Marcus duckett

Most family law proceedings involve the division of property and/or assets. The first step is to identify and professionally value the assets of the relationship. Often this will involve at least the former matrimonial home. Sometimes the home has to be sold. Sometimes one party can afford and wants to retain ownership of the former matrimonial home.

There are many factors that a family law judge will take a look at in weighing up how to divide a family law asset pool. The division must be “just and equitable”. Some common factors a family law judge will take in to consideration when deciding how to fairly divide an asset pool will be: any initial lump sum contributions to the relationship; any large lump sum financial contributions during the relationship; homemaker contributions; each party’s current and future earning capacity; how many nights per fortnight that the children spend with each parent; etc.

Every family law case is different and needs specific analysis to estimate the best case scenario and worst case scenario for that specific person.

Which Primary School or Secondary School a child attends can have an enormous effect on their lives. On one hand it could cause the blossoming of a particular talent or greatly improved wellbeing whilst on the other hand a different school could stunt a child’s development or cause them to be depressed and unhappy.

Except in extreme cases, most parent’s have what is called “Joint Parental Responsibility” which means they must both be involved in the big decisions in a child’s life such as choice of school.

If parent’s are unable to agree which school is best suited for their child/ren then a Family Law Judge can decide which school is in the best interests of the child/ren.

A de facto relationship is any relationship where two people have lived together in “a genuine domestic relationship” for at least 2 years. Since 1 March 2009 in Australia, de facto relationships have had the same legal status in Family Law as a marriage.

What can happen with de facto family law relationships (that also happens with marital relationships) is that there can be a dispute between the parties about when the relationship/cohabitation commenced and when it ended. This can lead to a Trial for a Family Law Judge to decide exactly when a relationship commenced and ended. This is what is called the “threshold” issue of determining when and for how long a de facto relationship was in existence. Sometimes this can be the most hotly contest issue in the case.

Marcus has represented many clients in de facto matters and a recent successful case can be found at Abalos & Halder [2019] FamCA 963.

Documents that are filed in Family Law proceedings have a very significant impact on the outcome of the case. Parties need to be very precise about exactly what Court Orders they seek on both an interim and final basis. What orders parties seek often can change over the course of the legal proceedings in response to many factors influencing the case.

Affidavits are very important in Family Law. Affidavits are sworn legal documents where relevant people are given an opportunity to express their version of events. Affidavits give a summary of significant recent facts and events.

Breach proceedings or Contravention proceedings can be necessary when one parent has significantly or persistently not followed Court Orders. It is the responsibility of the parent alleging the breach to commence Contravention proceedings if they are advised that this is necessary in the circumstances.

The parent who is alleged to have breached the Orders has the defence of what is called “reasonable excuse”. If they have not followed the Orders because they have a genuine concern regarding the children then this may be considered by a Judge as a “reasonable excuse”. Careful assessment of the entire situation is advised.

If a Family Law Judge needs to make a decision about parenting arrangements they are required by the Family Law Act 1975 to make a decision that is in the best interests of the children. This is called the paramouncy principle because it is the consideration that overrides every parenting decision in Family Law. Is what is proposed in the best interests of the children?

Decisions about which parent the children will live with and how much time they will spend with the other parent can be complex and difficult matters. Often there can be other complicating factors such as special needs of the children or one or both of the parents might have significant mental health, drug or alcohol or family violence issues.

A very significant feature of Family Law is Family Reports. The person who authors the Family Report is called a Family Consultant. They are often a forensic psychologist, who is somebody who specialises in preparing Family Reports for Family Law proceedings.

After the Family Consultant has read all the filed court documents, interviewed the parents separately and observed and/or interviewed the children (dependent on their age) they will prepare a lengthy report with recommendations that often have a very influential effect on the case.

Marcus has represented Family Law clients in hundreds of Mediations involving mostly financial issues. Of those matters, approximately one third of those matters have settled at Mediation. Marcus is a Nationally Accredited Mediator with the Australian Institute of Family Law Arbitrators and Mediators (“AIFLAM”).

Mediation is a necessary requirement of Family Law proceedings at two stages of proceedings. Firstly, parties are required to attend a Mediation with Relationships Australia prior to them commencing legal proceedings. If this initial Mediation does not resolve the matter or cannot proceed, the parties are issued with a Family Law Act section 60i certificate. Legal proceedings can then be commenced.

If there are outstanding financial or property issues after the first Family Law Court hearing the parties will be required to participate in a Mediation regarding those financial issues. If the asset pool is greater than $500,000 a private Mediation must take place. If the asset pool is lower than $500,000 a Conciliation Conference (Registrar led Mediation) will take place on level 5 of the Federal Family Courts.

A situation can arise where one parent decides that they want to relocate. Sometime this can cause urgent Court Applications to be filed to pause the relocation until a Judge can decide if the relocation can be allowed or not. Relocations within Greater Melbourne are generally not considered relocations particularly if there is no change in school.

If the relocation involves a potential international relocation then consideration of whether this country is a signatory to the Hague Convention will be of relevance. A list of the countries where the Hague Convention is in force with Australia regarding international child abduction can be found at www.ag.gov.au. If the matter goes to Trial then consideration of all the reasons for and affect of the relocation needs to be considered.

If the matter involves a potential interstate relocation the Judge will weigh up the pros and cons of the relocation. Common issues involved with relocations are: change of school, benefit of new job, quality of the relationship with the non-relocating parent, and decrease in time with extended family and friends.

Family Law is generally divided in to two categories. Firstly, and with greatest priority, there are matters with multiple issues concerning children of the relationship - parenting matters. Secondly, there are property matters covering all the financial issues faced by the parties. Often both of these issues need to be resolved.

Parenting cases are decided with focus on what is in the best interests of the children. Property cases will finalise on a just and equitable division of the asset pool.

Marcus has been working in this area of the law for over 15 years and is an expert Family Law Barrister. Marcus is highly skilled and experienced in bringing complex Family Law matters to resolution.

Family Law matters involving children have priority in the Family Law system. Whilst parents may not want to use the Family Law Court system to resolve their issues sometimes this is the best way. What parenting orders provide is clarity, structure, protection and routine for the children.

Children never give evidence in Family Law proceedings but do have their voice heard in the Family Report. The views of the child (expressed in the Family Report) will be given appropriate weight depending on the age of the child.

Decisions about who the children will live with and what time they will spend with the non-resident parent are based on what is considered to be in the best interest of the children.

Family Violence can take many shapes. People often think it is just physical abuse but that is just the most obvious form of Family Violence. It has been defined in legislation (section 4(1) of the Family Law Act 1975) and has been given a very broad definition that can include mental abuse, financial abuse, intimidation and harassment.

Intervention Orders are decided and granted in the Magistrates’ Court pursuant to the Family Violence Protection Act 2008. Intervention Orders can have a very big impact on the outcome of a Family Law case because they often exclude a parent from the former matrimonial home. Parents can also be temporarily prohibited from speaking to or spending time with their children as a result of Intervention Orders.

Clients sometimes forget that Superannuation is an asset of the relationship just like any other asset. In some cases any Super accrued prior to cohabitation will be excluded from the asset pool. In other cases one party may receive greater than 50% of the combined Super pool because the justice and equity of the circumstances of the case demand it.

In Family Law there is often disagreements about the value of real estate. The standard practice for resolving these disputes is the parties jointly obtaining a sworn valuation of real estate from a specially qualified property valuer such as Valueit.

Sometimes the value of a business is in dispute. This is often a more complex question than real estate. In those situations it is advisable to obtain a joint sworn business valuation from an expert witness such as a forensic accountant.

Sometimes parties own other chattels such as vintage cars, artwork or antiques. Similar to other assets of the relationship is it advisable to obtain a joint sworn valuation from an appropriately qualified valuer such as Shannons or Leonard Joel. Non vintage cars can be valued at www.redbook.com.au

Getting a joint sworn valuation can save both parties a significant amount of unnecessary legal fees.

Marcus has represented parties in many matters where there has been a dispute about whether a Family Law Financial Agreement is binding or not.

Parties can enter in to a Binding Financial Agreement (“BFA”) either before, during or after their relationship. In order for a BFA to be binding and thereby exclude the jurisdiction of the Family Law Courts is must qualify several technical and other criteria.

Firstly, the parties need to have received detailed independent legal advice prior to them signing the Agreement. The Agreement itself needs to be in the correct format (including the Certificate of legal advice) and neither party can be pressured into signing the Agreement.

Parties need to be very careful when entering into Financial Agreements because there are many ways in which they can come undone when later being scrutinised by a Family Law Judge.