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http://www.heyfamilylaw.com.au/

Hey Family Law, Level 7, Corporate Centre One, 2 Corporate Court, Bundall, Gold Coast (2026)

31/10/2021

Cost Orders Against Lawyers:
A court may make a cost order that requires a legal practitioner to personally pay an order for costs.
Cost orders against legal practitioners in family law can occur in circumstances where one party has incurred costs because of:-
- Failure to comply with the Rules;
- Failure to comply with the pre-action procedures;
- Improper or unreasonable conduct; or
- Undue delay or default.

An Order for costs for one of the above reasons can include an order that the legal practitioner:-
- Not charge the lawyer’s client for work specified in the Order;
- Repay money that the client has already paid;
- Repay the costs a client has been ordered to pay another party;
- Pay the costs of the party; or
- Repay another person’s costs found to be incurred or wasted.

It is important that legal practitioners guide their clients in an appropriate manner so as to ensure one party is not incurring legal fees they would otherwise not have had to.

08/06/2020

Be careful who you gift to:

In a recent case from the Family Court of Appeal, the Court decided that it was a joint contribution by the parties of significant land holdings being gifted by the Husband’s parents.

Ordinarily the gifting of assets from parents has been a one-sided contribution but the Court upheld the primary Judge’s findings that it was a joint contribution in that case as it had been made clear to the parties the land was being gifted in exchange for the parties providing support to the husband’s parents, which they did and the Wife continued to do post separation.

This was an expensive lesson for the Mabb family who whilst initially expressing their intention to gift the land holding to the parties jointly, changed their mind upon separation of the parties, the Husband asserting the land was gifted solely to him and pursuing that case all the way to the Full Court of the Family Court of Australia on appeal.

Mabb v Mabb & Anor [2020] FamCAFC 18.

12/05/2020

Caveats:
Not usually necessary or even recommended in family law cases, given the ramifications of lodging one and damages flowing. Where property is jointly owned and/or there is little risk of it being sold or otherwise disposed of, there is rarely a need for a Caveat.
If threats have been made or there is a real risk that a party may either sell, transfer or encumber/further encumber a property then a Caveat is a temporary band-aid like solution to the problem.
The Caveat buys a 3-month window of protection from the property being dealt with, within which either the case must have settled, or court proceedings commenced to extend the Caveat beyond the usual lapsing 3-month period.
It is not lightly a Caveat should be considered and only in certain cases are they warranted.
That said, should you have any concerns regarding the disposal of matrimonial assets or property that you think you may have a claim to as a result of a de facto relationship, contact us today to further discuss.

05/05/2020

School Fees: These are largely covered in child support related matters.

Occasionally a school fee liability exists at separation, in which case that is something factored into the property settlement between the parents, however beyond existing debts or those that accumulate with the school prior to settlement or finalisation of the property settlement, school fees fall into a rather grey-ish area.

There is no law, despite some of our client’s recent protestations that requires one parent to contribute to private school fees and associated costs and/or that parents must share in those costs.

The school fees are simply paid by the person able and/or willing to pay them and, if there is a dispute about who pays, then often this results in the children having to attend either a more affordable school or a non-private one.

Whilst school fee costs can be used to either increase or decrease the periodic amount a parent pays/receives in child support through the Child Support Agency’s change of assessment in special circumstances process, it is always wise to negotiate, agree and document who is to pay what regarding school fees. This takes the guess work out of the equation, provides certainty for the parents and the children and it then becomes one less thing to argue or worry about later.

27/04/2020

When’s the right age to travel:

There is no set age a parent is able to travel internationally with their child/ren and indeed the Court when considering an Application by one parent to travel will have regard to a variety of factors including:-

1. The age of the child/ren;
2. Their primary attachment/s;
3. Whether they travelled during the relationship/marriage;
4. The time each party is spending with the child/ren and the length of the intended holiday relative to the periods of time spent away from the non-travelling parent;
5. The location of the proposed trip and whether the countries to be visited are parties to the Hague Convention relating the international abduction of children and/or any travel warnings in place; and
6. The link the travelling parent has to the country to be visited and whether they present a flight risk, in terms of remaining with the children in that country and not returning – special attention is also paid by the Court to the ties the travelling parent has to Australia especially where travel is proposed to a parent’s “home” country or to visit family abroad.

Each case is determined on its facts and there is no rule book on when an overseas travel application will be successful and when it will fail.

What is important is that the Court are carefully stepped through all of the evidence to ensure an informed decision is being made and one that is in the child’s best interests.

We have successfully represented both travelling parents and also non-travelling parents in resisting applications for travel brought by the other parent.

Contact us to further discuss and bear in mind the delays in having a Court hear such application, as the Courts do not consider pre-paid travel a reason to “jump the queue” in front of all the other parenting cases awaiting Court, so it’s vital the court application is filed well before any intended travel and/or flexible travel arrangements booked at first instance.

19/02/2020

Bad Bargains

If a family law litigant is not “happy” with their negotiated settlement, there are limited options for them to reopen or reagitate for a “second bite at the cherry”.

Presuming both parties are legally represented and there was not a disclosure issue where information was withheld or assets hidden, then a final settlement is usually just that – final.

The competence of the legal representatives can have some recourse for an unhappy settlor however only if there has been some negligence on the part of the lawyer.

It is therefore prudent to ensure your family lawyer is well experienced, not a “dabbler” and if necessary to seek a second and/or even a third opinion before or during the matter such that you are fully informed and advised prior to the final settlement document being signed.

Courts will rarely entertain setting aside a “bad bargain” deal, especially where the party on the receiving end of the bad deal was properly advised by their Solicitor and where a Solicitor advises against settling and the party settles anyway, their ability to depart from the settlement terms are largely non-existent.

13/02/2020

But if we agree why can’t we have Consent Orders?

Well, unfortunately it’s not that simple. Whilst Consent Orders are the cheaper and simpler option for resolving a property matter and a more binding outcome for a parenting matter, the court must approve the property division or parenting arrangements.

The court, usually a Registrar, will process the application for consent orders having regard to the circumstances of the matter as set out in the application and, in light of:-

for a property matter:-

The length of the marriage or de facto relationship;
The parties ages;
The contributions and respective future needs of the parties, as set out in the application;
The party’s income; and
The proposed division with regard to the overall percentage split and the composition of the settlement for each party
and for a parenting matter:-

The age of the children;
The number of children and the spread of their ages; and
The proposed parenting arrangements including the length of time away from each parent.
the court must then determine whether the proposed Orders are, in a property case, just and equitable (fair) and in a parenting case in the children’s best interests.

In the event the court do not consider the division of assets fair or the parenting arrangements in the children’s best interests then they can either dismiss/reject the application or requisition it - requesting further evidence from the parties by way of affidavit.

This is a concept some clients struggle with - the reality that the court may reject the outcome they have agreed upon.

It is therefore extremely important that a family law specialist reviews the settlement before consent orders are entered.

07/02/2020

False Promises: Unfortunately for some of our clients in recent months, they have been left to wait for lengthy Court delays to have their parenting matters heard. This will, on occasion, mean that the other parent is able to leverage off the delay and "punish" the other party, either as a result of the commencement of the Court proceeding or for some other, often unknown, reason. The stars were aligned for about a two week period late last year, where we found ourselves having to challenge our clients about the need to wait for “an offer” or for the other parent to “calm down” where a pattern of behaviour had already occurred, something we see time and time again, where one parent is controlling or seeking to dictate the parenting arrangements. In all of the 5 cases we saw over that 14-day period, each client needed to commence Court proceedings to seek to have parenting arrangements put in place allowing them to spend regular time with their child/ren. Whilst occasionally these promises do eventuate, in most circumstances they do not and Court proceedings become a necessary evil.

28/01/2020

Pre-Nup Timing:

A difficult subject to broach, however an important one for people who have children from a prior relationship or where there is a considerable disparity of wealth.

There is no perfect time to enter a prenuptial or similar arrangement and the law surrounding these agreements, known as Binding Financial Agreements under Australian law, provides for them to be entered at six (6) different stages of a relationship.

We draft these Agreements weekly (sometimes daily), so please reach out to further discuss the preparation of a Binding Financial Agreement tailored specifically to your circumstances today.

20/01/2020

Comprehensive Parenting Orders

“We can sort out those details later” – famous last words spoken by several of our clients in the past. Nothing should really be left to chance or later agreement when parenting arrangements are being documented.

Firstly, once an Order is made, that is usually “it” in terms of final arrangements. It is rare that a party is successful in seeking to reopen a parenting case simply because something was left out or they changed their mind about a specific component of the Orders.

It is therefore prudent to ensure the Orders are right the first time.

Unless there has been a substantial change in circumstances, pursuant to long standing case law, a Court will be reluctant to entertain any variation to a parenting Order made on a final basis, whether by consent or at the conclusion of a final hearing where a Judge has decided the outcome.

Orders should make provision for birthdays, Mother’s and Father’s Day, Christmas, Easter and other special occasions. Our precedent parenting orders have been developed over many years and have been crafted in such a way as to address prior mistakes clients have made in leaving something to be arranged after the fact.

If there is an intention to travel overseas with children, then this should also be carefully documented in the Orders so as there is less likelihood of further disputes.

13/01/2020

Child Support – Is there a way out of it?

In short, no. Parents have an obligation to financially support their children. Many a client has asked us to assist them in facilitating or designing a mechanism by which they are able to pay less child support, to which we always answer, thank you but no thank you.

With creative accounting, child support can become more tax effective, through the establishment of a Child Maintenance Trust, where there are expensive school fees and other costs to be met over an extended period, however by and large, short of simply ceasing work (certainly not recommended), child support is unavoidable.

What is beneficial is to engage with your former spouse/co-parent and come to a mutually acceptable fixed amount of child support and arrangements regarding who pays for what third party costs, such as school fees, private health insurance, medical and dental and extra-curricular activities and document that agreement by way of a binding child support agreement. This will save future and ongoing involvement with the child support agency and also provide certainty (for both parents) as to who is to pay what in the future, which is extremely beneficial when out of the ordinary expenses for the children arise, for example major dental or orthodontic work.

We can discuss the best way forward for your child support matter in a no obligation initial discussion – call us today.

07/01/2020

Disclosure – Show and Tell or Hide and Seek?

The process of providing full and frank disclosure in a property settlement matter is not a new concept by any means. Oddly, in some cases obtaining information one party has a right at law to obtain is like pulling teeth.

Disclosure is mandatory and each party must provide to the other any and all documents relevant to establishing the asset pool available for division, the contributions each party made to those assets and information relevant to their future needs.

Unfortunately, the absence of complete transparency of disclosure is one of the primary reasons property matters can drag on and on and clog the already strained Court resources, while parties argue about what they should and should not be required to disclose and/or have disputes about what information is able to be obtained under Subpoena.

Disclosure is not a hide and seek game, but rather a show and tell, all cards on the table process. The information will eventually come out, one way or the other, so family law litigants ought to do themselves a favour and significantly reduce their legal fees by being as open and honest as they can be as quickly as possible, such that the lawyers can focus on meaningful settlement discussions at the earliest.

Want to know more, contact us today.

Hey Family Law

31/10/2021

08/06/2020

12/05/2020

05/05/2020

27/04/2020

19/02/2020

13/02/2020

07/02/2020

28/01/2020

20/01/2020

13/01/2020

07/01/2020

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