Prior to commencing parenting proceedings, parties must make a “genuine effort” to resolve their parenting dispute with the assistance of family dispute resolution (‘FDR’): Family Law Act 1975 (Cth) s 60I(1). The usual form of FDR that parties engage in is mediation with an accredited FDR practitioner. Often this take places through services such as Relationships Australia, however parties can engage an accredited private mediator (who is often an admitted lawyer) to mediate their dispute as well.
In 2005 and 2009, crucial amendments were made to the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth) that bestowed jurisdiction upon the Family Court of Australia in bankruptcy for married and de facto couples.
It is not uncommon for a spouse to accumulate debt following separation. If your spouse is partying it up, spending money on extravagant items, selling investments and increasing their credit card debt, it can make the family law property settlement problematic. This is because all assets and liabilities are included in the pool that is to be divided between the parties, and the value is at the current value, not the value at separation. What can be done about debts incurred post separation?
With the update of the Family Violence Plan in April 2019, the Courts have continued to recognise the importance of protecting those experiencing family violence, and the detrimental impact on the health and wellbeing of separating partners and children in situations of family violence.
Although the legislation relating to Financial Agreements seems clear-cut, Financial Agreements are often overturned or set aside by the Court for a variety of reasons. This makes it more difficult to guarantee that a Financial Agreement will indeed be ‘binding’. When considering the application and utility of Financial Agreements in practice, it is therefore prudent to weigh the advantages of entering into a Financial Agreement against the drawbacks or risks associated with it.
The duty of disclosure requires all those in family law to provide all information relevant to the family law proceedings. In family law financial cases this means that those involved are required to provide ongoing relevant information such as bank statements, tax returns and financial reports. However, it is not uncommon for some to be reluctant in disclosing relevant information. Afterall, if you disclose an asset then that asset may form part of the family law proceedings. So, it becomes difficult for those who are trying to get accurate and up to date information on those assets.
The Australian family law system is currently undergoing many changes, leading to a highly politicised and uncertain environment that has only exacerbated issues with the court system. While it may seem that governments and lawyers alike are the only beneficiaries of the inefficiencies of the family law jurisdiction, one form of alternative dispute resolution is on the verge of making a great resurgence that may make clients the real winner.