Blogby Elena Leonardos

Dividing Overseas Assets After a Divorce in Australia

If you or your spouse have assets located outside of Australia, you may be wondering how these assets will be divided in the event of a divorce. The process can be complex, and it is important to seek professional legal advice to ensure that your interests are protected.

Australian courts have jurisdiction to divide overseas assets in certain circumstances.

The first step is to determine whether the overseas asset is ‘matrimonial property’.

Once it has been established that the asset is matrimonial property, the court will then consider what order would be just and equitable in all the circumstances of the case.

A number of factors will be taken into account when making this determination, including but not limited to:

  • the financial contribution made by each party towards the acquisition, conservation or improvement of the asset;
  • the non-financial contribution made by each party;
  • the future needs of each party; and
  • the value of any other property owned by either party.

In some cases, it may be possible to reach an agreement with your spouse regarding the division of overseas assets without having to go to court. However, if you are unable to reach an agreement, you may need to commence proceedings in an overseas court.

It is important to seek legal advice from a lawyer who is experienced in dealing with international family law matters before taking any action.

Dividing assets located outside of Australia can be a complex process. If you or your spouse have overseas assets, it is important to seek professional legal advice to ensure that your interests are protected.

To take a step toward protecting what is rightfully yours, email us at info@alslaw.com.au to organise an initial consultation for the fixed fee of $330 inclusive of GST.

Blogby Elena Leonardos

Property Settlements and Gifts, How Does It Work ?

When separating from a spouse the property is divided, but does that include contributions from your parents, should your former partner benefit from that gift?

It is not unusual for parents to financially assist their child to give them a head start in life. This may look like a sum of money, land, or even a property! The gift can be an enormous head start to their child.

Often this type of generosity is informal and undocumented. Most parents do not anticipate the breakdown their child’s relationship and do not consider the affect a separation may have on the property gifted to their child.

What happens to a parent’s contribution?

When the relationship breaks down, there must be consideration of how the contribution would be dealt with in a property settlement.

The Court may treat the contribution in two separate ways:

  • Firstly, the Court may view the contribution as a loan that is to be repaid to the parents; or
  • Alternatively, the Court could consider that the contribution was made by the parents without the expectation of repayment.

It must be noted that the other side will often assert that the contribution is a gift. In doing so, the contribution will form part of the asset pool.

How do you establish the contribution is a loan?

You will need to consider if there were any written or oral terms agreed upon regarding the contribution. It may be a loan agreement if there is record of loan repayments, or if there is security taken for the loan.

The Court may find a contribution to be a loan in circumstances that there is a formal loan document.

However, in circumstances where there is little evidence to establish that the contribution was a loan, and no repayments had been previously made, it will be challenging to satisfy the Court that the contribution was a loan and it will likely be considered as a gift.

We recognise that it can be confusing to determine if a contribution from your parents is a loan or a gift. Please call us to make an appointment, Elena and the team look forward to helping you resolve your dispute.

Blogby Elena Leonardos

Financial Agreements or Consent Orders, What Is The Difference ?

Separation requires the division of property between the parties.

Why? Because if you do not legally formalise your agreement, you run the risk that one party may change their mind. This can be expensive.

There are two options to settle property matters: a Financial Agreement or Consent Orders. Both documents are a formal agreement regarding the division of your property, but are drafted and enforced in different ways.

Financial Agreements

A Financial Agreement is a private agreement between parties, so it is not subject to the Court’s review. However, Financial Agreements can be more complex and expensive to prepare.

A Financial Agreement includes background information about the relationship, identification of the assets and itemisation of what each party shall retain.

This agreement does not need to satisfy the ‘Just and Equitable’ test, therefore there is risk that the agreement may benefit one party more than the other. As a result, there is a larger risk that the document may be challenged by a party later if they decide to no longer be bound by it.

As there is a risk the Financial Agreement may not be just and equitable for both parties, each must obtain independent legal advice regarding the document. A Solicitor must sign a certificate that they have given the required advice.

Consent Orders

Unlike Financial Agreements, Consent Orders are filed with the Family Court. Consent Orders require two documents, those being an application for consent orders and a minute of order.

Consent orders form a written agreement that identifies both parties, liabilities, superannuation entitlements and contributions that were made to the relationship. The proposed orders will outline the orders you wish the Court to make regarding the division of property between the parties.

The Court must be satisfied that the proposed orders are just and equitable to both parties before they are approved. Once the orders are approved by the Court they are binding on both parties and cannot be amended.

It is important to note that parties must file the application for consent orders within a year of their divorce. This period is 2 years for the separation of de facto couples.

Which approach do I choose?

Both options offer advantages and suffer disadvantages. We recommend that you take a moment to consider the current circumstances and your relationship with your former partner to evaluate the best option for you. It is important that you receive proper advice as to which option is most beneficial to you. It is important to get your strategy in place.

Please call us to make an appointment, Elena and the team look forward to helping you resolve your matter.

Case Studiesby Elena Leonardos

Family Law Amendment Bill 2023

Feedback updated 8 Nov 2023
We asked

“From 30 January to 27 February 2023, we sought feedback on an exposure draft of the Family Law Amendment Bill 2023 (the Bill). The draft Bill proposed a streamlined parenting framework, including by simplifying the ‘best interests factors’ a court must consider in determining parenting arrangements, and removing the ‘presumption of equal shared parental responsibility’ and associated time considerations.

The draft legislation also proposed to:

  • introduce a requirement in the legislation for Independent Children’s Lawyers (ICLs) to meet directly with children
  • increase judicial discretion to appoint ICLs in matters under the Hague Convention on the Civil Aspects of International Child Abduction
  • provide courts with greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation
  • provide a definition of ‘member of the family’ in the Family Law Act 1975 (the Family Law Act) that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship
  • simplified compliance and enforcement provisions for child-related orders
  • create regulation-making powers to enable the government to establish schemes that set requirements for family law report writers
  • introduce an express power for courts to exclude evidence of ‘protected confidences’ in family law matters (that is, evidence relating to the provision of health services, such as medical or counselling records)
  • clarify restrictions around public communication of family law proceedings.

The release of the draft Bill was an opportunity for the community to provide feedback on the proposed amendments.

We prepared a consultation paper to explain the exposure draft and sought stakeholder views on key issues. We invited submissions in response to the wording of the proposed amendments and, in particular, to the specific consultation questions set out in the paper.

We asked

As a result of the consultation process, a number of important changes were made to the Bill to ensure the reforms best support Australian children and families:

  • The Objects provision in Part VII of the Act (relating to children) was amended to make it clear that safety should be specifically considered when ensuring that the best interests of children are met.
  • Amendments were made to the factors that the court must consider when determining the best interests of the child to provide clarity and address issues raised by stakeholders in relation to safety considerations, cultural considerations, the consideration of the capacity of each parent to provide for the child’s needs, and circumstances where a parent does not have an existing relationship with a child.
  • To address stakeholder concerns about potential unintended consequences associated with the removal of equal shared parental responsibility, changes were made to:

encourage parents to consult each other about major long-term issues prior to court orders being made

> make it clear that the court can make an order for joint decision making for major long-term issues

> clarify the orders that will invoke the requirement for decisions to be made jointly, and

> co-locate the provisions relating to parental responsibility to make the Act more user-friendly.

  • Clarifying changes were made to provisions around ICLs to:

> make clear that the exception where an ICL is not required to meet with a child due to the risk of physical or psychological harm only applies where that risk cannot be safely managed

> make clear that if an ICL is not required to perform a duty to meet with a child due to exceptional circumstances, that the court must consider this before final orders are made and not as part of every court event.

  • Changes were made to the provisions for harmful proceedings orders and for establishing an overarching purpose of family law practice and procedure to:

> make clear that in harmful proceedings against a party, the court must make an order about whether the respondent is to be notified about any further applications filed

> allow courts to dismiss applications for leave in harmful proceedings cases without an oral hearing or in chambers instead to enable the court to deal with harmful or unmeritorious litigations more efficiently.

> reorder the list of factors in the overarching purpose so that the efficiency of proceedings does not read as being secondary to safety factors.

  • In relation to the family report writers provisions:

> references to a ‘designated report’ have been changed to make clear it is a ‘designated family report’ in relation to family report writer provisions

> further detail has been included about who is considered a regulator, to specify who may be delegated powers and functions, and to specify relevant courts for the purposes of exercising regulatory powers and civil penalties.

  • The provisions relating ‘protected confidences were removed from the Bill prior to its introduction into Parliament. The government is seeking further views on this issue as part of the consultation process on a second tranche of family law reforms

Further amendments were made to the Bill following the Senate Legal and Constitutional Affairs Legislation Committee Report issued on 24 August 2023 and as a result of further consultation and stakeholder submissions to the committee. These include:

  • amendments to the ‘best interests’ factors to ensure the history of family violence, abuse and neglect are considered when determining the arrangements that would promote the safety of the child and their caregivers, and that courts must consider exposure to family violence
  • an amendment to give greater clarity to guidance surrounding the stand-alone factor for Aboriginal and Torres Strait Islander children
  • clarifying Aboriginal or Torres Strait Islander concepts of family and their obligations to court notifications
  • amendments to enable the removal of the higher threshold requirement for consideration of child’s objections to a return order in Hague Convention cases
  • amendments to ensure the Bill operates in line with the government’s policy intention to ensure that children’s best interests are placed at the centre of the family law system and its operation
  • addition of a review provision
  • changes to many application provisions to ensure that the changes apply to all existing court matters on commencement, excluding those where a final hearing has commenced
  • removal of the proposed costs provision specific to contravention proceedings to avoid duplication of the court’s discretionary power to award costs in family law matters.

We have published submissions where we have received permission from the author to do so. Some submissions have been redacted to avoid breaching section 121 of the Family Law Act, for privacy considerations and where there are concerns about copyrighted material.

The Family Law Amendment Bill 2023 passed the Senate, with amendments, on 19 October 2023. The House of Representatives agreed to the Senate amendments on 19 October 2023.

The Governor-General gave Royal Assent to the Bill on 6 November, 2023. It is now the Family Law Amendment Act 2023 (Act No. 87 of 2023). Most of the changes to the law will apply from 6 May 2024.”

Blogby Elena Leonardos

How The LPMC Assited Elena To Take Her Firm To The Next Level – And Grow From There

Article published 09 February 2023 by The College of Law – view here

For almost 15 years, Solicitor, Barrister and Business Owner Elena Leonardos has run her own law firm, Adelaide Legal Solutions – promptly resolving complex disputes for her clients.

However, when it came to putting her ‘business hat’ on, Elena welcomed help to boost her brand.

So when South Australia’s regulation rules changed, Elena had two options. She could apply for an exemption, or she could continue to expand her knowledge by completing the Legal Practice Management Course (LPMC).

She made her choice, and her vision for the firm’s future has never looked brighter.

Our thanks to Elena for sharing her story.

Starting my legal career was exhilarating, yet somewhat daunting. There was an expectation that I dive headfirst into serious litigious matters.

Fortunately, I was mentored by one of South Australia’s leading criminal lawyers. So I managed many complex criminal law cases very early in my career.

After three insightful years, and a two-month New York trip where I considered sitting the BAR, I decided to open my own firm back in South Australia.

I opened Adelaide Legal Solutions in 2011 where I predominantly practise family law. But I’m also kept busy with deceased estates, wills, criminal law and commercial dispute resolution.

In 2021, when South Australia’s regulation rules changed, I thought about seeking an exemption from the LPMC. But I never shy away from learning. The law is constantly evolving – so I should, too.

I enrolled in the College’s LPMC, excited by the opportunity to take my firm to the next level.

Building a network – and new business opportunities

I love to learn, but after 11 years working in business – and a Bachelor’s Degree in Business and Economics – I questioned what could be taught that I didn’t already know. Yet I went into the course with an open mind.

With the accelerated nature of the course, I was expecting it to be very content-heavy – with the potential to get dry. Contrary to my initial expectations, I found the content interesting and relevant.

And from the first day, I met all kinds of people – from principals of top-tier international law firms to local sole practitioners about to embark on their business journey. I was fascinated to learn how they ran their practice and their stories of working abroad.

I still keep in touch with the networks I made during the LPMC. I’ve received referrals from them and have sent matters their way when I felt their skillset was more suited to the client.

After putting our skills to the test during the course, we remain confident in each other’s abilities.

A course that cares

During the LPMC, we had three online assignments. Fortunately, the College was flexible when it came to deadlines.

As a busy full-time single mum, balancing a busy practice, staff, family and extra-curricular activities with study can be challenging – and there were times when I needed extra support from the College.

When I was late submitting an assignment, Graham Jobling – SA’s Executive Director – reached out to discuss the course’s requirements, and to make sure nothing was wrong.

Is everything okay? Do you need more time? How can we help?

I valued the College’s focus on wellbeing and achievable deadlines. The teaching team was always conscious of delivering the content as effectively yet efficiently as possible – because they understood time is a limited resource for lawyers.

And I’m glad they did, because the course content was invaluable to me and my business.

Analysing practice profitability

As a lawyer and business owner, learning on the job is part of the job. Even after 15 years, I’m still growing and aiming higher.

And the LPMC helped me achieve more of my goals.

During the course, I gained a range of alternative best-practice standards and strategies. As a result, I’ve made improvements to my business model. And the improvement in efficiency for my business and my clients is undeniable.

There was a focus on data analysis, which helped me look at the big picture. I can effectively analyse how much a longer lunch or an early finish impacts the growth of my business.

If I were to negate charging 12 minutes a day, for example, the overall cost to me would be profound. Now, I make sure my time in my workday counts.

The College also inspired me to engage a business strategist to analyse Adelaide Legal Solutions – and that alone was impactful and inspiring.

Because who knows? You could be running a practice that’s just a wage to you. Or you could be running a life-changing business that assists the community – while still making a comfortable living.

Mitigating business risks

The LPMC homed in on the day-to-day of running a business. It reminded me that while we strive for efficiencies for clients, rushing to finalise a matter is risky.

Family law is a high-risk category for complaints. Often, lawyers get in trouble because they’re so busy that they rush through matters to save on the client’s bottom line.

But in doing so, they’re just opening themselves up to complaints down the track. They’re also doing their clients a disservice – we’re paid to think, not to run.

Proper and considered advice is so important. I’m here to help my clients make informed decisions.

The LPMC reiterated this – and reminded me how important risk management and constant consideration of your policies and procedures are for taking care of client needs.

Expanding my business – and my impact

I opened Adelaide Legal Solutions to find legal solutions for people who have been entrenched in a dispute, or those who already have an agreement.

To me, the law should be about fairness and resolution – not retribution. I want to resolve matters swiftly but properly so people can get on with their lives with minimal damage.

And thanks to the valuable information I learned throughout the LPMC, I have developed a 12-month plan to expand the business.

I’m on my way to purchasing a second commercial premise. Our offices are comfortable and inviting.

I’m showing people that lawyers aren’t intimidating. We can create real solutions to help them achieve a fair resolution. I’m attracting the client base that I enjoy working with.

So to anyone considering this course: don’t hesitate. Completing your LPMC will expand your vision for your legal career and introduce you to impressive, inspiring professionals along the way.

Case Studiesby Elena Leonardos

The change to ‘equal say’ about to transform court custody battles

“Courts will have to consider a history of family violence as one of seven new criteria when new laws scrap the assumption of “equal shared responsibility” in the most significant change to parenting arrangements since 2006.

What’s in the best interests of a child will become the prime consideration in divorce cases when the controversial Howard-era legal presumption that parents have “equal shared responsibility” is abolished.

The seven factors that judges must consider – which have been simplified from the previous list of 15 – include a child’s safety, their views, the benefit of having relationships with both parents, and the child’s developmental, psychological, emotional and cultural needs.

The factors removed from the list include the lifestyle and background of a child and their parents, the attitude to parenthood demonstrated by each parent, how a change in circumstance would affect the child, and the parents’ prior efforts to spend time with the child.

Attorney-General Mark Dreyfus on Tuesday said he would move amendments that aligned with a Senate review – which called for explicitly adding the family violence condition – when the bill reaches the upper house in coming weeks.

But the most significant change will be abolishing the presumption of “equal shared parental responsibility” that separated parents have been entitled to since 2006, when it was introduced by the Howard government to address a historical bias against fathers’ custody.

It meant courts had to start with the presumption each parent gets an equal say in major decisions about their children, and included an associated provision that also required courts to consider time arrangements for children to spend with each parent.

However, the Australian Law Reform Commission found the law was being misinterpreted to mean both parents should see the child for an equal amount of time.

While Australian Institute of Family Studies research says only 3 per cent of separating families have their parenting arrangements determined by a court, the government believes the law serves as a guide to the rest of the families who negotiate their own arrangements.

Family lawyer Jodylee Bartal said Labor’s bill sought to make the first major changes to parenting provisions since the 2006 reforms.

“[The Howard-era reform] was a real shift from the days of the ‘Disneyland dad’, when the non-resident parent would typically see the child fortnightly, on weekends, sometimes in school holidays. It created a bit of a yardstick [around expectations for equal or significant time],” she said.

“These reforms are a positive change for people suffering family violence or coercive control. But for other families, the removal of that yardstick may mean there’s no starting point for engaging in negotiations.”

Bartal said the government’s intention had been to simplify the laws. “But as is often the case, simplifying things adds a bit of uncertainty. There is some concern that removing definitions broadens the potential outcome for families,” she said.

“There’s an increased potential for litigation while the kinks are being ironed out.”

Attorney-General Mark Dreyfus said when introducing the bill earlier this year that the government recognised that “for most children, it is strongly in their best interests to have a loving and nurturing relationship with both parents after separation”.

“The simplified list of best interest factors includes consideration of the benefits to children of having a relationship with each of their parents, where it is safe to do so.

“However, it is necessary to amend the law so it is clear that there is not, nor has there ever been, an entitlement for parents to spend equal time with their child after separation.”

The Senate review also called for stronger safeguards to protect parents from disclosing confidential information, such as personal health records and counselling notes, when there was no value to giving the information.

Greens Senator Larissa Waters, who championed that amendment, said she was glad the government would act to stop subpoenas being weaponised in court.

“Stakeholders have suggested that a blanket ban on access to medical or psychological records is not always helpful, so we support the department’s moves to redraft that section of the bill in a way that ensures [complexities] are taken into account,” she said.

Labor’s bill also introduces a requirement for independent children’s lawyers to meet directly with children, and for the court to consider the right of Aboriginal or Torres Strait Islander children to maintain their connection to their family, community, culture, country and language.

Senator Tammy Tyrell said she would also support the bill. “It puts the focus back on the children, and the best outcome for them. That can only be a good thing. There’s been a couple of reviews that have recommended these changes, and I’m glad they’re being acted on,” she said.

The bill should sail through the Senate with sufficient crossbench support and come into effect six months after it is passed.”

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