The Family Law Act and The Courts

Happens, the Divorce Down Under podcast where we talk about anything and everything family law related.

Welcome to Split Happens, a divorce down under podcast where Liza and I, Alex, Talk about anything family law related and today we have uh selected the law, strangely, and by that I mean we're gonna have a chat about What are the courts involved? What are the actual laws that we talk about? Where does it come from? And some of the processes involved. So Liza, over to you. What is the overarching piece of legislation, act of parliament that we live and breathe every day?

The Family Law Act, nineteen seventy. Is this Jeopardy?

That's right.

Um so that's the main act that we us family lawyers um talk about when we're talking about an act or we're saying the law is this or the courts have the power to do that. Um, all of their powers stem from the legislation called the Family Law Act. And it's been around for a very long time. We've had some amendments along the way. I'm not gonna bore you going through all those sorts of amendments.

Please don't.

But essentially it covers anything from, you know, parenting matters, property matters. Um more niche sort of areas.

all the things that if people are unfortunately facing a family law situation of some sort That's the act that's gonna cover what's happening in their case. That's right. Who gets what property and who looks after the children and when can I get a divorce from this crazy person I'd be married? We've got the Family Law Act.

That's right. We had the family court and because when I started that we had the federal magistrate. Yeah. Yep. And now we have the F and C call. Which is which is cold.

They were all called that, haven't they?

They're the um Federal Circuit and Family Court of Australia. So they've combined the two

That really rolls off the tongue beautifully, doesn't it?

Yeah, it does. That's why I call it the F and C court.

F C F C O A.

Yeah, see that's just too many. There's too many Fs and Cs on that on.

Too many Fs in there.

In the court.

Courts. Moving on from the lawyers, however, and not our honor honourable brethren on the bench.

We would never say a bad word about that.

The courts these days though, because we used to have, as you say, I mean this only changed in twenty twenty one, didn't it? It was Yn yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n mynd. And said, We now just have the one court. And then They promptly divided the court against the

Back to back two. Um now it's now we have a div division one and a division two. So you might hear your lawyer talking about a div one or a div two. That's essentially saying Div one is like the old family court, and Div two, let's guess what that is, the Federal Circuit Court. It's the oldest.

And what's the difference between division one and division two? Br I mean, just roughly speaking.

Oh well Division One will do a lot more of the um complex matters.

Okay. What do what do you mean by complex?

Complicated property matters and high high net worth property matters as well as complex parenting where there's um serious allegations of sexual abuse, things like that.

All right. So the point the really pointy things that can take quite a long time in front of a judge.

That's right. And also they also um also take care of the appellate division now as well.

Well to to those non lawyers that might be listening, if there are any any listeners at all that is We've got two. Two lessons.

Hi. Hi two people over wherever you are.

I think it was in the States for some bizarre reason. So um welcome on board to uh Split Happens the Divorce Down Under podcast for our two American listeners. Um as far as division two is concerned, then that deals with Nothing to do with the appeal courts. And that's what you're saying about appellate courts. That's that's the um the the the relatively sort of straightforward, shorter trials. And then div one deals with division one deals with more complex matters and then above division one?

Well it's the it's the appellate it's not really another division, it's still within division one. I I don't even know how they break it up. I don't think anyone knows how they break it up just yet, but it's

Case by case, thank you.

It sits in there somewhere amongst Div 1.

Multiple judges from the Div One then sit as an appeal court effectively. So if you get a bad dis a DUF decision out of div div two, you might go to Div One for an appeal and a DUF decision out of Div One you'll go to Div One's appellate division which is multiple judges sitting deciding

Right.

Yeah. Okay, so that's our primary court that we Resolve things in.

That we respect. That's right.

First duty to the client is to try and keep them away from the doors of the court because once you're in You know, it's a revolving door that you don't really get to come out of again and without a judge deciding your future or you know, you and the other side having to agree something that you might not want. Rydyn ni'n ymwneud â ni'n ymwneud â ni'n ymwneud â ni'n ymwneud â ni'n ymwneud â ni'n ymwneud â ni'n ymwneud â ni'n ymwneud â ni.

We do. Um and there's Well there's the domestic violence courts, which are state based courts. Um so you've got your magistrates' courts and your local courts. You often have as well m in some places in in some instances you may m go to state based courts if you've got Somewhat um complex matter that overlaps with another area of law. So for example, you might have

That sounds like I'd need to go to a pharmacist to get something with equitable relief?

Yeah. Well w you know, unfortunately. Paracetamole doesn't fix it. But in terms of It it may be that you've got husband wife owner property and then you have a third party who's got husband's mother. So mother in law has another share in the property. Yeah. And there may be injunct there may be some claims in relation to um whether or not she's entitled to her one third share or what share she's entitled to.

Rydyn ni'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd i'n mynd

And and often the case is that um that parties will start matters in a s in a state based court. the F and C Court, that will con that usually deals with parties And it does deal with third parties but a lot of people they're going to get a better result. particularly if you can keep the family lawyers away from um their from from the case as much as possible and deal with it on principles of equity rather than the family law.

Right, because it's a slightly broader brush approach taken by the Family Law Act cases as they're dealt with by the FC F C O A. as opposed to a state court that might apply more what we would call black letter law?

They would But what often happens though is that a lot of the judges in the state based courts they end up uh in in most of my most of my that have been commenced in the state based court, once they find out that there's a marital dispute, they don't want to touch it. So they flick it over to the back over to the Federal Circuit and Family Court in any event. So because that

It's the proper jurisdiction really. When it's dealing with those relationship property issues, it needs to be dealt with there.

is. But um one of the things that us family lawyers have to be aware of is knowing The powers of those courts and understanding what what capacity, what jurisdiction that they that they hold in respect of each of the issues that we face for our for our clients and being able to understand, well, just because it's in the state based court, you can choose whether or not it's going to stay there. Or it may be better for your client to flick it back over to the Federal Circuit Family Court.

I guess that's a case by case decision, isn't it? You know, because y you'll know what the nature of the property is. In most cases that we encounter, um, you will be using the Federal Circuit and Family Court if you have to go to court at all.

Well I've I've looked at it um fairly I and I continue to look at it fairly recently'cause I'm I find that a lot of the time, particularly if if parties are wanting just to file a joint divorce application Um it's so much easier for me to refer the party to the website because It is very straightforward. They have these very useful that are available to download and it just they just talk you through the process. Um so it's actually quite a helpful resource.

It is, actually, compared to how it... A few years ago it was a little bit clunky. Um unlike a lot of websites, it's really improved enormously. It's very accessible. So I recommend if you are going through that that process to have a look at that. There's some good resources and some good sort of publications and guidance books on there as well.

So you've got applicants and respondents in in the Federal Circuit and Family Court, um in the state based. So in and you've got the applicant is whoever has filed the application and the respondent is the the party who's going to be responding to it. Um and you can often have third party

That's the divorcing couple or the the separated people. That's right. And what about the court officers? So there you know, there are plenty of registrars that work in the court.

That's right. So we got we got a lot of registrars and I think the courts put on an enormous amount recently, presumably to deal with a bit of the backlog.'Cause you may recall I think it was like twelve months ago, it was just an absolute chamozzle trying to get consent orders approved um by the court. There was a three month time between you'd file the application for the consent order and and the registrar wouldn't even be looking at it for at least three months before

Or just the sheer volume of work that they're having to get through.

That's right. And these are parties that have agreed on on They haven't even needed any court intervention as such. They just need an order. So they've put on a number of registrars and registrars can take a number a variety of different roles and Um, I collectively call them registrars. They probably don't like me saying that, particularly the senior judicial registrars would prefer probably prefer that I call them senior judicial registrar.

it's a quasi judicial role then. The senior judicial registrars they have got uh quite a lot of powers to make orders even uh on on a contested basis and interim

They do. So if we start more at the bottom um and work our way up to the top, you've got your registrars and and your deputy registration. other ones but they don't really have much power at all.

They sort of do the uncontested divorce.

Yeah, so And and they don't even have the power to order um to reserve. or order costs, there's there's no power for them to make any decisions. Really, unless it's by agreement.

So it's agreement decisions and it's sort of directions as to where this case is to head to next. Yeah. That's the sort of their role. And if you but it's a massively important role when you think about the the divorce applications and all the consent or Sending clients off to go and either onto the website or getting us to help them out with that. Those deputy registrars they get through a huge amount of volume of work.

They do. And just speaking about the consent orders. registrar would do, or the registrar, whoever is is that's going to be a little bit more than a little bit. approving or or looking at that consent order is that they will um do that in in their chambers, in their room. You don't have to go to court for that. So it's not like you have to appear before a registrar.

About directing people to exchange pieces of paper disclosure and things like that and compliance with the rules. enforcing those obligations upon people that they've already got.

Very limited.

And the judicial registrars are a s they're a step up from there and they have more powers to make decisions when people don't necessarily agree. And then senior judicial registrars have quite a suite of powers that

Yes, they do. As you said before, they're quasi judicial in terms of the ability for them to

For all intents and purposes they act as a judge on an interlocutory ghastly word I know, but you know, on an interim basis. You know, for those on the way you know, a case within a case type cases, that'll be your senior judicial registrar and they affect They're going to be a very experienced family lawyer.

Well the there's such a That can, as I said to you, make or break your Say for example you're wanting an injunction. You're wanting to stop from trading or from dispersing funds that have come into a company account. you're you've got an interest in you you really need that senior judicial re judicial registrar to grant that injunction. Otherwise those funds are gone. And that depletes the property pool and therefore when it gets to a trial, if those funds are gone

Get your case presented as well as you can in front of that senior judicial registrant so they'll make the orders you need. Because I think they also have the power to dismiss proceedings.

I do.

You don't comply and and if your case is really poorly put to the court, that senior judicial registrar might think you're wasting everybody's time, the case is over, go away and you'd have to start all over again and plead it properly this time.

For all your family law needs, call us on zero. Zero Triple or visit our website at arbanlegal.com.au.

So those are the those are our sort of us uh our registrars in the courts. So move from registrars then we have the two divisions, uh you know, division one, division two and th those are judges.

Judges in in division two.

So the justices are the more senior judge? They are. Okay. And they obviously deal with Div One cases, which are the complex, long trials, maybe issues to do with abuse, maybe issues to do with ex extremely complicated financial.

Yeah, and'cause you'll often start off start off in division two and once it's been triaged and you go through that process They may flick it up to division one.

I think you had one this week, yesterday.

Yesterday, yeah. So um we were ready for trial and the trial judge who was meant to hear it said, No, this matter needs to go up to Division One. Away we go. We'll find out a bit more in a couple of weeks, I guess.

Who's going to be your eventual judge and or justice?

Yes, the you've got um the family f well family report writers, family consultants, things like that who work with the court. They are those people who basically try and assess and give the court some guidance as to what to do in relation to the children, particularly in in parenting matters. I'm yet to see a family consultant. in a property matter, although sometimes I I wouldn't be surprised with all the the emotions that run run high in that

That's a really interesting idea, having a family report writer for a property matter.

Well, you know you can sort of get to the underlying issues a little bit more, perhaps but they're

The recommendations could be. Yeah. He definitely definitely does need all that extra money for his model train collection or whatever it might be.

So in terms of these social they're they're basically social workers or counsellors. Some um are qualified psychologists and psychiatrists and they will report back give them give the court some guidance on what to do with the children.

The the unique part about those people, those family consultants, family report writers, they are all approved by the Attorney General's office. So even if they are in private practice, They have effectively like you know a the badge from the A G's office saying you're an authorised person to deliver a report which is an independent piece of evidence that goes before the judge or the justice before a file.

Yeah, they've got to be properly qualified and um go through that that process.

You mentioned a minute ago psychologists and we obviously working in this field we encounter people who are going through some very turbulent emotional times. Very often it's uh we encounter clients who either are receiving psychological or even psychiatric help sometimes. Attending to your mental health needs is not seen as a as a bad thing, it's seen as a good thing.

One of the biggest referrals that I will often make um to my client is is for them to actually go and see someone, a counselor or psychologist or someone like that, so that they can get assistance with co-parent. and dealing with how to co parent effectively and dealing with that personality of the person that you thought you once knew or that you no longer have any feelings for or um because that in itself is actually quite a tricky thing to do.

The time is a big factor sometimes for people. It takes it can seem like it takes forever to get a case resulted.

Yeah, I realise that the courts are busy and there are the the court lists lately I get them every day and my mind is blown just with that are going through court at the moment. Particularly when there are all those other options. So you can just imagine how many other people aren't even in the

That's right. All the pe all those cases that we're running that nobody's filed any proceedings and we're trying frantically to keep people away from court.

Well, you know, majority of our cases are not in court, so It's it's just mind blowing. But in terms of getting the getting that client prepared to deal with that process and to deal with and coming to terms with you're at that stage where you are asking for the courts That judge, whether it be a judge or a justice, whichever division you're in, is going to make a decision and you're going to have to be able to live with it. So sometimes it does help to actually have that assistance.

The mental readiness, isn't it, for whatever outcome might be. And and being in a position to accept it and move forward with your life with that. So yeah, psychologists are uh increasingly important in in what we do and some of the counselling services. I I know that you and I both refer and and so do our colleagues.

Examine the books. A party's business. if there is an issue about trying to ascertain the value of that of the business because does get does form part of the property pool. Um even though it might be in the name then those sorts of things they're gonna you're going to need to have a value.

So before a court can make an order about I'm gonna divide up the property and you keep that business, you'll keep the house, you've got to know how much the business is worth.

parties have structured their affairs for a particular reason or a particular way over the years.

to pay as little tax as possible.

Well that's where I was going with because a lot of the time there are huge tax consequences for one when the party split. So they may have developed some family trusts and they may have created a number of different mechanisms for to getting out of their tax arrangements.

There's another expert needed there and that might be an interpersonal expert, like you go and get your tax advice. You'll have a forensic accountant that might value the business on behalf of the court, so to speak. They're appointed by a court order for the parties.

Well that's right. And the effect of any order. So when you when before I um often when I have a client who has said, Oh, I've come up with an agreement. This is what we've decided to do. And I look at it and I think Right. My first my th my first thought is what's the tax man gonna think of this? When parties separate and they can enter into a consent order or a binding financial agreement, there's often a lot of exemptions and stuff that do apply.

Yeah. Stem stem d on real estate is one, isn't it? Yeah. It's a massive one sometimes.

But a lot of the time and you and you'll also get the C G T capital gains tax rollover relationships. There's still um income tax penalties and there's still things. Um P A Y G has been unpaid in a business and there might be liabilities that are at uh attached to a a party and

And if husband and wife are directors, for example, it happens a lot of the time. Those directors could be liable.

That's right. And you can't just necessarily go, Oh, okay, I'm just going to transfer these liabilities to to my husband here because the tax man says, uh okay, maybe or I'll just He can indemnify you, but that's about it. Either you paid up front now or no, you're still on the hook for it. So it's really um you should get advice before you agree on anything that's

sign nothing, get advice. It's all I mean, that's always good advice in itself. But certainly I mean w we as you know as family lawyers we we don't give le uh sorry, we we don't give financial, we don't give tax advice, but we very often say

Go and get it.

and get it and and get it quickly because we don't want to frame or create, you know, a series of orders that might get signed. if it's going to plummet you into, you know, a a you know, a f a far worse financial position than you could otherwise be. So get that financial, get that tax advice, get that accounting uh accountant of your sort of looking into the consequences for you.

You'll probably need a formal valuation and it should be a joint valuation

So done under the rules of the courts.

They've been provided with the little sections That they're a proper expert. basis upon which they can Um might give this opinion.

And it's a shared cost then, isn't it? I mean it's depending upon the size of the real estate, I mean you could be looking at anything from a few hundred dollars to a few thousand devo dollars.

Yeah, a lot of a lot of the ones that I seem to come across are around about the fifteen hundred bucks. Yeah. And yeah, but shared that between the two parties. It's not actually a huge cost. Yeah. Um but another another expert that I often will use and that's broken. Um and I know it's unusual to call them an expert. A lot of a lot of brokers would think they're experts. Um and a lot of people who are the anti-brokers of the world will probably think no, that's they're far from it.

My borrowing capacity.

And not just your borrowing capacity but also what can you service that loan based on your It's a double edged sword. Um, we had a case once and you know, they wanted to put forward this position that they could afford all this money to pay the other party out. Now That's all very well and good. But they also wanted to put forward a position that based on their tax Um they couldn't afford to pay Michael you know, pay the other party the child support.

you know, they wanted to on the one hand to show that they could afford to pay the other party out and say So they want to increase their income. But then on the on the flip side they want to sh downplay their tax returns so that they have So it is it's a tricky.

That's a it is a tricky one. But and and again

jog my memory but that's another that's another area that I think that parties um frequently overlook when it t when it comes to getting that i i independent advice. speaking to their financial advisor or an accountant or someone who's in from that superannuation field is really, really important because you might have a client who has a large superannuation portfolio and it might be say a self managed superannu

Heaven help us from those.

Yeah, well But and and not much else. You know, how is how is that party going to be able to compensate the other party? Yeah.

How are we going to divide that?

And you know, you might have dad has a huge super portfolio in a um in a self managed super fund and mum hasn't got much But mum's, you know, needing to get a a decent share of this property pool.

How do we do that? I mean that I mean that's on a case by case'cause you've got to look at the trusteds and all those sorts of things. But the superannuation is probably it's a topic all on its own.

It is, isn't it?

When we'll save that for a day when it when it's pouring outside and we have run out of all other things to talk about.

There if you if you do want some super advice, um, uh and particularly with how it's going to affect your family law matter, um about that sort of stuff. But we're gonna get to that one in another episode.

We will. And yeah, again, the super advice is to get some advice about super.

That's exactly right.

Okay, so those are who's who in the Family Law Zoo to some extent. We have lawyers, we have judges, we have registrars, we have justices, we have um chief justices and we have appeal judges and things like that. Mae'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r yw'r. and different states and territories have slightly different names but