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Family Law

A comprehensive and easy to follow guide to Family Law in the Family Court of Australia and the Federal Circuit Court, with our valuable reference work "101 Family Law Answers". 

This publication also provides all commonly required precedents, including applications, affidavits and orders, plus correspondence.


The guide covers all aspects of a Family Law matter, from negotiations prior to commencing proceedings to interim applications, then preparation and conduct of final hearings and enforcement. The commentary includes the conduct of interim hearings and conciliation conferences, together with tools for analysing contributions and s 75(2) factors.


Recent updates can be viewed on Obiter - our News & Updates site. 


Some of the most popular precedents provided in this publication include:



  • Consent orders

  • Initial letter to client with costs agreement and copy letter to spouse

  • Initial pre-action letter to spouse

  • Financial agreement s 90C - After separation

  • Parenting plan

  • Affidavit - Separation under the one roof

  • Summary of assets and liabilities



MATTER PLAN
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    • “ The admissibility of evidence of settlement negotiations is governed by s 131 of the Evidence Act 1995 (Cth). This section provides: (1)Evidence is not to be adduced of: ”
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    • “ If a party seeks to amend their application or response, r 7.01 of the Federal Circuit Court Rules and r 11.10 of the Family Law Rules address amendment. In the amended document underline any amendments, including any items which are to be deleted. Also strikethrough these items rather than ... ”
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    • “ The Family Law Act, rules and regulations have provision for the use of arbitration in family law proceedings. The legislation provides for both court ordered and voluntary arbitration: Division 4 Part IIIB Family Law Act 1975). The provisions in the rules and regulations are detailed and it ... ”
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    • “ Overview Capital gains tax (CGT) is often incurred in family law matters and it is vital that practitioners ensure their clients obtain professional accounting advice as to possible CGT consequences of a property settlement. ”
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    • “ When might a case guardian be needed? In summary, case guardians are appointed when the litigant does not have the capacity to conduct the case themselves. It is the obligation of the lawyer to raise the issue of capacity when they are concerned that their client does not understand the nature and ... ”
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    • “ Family companies It is not uncommon for families as part of their financial planning to create one or multiple discretionary family trusts. There are a number of possible scenarios involving family companies and family trusts which family lawyers may come across. Two such examples are: ”
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    • “ Conflicts of interest are considered in the family law context in McKay & Forrest [2018] FCCA 2287, which affirms the full Family Court’s decision of Osferatu & Osferatu [2015] FamCAFC 177 as ‘the leading case in this area’. Osferatu in turn affirms the NSW Supreme Court decision of Kallinicos v ... ”
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    • “ Once proceedings are on foot, practitioners may sometimes need to contact the chambers of the judge to whom a matter is docketed. Care should be taken to ensure that such contact is consented to by the other side if it is not done jointly, and the other side is copied in on any correspondence. It ... ”
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    • “ Section 117 of the Family Law Act 1975 provides that each party shall bear their own costs, subject to other sections of the Act. There is a general principle in family law matters that each party pay their own costs: s 117(1) Family Law Act 1975. For this reason, costs orders for the whole of ... ”
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    • “ To enliven the jurisdiction of the Court in de facto matters pursuant to the Family Law Act 1975 (“the Act”), there is a two-limbed test: ”
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    • “ Who pays when an expert, single expert or otherwise, is required for cross examination in parenting or financial matters? See Family Law Rule 15.14: ”
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    • “ Section 114(1) of the Family Law Act provides that, in proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship, the court may make such order or grant such injunction as it considers proper with respect to the matter to which ... ”
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    • “ The telephone shuttle conference is part of Legal Aid’s dispute resolution services. These conferences are usually held by a Legal Aid Dispute Resolution Provider (mediator), who will explore with the parties if there is any scope for resolution of the parenting matter. If legal aid is only granted ... ”
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    • “ Notations are not binding and enforceable. Often, they are used to note that there is a Child Support Agreement or a Binding Financial Agreement, or the section 81 Notation that the parties intend the orders to finalise the financial relationship between them. There is case authority on this point ... ”
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    • “ Section 117(2A)(f) provides that the Court may have regard to settlement offers that have been made by the parties at any time during the proceedings. Offers made under r 10.06 Compulsory offer to settle of the Family Law Rules 2004 will be relevant. A precedent Letter to Other Side’s Solicitor ... ”
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    • “ It is not possible to subpoena any of these agencies. Centrelink is not required to comply with a subpoena to produce documents: s 207 Social Security (Administration) Act 1999. ”
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    • “ Family Law Rule 11.02(2)(c) provides: (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may: ”
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    • “ In order for proceedings to be dismissed on frivolous and vexatious grounds, there is a requirement that proceedings be frequently instituted: see Part XIB of the Family Law Act, which is directed to the habitual litigant. Section 102QB provides that the court can make vexatious proceedings ... ”
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    • “ Sometimes, in parenting orders, such as when there is a watch list order, the court will order that the child is to be placed on the watch list until further order or ‘subject to authenticated consent of the parties’. But what is authenticated consent? This is also required pursuant to ss 65Y(2)(a) ”
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    • “ Consent to medical treatment for minors and authority to access health information about minors are two distinct issues. ”
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    • “ In Robb and Robb [1994] FamCA 136, the Full Court in considering facts where the husband made a contribution to the wife's children from her previous marriage the Full Court said at [65]-[68]: In considering whether the justice of a case requires some act done by a party to be taken into account ... ”
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    • “ Foster children, although not the biological or legal child of a foster carer, may still be referred to in the recital of a financial agreement finalising property settlement. They may also be considered in a divorce application if they were treated as part of the family prior to the final ... ”
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    • “ In Masson v Parsons [2019] HCA 21 the High Court determined whether a sperm donor may be considered the legal father, in specified circumstances, of a child conceived by artificial insemination. Typically, pursuant to s 60H of the Family Law Act 1975, the legal parents of the child will be the ... ”
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    • “ In Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) [2010] FamCAFC 229, the issue was whether parties ordered to attend upon a family report writer have the right to legal representation during the interviews with the family report writer. The Full Court held that there is ... ”
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    • “ See ss 66B, 66J, 66K, 66L of the Family Law Act 1975. Section 66L of the Family Law Act 1975 provides: ”
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    • “ In MRR v GR [2010] HCA 4, the proceedings started in 2008 and, in summary, related to sections 65DAA(1) and (2) and the level to which the court needs to consider whether equal time (or substantial time) with each parent is: (a)in the best interests of the child; and ”
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    • “ For orders related to children with autism see Cullen & Cullen [2016] FamCA 110. In this case the Family Court discusses the best interests of a child with autism and made specific orders for the decisions relating to major long-term issues of the child which differed from those orders for the ... ”
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    • “ To set aside or vary final parenting orders, parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made, the court must establish a significant change in circumstances before it sets aside or varies final ... ”
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    • “ In Brianna & Brianna [2010] FamCAFC 97, prior to marriage the wife had a child to another man. The wife and child lived in the United States. The husband lived in Australia. They married in 2002 and separated in 2006. The parties arranged for the husband to be registered as the biological father on ... ”
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    • “ Parenting orders made in Australia may be registered and therefore enforced in some overseas jurisdictions. Sections 70G–70L of the Family Law Act address overseas orders. ”
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    • “ Parenting orders made in some overseas jurisdictions may be registered and therefore enforced in Australia. Sections 70G–70L of the Family Law Act address overseas orders. ”
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    • “ The case of MRR v GR [2010] HCA 4 is authoritative on relocation post the 2006 amendments and addressed the application of s 65DAA of the Act. The mother was 34 years old and the father 35 years old. Their relationship commenced in 1991 and they married in 2000. They had one child, a daughter who ... ”
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    • “ One increasingly popular form of evidence in parenting proceedings is that which is obtained via social media. Evidence obtained from sources such as Facebook and Twitter can sometimes provide beneficial (and conversely sometimes very damaging) evidence for parents. When are these forms of evidence ... ”
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    • “ When is leave required regarding the 12-month divorce time limit? ”
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    • “ An application for a decree of nullity may only be issued in the Family Court of Australia: see Family Law Act s39(1A); or the Family Court of Western Australia, if in Western Australia. Section 51 of the Family Law Act states “An application under this Act for a decree of nullity of marriage shall ... ”
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    • “ Every effort should be made to attempt to obtain a copy of a marriage certificate. The most straightforward way may be to contact the relevant Embassy/High Commission of the relevant country in Australia. If every effort has been made and a marriage certificate cannot be obtained, see Federal ... ”
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    • “ If, after execution, it is noticed that a change needs to be made to the executed financial agreement, then no matter how small the change, it is recommended that the agreement be re-executed. The parties could simply initial the changes, however technically the advice received from their ... ”
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    • “ Sections 71A (married) and 90SA (de facto) of the Family Law Act provide that Part VIII (married) and Part VIIIAB Division 2 (de facto) do not apply to certain matters covered by binding financial agreements. A number of provisions in the Family Law Act provide parties with the means to contract ... ”
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    • “ In Ryan & Joyce [2011] FMCAfam 225 the parties signed a binding financial agreement dated 5 October 2004. The husband sought a declaration that the financial agreement is 'of no force or effect and that is be set aside' and that the court make orders pursuant to section 79.  The financial agreement ... ”
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    • “ Section 90K(1) of the Family Law Act 1975 provides for the limited circumstances in which a court will set aside a financial agreement entered into by married couples. The equivalent section for de facto couples is s 90UM. In Frederick & Frederick [2019] FamCAFC 87, the Full Bench of the Family ... ”
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    • “ Financial agreements compliant with the provisions of the Act effectively oust the court's jurisdiction to make spousal maintenance orders. Section 90E for married couples and s 90UH for de facto couples stipulate the following provisions that must be included in financial agreements if they are ... ”
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    • “ The usual approach in property matters is to take the global approach of looking at the property as an ‘overall pool’, although the court is under no obligation to take one approach in preference to the other. The less common asset-by-asset approach is also addressed in this commentary. What ... ”
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    • “ Overview One party may have wasted or spent money on such things as gambling or the purchase of gifts for third parties: see later notes on doctrine of waste. For there to be just and equitable orders this money may be added back into the pool of assets: see: Wilson and Wilson [1989] FamCA 34. ”
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    • “ When determining the division of a matrimonial or de facto asset pool, the common approach taken by the court is to consider the property of the parties on a global basis. However, the court has the discretion to take what is known as an asset-by-asset approach where appropriate. The High Court ... ”
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    • “ Chattels such as furniture, jewellery and artwork are considered assets for the purposes of calculating the asset pool. That is, provided that a value can be ascertained and it is worthwhile taking the items into account, which of itself can sometimes be a subject of conjecture. It can be difficult ... ”
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    • “ Section 81 (married couples) and s 90ST (de facto couples) provides the court with a duty to end financial relations between parties. This is commonly referred to as the ‘clean break principle’ and results in the majority of orders being made by the court, be it by consent or after the hearing of a ... ”
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    • “ Where there are not already proceedings before the court and agreement is reached by consent, it is necessary for two documents to be lodged with the court - an original and two certified copies: Application for Consent Orders; and ”
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    • “ A constructive trust commonly exists in family law in two circumstances: when the parties to the trust have a common intention that a party other than solely the legal owner has an interest in the property – that is, a real property is held in the name of the wife only however the husband and wife ... ”
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    • “ Adjusting property interests in an intact marriage In Stanford v Stanford [2012] HCA 52 the High Court adopted a fundamentally different approach to the application of s 79 of the Family Law Act 1975. ”
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    • “ The impact of death of a party to a family law order, financial agreement or live proceedings varies depending on the nature and stage of the proceedings. If proceedings have not already commenced, upon the death of a party to a marriage the right to orders for a property settlement end. ”
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    • “ Pursuant to the Family Law Rules 2004, each party to a prospective property case in the Family Court has a duty to make full and frank disclosure of all relevant matters. Rule 13.04 requires each party to a financial case to make full and frank disclosure of their financial circumstances including: ”
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    • “ The effect of any orders made or proposed to be made under s 79 in relation to the property of the parties and any vested bankruptcy property of a party is relevant under s 75(2)(n). In C & C [2005] FamCA 159 (11 March 2005), the Full Court reduced the trial judge's s 75(2) adjustment in favour of ... ”
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    • “ Section 106A Orders Section 106A is an important provision which should be considered in every property order you draft when the other party is required to execute a document. It provides: ”
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    • “ The Family Law Courts have the power to take into consideration property overseas when they are determining a division of assets. If there is a dispute, it may be necessary to obtain written advice about the value of the property as one would do for property in Australia. It may also be necessary ... ”
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    • “ Also see Kennon and Kennon [1997] FamCA 27 (10 June 1997) in relation to the treatment of s 75(2) and the just and equitable principle. Once the court has considered the factors in the first three steps the court’s next obligation is to consider if the order as proposed is just and equitable in all ... ”
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    • “ Usually the court deals with property which is in existence and able to be quantified. There are times, though, when the court is not dealing with such property, examples include:  Money already spent (e.g. on legal costs) ”
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    • “ Blackwell & Scott [2017] FamCAFC 77 (28 April 2017) is a warning to parties that if orders are not complied with in the timeframes prescribed by the orders, they risk the orders subsequently being set aside. ”
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    • “ If the court is satisfied that: (a)a person has defaulted in carrying out an obligation imposed on the person by the order; and ”
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    • “ Contributions to a real property may not be given full weight if they result in over-capitalisation. Installing an in-ground swimming pool which adds no value to the real property might be an example. In Vrbetic and Vrbetic [1987] FamCA 10 (6 May 1987), the husband purchased a property for ... ”
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    • “ Pet cases are rare in the family law courts – most of the time lawyers warn their clients not to push the point on the issue of with whom the pet will live. Judges, with backlogs of cases and overflowing duty lists are generally as pleased about dealing with pet cases as they are with dealing with ... ”
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    • “ If a property appreciates not due to any particular effort or act of either of the parties, it is a windfall and neither party has any greater or lesser claim to the benefits of the windfall: see Zappacosta and Zappacosta [1976] FamCA 56 (30 August 1976). The Full Court endorsed this in Wells and ... ”
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    • “ Once the property of the parties has been identified and valued and the contributions pursuant to s 79(4)(a)-(c) have been considered the next step is for the court to consider the matters in s 79(4)(d)-(g) S 79(4)(d)-(g) reads: ”
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    • “ If a party makes a disposition with a view to depriving the other party of a just and equitable settlement, such as transferring assets to someone else, then an application can be made to the court to set aside or restrain the disposition. The application is made under s 106B of the Family Law Act. ... ”
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    • “ A s 79 order may remove the need for one party to be maintained by the other party, therefore a party's entitlement to an order under s 79(1) is assessed before the question of any entitlement for spousal maintenance under s 72 is considered: see Clauson & Clauson [1995] FamCA 10 (3 March 1995). ... ”
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    • “ Whilst stamp duty is the common duty parties seek an exemption from, s 90(1) does not only provide an exemption from stamp duty. It provides that certain agreements/orders are not subject to any duty or charge under any law of a State or Territory. This may include land titles office fees on a ... ”
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    • “ Deeds or other instruments executed for the purposes of, or in accordance with, an order or financial agreement made under Part VIIIA are not liable to “any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory” (s 90L ... ”
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    • “ The court has power to substitute one party for another in relation to income tax liabilities to the Commonwealth. This was confirmed by the High Court in Commissioner of Taxation v Tomaras [2018] HCA 62. The case concerned seeking orders to alter property interests under s 79 of the Family Law Act ... ”
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    • “ Each state and territory has their own process to effect transfers of real property. Transfers pursuant to the Family Law Act 1975 attract transfer duty exemptions or the payment of nominal duty. Real property transfers involving property valued over $750,000 or owned by a foreign resident is ... ”
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    • “ Valuing the various assets of the parties which constitute the property pool is at times a vague, uncertain and expensive task. Valuations are firmly fixed to the market place and limitations in that market place means that it is neither a precise nor truly accurate science. Valuing looks to ... ”
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    • “ Part XIII of the Family Law Act deals with enforcement of decrees made by a family law court. Section 105(1) provides that ‘…all decrees made under this Act may be enforced by any court having jurisdiction under this Act’. ”
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    • “ The applicable legislation is the Child Support (Registration and Collection) Act 1988 (Cth). The Child Support Registrar has specific powers to aid enforcement, specifically: ”
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    • “ If a party is seeking to enforce a financial agreement, they must first seek an order pursuant to s 90KA, or s 90UN if it is a de facto agreement. Rule 20.02 Family Law Rules and r 25B.08 Federal Circuit Court Rules concern the agreement being valid, enforceable or effective. Such an application ... ”
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    • “ Pursuant to s 117B of the Act, interest may be charged “on monies ordered to be paid”, excluding periodic spousal maintenance. The rate of Interest is in accordance with Family Law Rule 17.03 and Federal Circuit Court Rule 22.01 and is 6% above the cash rate published by the Reserve Bank. The cash ... ”
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    • “ Can orders relating to property made in the family law courts be enforced overseas, and vice versa? The court has jurisdiction to make orders in relation to overseas property of the parties, but it is not that simple. ”
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