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15 tips for family law clients in a coronavirus pandemic

In these uncertain times when our personal, study and working lives have drastically changed, we expect that the legal advice and assistance our clients will need will change. In many cases, disputes may be avoided by planning for different scenarios and trying to agree with your former partner about how these challenges will be met. […]

Working with you through the COVID-19 pandemic

To our valued clients, referrers and community As the situation with the COVID-19 or coronavirus pandemic continues to develop, we wanted to contact you to re-assure you that we have activated our Business Continuity Plan. As a result we are confident that we can continue to service our clients through these uncertain times. Since Monday […]

Negative property pools and who will wear the debt

1      Introduction There are two ways to approach this question:  one can consider property pools where the debts outweigh the parties’ modest equity in a home and superannuation.  As these cases are rarely litigated because the costs are disproportionate to the property pool, it is difficult to draw any principles from them.  For example, in […]

Eight tips on add-backs

Add-backs in proceedings for the alteration of property interests under the Family Law Act 1975 (Cth) (FLA) occur when the court adds back funds or other property to the property of the parties, when funds or other property has been used by one of the parties for their own purposes, usually after separation. The categories […]

The Truly Binding Finanical Agreement – Is concise drafting the key?

In a post Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807 landscape, it has never been more important to draft financial agreements with precision, fairness and full disclosure. This paper concentrates on the drafting essentials to minimise the risk of a financial agreement being found not to be binding or being set aside. It […]

Eight tips for dealing with overseas property

In these increasingly mobile times, the family law courts are often faced with the question of how to deal with property which is located overseas, such as bank accounts, superannuation and real property. Does Australia have jurisdiction to deal with part or all of the overseas property? The test is that Australia is not a […]

Will de-federation of the Family Court fix fragmentation of family law? An analysis of the ALRC’s final report on family law

Family law never stagnates.  Legislative reforms since the introduction of the Family Law Act 1975 (Cth) have often either followed societal developments or, more frequently, led or accompanied them.  However, the next 12 months has the potential for even greater change for family lawyers, the family law courts and parties than has ever occurred in […]

Family Law and Health Care Decision Making for Children

Introduction A person’s consent is generally required in Australia before medical treatment can be provided. People are not required to provide that consent, and there are various reasons why they may withhold their consent. The issue of consent is, however, complicated when the patient lacks the requisite capacity to provide consent and when people who […]

Hall, the High Court and spousal maintenance

The High Court considered spousal maintenance and the term “financial resources” in Hall v Hall (2016) FLC 93-709. An earlier article discussing the decisions of the trial judge and the Full Court in detail and can be read here. Overview The High Court, in Hall, considered: The meaning of “financial resources” in s 75(2)(b) Family […]

Superannuation Splitting Agreements and Orders

Introduction The Family Law Legislation Amendment (Superannuation) Act 2001 (“the FL Superannuation Act”) and associated regulations started on 28 December 2002. This paper looks at the practicalities of drafting orders and superannuation agreements, not valuation of superannuation interests and what percentage split should be made to the non-member. Part VIIIB Family Law Act 1975 (Cth) (FLA) […]

The Family Court: Restructure, Destruction or Fade Away?

“Don’t it always seem to go That you don’t know what you’ve got till it’s gone They paved paradise And put up a parking lot” “Big Yellow Taxi” by Joni Mitchell The Family Court of Australia (FCofA) was established in 1976 as a best practice model offering in-house alternative dispute resolution such as mediation and […]

Financial Agreements: still worth the candle?

Post Thorne v Kennedy (2017) FLC 93-807, family lawyers and clients have reconsidered the worth of financial agreements under the Family Law Act 1975 (FLA). At the outset, it is impossible to guarantee to clients that financial agreements are binding and will not be set aside. Lawyers can, however, take steps to reduce the risks. […]

Thorne v Kennedy—has the High Court hung financial agreements out to dry?

There has been a strong reaction, almost panic-stricken, in the media and by lawyers to the first examination of financial agreements by the High Court. Is this reaction justified? Has the High Court hung financial agreements out to dry, or are they still a viable option? In Thorne v Kennedy [2017] HCA 49; (2017) FLC […]

Tomaras– is the Family Law Act an escape hatch to avoid tax?

The Australian Taxation Office recently appealed to the High Court of Australia on the question of whether there was power under the Family Law Act 1975 (FLA) for the husband to be substituted for the wife in relation to a tax debt owed by the wife of over $250,000 plus interest. In Commissioner of Taxation […]

Bamboozled and bewildered – duress, undue influence and financial agreements

Duress and undue influence are factors which may vitiate a contract. They often overlap and are frequently used interchangeably, or at least pleaded in the alternative. The decision of Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807 is the most recent High Court authority addressing these principles. The judgment was not unanimous, and the […]

The Micawber principles: When bankruptcy and Family Law Collide

1.    Introduction Why is this paper called “The Micawber principles”?  Mr Micawber, in Charles Dickens’ David Copperfield is the eternal optimist.  His famous phrase “Something will turn up” is probably reflective of why many people end up bankrupt.  Judge Driver, in a case referred to in this paper, described a bankrupt as Mr Micawber. Bankruptcy issues […]

Australian Law Reform Commission discussion paper

The Australian Law Reform Commission Discussion Paper on the Review of the Family Law System was released on 2 October 2018. The Discussion Paper is over 300 pages, asks 33 questions and makes 124 proposals for changes to the family law system. Many other proposals and suggestions are embedded in the Discussion Paper and are […]

Hot Cases in family law – 2018

The most important cases in 2018 have been diverse. This paper looks at some of these. Financial agreements continue to raise new legal issues, and defining a de facto relationship continues to be far more problematic than one would expect. An unusual case involved the ability of an adult child to access the court file […]

Gloomfield – why subject matter is so important in financial agreements

The subject matter of a financial agreement is important. The parties and their lawyers overlooked this fundamental and preliminary point in the long-running Bloomfield & Grainger litigation which commenced in 2014 and ended in 2018. There were many hearings at which no issue was taken as to whether or not the litigation was about a […]

But wait – there are more amendments to the Family Law Act in 2018

The two Bills restructuring the Family Law Courts have been delayed by Parliament for further consideration in 2019. This gave family lawyers hope that 2018 would be a quiet legislative year. But, we were mistaken. Instead, the floodgates have opened. First we had the Family Law Amendment (Family Violence and Other Measures) Act 2018, [see […]

Family Violence – changes to the Family Law Act

The Family Law Amendment (Family Violence & Other Measures) Act 2018 (“Family Violence Act”) commenced operation on 1 September 2018. Its changes will impact on the law, practice and procedures in family law matters, not only where there are family violence orders. Although the Bill received considerable attention when it was introduced to Parliament on […]

Verbiage or substance? – High Court to examine Family Court’s ability to assign tax debts.

The ability of Pt VIIIAA Family Law Act 1975 (FLA) to be used to assign the tax debt of one spouse to another will be examined by the High Court. The decision may have implications for the operation of Part VIIIAA for third parties who are not the Commissioner of Taxation, but the decision is […]

Treaties and international agreements relevant to family law proceedings in Australia

In family law disputes, the parties often have a significant connection to Australia: they are born here or have become Australian citizens, they have all or most of their property here, and they live in Australia when they separate. But, there are also many cases where parties separate in circumstances where they were born overseas, […]

Bullet-proof financial agreements—rare as hens’ teeth? Looking at financial agreements after Thorne v Kennedy

There is probably no other aspect of family law which has been subject to such a barrage of legislative changes, prospective legislative changes and contradictory judgments, than financial agreements. The High Court delivered its judgment in Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807 on 8 November 2017, apparently changing the law, yet again. […]

Shining a torch on the bleakness of parental alienation – Solicitors in the coalmine

This paper is not an analysis of the psychological literature, but is written from the perspective of a solicitor who acts for parents who display alienating behaviour to their former partners and parents whose relationship with their children appear to have been damaged or may be in the process of being damaged by the behaviour […]

5 top tips for preparing financial agreements after Thorne v Kennedy

If you think that the law relating to financial agreements changes faster than Australia changes Prime Ministers, you’re right. The High Court in Thorne v Kennedy (2017) FLC 93-807 added to the complexity. Here are the 5 top tips for preparing financial agreements in the wake of Thorne v Kennedy: The stronger party should be […]

Gloomfield – why subject matter is so important in financial agreements

The subject matter of a financial agreement is important. The parties and their lawyers overlooked this fundamental and preliminary point in the long-running Bloomfield & Grainger litigation which commenced in 2014 and ended in 2018. There were many hearings at which no issue was taken as to whether or not the litigation was about a […]

Hot Cases in Family Law 2017

Even before the delivery of the judgment by the High Court in Thorne & Kennedy on 8 November 2017, a financial agreement case, there have been major developments under the Family Law Act 1975 (FLA) in case law in 2017. This paper covers: Wallis & Manning – contributions and comparable cases. Calvin & McTier – […]

Escaping tax debts? Is this the brave new world of Pt VIIIAA Family Law Act?

Minimising tax paid, if not actively evading tax, is considered by many family law clients to be a justifiable activity or even a national sport. The power of the Family Law Courts to use Pt VIIIA Family Law Act 1975 (“FLA”) to assign a taxation debt owed by one party to a relationship to the […]

Property—the latest on contributions and superannuation

The assessment of contributions to property is a fraught area. Clients often want to argue that their contributions should be given more weight. This is particularly problematic when dealing with initial contributions, post-separation contributions, windfall such as inheritance and Tattslotto wins. This paper gives some background to the problems and discusses recent cases. CONTRIBUTIONS Mallet […]

Section 79A – setting aside property settlement orders: Procedural courtroom challenges in Family Law

There has been much hype around the setting aside of financial agreements, particularly following Thorne v Kennedy (2017) FLC 93-807. Additional uncertainty arises as to whether financial agreements are binding or can be “saved”. Consent orders are the fall-back and perhaps less risky option to settle property matters following a separation and provide some protection […]

High Court to rule on financial agreements

How do the concepts of duress, undue influence and unconscionability apply to the setting aside of financial agreements? Are they alternative arguments or overlapping? Does the giving of legal advice mean that a financial agreement cannot be set aside for duress? These are the types of questions which may be addressed in a forthcoming decision […]

Bankruptcy, financial agreements and the rights of creditors

The Full Court of the Family Court of Australia in Grainger & Bloomfield  considered the standing of a creditor to apply to set aside a financial agreement after the debtor spouse became a bankrupt. Shortly prior to the bankruptcy, the bankrupt spouse transferred her legal title in the home to her husband, which left the creditor unable […]

Two recent cases on setting aside financial agreements

Introduction There are complex legal principles involved in drafting a financial agreement which will stand up to court scrutiny. There are two main risks: The agreement is found not to be binding because it does not meet the technical requirements; and The agreement is set aside. Two recent cases illustrate the problems. In Saintclaire & […]

Battling over Benji – contributions or best interests?

Recently, the Family Court declined to make interim property orders about a dog, leaving the parties to wait for a final hearing to determine the issue. This article looks at whether that was the right decision and what other options are available for parties to resolve disputes about “pet custody”. The distress and trauma for […]

Introduction to Wolters Kluwer Australian Family Law Act 1975 book

Every year there are obvious amendments to family law legislation, but also many other pieces of legislation which do not, by reference to their name, alert family lawyers to their relevance. These amendments are, of course, incorporated into the online version of the Autsralian Family Law Act 1975 with Regulations and Rules as they occur. […]

Hot cases in Family Law 2017

Even before the delivery of the judgment by the High Court in Thorne & Kennedy on 8 November 2017, a financial agreement case, there have been major developments under the Family Law Act 1975 (FLA) in case law in 2017. This paper covers: Wallis & Manning – contributions and comparable cases. Calvin & McTier – […]

Hot cases in Family Law 2016

In the last 12 months or so there have been some significant cases under the Family Law Act 1975. Those dealt with in this article cover: Spousal maintenance – Hall The definition of “financial resource” Life expectancy – Fontana A lottery win early in the marriage Add-backs Bankruptcy basics Whether a financial agreement can be […]

Polygamous marriages recognised under Australian law—but not gay marriages

In 2004, Prime Minister John Howard amended the Marriage Act 1961 (Cth) to expressly restrict the ability of couples to marry, unless they are a heterosexual couple. In Ghazel & Ghazel [2016] FamCAFC 31, the Full Court of the Family Court of Australia considered the question of whether an unintended consequence of the amendments was […]

Which country? The “clearly inappropriate forum” test in Australian family law

In deciding whether Australia should exercise jurisdiction in proceedings under the Family Law Act 1975 (“the Act”) , the usual test is whether or not Australia is a “clearly inappropriate forum”. The application of the “clearly inappropriate forum” test was recently considered in Deslandes & Deslandes. In that case, the parties lived in France for 5 years, sailed […]

Which country? New Zealand vs Australia—a special case

The “forum non conveniens” test does not apply when determining which forum should determine a family law dispute when the contest is between Australia and New Zealand. An example of the application of the test which applies to these forum disputes occurred in Nevill & Nevill. In that case, the wife issued property proceedings in Australia. The husband […]

Introduction to Wolters Kluwer Australian Family Law Act 1975 book

Introduction Foreshadowed major legislative changes to financial agreements and other aspects of the Family Law Act 1975 did not eventuate in the past 12 months, but the changes to that Act and the Family Law Rules 2004 were sufficient to mean that there have been many changes to this Book. The most significant amendments relate […]

Introduction to CCH Australian Family Law Act 1975 book

Introduction Legislative change in family law has been unusually slow in the past 18 months which has allowed time for the Family Law Courts to consider and consolidate their approach to recent legislative and judicial changes. Since the last edition of this book, there have been two sets of amendments to the Family Law Rules […]

Introduction to CCH Australian Family Law Act 1975 book

Introduction The most sweeping change to the legislation in this book since the publication of the last edition was the renaming of the Federal Magistrates Court of Australia as the Federal Circuit Court of Australia. This received widespread publicity. Less publicised was the insertion of two further Parts into the Family Law Act 1975 (“the […]

Introduction to CCH Australian Family Law Act 1975 book

Introduction During the past 12 months there have been two major changes to the Family Law Act 1975 (“the Act”), two sets of changes to the Family Law Rules 2004 and to the Family Law Regulations 1984 and one set of changes to the Federal Magistrates Court Rules 2001. Other legislation has made relatively minor […]

Wrangling over Rover—who gets the dog after a relationship breakdown?

Dogs, cats and other pets are often treated as members of the family, more so than in the past. This trend is particularly obvious with dogs. The cost of, and demand for, designer dog breeds like cavoodles and labradoodles is high. They are given human names like Lucy or Charlie – not Rover or Fido […]

Which country? Child abduction proceedings, undertakings and maintenance orders

International mobility continues to increase through greater travel and work opportunities, and the number of cases dealt with by the Family Law Courts continues to increase exponentially. The difficulties involved with resolving financial disputes at the end of a relationship are often more complicated if there are children. Parties often want to return to their “home” country […]

Bankruptcy, financial agreements and the rights of creditors

The Full Court of the Family Court of Australia in Grainger & Bloomfield  considered the standing of a creditor to apply to set aside a financial agreement after the debtor spouse became a bankrupt. Shortly prior to the bankruptcy, the bankrupt spouse transferred her legal title in the home to her husband, which left the creditor unable […]

The rights of trustees in bankruptcy and s 75(2)(ha)

Trustees in bankruptcy are often pessimistic about how they will fare in proceedings under s 79 Family Law Act 1975 (“FLA”). The recent case of Grainger & Bloomfield is likely to increase this pessimism. The impact of s 75(2) in the determination of claims under s 79 when one party is bankrupt may be less than indicated in previous […]

Stanford, bankruptcy and unsecured liabilities—options and opportunities

The High Court decision of Stanford v Stanford has implications for trustees in bankruptcy and non-bankrupt spouses who are parties to property proceedings under s 79 Family Law Act (“FLA”). This paper explores some of the possibilities, challenges and opportunities raised by one of the rare occasions when the High Court has deliberated on what s […]

When family law meets bankruptcy

Background Before 2005 trustees and non-bankrupt spouses were often engaged in races to commence or complete litigation in different courts. The Bankruptcy and Family Law Legislation Amendment Act 2005 (“the 2005 Act”) applies to bankruptcies for which the date of bankruptcy was on or after 18 September 2005. The solution was ostensibly simple, that all […]

Stanford—implications for trustees in bankruptcy

The recent High Court decision of Stanford v Stanford (2012) FLC 93-518 has possible implications for trustees in bankruptcy involved in or contemplating property proceedings under s 79 Family Law Act (“the Act)”. The facts of the case and its general implications are set out in another article by the writer on CCH Law Chat […]

The Baby Gammy case

Recently, the Family Court of Western Australia delivered judgment in the “Baby Gammy” case. Although colloquially called the “Baby Gammy” case, the Court was asked to determine the parenting arrangements which were in the best interests of Pipah (Baby Gammy’s twin sister).The lengthy judgment of almost 800 paragraphs and 190 pages is reported as Farnell […]

Surrogacy—tip toeing through a legal minefield

Understanding inconsistency in the law between states in Australia presents problems for practitioners and their clients. Navigating the many legal barriers facing those desperate for a child, who battle bureaucracies and the legal systems of Australia and other nations, is a major challenge. There is also a significant amount of misinformation available to clients about […]

Subpoenas—more changes to procedures in the Family Court

A new year always brings changes to the Family Law Rules 2004. The year 2016 is no exception. The Family Law Amendment (Arbitration & Other Measures) Rules 2016 reform three major areas of the Family Law Rules: A new Chapter 26B dealing with arbitration. Amendments with respect to subpoenas. A new Division 4.2.8 dealing with […]

Privilege against self-incrimination in family law proceedings

Family lawyers often struggle with the timing of when to seek a certificate for their client under s 128 Evidence Act 1995 (Cth). Section 128 deals with the privilege against self-incrimination. A certificate is commonly sought to protect a client from criminal charges, such as for tax or Centrelink fraud. Recent decisions of the Family Court […]

Subpoenas, the costs of production and opposing production

Subpoenas are often an extremely useful way to obtain documents which are not produced through the usual disclosure process under the Rules of the Family Law Courts. For example, subpoenas can be used: As an alternative to enforcing disclosure; or To obtain documents which are not subject to the duty of disclosure because they are […]

Another Strahan case—loss of legal professional privilege

Legal professional privilege is the privilege of the client, but lawyers need to ensure that the privilege is not unintentionally lost. Sometimes it is lost by waiver, but it can be lost in other ways. The Full Court of the Family Court, in another appeal in the protracted Strahan litigation, Strahan & Strahan [2013] FamCAFC […]

High Court to consider spousal maintenance

In a rare foray into the Family Law Act 1975, and an even rarer foray into the entitlements of parties to an order for spousal maintenance and particularly interim spousal maintenance, the High Court has granted special leave to the wife to appeal (Hall v Hall [2016] HCA Trans 23) against a decision of the […]

Having it all

Each generation of women faces different challenges with careers and family. I believe the generation before mine faced greater ones than I did. Bizarrely, I also believe the current generation of female law graduates face greater challenges than me. I was born in 1961, the last Baby Boomer year. Older Baby Boomers and the pre-war […]

Superannuation splitting scheme: assessing contributions and s 75(2) factors

Introduction The ability to split superannuation as part of adjusting property interests between the parties at the end of a de facto relationship or marriage offers opportunities and challenges to family lawyers and clients. This paper first gives a general overview of the superannuation splitting scheme and then looks at applying s 79(4) of the Family […]

Asset split in Family Court matter: financial planner’s report was significant

Thomson Reuters Weekly Tax Bulletin & Thomson Reuters Separation and Financial Services Bulletin Family Court proceedings are fraught enough as it is with the emotional issues involved. But the necessity of splitting assets etc frequently brings in tax and superannuation issues … and therefore much complexity (and more emotional angst). A recent Family Court case […]

Interim property settlements and the treatment of legal costs post Stanford and Bevan

I have found that family lawyers generally fall into one of 2 camps when considering the impact of the High Court of Australia’s decision in Stanford.  There is one camp who submits that the decision can be limited to its extraordinary facts, and that its general comments on the way that a Court should approach […]

Financial agreements—more legislative amendments coming in 2016

Changes are pending in Federal Parliament to the financial agreement provisions in the Family Law Act 1975 (“the Act”), particularly in relation to the following: Requirements to be binding; Grounds for setting them aside; and Spousal maintenance. The Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (“the Bill”) includes significant amendments to Pt VIIIA (financial agreements for married couples) and […]

Opposing the enforcement of a financial agreement – a second bite of the cherry?

There have been few reported cases with respect to the enforcement of financial agreements. Recently, the Family Court had to decide whether having previously refused to set aside a financial agreement or make a declaration that it was not binding, it could exercise its discretion not to enforce the agreement. In Fan & Lok the wife’s […]

A Porsche, a cemetery plot, $900,000 and the Sergeant Schultz defence: Lawyers sued for failure of cohabitation agreement

A husband is suing his lawyers because his cohabitation agreement was not validly executedThe Family Court ordered that his former de facto wife was entitled to retain the husband’s Porsche with a personalised number plate, his cemetery plot and $900,000 cash. His lawyers’ defence is reminiscent of Sergeant Schultz famous words from the television show […]

Financial agreements and the law of contract: grounds for setting aside

Introduction Besides the difficulties encountered by lawyers trying to navigate the complexities of Pt VIIIA (and the equivalent, but not precisely the same, provisions for de facto couples in Pt VIIIAB) including the retrospective amendments of s 90G(1) and the transitional provisions, family lawyers need knowledge of contract law. They must apply contractual principles when […]

The ever changing landscape of financial agreements

In the last couple of years the earlier enthusiasm of legal practitioners for financial agreements has waned. A steady stream of reported cases has alerted legal practitioners to the technical difficulties of meeting the requirements of the Family Law Act 1975 (“the Act”), the broad grounds upon which agreements can be set aside, and the […]

Binding financial agreements unbound

The Family Court’s decision in Parker & Parker has important implications for financial agreements and legal professional privilege. Parker & Parker, delivered by the Full Court of the Family Court on 7 March 2012, is arguably the most significant decision on financial agreements since Black & Black. The Full Court in Parker has confirmed that […]

Non-compliant self-managed superannuation funds in family law proceedings

Under the Family Law Act 1975, the Family Law Courts have power to make orders splitting superannuation so as to achieve a just and equitable outcome which might not otherwise be possible if only non-superannuation interests are adjusted between the parties. Particular problems arise however when self-managed superannuation funds are found to be non-compliant. A […]

Proving the existence of de facto relationships in family matters: finding certainty in murky waters

Introduction Since 1 March 2009 the Family Court and the Federal Circuit Court have been able to deal with property and maintenance disputes under the Family Law Act 1975 between de facto couples in all states and territories except Western Australia (and South Australia since 1 July 2010). The first part of this paper sets […]

Registration of de facto relationships in Victoria – proposed changes

De facto couples can register their relationships in Victoria. This has several consequences, including bringing the relationship within the definition of “de facto relationship” for the purposes of the Family Law Act 1975. The usual jurisdictional hurdles, such as a relationship of two years or having a child, do not apply. The couple will, however, […]

Essentials in de facto property law

Introduction Since 1 March 2009 the Family Law Courts have been able to deal with property and maintenance disputes between de facto couples in all states except Western Australia (and South Australia since 1 July 2010). This paper does not deal with the jurisdiction of the State and Territory courts to deal with property disputes […]

Part VIIIAB financial agreements—not quite part VIIIA

It might be assumed that financial agreements between de facto partners under the Family Law Act 1975 (“the Act”) have the same requirements and consequences as financial agreements between couples who are intending to marry, married or divorced. This is not so. As a result, the legal advice required to be given is different for […]

Comparable cases—the controversy about their importance

In university law courses, the importance of precedents is emphasised – ratio decidendi and obiter dicta are prevalent phrases. Bewilderingly, family lawyers advising clients are confronted with the breadth of the court’s seemingly unfettered discretion and unpredictability of outcomes. Recently, the Full Court in Wallis & Manning (2017) FLC 93-759 gave some hope that a […]

Post-separation property “windfalls”—crack the champagne or back to court?

When one of the parties receives a “windfall”, such as an inheritance or a Tattslotto win, after separation, the recipient may seek to “quarantine” it on the basis that the other party had not contributed to it. Even if it is not quarantined, should the contribution of a post-separation “windfall” be given more weight than […]

Contribution of pre-marriage skills and experience

“Special” contributions are out, but how much recognition should pre-marital skills and experience be given? This issue was considered in Pfenning & Snow. The husband unsuccessfully sought a 40% disparity in the outcome of the alteration of the parties’ property interests, based on an assessment of his financial contributions by reference to his working life […]

When s 79 orders are made when the Family Court is unaware of the death of one of the parties

What happens if a court makes a property settlement order under s 79 Family Law Act 1975 (Cth) (“the Act”) after a party dies, without the court having knowledge of the death? This was the dilemma faced by the Family Court of Western Australia in Mooney & Mooney, where the court had made an order dismissing […]

High Court declines opportunity to determine guidelines for post-separation “windfalls”

Two members of the High Court, including the Chief Justice, recently declined the opportunity to develop principles for the assessment of post-separation windfalls and contributions generally. In Singerson v Joans the High Court refused the husband’s application for leave to appeal against the decision of the Full Court of the Family Court in Singerson & Joans. […]

Dealing with uncertain liabilities

Recently, the Full Court of the Family Court in Trask & Westlake said that for orders to be “just and equitable” and “appropriate”, they needed to reflect the reasons in the judgment. This seems obvious, but when a real property is to be sold pursuant to orders, the precise sale price is unknown. In Trask, on […]

Stanford—is the Full Court in reverse or just changing gears?

The Full Court of the Family Court has considered the impact of the High Court’s decision in Stanford v Stanford in several cases. In particular, the Full Court in Bevan & Bevan and Chapman & Chapman rejected the notion that Stanford required that the court be satisfied that it was just and equitable to make an […]

Full Court prefers formulas in property orders

The Full Court of the Family Court in Trask & Westlake recently explained the form of orders which should be made when real properties are to be sold. The orders made by the Full Court were more complex than the Family Law Courts usually make, using a mathematical formula to give a more precise percentage outcome. […]

Does a trustee owe a duty of notification to a discretionary beneficiary?

In Segelov v Ernst & Young Services Pty Ltd [2015] NSWCA 156, the New South Wales Court of Appeal considered the question of whether a trustee owed a duty of notification to a beneficiary of a discretionary trust. The beneficiary did not know that she was a beneficiary of the trust or that she received […]

Implications arising from Stanford

Judgment was delivered by the High Court in Stanford v Stanford on 14 November 2012. In a rare examination of the Act and particularly s 79, the High Court stated its views regarding: Whether an order for alteration of property interests can be made under s 79 if parties are not separated or are “involuntarily” separated. […]

Stanford—whatever happened to the four steps?

Introduction Judgment was delivered by the High Court in Stanford v Stanford on 14 November 2012. In a rare examination of the Family Law Act 1975 (“the Act”) and particularly s 79, the High Court stated its views regarding: Whether an order for alteration of property interests can be made under s 79 if parties are […]

Divorce, death and ageing—what happens when one spouse dies?

This paper deals with: The effect of death (and imminent death) and ageing on the property aspects of matrimonial and de facto relationship breakdown under the Family Law Act; and The law relating to the care of children when one parent dies. Death of a party before property proceedings are issued Section 79 proceedings for […]

Stanford—the High Court decision

Introduction Judgment was delivered by the High Court in Stanford v Stanford on 14 November 2012. In a rare examination of the Family Law Act 1975 (“the Act”) and particularly s 79, the High Court stated its views regarding: Whether an order for alteration of property interests can be made under s 79 if parties are […]

Valuing a haunted house

Does a resident ghost increase or decrease the value of a home? Unfortunately, this important issue remains unresolved in Australia although in Descas & Descas [2013] FMCAfam 69, the wife tried to argue that it had a detrimental effect on the home’s value. There is some overseas evidence which suggests that a ghost can reduce […]

Jacky Campbell

Partner

University qualifications

Master of Laws, Monash University

Bachelor of Laws, Monash University

Bachelor of Arts, Monash University

Graduate Diploma of Professional Writing, Deakin University

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Email Jacky Campbell
jcampbell@fortefamilylawyers.com.au

Connect on LinkedIn

Publications
To read Jacky Campbell’s articles and papers click here.

In 2020, Jacky was recognised as a leading family lawyer in Melbourne by Doyle’s Guide to the Australian Legal Market as well as one of Melbourne’s leading family lawyers in High-value and Complex Property matters, and a recommended lawyer in parenting matters. Jacky was also a recommended lawyer in the Doyle’s leading family and divorce lawyers in Australia. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances.

Jacky wrote her Masters thesis on the relationship of bankruptcy and family law. She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership.

Jacky received the Law Institute of Victoria Rogers Legal Writing Award 2004—for the article “Splitting the Super…and Selling the Home”. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds.

Jacky is the consultant editor of Wolters Kluwer/CCH Australian Family Law and Practice and contributing author to Wolters Kluwer/CCH Australian Family Law and Practice to the Property, Spousal Maintenance, Financial Agreements, Maintenance Agreements, Procedure and Precedents tabs. She writes several chapters of the Wolters/Kluwer CCH Australian Master Family Law Guide, and is the author of the family law chapters in the Thomson-Reuters Australian Financial Planning Handbook and in the CCH Australian Master Superannuation Guide.

Jacky is a Fellow of the International Academy of Family Lawyers, a board member of the Asia Pacific Chapter of that Academy, and an Associate of the American Bar Association. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention. She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor. She is a member of the Maintenance and Property Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom.

Wendy Kayler-Thomson

PARTNER

University qualifications

Master of Laws, Monash University

Bachelor of Laws, University of Melbourne

Bachelor of Commerce, University of Melbourne

Other qualifications
Accredited Family Law Specialist, Law Institute of Victoria

Email Wendy Kayler-Thomson
wkaylerthomson@fortefamilylawyers.com.au

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Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for more than 25 years. Wendy is recognised as one of Melbourne’s leading family lawyers in Doyle’s 2020 Guide to the Australian Legal Market.

Wendy is the Immediate Past Chair of the Family Law Section of the Law Council of Australia, the peak body for Australian family lawyers, and has been a member of the Executive of the Family Law Section for more than 10 years. The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes.

Wendy’s time as Chair of the Family Law Section (from 2016 to 2018) coincided with a period of great controversy and unprecedented attention on the reform of family law and the family law system. This included the Victorian Royal Commission into family violence, the Federal Parliamentary enquiry into the family law system and family violence, the Australian Law Reform Commission’s Family Law Review and the Federal Government’s proposal to restructure the Family Court and Federal Circuit Court.

Wendy was a member of the Advisory Committee to the Australian Law Reform Commission’s Family Law Review, the most comprehensive review of family law and the family law sector in 40 years.

Wendy was also a member of the Advisory Committee to the Law Council of Australia’s 2018 Justice Project, chaired by former High Court of Australia Chief Justice, the Hon. Robert French. The Justice Project is one of the most comprehensive, national reviews into the state of access to justice in Australia in the past 40 years.

Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work. Wendy’s approach is tailored to each individual client’s needs, recognising that for most people, the breakdown of a relationship is one of their most stressful and challenging experiences. Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. She works closely with her clients’ accountants and other professional advisors to ensure that all the complexities of those arrangements, including tax impacts and restructuring, are dealt with as part of any settlement.

Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy’s clients benefit from her knowledge of the most up to date approaches by child psychologists and other experts to managing the post-separation care arrangements of children. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas.

Wendy is also a member of the Executive Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, the Association of Family and Conciliation Courts, the Australian Institute of Family Law Arbitrators and Mediators and Victorian Women Lawyers.

Jemma Mackenzie

Senior Associate

University qualifications

Bachelor of Laws (Hons) Monash University
Bachelor of Arts (Hons) Monash University

Email Jemma Mackenzie
jmackenzie@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

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Jemma is a Senior Associate at Forte Family Lawyers. She has worked predominantly in family law since being admitted to legal practice in December 2009.

Jemma obtained Specialist Accreditation as a Family Lawyer from the Law Institute of Victoria in 2015. Accreditation recognises the high level of knowledge and practical skills Jemma brings to each family law matter.

Jemma is mindful that the breakdown of a marriage or de facto relationship can be a stressful and often overwhelming experience for clients. She works with her clients to identify appropriate pathways for resolving both parenting and property matters.

Jemma prides herself on her ability to effectively communicate what can be complex legal principles and to provide realistic, up to date and accurate legal advice at each stage of a matter.

Jemma has experience in a wide variety of family law matters including division of property, maintenance (including urgent applications), Financial Agreements (including Agreements made prior to marriage), care and living arrangements for children, child support and family violence – including Intervention Order proceedings.

Prior to joining Forte Family Lawyers, Jemma worked in a Bayside family law firm and a boutique firm in Melbourne’s eastern suburbs. She has conducted litigation in both the Family Court of Australia and Federal Circuit Court in Melbourne and interstate.

In addition to her daily work with clients, Jemma has made presentations to financial advisors and medico-legal professionals about the family law system in Australia and what clients should know about family law prior to separating.

Jemma is a member of Victorian Women Lawyers, the Family Law Section of the Law Council of Australia and the Family Law Section of the Law Institute of Victoria.

Kristy Haranas

Senior Associate

University qualifications

Bachelor of Laws, James Cook University

Email Kristy Haranas
kharanas@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

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Kristy is a Senior Associate at Forte Family Lawyers. Kristy is an Accredited Family Law Specialist as recognised by the Law Institute of Victoria. Accredited Specialists are required to maintain a high degree of continuing professional development to ensure their advice is based on the most current legal principles and to the highest possible standard. Kristy was recognised in the 2020 edition of Doyles Guide as a Family Law Rising Star.

Kristy has undertaken further tertiary study in the area of family law and has a Masters of Applied Law (Family Law) from the College of Law.

Prior to joining the firm, Kristy worked in a range of practice areas including several years in family law in Queensland. Kristy also worked a lawyer for the Australian Securities and Investments Commission on large-scale financial investigations. During her time at AISC Kristy gained valuable commercial experience and developed a high level of attention to detail which she now applies to her work in family law financial cases.

Kristy has a wide range of experience in different areas of family law including parenting issues, property settlements (including complex matters with multifaceted trust/corporate structures), financial agreements, child support and family violence cases.

Kristy prides herself on building strong relationships with clients from the outset. Kristy recognises that for most people, the breakdown of a relationship can result in stress, conflict and confusion. As a result, Kristy ensures that clients receive not only strategic and commercially focused legal advice, but empathy and compassion. Kristy has strong communication skills which she uses to confidently guide clients through what can sometimes feel like a complicated legal system.

Kristy is a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria which provides her with valuable insight into recent developments in the Family Law Courts. Kristy is also a member of the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Matthew Beckmans

Senior Associate

University qualifications

Bachelor of Laws, University of Western Sydney

Email Matthew Beckmans
mbeckmans@fortefamilylawyers.com.au

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Matthew commenced his legal career practising in a medium-sized rural law firm. Matthew is able to draw on his broad experiences over a number of practice areas, prior to practising exclusively in family law, to offer clients a well-rounded approach to tactically resolve complex legal issues.

Matthew has developed a special interest in complex disputes involving companies and trusts, insolvency and bankruptcy, taxation, and international/domestic relocation.  He also has a particular expertise in child support.

Matthew is aware and mindful of the financial challenges and restraints when attempting to resolve family law disputes, and sets out to achieve negotiated and cost effective outcomes which avoid court where possible. Matthew recognises the emotional issues attached to the breakdown of a relationship, and draws on his strong communication skills in demystifying the family law process, and to identify and explain possible options for resolution in a concise manner.

Matthew was a member of the steering committee of the Riverina Family Law Pathways Network, secretary of the South West Slopes Law Society, and a mock trial magistrate for the Law Society of New South Wales.

Prior to practising law, Matthew was rookie listed by the Sydney Swans, where he enjoyed a brief career.  He now plays for the Monash Blues in the VAFA.

Matthew is a member of the Family Law Sections of the Law Council of Australia and the Law Institute of Victoria.  He is on the Court Practice Committee of the Family Law Section of the Law Institute of Victoria.

Vinh Nguyen

Associate

University qualifications

Bachelor of Laws, Deakin University

Bachelor of Commerce, Deakin University

Email Vinh Nguyen
vnguyen@fortefamilylawyers.com.au

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Vinh first worked at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2017. He joined Forte Family Lawyers as a lawyer after his admission into legal practice in October 2017 and has, since then, worked solely in family law.

Prior to his admission as a lawyer, Vinh worked as a paralegal in a community legal centre and in a property and commercial law firm, where he gained valuable experience in property transactions.

Vinh is a member of the Family Law Section of the Law Council of Australia, the Law Institute of Victoria and the Asian Australian Lawyers’ Association. Vinh also volunteers at the Darebin Community Legal Centre.

Vinh is fluent in Vietnamese.

 

 

 

Natasha Mastroianni

Associate

University Qualifications

Bachelor of Laws (Hons), Latrobe University

Bachelor of Arts, Latrobe University

Masters of Applied Law (Family Law), College of Law

Email Natasha Mastroianni

nmastroianni@fortefamilylawyers.com.au

 

 

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Natasha Mastroianni has experience in a range of family law matters, including property settlements, financial agreements, parenting matters (including interstate and overseas relocation issues), child support and intervention order proceedings.

Natasha was admitted to practice in August 2014 and commenced her career in a generalist practice where she gained experience in family law, property law, wills and estates. Natasha worked in a boutique family law practice prior to commencing at Forte in February 2020.

Natasha has a Masters of Applied Law (Family Law) from the College of Law and speaks conversational Italian.

Having practical experience in other areas of law assists Natasha to understand the interrelated issues involved in her clients’ family law matters. She regularly appears on behalf of clients at Duty List Hearings and other Court events in the Federal Circuit Court, Family Court of Australia and the Magistrates’ Court of Victoria. Natasha also appears as a solicitor agent for interstate or rural practitioners when required.

Natasha prides herself on being able to understand and manage her clients’ expectations whilst providing realistic and practical advice. She acts with empathy and compassion when striving to achieve the best possible results for her clients.

Natasha is a volunteer lawyer with the Women’s Legal Service and is the Vice President of the Northern Suburbs Law Association. She is also a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Mark Di Donato

Lawyer

University Qualifications

Bachelor of Criminology and Justice, Navitas College of Public Safety

Juris Doctor, Monash University

Email Mark Di Donato

mdidonato@fortefamilylawyers.com.au

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Mark started work at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2019. Mark was later admitted into the legal practice in September 2019 and transitioned into a lawyer role with Forte Family Lawyers in February 2020.

Prior to his admission as a lawyer, Mark volunteered as a paralegal at Darebin Community Legal Centre and interned at a commercial law firm, where he gained valuable experience in property transactions and in intellectual property. Mark also completed a Professional Placement whilst completing his law degree where he provided legal advice on various family law matters through the Monash Law Clinic.

Mark is a member of the Family Law Section of the Law Council of Australia, and the Law Institute of Victoria. Mark volunteers at the Darebin Community Legal Centre and has provided advice on a range of issues including family law.