you access this information to ensure you receive a fair settlement.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The steps involved in determining how property is divided after the breakdown of a relationship generally include:

• identifying the assets, liabilities and financial resources of the parties;
• assessing the parties’ financial and non-financial contributions;
• evaluating the parties’ respective future needs;
• determining a financial settlement that is, in all circumstances, just and equitable.

This is the process a Court takes in making property orders and, although most matters are settled without Court proceedings, is the approach usually adopted when lawyers and their respective clients negotiate a financial settlement.

What happens though when one party receives a windfall? Will this be considered a contribution from that person alone, or a joint contribution, and will the benefits of the windfall form part of the asset pool available for distribution between both parties?

The answer is neither a definitive ‘yes’ or ‘no’. It depends on the nature of the windfall, when it was received, the relevant circumstances, and the Court’s discretion to alter property interests to achieve a just and equitable distribution.

What do assets and contributions include?

Assets generally include real estate, personal property, furniture, motor vehicles, investments, cash, shares and insurance policies. Superannuation is also included which may be split between the parties to give effect to property orders.

Contributions include financial contributions, such as assets brought into the relationship and the parties’ financial earnings, and non-financial contributions such as the care and welfare of the family.

Windfalls may also be considered contributions to the financial assets.

What is a windfall?

A windfall is money or a gift received, sometimes unexpectedly, but not necessarily earned. A windfall may be a win on the horses or other event through organised betting, a jackpot on the pokies, a lottery win, or an inheritance.

Is a windfall a contribution for the purposes of a family law property settlement?

Previously, a lottery win was deemed a windfall and treated distinctly from other contributions and property of the relationship. In Mackie and Mackie [1981] FamCa 34 the husband’s post-separation lottery win was not relevant in assessing an application for spousal maintenance.

More recently however, cases have determined that windfalls do form part of the asset pool and are therefore contributions when determining the alteration of property interests.

Zyk and Zyk [1995] FamCa 135 dealt specifically with lottery winnings and noted that the term ‘windfall’ was problematic and should more accurately be described as a ‘contribution’. The Court determined that the individual purchase of a lottery ticket during a marriage should be treated as any other purchase made from the joint income provided to the partnership. This would be so even in marriages where only one party contributes financially, based on the recognition of the non-financial (domestic) contributions of the other. Consequently, the treatment of the winnings as a ‘contribution’ rather than a ‘windfall’ made a significant impact to the net contributions determined by the Court.

Does timing make a difference?

The timing of a windfall may be of considerable relevance to how it is treated and the overall outcome when dividing property.

In Eufrosin and Eufrosin [2014] FamCAFC 191 the Court considered the timing of a windfall, looked at the nature of the relationship at the time it was received, as well as exercising its discretion of factors to be taken into account regarding spousal maintenance.

The parties had been married for 20 years and separated for 6 months (and living separate lives) when the wife won $6 million. Although the Court found that the husband had not contributed to the lottery winnings, and divided the non-windfall assets equally, the husband was awarded spousal maintenance of $500,000 which took account of the income, property, and financial resources of the parties and their respective capacity for gainful employment. In this case the husband was 62 years old.

In Elford and Elford [2016] FamCAFC 45 the parties, both of whom had previous relationships, led largely separate financial lives and had no joint accounts. They co-habited in 2003, married in 2007 and separated in 2012. The husband, who was 22 years older than the wife, won $622,842 about 12 months after they started living together. He added personal savings and invested a total of $650,000 in a term deposit in his name.

In this case, the Court held that the purchase of the ticket was not a joint endeavour between the parties as they had ‘clearly kept their assets quite separate’ and ‘to a very large degree’ their finances. The wife did not contribute to the purchase of the ticket, nor the selection of the winning numbers which the husband had consistently used on a weekly basis since 1995, and the ticket was in the husband’s sole name. Consequently, the winnings were treated as the sole contribution of the husband.

What about inheritances?

The treatment of an inheritance generally depends on when it was received, the duration of the relationship and the value of the inheritance compared to the overall asset pool.

Generally, an inheritance received before or during a relationship forms part of the asset pool, however its full value may not be equally proportioned between the parties.

Usually, the significance of an inheritance will diminish over the course of a long marriage or relationship, with less weight likely given to it when compared to the overall asset pool. In shorter relationships, where the beneficiary of the inheritance used it for the benefit of the partnership, then he or she may have a greater entitlement to it.

An inheritance received close to the time of separation, or afterwards, is generally (but not always) considered an entitlement of the recipient and may not form part of the asset pool available for distribution. It may however be considered a financial resource of the party receiving it which is potentially available to meet the needs of the other.

Conclusion

The above examples illustrate the discretionary role the Court plays in determining family law financial settlements generally and, more particularly, how a windfall might be treated. Each case will turn on its own unique circumstances, which could result in a range of outcomes including:

• the complete isolation of the windfall from the asset pool and the party entitled to it entitled also to a share of all other joint property;
• the isolation of the windfall from the asset pool and an adjustment made in favour of the party who is not entitled to it;
• inclusion of the windfall in the asset pool, with an adjustment made in favour of the party contributing the windfall;
• inclusion of the windfall in the asset pool without regard to its source.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

A financial agreement is a contract that deals with the division of a couple’s assets after they separate, or in the event that they separate. They may be made before or during a marriage or de-facto relationship, or after it breaks down.

Financial agreements are also referred to as binding financial agreements, pre-nuptial or post-nuptial agreements and cohabitation agreements. They do not require court approval.

Although any couple may enter a financial agreement, they are often used when one or both parties have previously been married or in a substantial relationship, have children to a former partner, or where one party brings significant assets into the relationship. Generally, the financial agreement will attempt to protect existing assets or anticipated inheritances, ensure children from past relationships inherit from their parent, and take account of unequal contributions.

How binding are these agreements?

Some people may be cautious about entering an agreement to finalise their property affairs without approval or intervention by the court. Certainly, there are cases where such agreements have later been set aside for various reasons.

A financial agreement is a legal contract so is presumably binding provided the statutory technical requirements are met and certain circumstances did not exist during the making of the agreement that could have it set aside.

Technical requirements

Financial agreements must comply with the relevant provisions of the legislation.

Both parties must sign the agreement and before doing so, obtain independent legal advice regarding the effect of the proposed agreement on their rights, and its advantages and disadvantages.

A legal practitioner must also provide the client and other party with a signed statement to the effect that such advice was provided. Each party must receive a copy of the financial agreement signed by both parties and their respective lawyers.

The court may order an agreement binding despite non-compliance with one or more of these formalities if it would be ‘unjust and inequitable if the agreement was not binding’. For example, in Ryan and Joyce [2011] FMCAfam 225 the Court upheld the validity of an agreement that cited the wrong section of the legislation.

When will a financial agreement be set aside?

Disputes regarding financial agreements generally arise when a party fails to honour his or her obligations and the other person applies to the court to enforce the agreement. The non-complying party may argue to have the agreement set aside on one or more of the following grounds.

The agreement was obtained by fraud

The court may set aside a financial agreement that was obtained by fraud such as non-disclosure of a significant asset. Parties should be honest in their dealings and give proper disclosure of their assets, financial resources and estimated values. Being transparent will reduce the risk of having an agreement set aside.

The agreement was made to defeat the interests of creditors or another party

An agreement may be set aside if made with disregard to the interests of a party’s creditors or to defeat or defraud the interests of the other party or a person with whom one of the parties had pending property matters.

There are material changes in circumstances

A material change in circumstances that creates hardship for a party, or affects the welfare of a child of the relationship may cause the agreement to be set aside. Similarly, circumstances that make it impracticable to carry out all or part of the agreement may invalidate it, for example, a person’s bankruptcy, the disposal of a party’s assets or an illness or injury that permanently affects a party’s earning capacity.

The agreement is void, voidable or unenforceable under contract law

As with all contracts, a financial agreement may be set aside under common law and equitable principles, for example, on grounds of uncertainty, duress, undue influence, unconscionability, misrepresentation, mistake, incapacity or public policy.

Many disputes concerning financial agreements involve allegations of undue influence and / or unconscionability. The following two cases are examples.

In Thorne and Kennedy [2017] HCA 49, an eastern European woman and wealthy Australian property developer with assets worth around $24 million, met through a website offering potential brides. The woman moved to Australia and the couple married. Shortly before the wedding the woman, who had few assets, no family connections, and spoke little English, was presented a financial agreement with an ultimatum to sign it or the wedding would not proceed. She received advice stating that the agreement was ‘entirely inappropriate’ and should not be signed but felt compelled to do so.

The marriage ended, and the woman applied for the agreement to be set aside seeking a financial settlement of $1.24 million. The man died before the matter resolved and his two children as executors defended the claim against the estate. Initially, the woman was successful on the basis that the agreement was signed under duress. On appeal to the Full Court of the Family Court, however the decision was reversed. The matter was taken to the High Court which determined that the agreement should be set aside on the grounds of unconscionable conduct and duress in circumstances where the woman was at a considerable disadvantage.

Saintclaire and Saintclaire [2015] FamCAFC 245 saw a different result. The wife argued that she had been unduly influenced when signing the financial agreement on the basis that she had been diagnosed with post-natal depression, was in debt, and the husband was abusive and threatening (it was noted that these claims were general and unparticularised). The wife was initially successful in having the agreement set aside however this decision was overturned on appeal.

The court noted that negotiations concerning the financial agreement had been on foot for around seven months. The wife had credit card debts of $100,000 the extent of which had only been disclosed later in negotiations. The wife had consulted a lawyer throughout the entire process and had successfully sought amendments to the agreement including a cash payment to her of $100,000. When the agreement was signed, the wife’s post-natal depression had resolved, and she was optimistic about her financial future. There was no evidence to suggest that the wife did not want to sign the agreement. Despite her personal debt, she was an experienced financial planner whose income had been around $300,000 before having children. In the circumstances, the court considered that the negotiations surrounding the agreement were not unconscionable nor was there undue influence.

Conclusion

A financial agreement will be binding provided it complies with the provisions of the relevant legislation, the parties make full disclosure, and the agreement is not made contrary to general principles of contract law.

There is no one-fit solution when it comes to making a financial agreement and an informed decision should be made with the assistance of an experienced lawyer. Once in place, a financial agreement made before or during a relationship should be reviewed regularly to take into account changes in personal and financial circumstances.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

In certain circumstances a divorce granted overseas, even of a marriage performed in Australia, can be recognised here. In this article we look at the factors that the Court will take into account before recognising a foreign divorce.

Divorce in Australia

Briefly, in order for a married couple to get divorced in Australia they, or one of them, must prove that they have been married for at least two years, that they separated 12 months before filing the divorce application and have lived apart since then, and that there is no reasonable likelihood of the couple living together again.  In addition, at least one of them must be an Australian citizen, regard Australia as their home and intend to live here indefinitely, or ordinarily live in Australia at the time of filing the divorce application as well as for the preceding 12 months.

If the couple have minor children, the Court must be satisfied that proper arrangements have been made for the children’s care, welfare and development, taking into account things such as their maintenance, education, living arrangements and time with both parents.

Remarriage

Australian law does not permit polygamous marriage. So, if a married person wishes to remarry in Australia, he or she must first be divorced, having received a final divorce order from the Court.

Australian divorce orders become final one month and one day after the Court hears and grants the divorce.

Foreign divorce

But what if a person obtains a divorce in another country? In what circumstances will that divorce be recognised by Australian law so that those parties, or one of them, could remarry in Australia?

The first step in determining whether a foreign divorce will be recognised as valid in Australia is whether that foreign divorce was effected according to the law of that foreign country. If not, then the foreign divorce cannot be treated as valid in Australia.

Then the Court must look at whether the applicant for the foreign divorce, the respondent or both of the parties were domiciled or ordinarily resident in or nationals of that foreign country at the time the foreign divorce proceedings were commenced. The Australian Court is likely to recognise that the foreign divorce, if it is valid in the relevant overseas country and if the respondent to the divorce application was a national of or domiciled or ordinarily resident in that foreign country at the time the divorce application was started.

If those factors do not apply to the respondent, the foreign divorce could be recognised in Australia if the applicant for the foreign divorce was domiciled in the overseas country at the time he or she files for divorce, or if he or she was ordinarily resident in that country at the time of starting the divorce proceedings and had been ordinarily resident there for the previous 12 months, or was at that time a national of that country. In some circumstances it would also be relevant that the parties last lived together in that foreign

country.

Finally, in order for a foreign divorce to be recognised as valid in Australia, the Australian Court must be satisfied that both parties were afforded natural justice. That is, were each of them made aware of the application and given an appropriate opportunity to respond to it and, if appropriate in that foreign country, to appear and be heard at the hearing of the divorce application?

What about the laws of a third country?

When an Australian Court recognises a foreign divorce as valid in Australia, either of the parties to that former marriage may then remarry in Australia (so long as they are not still married to someone else at that time). That is the case even if the foreign divorce would not be legal or recognised as valid in some third country.

Summary

Australian law does not permit polygamous marriage. Therefore, someone who has been previously married (whether in Australia or elsewhere) must first obtain a divorce (or divorces if there was more than one earlier marriage) before he or she can remarry in Australia.

Australian law will recognise foreign divorces as valid in certain circumstances, taking into account factors such as whether the foreign divorce was obtained in accordance with the laws of that overseas country, of which country the parties were each citizens at the time the divorce proceedings were started and in which country the parties were each living at that time.

If you need assistance or advice on how to proceed please contact us on 07 3281 6644 or email mail@powerlegal.com.au