Getting agreement about property through the courts

Most family law property matters are resolved by agreement.

Sam McGee has written previously about how family law disputes can be resolved without going through the courts at all.

Even when court proceedings have been started, in the vast majority of cases a compromised agreement is reached at some point.

Whether or not there are court proceedings on foot, it is critical that once an agreement has been reached it is made binding. One of the ways to make an agreement binding is to apply for final orders to be made by consent.

Even when by consent, final orders can only be made by the court if the court is satisfied that, in all the circumstances, it is just and equitable to make those orders.

This means that getting final orders by consent really has two steps:

1. Coming to an agreement with the other party, and
2. Persuading the court that the agreement is “just and equitable” so that orders can be made.

In a recent case listed in Melbourne, a husband and wife reached an agreement for a property settlement that provided for the wife to receive a payment from the husband of $30,000. This was out of an overall property pool of $251,000 (non-super) and $54,000 (super). The husband was retaining the rest of the pool and all of his super.

Effectively, the wife was getting between 9% and 10% of the overall pool.

Court proceedings were already on foot (and a final hearing was a week away) when the agreement was reached. The husband and wife sent their agreement to the court and requested that final orders be made by consent. The agreement appears to have been sent to the court without any supporting information explaining how the agreement was a just and equitable outcome.

Federal Circuit Court Judge Anthony Kelly directed that the parties file an agreed Statement of Agreed Facts so his Honour could consider whether he could make the orders as agreed.

A statement of agreed facts was filed, but his Honour found that he “could not, without more, make a final order approving the parties’ proposed compromise.”

Reading the judgment, it seems that there was just not enough meat on the bones in the Statement of Agreed Facts to justify the agreement. This resulted in an exchange in court where his Honour commented “I am concerned that an award of 9% [to the wife] for even a relatively brief marriage is not just or equitable and I cannot approve it and will not approve it.”

It is difficult to imagine that after that exchange the wife would have still been prepared to agree to only a payment of $30,000.

To me, the lesson from this case is less about whether or not the agreement was fair and more that it is very important that when asking a court to make consent orders a lot of care and attention goes into explaining why the agreement is an appropriate outcome. Skimping on this step can result in further delays, more costs and – worst of all – it can disturb the agreement altogether.

It is possible to make agreements about family law property settlements binding without going through the court system and for advice about that or any other aspect of your family law matters you can see a member of our Family Law team by calling 03 5445 1000.

Cash under the mattress – when is a final property order not a final property order?

Whether in court or around the living room table, former couples trying to agree on property settlement have an obligation to provide a complete picture of their financial circumstances.

This obligation is very broad and set out in some detail in the Family Law Rules 2004.

Even when making property settlement orders by agreement, the court needs to be satisfied that the proposed split of property is just and equitable. There is no way a court can determine that if there is not a complete picture of each party’s property, liabilities, income and financial resources.

This obligation can also work to level the playing field where perhaps one spouse has a lot more control or understanding of the finances then the other.

What happens if not everything is disclosed?

Even after final orders have been made, a party can apply to set aside all or part of those orders taking into account the non-disclosure.

If that party can prove to the satisfaction of the court that there has been a non-disclosure that amounts to a miscarriage of justice, the orders can be set aside, varied or replaced with new orders.

The same may go for a party failing to disclose something before signing a binding financial agreement (or “pre-nup”).

Before making such an application, there are some things to consider, including:

• Can I prove the non-disclosure? You may find payslips or bank statements showing income or savings that were never disclosed, it may be that simple. But what if the allegation is under-the-table payments or cash under the mattress – what evidence can you provide to the court to show it exists?
• Did you request detailed financial disclosure before the orders were made?
• Is the non-disclosure so significant that it makes the orders unfair? What orders would be made instead? Would I be better off? Could I be worse off?
• Have I disclosed everything? Make sure your own house is in order.

Of course, it is much better to not have to um and ah about applying to set aside final orders by ensuring that there is full and frank financial disclosure before any final agreement is reached. An experienced family lawyer should be able to advise you about what disclosure should be requested and exchanged to enable a swift and appropriate agreement about your property matters.

There are other circumstances that can lead to an application to set aside final orders. If you need advice about this or other aspects of family law, make an appointment with one of our family law team.

Marriage equality: we have a right to be 'really boring' too

Not long after his marriage, OFRM lawyer and president of the Bendigo Law Association, Tom Wolff penned an article on marriage equality for the Bendigo Advertiser. The link to the article can be found below. In it Tom reflects on why he and his partner decided to get married and how that contrasts to their friends who do not want to marry and those who are currently prohibited from doing so.

Marriage equality: we have a right to be 'really boring' too

When do kids get to make up their own minds?

Of all the issues involved in family law matters involving children, the issue where I suspect the most misinformation exists is whether there is a magical age where children can decide for themselves what the parenting arrangements will be.

Clients assure me that their GP/teacher/friend/counsellor said wait until the child is [insert age here], then it will be up to them.

They have “a friend who went through all this before” and were told that a [insert age here] year old does not have to see Mum or Dad if they don’t want to.

Let me put the issue to rest – there is no magical age.

Technically, the Family Law Act gives power to courts regarding children from the moment of birth to their 18th birthday. What happens in those years in between?

When determining parenting arrangements, the paramount consideration for Australian Courts is what is in the best interests of the children.

It is true that for your average child (not that your child is in any way average), the views of a 15-year old would carry more weight than an 8-year old. But what about a particularly immature 15-year old? Or a very strong-willed 11-year old? Or a 17-year old with a significant intellectual disability? What happens when promises of Xboxes and tickets to see Justin Bieber are influencing the views?

The views and wishes of a child are just one of many things considered when working out what is in that child’s best interests. The importance given to a child’s view can be given more or less significance having regard to:

• Not just the age, but the maturity of the child.
• How strongly the child’s views are expressed and held.
• The existence of other factors, such as factors around a child’s safety, etc.

If a matter is in court the children’s wishes may be determined in a range of ways including the tested evidence of the parties, a family report or an independent lawyer for the child. If court proceedings are not part of the picture a child could be involved through child inclusive mediation.

Once final parenting orders made under the Family Law Act, they are intended to have full force and effect until the child or children turn 18. So what should you do if you have a child under 18 that refuses to see the other parent – or if you are that other parent?

There may be both legal and non-legal solutions this issue, whether or not there are court orders in place. To get advice about this and any other Family Law matters, make an appointment with a member of the Family Law team at O’Farrell Robertson McMahon by calling 03 5445 1000.