Publications
Property
Proposed New Factors For Settlements – Key Insights Into Property Law Reform in 2024
Australia's family law landscape is in the midst of transformation, with the Family Law Amendment Act (No 2) 2023 (FLAA) standing as the focal point of these changes. These modifications will have repercussions for legal practitioners. Please note: This overview is derived from a detailed industry piece by Jacky Campbell,...
Family Law Property Settlements – Fraud, Tax Evasion, Bankruptcy and Family Violence
Bad behaviour by separating couples is all too common. Fraud, tax evasion, bankruptcy, failing to disclose financial circumstances and other bad behaviour can result in negative outcomes for the recalcitrant party in property settlement proceedings. The topics I will cover are: Overview of property settlement process Bad...
When can a de facto partner make a claim for a property settlement?
It is very common for parties to disagree about whether they were in a de facto relationship and when it started or ended, thus impacting whether a claim can be made for a property settlement under the Family Law Act 1975 (Cth) (FLA) and the quantum of the claim. The parties may be housemates, friends with benefits, dating,...
For Richer and Poorer: Drafting Watertight Property Consent Orders
There are many advantages to settling disputes through consent orders, but there are also many potential pitfalls in drafting them and in the process of having the orders made. This paper covers: Legislative background Duty of Disclosure When will a Court Decline to Make a Property Consent Order? Legal representation...
The beginning of the end of resulting trusts? — The High Court’s judgment in Bosanac v Commissioner of Taxation and Anor
The equitable presumptions of advancement and resulting trust were examined by the High Court of Australia in Bosanac v Commissioner of Taxation [2022] HCA 34; (2022) FLC 94-107 delivered on 12 October 2022. The High Court considered whether the presumption of advancement had been abolished and discussed the relevance of the...
Negotiating A Property Settlement during Covid-19
Negotiating and documenting a property settlement under the Family Law Act 1975 (Cth) (FLA) is not always easy. You and your former partner may have a strong desire to keep things amicable, but it is an emotional time and there are added layers of difficulty in times of economic crisis. As a result of the COVID-19 pandemic,...
CLAYTON v BANT – effect of overseas order on rights under the Family Law Act 1975(Cth)
The High Court of Australia considered the impact of an overseas court order on Australia property settlement and maintenance proceedings in Clayton v Bant (2020) FLC 93-994; [2020] HCA 44. The issue arose because the language of the overseas order was not the same as the Australian order and the husband had not properly...
Hsiao & Fazarri: The High Court considers gifts and fresh evidence
The High Court rarely grants special leave to appeal and does so even more infrequently in family law matters. When it does hear a family law appeal family lawyers expect that the outcome will either provide clarity as to an aspect of the law or change their understanding of the law. High Court cases such as Mallet v Mallet...
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...
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...
