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As was set down in the case of Rice & Asplund (1979), if a parent wishes to vary final parenting Orders and the other parent does not agree, the parent wanting to change the Orders may bring an application to the Court.  The court will then give the parent leave to continue the application through the process if the Court is satisfied there has been a “significant change in circumstances”.

So, what constitutes a significant change in circumstance? Unfortunately, there is no clear determinant as to what constitutes a change in circumstance however, the court in Rice v Asplund recognised that changes would likely need to be of a serious nature.

These include but are not limited to:

  • Either party seeking to relocate with the child or children
  • An initial Final Parenting Order that failed to take into consideration all the circumstances of the case
  • The current order being outdated and no longer reflective of the children’s circumstances
  • A substantial period of time having elapsed since the Order was made
  • Either party entering a new relationship or marriage
  • Abuse of the child or children
  • Either party or a child being in ill-health

Despite this determinant, it is important to note that just because something constitutes a change in circumstance, this does not mean that the Court will automatically allow a variation of the Court Orders to occur.

This is because there may be other factors that take precedence for example, the best interest of the child.

This was a principle that was central to the 2020 family law parenting case of Findlay & Reis.  In this case, the Court recognised the importance of taking into consideration in addition to a change in circumstance, the impact of litigation on the welfare of the child or children – and concluded that despite the time that had elapsed since the orders had been made and the desire of the children to reconnect with their father and his new stable relationship – these factors did not present enough of a benefit to the children that it would overcome the potential detriment that litigation would have on the children.

Considering the many factors taken into consideration in each unique case, our specialist family law team at Sanicki Lawyers can advise you on your prospects of success and provide you with the representation necessary for bringing forward an application for variation or with dealing with an application lodged by another party.

You can contact Stephanie Hope, Senior Associate Family Lawyer and Head of Family Law a Sanicki Lawyers for legal advice and representation today – on 03 9510 8999 or by email at stephanie@sanickilawyers.com.au

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It is quite likely that if you asked anybody on the street whether a husband would be entitled to a property settlement after a twenty-year marriage in Australia, the answer would be a resounding yes!

however as the case of Paxton [2016] makes clear, that would reveal a fundamental misunderstanding of the way property divisions are determined in Australia since 2012 and the landmark High Court case of Stanford v Stanford.

Importantly, that case reminded the Courts, lawyers and family law litigants that a Court exercising family law jurisdiction in Australia is not ordering a “property settlement” at all. Rather, the Court has the power to make orders for the “alternation of property interests”, and this is so if, and only if, the Court is satisfied it is “just and equitable” to do so.

This means that a Court may determine that it is not just and equitable to make any adjustment of property interests upon the conclusion of a marriage or de facto relationship.  Although the published cases where the Court has determined it is not just and equitable to make any adjustment of property interests are few, such cases are almost universally factually very unusual and interesting!

An interesting case in which a Judge of the Federal Circuit Court of Australia determined it would not be just and equitable to make any orders for the adjustment of property interests is the case of Paxton [2016].

in that case:

  • the parties had been married for 20 years before their final separation;
  • the parties did not legal divorce for a further ten years;
  • the husband applied to the Court for a property settlement, however he died before the final hearing.  The husband’s brother continued the case on behalf of the deceased;
  • the wife had not reparteed since separation,. She continued to live in the former matrimonial home and had the care of two adult children, both of whom had disabilities;
  • the husband and wife had brought the major asset of the marriage, being the former matrimonial home, together during the marriage as joint tenants and there being no property orders made or change to this legal ownership since the marriage ended, , once husband died, the Wife became the sole legal owner of the  home; and
  • The husband’s brother, conducting the case on behalf of the husband, sought an order in the Court that the home be sold, and the Husband’s estate receive the share of the net sale proceeds the Court ordered.

The Court said in this case that the Husband’s brother (conducting the case on behalf of the Husband) was wrong to presume the Husband was entitled to an adjustment of property interests. 

Rather, in the circumstances of this case – because the Husband had died – section 79(8)(b) of the Act applied, which in summary by the Court “required a court considering an application for a property settlement order which is continued by or against the legal personal representative of a deceased party to determine first, whether it would have made an order with the respect to the property if the deceased party had not died and second, whether, despite the death, it is still appropriate to make an Order.”

This being the pathway the Court has to follow, the Court determined it would not be just and equitable to make an Order in favour of the husband, meaning that the Court would not have made an Order in his favour had he remained alive. 

That being the case, the Court did not have to move onto answering the second question of whether it is still appropriate to make the Order after the death of the husband.

The Court concluded:

  • “Mr Paxon (the husband’s brother) has not demonstrated that it is just and equitable to make any order dividing he interests of the wife and her late husband.  Mr Paxton has not shown that his later brother’s needs were not being met during his lifetime, nor that they required addressing at this time”;
  • “Even if the husband had not died, it was similarly not just and equitable for a property settlement order to be made in this case.  The husband died in …2015.  No material difference in the circumstances of the husband and wife existed between 2004 when the husband permanently departed the former matrimonial home [and] 2015 when he died and February 2016 being the date of the trial… Aside from the gradual deterioration in the health of both the husband the wife over a the period following the husbands’ permanent departure from the former matrimonial home until the date of his death, no material alteration occurred in the respective states of the legal and equitable interest in the property of the husband and wife.

The Court, giving great weight to the wife’s high needs, said that Mr Paxton should have paid closer attention to the appalling financial circumstances of the wife” and dismissed his application with costs against the Husband’s estate.

As the above makes abundantly clear, there is no “entitlement” to a “property settlement” or “adjustment of property interests” at the end of a marriage or de facto relationship in Australia. This remains the case even if the marriage is a long one and there has been a lengthy period of time between separation and the application to the court for Orders, or if the application was validly brought within one (1) year of the date of a legal divorce and validly continued by a legal personal representative. 

At Sanicki Lawyers, our expert Family Law Team are here to help you navigate the family law property system, whether it be by way of a negotiated property settlement or litigation in the courts. 

We can also assist you if you have concerns about a relative or close friend whom you worry may pass away without entering into a formal property settlement (whether it be Court Orders or a Binding Financial Agreement).

Call Sanicki Lawyers today on 03 95100 8999 to speak to Stephanie Hope, Senior Associate and Head of Family Law, or contact Stephanie at stephanie@sanickilawyers.com.au

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The case of Elliston & Dennell [2019] provides a very clear illustration of the principle that under the law in Australia, there is no presumption of a 50/50 division of net assets in the event of a separation.

This remains the case whether the parties were married, or de facto, and the principle is especially important when considering short marriages or de facto relationships.

Rather, the law in Australia requires the Court to follow the following steps when determining what a just and equitable property division is:

  1. Firstly, the Court asks the question if it just and equitable to make any orders at all for the adjustment of property interests (meaning that it is possible the correct answer is that the parties simply retain all the assets, liabilities and financial resources they already legally hold at the conclusion of the marriage or de facto relationship;
  • Secondly the Court determines exactly what the net pool to be divided actually is – if the parties cannot agree – or the Court otherwise identifies the net property pool to be divided if there is no dispute;
  • Thirdly, the Court then arrives at a preliminary percentage division based on the parties’ respective contributions to the acquisition and preservation of the net property pool;
  • Fourthly, the Court then considers the parties current and future financial needs, and makes any further adjustment of property interests warranted by these issues; and
  • Finally, the court overall holds the discretion to make any further adjustment of property interests that the court things the justice and equity of the case requires.

In the case of Elliston & Dennell [2019] the trial judge took the view that the de facto husband had made the overwhelming contribution to the acquisition and preservation of the property pool because the primary asset in the property pool to be divided was a company he held solely at the time he commenced cohabitation with the de facto wife.  

The trial judge determined that the Husband had contributed 80% of the net assets this way, and that no other adjustment of property interests was warranted by reason of the current and future financial needs of the parties, or because the “justice and equity of the case” warranted it. 

The trial judge, as part of her analysis, took into account the fact that the de facto husband had paid the de facto wife an $8,000 interim property settlement plus $80,000 in spousal maintenance between separation and the final orders being made after a final hearing.  The trial Judge concluded that this transfer of monies from the de facto husband to the de facto wife in the form of an interim property settlement and spousal maintenance was enough to ensure the wife received a just and equitable outcome without need for any further payments or transfer of assets to her.

However when the wife appealed, and although not all of the Wife’s grounds of appeal were successful, the Full Court of the Family Court found that the trial Judge had made several errors when forming her conclusion, especially with regard to her treatment of the interim property settlement and spousal maintenance payments the Wife had received.

As such, the Full Court of the Family Court was required to re-decide the case, applying the law correctly to the facts of the case. 

In doing so, the Full Court re-affirmed the conclusion of the trial Judge that the Husband made the great majority of the contributions to the property pool initially. The Full Court concluded that his contributions should be weighted at 90% of the net property pool (excluding superannuation).

The Full Court of the Family Court also agreed with the Trial Judge that there did not need to be any further adjustment for the parties current and future financial needs.

However importantly, treating the $8,000 paid by the de facto Husband before the final hearing as an interim property settlement, and keeping separate the $80,000 spousal maintenance amounts the wife had received and which, correctly characterised, were not part of her property settlement but rather funds paid to her to allow her to have a reasonable standard of living during the interim period.

The result was that, after a 5 year de facto relationship, a net non-super property pool of around $395,743, the Husband ultimately was required to pay the wife $55,299 at trial, along with the $8,000 he had already paid her as an interim property settlement, plus the $80,000 he had paid her between the final separation and trial as spousal maintenance but was not part of her property settlement.

This saw the wife retain 16% of the net non-super pool as her settlement.

So as you can see from the above, each case varies greatly due to the facts of the case and the legal principles at play.  This is why, if you have ended a de facto relationship or marriage, or think that is something coming up for you in the future, you need expert legal advice from an experienced family lawyer.

Don’t wait – call Sanicki Lawyers today on 03 9510 8999 to ,make an appointment to talk to Stephanie  Hope, Senior Associate and Head of Family Law, or contact Stephanie at stephanie@sanickilawyers.com.au today.

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From time to time when a parent is asked to pay child support after separating from a spouse or partner, they may wish to confirm the parentage of a child.

The importance of doing so was made clear in the 2017 case of Hallis &  Fielder where it was established by DNA testing that Mr Hallis was not the father of Ms Fielder’s child, with the result that the Court ordered Ms Fielder to repay to Mr Hallis all the money he had paid to her in child support up until that point.

The facts of the case were very interesting.  The Court accepted that until family law proceedings began after separation, when Mr Hallis was seeking parenting orders for parental responsibility, and for the child to sed time with him (with the child living primarily with the mother), Mr Hallis believed fully that he was the father of the child.  This was because he had been informed by Ms Fielding he was the father of the child.  As a result of being told he was the father of the child, he agreed to his name being entered onto the birth certificate as the child’s father.

However it would later become known – only after Mr Hallis commenced family law parenting proceedings – that Ms Fielding was well aware that Mr Hallis was not the f father of the child.  She had deliberately misled Mr Hallis on this issue, and her deception had resulted in Mr Hallis wrongly entering his name on the child’s birth certificate as the father. 

This was an important conclusion of the Court because Ms Fielder attempted to argue that she should not have to repay the wrongly paid child support to Mr Hallis because he willingly participated in the deception, plus it is an offence to lie about parentage when registering the birth of a child.

However, it may be surprising to learn that the Court is not automatically required to order the repayment of wrongly paid child support but rather has the discretion to make that order after considering the factors listed in section 3B of the  Child Support (Assessment) Act, which states the Court has the power to make such orders “as it considers just and equitable for the purposes of adjusting, or giving effect to, the rights of the parties and of the child concerned”, with the court being obliged to take into account the following matters:

  • whether the payee or payer know, or suspected, or should reasonably have known or suspected, that he party was not a parent of the child;
  • whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly result sed in the application for an administrative assessment of child support for the child being accepted by the Registrar;
  • whether there was any delay by the payer in applying under section 107 for a declaration once he or she know, or should reasonably have known, that he or she was not a parent of the child;
  • whether her is another other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;
  • the relationship between the payer and the child;
  • the financial circumstances of the payee and the payer;

In this case, the court made Orders for Mr Hallis to be repaid all child support he’d paid for the child because the Court did not accept that Mr Hallis had willingly participated in any deception or fraud regarding parentage or child support.  On the contrary, the Court accepted that:

  • Mr Hallis believed the child was his child until he was told during the family law process that he was not the father;
  • Mr Hallis had only continued in his relationship with Ms Fielder because he believed she was pregnant with his child;
  • Mr Hallis sought parenting orders following from his understanding the child was his and Ms Fielder;
  • the parties were living together at the time of registering the birth of the child, with their names listed on the birth certificate as the parents;

As to Ms Fielder, however:

  • For a period of time in the Court proceedings, Ms Hallis conducted her case as though Mr Hallis was the father of the child;
  • Ms Fielder had not told Mr Hallis that she had sexual intercourse with another man at about the time she became pregnant with the child; and
  • the Court did not accept the evidence of Ms Fielder that the reason she had not told Mr Hallis that he was not the father of the child was because she was scared of him.

As such, despite Mr Hallis being in a much stronger financial position than Ms Fielder (factors under section 3B of the Act which could have persuaded the Court not to order the repayment of child support) the court took the view that in light of the findings made about her in the case, it would be “just and equitable” to order that she repay to Mr Hallis the child support wrongly paid to her.

If you have any questions regarding the payment of child support, including if you question the parentage of a child and seek parentage confirmation before agreeing to pay child support, call Sanicki Lawyers today on 03 9510 8999 to make and appointment to speak to Stephanie Hope, Senior Associate and Head of Family Law – or otherwise email Stephanie at stephanie@sanickilawyers.com.au

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Often in family law proceedings before the Court, it will be the case that the evidence will reveal one or both parties  have not been truthful or followed all required laws.  This can relate to any number of issues, such as a party committing criminal offences, misleading Centrelink, false information in taxation documentation, business and company accounting etc.

At Sanicki Lawyers, our family law team is highly experienced in dealing with these kinds of matters, and can advise you on the impact these kinds of issues are likely to have on your family law outcomes. 

However it is also important to be aware that one of the potential outcomes, is the referral by the court of a party found to have breached their legal obligations, to the relevant authorities – such as the Australian Federal Police, or a government department impacted upon by the legal breaches.

However as the 2018 case of Kirwan & Tomaris shows, whether or not breaches of the law will be “referred” by the court is a matter of fact and degree.  In that case, a woman married overseas came to Australia and correctly, and truthfully, reported to the Department of Immigration and Border Protection that she was married.

However in 2017, before her marriage overseas was dissolved, she married another man (with the new husband’s full knowledge) in Australia – her ‘second husband’.  As such, the woman had committed bigamy, which is a criminal offence in Australia punishable by as much as 5 years in prison.  The second husband also was well aware that she was already married to another man when they undertook their marriage ceremony in Australia.

As the woman was already validly married at the time she married her second husband, the Court granted the woman a nullity of the second marriage when she requested it.  However the question then arose for the court as to whether or not to refer the woman to the Director of Public Prosecutions to face criminal charges for bigamy and giving false information to the marriage celebrant (who had no idea the wife was already married when she married her second husband).

The court determined, relying on past cases as authoritative statements of the law, that it was not necessary for the Court to refer all breaches of the law for prosecution, or to the relevant authorities.  The court said, relying on the past case of Malpass & Maysen [2000]:

“Questions of degree must be relevant.  There are many cases where minor irregularities are revealed in regard to taxation, social security and other issues.  We think it unreasonable for the court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities.  We leave the determination of this issue to be determined in a case where the point arises directly…”

However in this case, the court determined the breach of law was blatant and would be referred to the Director of Public Prosecutions – with that agency to then have the power to decide if the wife (and possibly her second husband) would be prosecuted):

“In the present case I do not accept that the wife had any doubt as to the validity to the marriage to Mr D.  Irrespective of whether it was socially acceptable or shunned by her family, she understood clearly that she had undergone a marriage ceremony as evidenced by a Certificate of Marriage.  Her marriage to Mr D was at all times in the forefront to her mind.  It was a relevant and necessary consideration in terms of advice to the Department of Immigration and  Border Protection understanding as she did that it my result in Mr D being refused a visa to enter Australia.

“…it is difficult to view the wife’s conduct and perhaps that of the husband as anything less than a wilful disregard of the requirement that she make full and frank disclosure in relation to her marital status…Whilst the Court has the discretion as to whether papers should be referred. I consider that the conduct of the wife and husband to be blatant in order to undergo a marriage ceremony in circumstances where they knew it was not permissible to do so.”

” It is a matter for the relevant authorities as to whether the parties or either of them will be the subject of prosecution.“

So as can be seen from the above, breaches of the law can and do become obvious in family  law matters, and can indeed be central to the Application before the Court – such as the centrality of bigamy to any application for a nullity of marriage – as the fact of bigamy renders the marriage invalid.

However as can also be seen from Kirwan & Tomaras [2018] the seriousness of the breaches varies, and the Court has the power to decide on a case by case basis if it will refer the breach in question for prosecution or to any other government department.

If illegal conduct of any kind is relevant to your family law matter, please contact Stephanie Hope, Senior Associate Family lawyer and Head of Family Law today to make an appointment for a confidential discussion.

Stephanie can be contacted on 03 9510 9888 or at stephanie@sanickilawyers.com.au

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