Publications
Property
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...
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...
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 for the...
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 of his...
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...
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 likely to concentrate on it is...