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Who Can Access My Family Court Records?

Like other family law lawyers, I am often asked whether non-parties (persons that are not directly involved in the family law litigation) are able to access the Court records relating to the case.

Documents filed in a family law case (and other documents relating to the case) are held in a Family Court case file.  This information is protected under the Family Law Act 1975 and the Family Law Rules 2004.  For example:

  • Rule 24.13 of the Family Law Rules 2004 limits those who are allowed to access the Court’s records in family law cases;
  • Section 121 of the Family Law Act 1975 limits the publication of reports of family law proceedings and of lists of cases. There are exceptions to this;
  • Family Law Judgments are reported by the Court in a de-identified form (for example, with pseudonyms replacing the parties’ real names).

There are also exceptions to the restrictions to a Court file, including research (Regulation 24.13(1)(d) Family Law Rules 2004) or by the Australian Taxation Office (Commissioner of Taxation & Darling (2014) FLC 93-583).

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Quick Questions Answered: Property Settlement Agreement

  1. What is a Property Settlement Agreement?

A Property Settlement Agreement contains the agreed terms to divide property between you and your former partner following separation. This includes assets, liabilities and superannuation.

  1. When Can I Get A Property Settlement Agreement?

You can finalise a property settlement agreement as soon as you and your former partner have decided to separate i.e. end your relationship.

  1. What if we are still living under the same roof?

You can be living under the same roof but still be considered ‘legally separated’. You do not need to be living in separate households; however, your relationship does need to have ended.

  1. What are the deadlines for obtaining a Property Settlement Agreement?

The Family Law Act 1975 (Cth) provides some “deadline dates” depending on whether you were married or in a de facto relationship. There are some exceptions however, the general rule is:

For married couples: You have 12 months from the date your divorce* comes into effect to make an application for a Property Settlement.

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How the Court deals with a significant financial contribution where the property value soared after rezoning

With the fluctuating property market and endless residential rezoning, how the Family Court deals with property introduced by one party to the relationship that has dramatically increased is sure to be a recurrent theme for separating couples.

Background Facts

In one recent case of Jabour, where the parties had been married for a long period and had raised three adult children this circumstance arose.

When the parties first got together the husband owned a 50% share in three blocks of land which he had purchased from his father in 1975 for $26,000.

11 years into the marriage the husband sold his share in two of the blocks to purchase the other 50% share in the third larger block.

The property acquired by the husband was later re-zoned for residential use causing the property value to increase significantly. The property subsequently sold in October 2017 for $10,350,000.

When the case went to Court to be heard by the Judge, the Husband proposed that the proceeds of sale from the property, after costs and expenses be distributed 70% to him and 30% to the Wife. The Wife sought a 50/50 split.
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Family Violence and Your Property Settlement Agreement

At the end of a relationship, couples are often faced with the issue of dividing their property. Due to the emotional nature of relationship breakdown, this task often proves tricky for even the best of couples. Where the couple is unable to come to an agreement, the Family Law Act 1975 (Cth) empowers the Court to make a property settlement agreement that it considers appropriate. In coming to a property settlement agreement, the Court considers financial and non-financial contributions to the relationship and the future needs of the parties. The conduct of the parties is generally not a relevant consideration.

Kennon and Kennon– A Case where the Court has taken into account poor behaviour by a party to the relationship in determining a property settlement agreement.   In the case of Kennon, the   Full Court of the Family Court suggested that domestic violence may be a factor that a Court can take into account when deciding what each spouse is entitled to in a  property split up.

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I Didn’t Know – How You Can Get Out of A Property Settlement Agreement

The Family Law Act 1975 (Cth) s 79A(1)(a)  allows the court to vary or set aside a property settlement agreement where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance. This includes where one party has failed to disclose his or her true financial circumstances. However, not every failure to provide full and frank disclosure during a property settlement agreement will amount to a miscarriage of justice. What is needed is to show that the failure to disclose has led the court to make an order that is substantially different from the order it would have made if full disclosure was made: Barker & Barker [2007] FamCA 13 [123].

 

Pendleton & Pendleton

In the case of Pendleton & Pendleton [2016] FCCA 285, the husband failed to disclose, among other things,

* A reimbursement of expenses amounting to $44,586.84,

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Domestic Violence Lawyer

Sadly, domestic violence is frequent in many relationships. It can have incredibly traumatic long-term effects on a person and once it has occurred, it quickly falls into a common pattern. However, domestic violence is a serious criminal offence and is neither justifiable nor acceptable. If you are a victim of domestic violence, a domestic violence lawyer at Matthews Folbigg Lawyers can provide you with the legal advice necessary to ensure your protection.

What is domestic violence?

Domestic violence can take many forms. Some of the most common types of domestic violence that a person can experience include:

  • Physical violence – unwanted physical contact such as punching, beating and slapping;
  • Emotional violence – behaviour such as name-calling that is directed towards humiliating a person, and affecting his or her confidence;
  • Economical violence –actions or behaviour intended to control a person’s use of their money especially when he or she is financially dependent on their partner;

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Property Settlement Agreement

The law encourages parties to negotiate and reach an amicable agreement as to the division of property following separation. If you have come to a Property Settlement Agreement with your former partner then you may wish to formalise this by entering into a binding property settlement agreement.

Sometimes parties come to an agreement without having properly considered the nature and effect of their agreement.

When negotiating a Property Settlement Agreement some things to keep in mind include the following:

  1. Property Settlement Agreements differ depending on your particular set of circumstances.
  2. A fair Property Settlement Agreement may depend on the length of your relationship or marriage and this is just one of the factors to be considered.
  3. There may need to be an adjustment for financial contributions made prior to the relationship by either party.
  4. There may need to be an adjustment for one of the parties’ future needs such as their age, health, ability to work and their earning capacity.

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Divorce Lawyer Parramatta Explains the Requirements for a Binding Prenuptial Agreement

Why it is important to speak to a divorce lawyer Parramatta

When formulating a Binding Financial Agreement, commonly known as a prenuptial agreement,  there is no requirement for Court approval and only independent legal advice is necessary in the execution of the prenuptial agreement. It is advised that you speak to a specialist divorce lawyer Parramatta who is well informed of the particular compliance criteria for a binding agreement to be formed.

Prenuptial agreements are very complicated and require strict compliance with legislation for the agreement to be valid. Appropriate legal advice from a divorce lawyer Parramatta is vital, as in the event that parties do separate and wish to enforce the agreement, the Court has the power to set it aside as invalid and unenforceable if it was not properly executed in accordance with certain criteria.

Requirements

A prenuptial agreement is binding on the parties to the Agreement if, and only if:

  1. The prenuptial agreement is signed by both parties.

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