Who gets to keep the family pet in a property settlement?

Family pets that meet the definition of a companion animal will be considered a separate form of property under the framework of the Family Law Act 1975 (“the Act”) from 10 June 2025. While companion animals will still be regarded as a form of property, this change implemented by the Family Law Amendment Act 2024 aims to recognise the unique qualities of pets as property by elevating their status to reflect the emotional attachment that many owners have with their pets.

A family pet is considered by many to be synonymous with a child, and parties to family law disputes will often seek that their family pet be subject to care arrangements similar to those of children. However, this only works if parties are amicable and is not something that the court will make orders about. The new amendments confirm that it is not open for the court to make orders for shared care of a companion animal.

Relevant Legislation

The process for determining who keeps the family pet from 10 June 2025 will be as follows:

1.    An animal or pet must first meet the definition of a companion animal under section 4(1) of the Act.

Companion animal means an animal kept by the parties to a marriage or either of them, or the parties to a de facto relationship or either of them, primarily for companionship, but does not include:

• An assistance animal within the meaning of the Disability Discrimination Act 1992; or

• An animal kept as part of a business; or

• An animal kept for agricultural purposes; or

• An animal kept for use in laboratory tests or experiments.

2.    The Court may only make one of three orders about companion animals under section 79(6) (or section 90SM(6) in the case of de facto relationships).

These include:

• That only one party, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or

• That the companion animal be transferred to another person who has consented to the transfer;

• The companion animal be sold.

This means that the court cannot make orders for the shared care of a pet or companion animal.

3.    The court must refer to a non-exhaustive list of considerations under section 79(7) (or section 90SM(7) in de facto relationships) in determining what order to make about a pet or a companion animal.

These considerations are:

• The circumstances in which the companion animal was acquired;

• Who has ownership or possession of the companion animal;

• The extent to which each party cared for, and paid for the maintenance of, the companion animal;

• Any family violence to which one party has subjected or exposed the other party;

• Any history of actual or threatened cruelty or abuse by a party towards the companion animal;

• Any attachment by a party, or a child of the marriage, to the companion animal;

• The demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party;

• Any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

This new framework also aims to support survivors of family violence in retaining their companion animal and recognises that pets can often be used by a perpetrator of family violence as a tool to coerce or control a victim.

If you or someone you know is considering what to do with their pet as part of a separation, our specialist family lawyers at Robinson + McGuinness can provide you with assistance. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

Estate Litigation: who pays the costs?

Estate litigation can be complex, emotional and expensive. Estate litigation includes challenges to wills (including over their validity or a family provision claim); disputes over the administration of estates; and applications for Court directions. These proceedings often involve executors, beneficiaries, and other interested parties.

Unlike ordinary civil litigation, estate disputes frequently involve questions about the deceased’s intentions and the proper administration of their estate; this means that there are some circumstances where the Court’s assistance is required, even when no wrongdoing by any party is alleged.

It is therefore important to understand how the Court will approach the matter of legal costs before commencing estate litigation.

Unlike civil litigation, where costs usually “follow the event” – i.e. the losing party pays the costs of both parties, estate litigation applies a more nuanced approach to the issue of costs and considers the nature of the dispute and the conduct of the parties.

One of the primary cases that the Court will consider when dealing with costs in estate litigation is Buckton v Buckton [1907] 2 Ch 406. The case of Buckton v Buckton sets out three broad categories to guide Courts in determining whether the costs of estate litigation should be paid from the estate or be borne by the parties themselves. The categories are as follows:

1.    Necessary Guidance on Will Construction

Where a trustee or executor applies to the Court to obtain direction on how to administer a will or trust, the costs are generally paid out of the estate. This is because the application is seen as being in the interests of all beneficiaries, and it is necessary for the proper administration of the deceased’s wishes.

For example, If a written will is ambiguous and the executor seeks the Court’s guidance on how to interpret it, all parties will benefit from the Court’s decision. Therefore, the estate typically bears the legal costs of all parties.

2.    Reasonable Disputes Among Beneficiaries

In cases where there is a genuine dispute amongst beneficiaries about the interpretation of a will or the rights of parties, and the parties bring the matter before the Court in good faith, the Court may order that costs be paid from the estate. However, this is subject to judicial discretion and the reasonableness of the parties’ conduct.

For example, If beneficiaries disagree about whether a clause in the will gives a life interest or an absolute gift, and they go to Court for clarity, the costs may still be shared by the estate if the dispute was not without merit.

3.    Contested Litigation

If a party initiates contested litigation, especially to challenge the validity of the will or for personal gain (i.e. a family provision claim) and the challenge is unsuccessful, the Court is less likely to order that their costs be paid from the estate. In these cases, the unsuccessful party may have to bear their costs and potentially those, or a portion of those, of the other parties.

For example, A disgruntled family member challenges the will, seeking additional provisions to be made for them without a strong basis and loses. The Court may see this as an unnecessary expense for the estate and decline to reimburse their legal fees. It is possible that the Court also requires the losing party to pay the estate’s costs (as the estate will have been required to participate to some extent in the proceedings).

While the case of Buckton v Buckton is over 100 years old, it remains a foundational case in the consideration of estate litigation costs. Courts routinely rely on the above categories to exercise their discretion fairly and equitably.

In exercising their discretion, the Court is also likely to consider matters such as:

• The conduct of the parties;

• Whether litigation could have been avoided through mediation, and

• The impact of any costs order on the estate’s assets and the beneficiaries.

If you are involved in estate litigation, whether as an executor, beneficiary, or other interested party, it is essential to understand the rules governing costs.  Legal fees can quickly accumulate and/or erode the value of the estate, particularly in contentious disputes. 

The above summary is a guide only and should not be taken as legal advice.  Each matter is unique, and it is essential to seek specialist legal advice early to understand how costs in the matter will likely be addressed.

 Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced estate lawyers.

Guiding you through Court proceedings: the first return

If you are involved in Court proceedings, or are considering whether to commence proceedings, you will learn that there are a number of Court events that all serve different purposes and will occur at different stages of the proceedings in a Court matter.

This blog post is designed to walk you through common Court events and shed light on at what stage of the proceedings they are likely to occur.  Today, we will focus on the ‘first return’.

What will happen at the first return?

The first return is usually the first time your matter comes before the Court. The purpose of this listing is to determine what needs to happen next to progress the matter, including making orders for any procedural steps that need to take place.

What if my matter is urgent?

For urgent issues that require the Court’s determination, the matter might be listed for an interim hearing, either on a different day or on the same day.  The Court can also make procedural orders to prepare the matter for an interim hearing, which might include ensuring that both parties have filed their Court documents, and making orders for the preparation of any additional material necessary to assist the Court to make an interim decision.

An interim decision is a short-term, temporary decision, usually made pending a final decision.

What type of procedural orders will the Court make?

The Court can make procedural orders to assist with any evidence that will be required for the Court to make a determination.  For example, in financial matters, the Court may make orders for the appointment of Single Experts to prepare valuations of certain assets (such as a business interest, real property or personal property such as vintage motor vehicles or artwork). The Court can also make orders for the provision of certain disclosure, where a party is non-compliant.

In parenting matters, the Court can make orders for the appointment of a private Single Expert to prepare a report, or appoint a Court-based expert to prepare a report.  The Court will also consider whether it is necessary to make orders compelling certain agencies (such as police or child protection agencies) to provide to the Court any material they hold about parents and/or children in a matter. 

In particularly high conflict matters or if other conditions are met, such as serious risk issues, the Court may consider the appointment of an Independent Children’s Lawyer for any children the subject of the proceedings.

What if an interim hearing isn’t required?

If an interim hearing is not necessary, the Court can also make orders for the parties to engage in dispute resolution, such as a mediation, a family dispute resolution conference or a conciliation conference.

Who attends the first return?

Typically, the matter is listed before a Judicial Registrar with delegated powers which are more limited than a Judge’s powers. 

You will need to attend, as will the other party.  Your respective lawyers will also attend.  If you have a lawyer, they can speak on your behalf and make submissions about what they say needs to happen next in your matter. 

Whilst various States and Territories differ, the listing may occur in person or by videoconference.

What do I wear?

You should wear business attire or smart casual clothes.  Most people will be wearing a jacket at the Court too. 

Why should I have a lawyer at the first return?

Whilst it is not compulsory to have a lawyer act for you at the first Court event, it can have a significant impact on the future progression of your matter.  For example, in an urgent parenting matter, it can be extremely important to ensure that a matter is progressing quickly to reduce the potential impact of delays, which could cause prejudice to your case. 

Our specialist family lawyers here at Robinson + McGuinness can guide and support you through your Court proceedings, from start to finish. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

The importance of objectivity in your family law matter

Being involved in a family law matter is difficult. It can be emotional, stressful, and costly. For these reasons, it can be easy for an individual to lose sight of the ‘big picture’ when they are involved in Court proceedings or prolonged negotiations.

Family law matters involve sensitive issues, such as care arrangements for your children or the division of matrimonial property. These issues can also extend to family violence matters, which can impact other areas such as your employment and future opportunities.

If you are engaged in Court proceedings, you will be asking that the Court make orders in your favour (rather than in favour of your former partner).

Whilst it is important to place necessary evidence before the Court in support of your application, you should be mindful that your former partner will read this evidence. If you are in parenting proceedings, you will want to ensure that you frame any allegations against your former partner in a nuanced and considered way.

It is crucial to remember that after the Court proceedings have concluded, you and your former partner are still the parents, and you will likely need to work together to co-parent any children you have together.

When negotiating agreements about children, and particularly if you are entering into final consent orders, you should be aware that orders are final and viewed as the arrangements that will remain in place until the children reach 18. Final orders are difficult to vary without the consent of the other parent.

If you share joint decision-making responsibility, you will need to consult with your former partner to reach agreed-upon positions about long-term decisions for your children, including matters like what school they will go to, what religion they may practice, and medical treatment options.

You may need to work together on a day-to-day basis, for example, if the children leave something at the other parent’s house and vice versa, or if the children participate in extra-curricular activities and you cannot be in two places at once.

You should also give some thought to the coparenting relationship you want your children to see.

Similarly, in property matters, the Court is not interested in making moral judgements. Your evidence is often much more effective and persuasive when it is directed to the relevant facts.

When you are involved in a contested matter – and whilst easier said than done – it is useful to focus on the bigger picture and try to look at the situation objectively. Our family lawyers are highly specialised and experienced in remaining settlement-focused and will discuss with you options to resolve your matter in a way that limits damage to your co-parenting relationship. Here at Robinson + McGuinness, we can guide you through your family law matter with an objective lens, whilst remaining focused on ensuring that you secure a desirable outcome.

To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au, or get started now online.

What to consider when applying for an airport watchlist order

Some parents may have concerns about their children being taken overseas, without consent or a Court Order permitting such travel. In these serious circumstances, parents can apply to the Federal Circuit and Family Court of Australia seeking that their child be placed on the Airport Watchlist.

The Airport Watchlist is managed by the Australian Federal Police, and places an alert on a child’s name, date of birth and passport. When trying to leave the country, an alert will be issued that the child is not permitted to leave.

To apply to have a child’s name placed on the Airport Watchlist, a parent must file an Initiating Application with the Federal Circuit and Family Court of Australia seeking such orders. Once filed, a request form with the sealed Initiating Application can be sent to the AFP, and the child will be placed on the Watchlist within a few hours.

In making such an application, it is important to consider the following:

1. How urgent is your application?
If you are concerned about an imminent risk of a child being taken unlawfully from Australia, you can make an urgent, after hours application to the Court for an Order, rather than filing an Initiating Application. It is important that you seek legal advice as soon as possible if you are concerned about a serious, imminent risk.

2. Why are you concerned about the other parent travelling overseas?
You need to have a good reason to seek that a child is placed on the Airport Watchlist. For example, in a situation where the other parent has connections to another country, they have packed up or sold their house, they have quit their job and the child has a passport, this may be sufficient to cause reasonable concern that the other parent will take the child overseas, and warrant an Airport Watchlist application.

3. Does the child have a passport or any way of travelling overseas?
You need to consider whether the other parent has access to the child’s passport, or whether they can make a sole application for a passport if the child does not have one.

4. Do you want to travel overseas in the future?
If you make an application seeking that a child be placed on the Airport Watchlist, you need to be aware that this means the child will not be able to travel, even if they are travelling with you. This is called an “absolute” order. You can instead make an application for a “conditional” order, which would permit you or the other parent to travel if you have written consent. It is very important to notify the AFP if you intend to travel with a child where there are “conditional” orders requiring the child to be placed on the Airport Watchlist.

If you are concerned that your child has already been taken overseas, you may be able to make an application seeking the return of the child under the Hague Convention.

You should seek legal advice from a family law specialist if you are considering making an application to place your child on the Airport Watchlist. Please contact Robinson + McGuinness Family Law on (02) 6225 7040, email info@rmfamilylaw.com.au, or get started online with one of our experienced family lawyers.

What Is a Testamentary Trust?

A testamentary trust can be a powerful tool for protecting assets and providing for beneficiaries of a deceased estate.  

What Is a Testamentary Trust?

A testamentary trust is a type of trust that is created by a person’s Will and comes into effect only after their death. It does not exist while the person is alive. A testamentary trust sets out how the deceased’s assets are to be managed and distributed for the benefit of specific beneficiaries.

The executor of the Will will oversee the establishment of the testamentary trust, and a trustee is appointed to manage the trust assets according to the terms set out in the Will.

A testamentary trust can last for many years.  The exact duration will be set out in the terms of the trust; often, a testamentary trust will have a vesting date which is some decades after it comes into effect or upon the beneficiaries of the trust reaching a certain age.

Types of Testamentary Trusts

There are two common forms of Testamentary Trust:

1. Discretionary Testamentary Trust: The trustee has discretion over how and when to distribute income and capital among the beneficiaries. This allows for flexibility and potential tax minimisation.

2. Protective Testamentary Trust: Designed to protect vulnerable beneficiaries, such as those with disabilities or those who may not manage money responsibly. These trusts may be very prescriptive about how the trust assets can be applied and when.

Benefits of a Testamentary Trust

There are some benefits to a testamentary trust, including but not limited to:

• Asset protection: The trust's assets can potentially be protected from claims by creditors or financially irresponsible beneficiaries. There may also be some protection from estranged spouses of a beneficiary; however, this will be case-by-case dependent and not guaranteed.

• Tax advantages: Income distributed from a testamentary trust to minor children is taxed at adult rates, not at the higher penalty rates that typically apply to income distributed to children. This can result in tax savings for families. Please note that this is not financial/taxation advice, and a person seeking to establish a testamentary trust should also consult with and obtain specialist taxation advice.

• Control over distribution: Through a testamentary trust, a person can specify when and how beneficiaries receive assets, which is useful if it’s not intended that young or vulnerable individuals have access to lump sum assets immediately.

• Estate planning flexibility: Testamentary trusts allow for the ongoing management of wealth throughout multiple generations.  This can be helpful if a person wants to try to retain assets within the family.

While testamentary trusts offer many benefits, they also come with responsibilities and potential complexities. Trustees of a testamentary trust have legal obligations and may need to file tax returns for the trust. When identifying who the trustee will be, a person needs to carefully consider who will be able to carry out the role.  It is also important to seek independent legal advice from an experienced estate planning lawyer when establishing a testamentary trust; it’s important that the terms of the trust (which are contained in a person’s Will) correctly reflect the deceased’s intentions, or there can be long-ranging consequences. 

 Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au, or get started now online with one of our experienced lawyers.

I have been appointed as an Executor in a Will; what now?

An Executor is the primary person responsible for the administration of a deceased estate. Appointed by the deceased in their Will, the Executor is responsible for ensuring that the deceased’s wishes are carried out in accordance with the Will and that the estate is distributed properly. This role can be complex and demanding, involving legal, financial, and practical tasks. Understanding the full scope of an Executor’s responsibilities is essential for anyone considering taking on this role or for those identifying who they wish to appoint as the Executor of their Will.

What Does an Executor Do?

An Executor has a fiduciary duty to act in the best interests of the beneficiaries of the estate. This means they must carry out their responsibilities with honesty, integrity, and due diligence. Their primary goal is to ensure that the deceased’s estate is administered according to the Will, and if the Will is unclear or doesn’t cover all assets, the executor must follow the laws of intestacy.

Key Responsibilities of an Executor

1. Locating the Will and Applying for Probate

The first task of an Executor is to locate the deceased’s last Will and confirm the document’s validity. If the Will is valid, the Executor will then apply to the Supreme Court for Probate. Probate is a legal order that confirms the Executor’s authority to manage the estate.

2. Notifying Beneficiaries and Creditors

Once Probate has been granted, the Executor is responsible for notifying all beneficiaries of the Will. The Executor must also inform creditors of the estate, giving them an opportunity to make claims for debts owed by the deceased. The Executor must ensure that the debts are settled before distributing the estate.

3. Managing and Protecting Estate Assets

Once Probate has been granted, the Executor must take control of the deceased’s assets, which may include property, bank accounts, investments, and personal possessions. It is the Executors duty to protect the estate assets until they can be properly distributed. In some cases, this may involve insuring property, paying bills, or managing investments to preserve the estate’s value.

4. Paying Debts and Taxes

Before distributing the estate’s assets among beneficiaries, the Executor must pay the deceased’s debts. This may include mortgages, credit card bills, loans, and outstanding medical expenses. The Executor is also responsible for filing the deceased’s final tax return and ensuring any taxes owed by the estate are paid.

5. Distributing the Estate

After all debts, taxes, and expenses are paid, the Executor can then distribute the remaining assets to the beneficiaries as per the terms of the Will. If any assets are sold, the proceeds must be divided according to the Will. If the Will is unclear or a dispute arises, the Executor may need to seek legal advice or Court intervention. In the ACT, an executor must wait 6 months from the date of the deceased’s death prior to distributing the estate to the beneficiaries; this is to protect the executor from personal liability should a claim be made on the estate.

6. Keeping Accurate Records

Throughout the process, the Executor must keep detailed records of all transactions, including payments, asset distributions, and correspondence with beneficiaries and creditors. This documentation is essential to demonstrate that the Executor has fulfilled their duties and complied with legal requirements.

Being an Executor comes with significant legal and ethical obligations. If the Executor fails in their duties, then they may be held personally liable for any losses or damages to the estate or beneficiaries. Executors should seek professional advice (including but not limited to legal, financial and taxation advice) where necessary to ensure they meet their obligations, and they must always act in the best interests of the beneficiaries.

If you have been appointed as an Executor, it is prudent for you to obtain legal advice early. Robinson + McGuinness can assist you in understanding the role of Executor, apply for Probate, and subsequently administer the estate. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started online with one of our experienced lawyers.

Mediation in family law: what is it and should I do it?

Mediation is a dispute resolution process which you can participate in to resolve your dispute.  The mediator (a neutral third party) will usually be specialised in family law and works with parties and lawyers to try to reach an agreement. 

Following a separation, you may receive legal advice about resolving parenting or property matters.  Undoubtedly this will include advice about how best to resolve your dispute and the various processes to achieve an outcome.

Participating in mediation is an effective tool at almost all stages of a dispute.  For example:

1] Mediation can be an effective tool to resolve interim issues where emotions are high.  In a property settlement matter, this can include who remains living in the former matrimonial home and who will be responsible for joint liabilities (such as mortgage repayments and insurances).

2] You can also participate in a mediation at an early stage, which can be a good way to keep your matter out of Court, reducing the stress and other costs of contested litigation.  In a property matter, you will ideally be able to come to the mediation with a balance sheet setting out the values of the assets, liabilities and superannuation in your property pool.  If some valuation issues remain, you can still participate in mediation and reach agreement to value those items after the mediation.

3] If you are involved in Court proceedings, mediation is still a helpful tool to assist you and your former partner to reach agreement.  Dispute resolution is encouraged by the Court at all stages in the process.  Even if you do not reach agreement about all matters on a final basis, mediation can assist you to narrow the issues in dispute.

There are a number of different styles of mediation – some mediators like to use a conciliatory approach and will offer their opinions; whilst other mediators remain neutral and do not offer any opinions. 

There are a number of different mediation processes -  you can participate in a private mediation (funded by you and/or your former partner); a Family Dispute Resolution Conference convened by Legal Aid ACT (if you or your former partner meet certain requirements); or if you are involved in Court proceedings, you may be able to participate in a Court-based dispute resolution process.

Where family violence considerations exist, you can still engage in mediation however the mediator (and any lawyers) will likely put in place safeguards to ensure there is no undue pressure on a party participating in the mediation.

Some mediators will facilitate a mediation without lawyers, however it is usually recommended that you obtain advice prior to engaging in mediation to ensure you are aware of your rights and obligations under the law. 

If you are considering participating in a mediation and would like to some advice about your strategy and position; or if you seek representation to participate in a mediation, our experienced family lawyers at Robinson + McGuinness can provide you with further assistance, tailored to your particular circumstances. Contact us today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online.

Family Court proceedings - why am I in the “Evatt List”?

The Evatt list is a specialist list in the Federal Circuit and Family Court of Australia that has been implemented to provide specialised support and management from the Court in matters involving family violence. The purpose of the Evatt list is to provide parties who are in vulnerable situations with limited resources to allow their matter to be heard in a timely manner, and decided by specially trained registrars and judges. Matters that are involved in the Evatt list only include those that involve applications relating to children, and not matters involving only property or child support.

Parties do not make applications to be placed in the Evatt list. When a party files an Initiating Application they will receive an email from the Court asking them to complete an optional questionnaire. Upon completion of that questionnaire the Court will triage the matter. Similarly, when filing a Response to Initiating Application, the responding party will also receive a similar questionnaire.

All information that is provided to the Court in response to the questionnaire is confidential. This means that it cannot be subpoenaed or used as evidence during Court proceedings. The questionnaire is a screening tool for the Court to determine whether or not a matter is appropriate to be transferred into this list. Neither party will be advised as to who completed the questionnaire, or why their matter has been deemed suitable to be transferred into the Evatt list.

The Court will usually make a decision to transfer a matter into the Evatt list prior to the first Court date. If the Court makes the decision to transfer the matter into the Evatt list you will receive an email from the Court notifying you that you have been transferred into the list, and Orders will be made in chambers (meaning you do not need to attend Court for those Orders to be made).

These Orders may include requiring police or a child welfare authority to produce documents to the Court pursuant to section 67ZBE of the Family Law Act in relation to the parties and children and any family violence incidences. The Orders may also result in your matter being listed earlier than your original Court date. In terms of more available resources, those matters that are in the Evatt list can receive Child Impact Report interview dates more quickly in some circumstances. Matters in the Evatt list will often be case managed very carefully by the Court. This can mean multiple appearances before a Registrar to ensure compliance with Orders, and to ensure the matter is meaningfully progressing.

Your matter being transferred into this list does not mean that the Court has accepted either party’s allegations of family violence. Rather, the list allows for appropriate case management in matters where family violence has been alleged. The Court is still required to decide matters in the same manner as any other matter involving children.

If your matter has been transferred into the Evatt list, or you would like more information about the Evatt list, please contact Robinson + McGuinness, top Family Law today to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

The intersection of Family Violence Orders and parenting matters in the ACT

When separating, parents often face a number of issues to consider, including their finances; who remains in the house; and importantly, what care arrangements will be in place for the children. Navigating these issues can be particularly challenging where family violence considerations are involved.

Family violence orders, whether interim or final, can include both adult and children protected persons.

A parent may seek a family violence order which includes any children of the relationship, or on behalf of the children. In doing so, the affected person (or applicant) will need to provide evidence to the Magistrates Court about why they say the children should be included on the order.

The Magistrates Court must consider if there are any Court Orders in place about the care arrangements for the children. In making any order, the Court will usually be interested in the current care arrangements for the children; whether there is a signed Parenting Plan and/or whether there are any family law proceedings on foot.

In deciding whether to make a family violence order, the Court must give paramount consideration to the ‘safety and protection of the affected person and any child … affected by the respondent’s alleged conduct’.

In applying this test, the Court must ensure that the conditions are the ‘least restrictive of the personal rights and liberties of the respondent as possible’, provided they still afford the affected person and any children safety and protection (and achieve the objects of the Family Violence Act 2016 (ACT)).

If a family violence order is granted, the Court may include conditions which relate only to the adult protected person, or only the child protected person. The Court can also make orders preventing a respondent from communicating with or spending time with a child; notwithstanding the existence of family law Orders.

You should ensure you understand the conditions of the family violence order, to ensure what you can and cannot do whilst the order is in place.

If you are the respondent to a family violence order, you should also obtain legal advice about the possibility of making an application to amend or revoke the protection order.

Where there are family violence issues and you are considering what care arrangements should be in place, you should obtain family law advice. A family lawyer will be able to advise you about what arrangements best promote the safety of you and your children; or what you can do to ensure the children have a relationship with you notwithstanding a family violence order has been made against you.

Whether you are negotiating care arrangements where family violence issues exist, or if you have been served with a family violence order which impacts on your relationship with the children; it is important that you obtain advice quickly, as you can prejudice your position if you delay seeking advice and acting in accordance with the best interests of your children.

Our experienced family lawyers at Robinson + McGuinness can provide you with further assistance, tailored to your particular circumstances. Contact us today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online.

For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.

If you are concerned for your immediate safety, contact 000. If you require safety planning, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

What is a Statutory Will?

A statutory Will is a Will made on behalf of an individual who lacks the mental capacity to make a valid Will themselves. In these situations, the Supreme Court may grant approval for the creation of a Will that reflects what the person would have likely wanted if they were capable of making the decision. Statutory Wills are typically used when a person has lost the ability to understand or make decisions due to a cognitive disability or diagnosis (i.e. dementia, brain injury etc). They can also be used for person under the age of 18 who have assets in their personal name (i.e. because they have inherited assets/funds from another person).

The primary purpose of a statutory Will is to ensure that an individual’s estate is managed according to their wishes, even when they cannot express those wishes directly.

When is a Statutory Will Needed?

A statutory Will is necessary in the following situations:

1. If an individual is no longer deemed to have testamentary capacity, and they have not made a valid will prior to their incapacity, a statutory Will may be applied for by a family member or another interested party;

2. If someone has lost testamentary capacity and has never made a Will, it is important to have one in place for the distribution of their estate upon their death; if they don’t, then the laws of intestacy will apply. The Court can appoint a statutory Will to reflect the person’s presumed wishes; and

3. In cases where there is an existing Will but doubts or disputes arise about its validity or intentions, a statutory Will can help resolve conflicts between the surviving family members and beneficiaries and provide clarity.

How Does the Statutory Will Process Work?

Statutory Wills in the ACT are made in accordance with Part 3A of the Wills Act 1968 (ACT).

The following steps apply:

1] Court Application: An interested party, usually a family member, a partner, or a legal representative is required to make an application to the ACT Supreme Court for leave to apply for a statutory Will. The evidence provided by the interested person should include evidence of the person’s lack of testamentary capacity, the person’s personal circumstances, and their known or presumed wishes. Expert medical or psychological evidence may be required to satisfy the Court the person lacks testamentary capacity.

2] A Hearing: The Court will conduct a hearing wherein the Court will review the evidence presented and determine whether a statutory Will is appropriate. The Court may also consider the views of interested parties, such as family members, to help assess what the person would have wanted. To be satisfied that a statutory Will is required, the Court must be satisfied of the following:

• There is reason to believe that the asserted individual who lacks testamentary capacity is incapable of making a Will; and

• The proposed Will is, or is reasonably likely to be, one that the person would have made had they had testamentary capacity; and

• It is or may be appropriate to make the Order for a statutory Will; and

• The interested person applying for leave is an appropriate person to make the application; and

• Adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person who lacks testamentary capacity.

3] Approval and Creation of the Will: If the Court agrees that a statutory Will is necessary, leave will be granted for the interested person to apply for an Order for a statutory Will to be created. Once the Order has been made, the Will will be created and signed by the Registrar of the Court.

4] Implementation: Once the statutory Will is approved, it will be treated as a legally binding document, just like any other Will.

Who Can Apply for a Statutory Will?

People who can apply for a Statutory Will include:

• Family members: A spouse, children, or other close relatives of the individual may apply;

• Legal representatives: A person acting under power of attorney or a guardian appointed to care for the individual may also apply; and

• Executors of the estate: If a person has previously nominated an executor, they may apply on behalf of the individual, particularly if there are doubts or disputes arise about its validity or intentions; and

• Beneficiaries: People who stand to inherit from the estate may also have standing to apply.

What Should a Statutory Will include?

A statutory Will should reflect the individuals’ likely intentions regarding the distribution of their estate. This can include:

• The distribution of assets: How property, money, and other assets should be divided among beneficiaries;

• Appointment of executors: Who will be responsible for managing the estate and ensuring the Will is carried out; and

• Provision for dependents, including any spouse or children.

What happens when there is no statutory Will?

If there is no valid Will, and no Statutory Will in place at the time an individual dies, then that person’s estate will be distributed in accordance with the laws of intestacy. You can read more about intestacy in the ACT here.

If you have a loved one who you think has lost testamentary capacity, or is on their way to losing testamentary capacity, it is important that you seek legal advice to understand what options are available to put their affairs in order. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Radecki & Radecki: what does this mean for my Final Family Law Orders?

In May 2024, significant changes were made to the Family Law Act in relation to how the Court determines arrangements for children. One of the significant changes to the Family Law Act involved codifying the principle espoused in the well-known case of Rice & Asplund. In this case, the Court decided the reasons why a Court could reconsider final family law orders. It has generally been seen not to be in the best interests of children for litigation to continue, or be ongoing. The Court found that there had to be a significant change in circumstances since the making of the final Orders.

The 2024 amendments to the Family Law Act codified this principle in section 65DAAA.

Since these amendments, there have been several judgments that deliberate exactly how section 65DAAA is to operate. The section states that the Court must not reconsider the final orders unless the court has considered whether there has been a significant change in circumstances. There is no part of section 65DAAA that states what the Court is to do once it has “considered” this question. The Court, in various judgments, was divided as to whether the section required to the Court to then go a further step and make a finding one way or another as to whether a significant change of circumstances had occurred, or a “consideration” of this issue was sufficient.

In the case of Radecki & Radecki, the Full Court of the Federal Circuit and Family Court of Australia, contemplated this question. The case involved a 12 year old child, whose parents had been separated for about 10 years. Final Orders had been made when the child was 2 years old, on an undefended basis, given that the father had not participated in the proceedings. There was a notation in the Final Orders that included that the parties intended to review the orders three months after the child started primary school. The parties had a good relationship at the time of the making of the orders, and it was submitted to the Court that they could work together to agree on the time arrangements for the child once they went to school.

The Father brought an application to re-open the proceedings approximately 8 years later, citing that the co-parenting relationship had broken down, and seeking substantially more time with the child. The trial judge declined to re-open the proceeding. However, the trial judge did not come to any conclusion as to whether or not a significant change in circumstances had occurred. Ultimately, the Full Court upheld the appeal, finding that the trial judge had not properly “considered” whether there had been a significant change in circumstances.

The case of Radecki & Radecki clarifies for parties and legal professionals how the Court should approach the application of section 65DAAA. The Court must consider whether there has been a significant change of circumstances since the making of the final orders, and make a finding accordingly. If the Court finds there is no change, then the matter is finalised. If the Court does find that there has been a significant change of circumstances then the Court will need to consider the second limb of whether reconsideration of the final orders is in the child’s best interests.

You should seek legal advice about your options in relation to seeking advice to make an application pursuant to section 65DAAA of the Family Law Act. Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

A sham marriage: happily ever after?

In January 2025, multiple news sources published a curious story about a woman who successfully annulled her marriage. She sought a declaration of nullity on the basis that she was not aware she was entering a legal marriage.

A brief summary of the facts are as follows:

1. The parties met on an online dating platform around September 2023 and commenced a relationship (the extent of which was in dispute).

2. The applicant believed that the respondent was a social media influencer.

3. The applicant told the Court that in December 2023, she and the respondent visited Sydney together. The respondent told her to bring a white dress, as they would be attending a ‘white party’.

4. The night before the white party, the respondent gave the applicant a diamond ring and proposed to her.

5. The next day, she was surprised that the ‘white party’ was actually a wedding organised by the respondent. This was described as a ‘prank’ to the applicant, to promote the respondent’s social media.

6. The ceremony was filmed, and the parties participated in a seemingly traditional ceremony.

7. Later, the respondent asked the applicant to include him in her application for permanent residency on the basis that they were spouses. The applicant asserts that the respondent said he had organised the marriage to help him.

8. The applicant subsequently obtained a copy of the marriage certificate; and applied to the Court seeking to void the marriage.

The Court ultimately accepted the woman’s evidence that her consent to marry was not real consent, on the basis that she was mistaken as to the nature of the ceremony performed. The applicant believed that she was participating as an actor in a video of a marriage ceremony for the respondent to use on his social media.

The Federal Circuit and Family Court of Australia has the power to determine whether a marriage was legal, or whether the marriage was invalid.

The Court is only able to grant a decree of nullity in limited circumstances. Section 23 of the Marriage Act 1961 (Cth) sets out the grounds on which a marriage is void, which includes:

1. If a party to the marriage was already lawfully married to another person at the time of marriage;

2. If the parties are in a prohibited relationship (i.e. the parties are siblings); or

3. If a party to the marriage did not provide real consent, because:

a. The consent was obtained by duress or fraud;

b. That party was mistaken as to the identity of the other party or the nature of the ceremony performed;

c. That party was mentally incapable of understanding the nature and effect of the marriage ceremony; or

d. Either of the parties was not of a marriageable age.

To seek a declaration of nullity, you must file an Initiating Application setting out the orders you seek, and an Affidavit setting out the facts you rely on to annul the marriage and the details of the type of marriage ceremony performed.

Should the Court accept that the marriage is void, it will issue a decree of nullity. This is an order which establishes that there was no legal marriage between the parties, notwithstanding the possibility that a marriage ceremony took place.

The decree of nullity becomes effective immediately, once granted.

If you are concerned that you may have entered into a legal marriage but one of the circumstances set out above applies to you, you should seek legal advice from a lawyer who specialises in family law. You can make an appointment with one of our experienced family lawyers at Robinson + McGuinness. To arrange an appointment by email contact us at info@rmfamilylaw.com.au or call us on 02 6225 7040 or get started now online.

To read the case, click here.

Why should I have a Will?

Preparing a Will is often something people delay or avoid; however, it is one of the most important things that a person can do to ensure that their wishes are followed once they die. This post sets out why you need a Will and how it will benefit your family once you are no longer with them.

1. Your Will Determines How Your Assets are Distributed

Your Will can clearly identify who you would like to leave your assets to. Without a Will, the laws of intestacy will decide who inherits your property and assets; for further information on intestacy click here. These laws may not align with your intentions (i.e. if you have a blended family). By preparing a Will, your assets will be distributed in accordance with your wishes.

2. Minimise Family Conflict

Grief and loss can sometimes bring out the worst in families, and disputes over assets are sadly common when someone dies without a valid Will. In the absence of a valid Will, there is room for disagreements over the division of your estate, which can lead to prolonged legal battles and emotional stress. Having a well-thought-out Will helps reduce the chance of family disputes, giving your loved ones clear guidance on your wishes.

3. Protect Your Children

If you have dependent children, a Will allows you to nominate a guardian who you would like to take care of your children in the event something happens to you.

In the event there is disagreement between your loved ones after your death about who should care for your dependent children, the intentions set out in your Will will be important.

4. Appoint an Executor You Trust

When preparing your Will, you will appoint someone you know and trust to be the executor of your Will. This person will be responsible for ensuring your estate is administered according to your wishes. Your executor will manage everything from paying off debts to distributing assets. Choosing someone you trust is crucial, as they will be navigating both legal and financial matters during an emotional time.

5. Avoid the Intestacy Process

If you die without a valid Will, your estate must go through a legal process known as intestacy. The process can be time-consuming, costly, and emotionally draining for your family. It often involves the Public Trustee and Guardian stepping in to determine the distribution of your assets, which could result in a distribution that doesn’t reflect your wishes or the needs of your loved ones.

6. Update Your Will to Reflect Life Changes

As your circumstances change, i.e. in the event of marriage, divorce, the birth of children, or a significant change in your financial situation, it is important to review your Will and make sure it reflects your wishes. A Will isn’t a one-time task; it’s something that should evolve as your life does, ensuring it always reflects your current situation.

7. A Simple Process That Brings Peace of Mind

Preparing your Will does not need to be complicated or overly expensive. We believe that all individuals should have a Will in place. A Will will give you peace of mind, knowing that your wishes are clear, and your family is looked after.

If you would like to prepare a Will, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers. We offer fixed fees for simple* estate planning.

*before undertaking any work we will discuss your instructions and confirm whether your Will is able to be prepared for a fixed fee.

ACT Reforms: Family Violence Lease Terminations and how they may impact you

On 10 December 2024, a number of reforms to the Housing and Consumer Affairs Legislation Amendment Act 2024 came into effect in the ACT. The reforms are aimed at increasing safety measures for renting families experiencing family violence. If you have experienced family violence, you can now break your fixed term lease immediately and without penalty.

To end your lease immediately and without penalty, you must complete a ‘family violence termination notice’ and provide notice to your landlord or managing real estate agent in writing, by email, post or in person. The family violence termination notice is available on the ACT Government website and via this link.

You may end your tenancy agreement on the vacating date in your notice. Rent is payable up until your vacating date, but you will not be subject to any break lease fees.

To establish a ‘family violence termination’ as a tenant, you will need supporting documentation; such as a family violence order, a family law order (being an injunction under section 68B or section 114 of the Family Law Act 1975 (Cth)) or a declaration by a competent person (such as a mandated reporter if dependent children are involved, DVCS employees, CYPS employees or eligible social workers).

Upon providing notice and your supporting documentation, your landlord will not be able to ask for any further documentation and is subject to certain confidentiality requirements. Your landlord is only able to share your family violence termination notice with a limited number of people, including their agent, an employee of their agent and the ACT Government. Your landlord is also able to share the notice with their lawyer, to obtain legal advice.

Your landlord cannot inform any co-tenant that you are leaving prior to your vacate date - any co-tenant will be informed within 7 days following your vacate date. The landlord must issue a co-tenant with a ‘notice of continuing tenancy’ which will alert the co-tenant to the fact you have provided the landlord with a family violence termination notice. The co-tenant may then choose to continue their tenancy agreement (paying the full rent for the property), or end their tenancy agreement (subject to any applicable notice periods). This form is available on the ACT Government website and via this link.

For those living in Housing ACT properties, you should not complete a family violence termination notice unless you have found alternate housing outside of your public housing tenancy. Housing ACT has a number of other supports available to those experiencing family violence - see more via this link.

If you are a victim of family violence or need assistance in navigating leaving a relationship safely, you can make an appointment with one of our experienced family lawyers at Robinson + McGuinness. To arrange an appointment by email contact us at info@rmfamilylaw.com.au or call us on 02 6225 7040 or get started now online.

For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.

Author: Anika Buckley, Associate

R+M RANKED ‘FIRST TIER’ AGAIN IN 2025 DOYLE’S GUIDE

The Doyle’s Guide Yearly Best Firms & Lawyers listing is compiled by peers within the legal profession. For a firm to receive a ‘First Tier’ ranking the firm not only needs a high vote count, but they also need to have glowing reports from clients and individuals. The same applies for the individual rankings; those who place in the Preeminent and Leading lawyers’ categories are those who consistently draw the praise of both clients and peers.

We are proud to announce that Robinson + McGuinness has been recognised once again as a First Tier - Leading Family and Divorce Law Firm in Canberra, a great achievement for the firm which has now been in practice for over nine years.

Members of the Robinson + McGuinness team have also been recognised for their excellence in the family law field. Our Directors, Kevin Robinson and Sally McGuinness have yet again been recognised by their peers as Leading Family and Divorce Lawyers, with Sally being acknowledged as Preeminent within the ACT. Both Directors have also been recognised in the Leading Parenting, Custody & Children’s Matters, with Kevin being acknowledged as Preeminent. Our Associate, Anika Buckley, has also made a lasting impression, being recognised as a Rising Star in Family Law for the second year in a row.

We are very grateful for the recognition and support, and we congratulate our team on their great achievements!

If you would like to make an appointment with one of our experienced lawyers, please contact us today either online, via phone on (02) 6225 7040 or via email on info@rmfamilylaw.com.au.

You can read the full 2025 ACT listing on the Doyle’s Guide website.

How to Prepare for The Family Report Interviews?

A Family Report is a report prepared by an expert, such as a psychologist, psychiatrist or social worker, who will analyse and assess what the most appropriate parenting arrangements are for your children. A family report could be ordered by the Court and take place either in the Court building (with a Court-appointed expert) or with a privately paid expert. It is common too for parties to obtain a family report without being engaged in active court litigation.

Part of this process will involve the Family Report writer meeting with you, your children, the other parent and any significant other person in the children’s relationship (such as your current partner, any of the children’s half-siblings or step-siblings or grandparents). 

The family report is an important piece of evidence for your parenting case, so it is important that you are prepared for the interview.

Below are 8 things to consider when preparing for your family report interview:

1. You should be able to articulate what it is you are seeking in terms of the children’s arrangements. If you are in Court, you should be able to explain what Orders you are seeking and why they are in the children’s best interests.

2. Ensure that you know the date, place and time of your interview. If it is a court-appointed expert, make sure that you attend the correct Court and if it is a private expert, make sure you know where the interview will take place. Make sure you arrive on time.

3. Dress smart, and it is not necessary to wear business attire.

4. Consider whether you are being overly critical of the other parent and how that may reflect on you.

5. Ensure that you have enough food and drink for yourself and the children. It is also important to bring along any toys or games that you enjoy with the children for the observations, depending on how long you will be there.

6. You may wish to re-read the evidence that is currently before the Court. This includes your and the other parent’s affidavits, Notice of Child Abuse, Family Violence or Risk and any expert evidence already before the Court (such as a Child Impact Report). You will likely be asked questions based on the evidence that is filed and it is important that you can recall those events.

7. Depending on the ages of the children, you may need to tell them that they will be meeting with the family report writer, but you should not be telling them what you want them to say. There are helpful brochures on the Federal Circuit and Family Court of Australia website about how to approach discussing the family report with children of different age groups. 

8. Remember that nothing you say or do is confidential and whatever you say could be written in the family report, and therefore seen by your ex-partner, Independent Children’s Lawyer, your solicitors and the judge.

If you would like specialist legal advice about the family report interview process, please contact Robinson + McGuinness today to arrange an appointment on (02) 62257040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Catherine Finucane, Associate

Moving Forward and Moving Away: When You Seek To Relocate And The Other Parent Doesn’t Agree

When parents separate, they are still faced with the reality of co-parenting.  This can be challenging for parents to navigate following the breakdown of a relationship, when emotions are high and unresolved issues may remain.  This is especially challenging when one parent seeks to move.

The focus for parents should always be what is in the best interests of their children. When faced with a parenting matter, this is also the Court’s primary consideration (see section 60CA of the Family Law Act 1975 (Cth) (the Act)).  In determining what is in a child’s best interests, the Court will consider the matters set out in s 60CC(2) of the Act.

It is not recommended (nor usually condoned by the Court) for parents to relocate the residence of a child without the both parents agreeing to the proposed move; or without a Court Order allowing the parent to move with the child.

When a parent is seeking to relocate with a child, the Court will be interested in how the proposed move will impact that child; having regard to their developmental, psychological, emotional and cultural needs.  For example, a parent seeking to relocate will need to consider how the move will impact the child’s education.  The Court will be interested in understanding the child’s educational arrangements, including what year the child is in at school and whether they have special educational needs (for example, that can only be met in certain schools).     

In most cases, a proposed relocation is likely to have an impact on the care arrangements for the child, and the capacity for both parents to spend time with that child as they have been.  The Court gives consideration to the benefit afforded to the child of having a relationship with their parent, and other significant people. 

Parents should be able to identify how they will be able to support a relationship between the child and the other parent if they are (and/or are not) able to move.  The Court will be interested in the practicalities of the move, including what travel will be involved to visit the other parent and the costs of that travel.  

The moving parent should be able to clearly articulate how they will support the relationship between the other parent and any other significant people in the child’s life.  This may involve giving consideration to greater time with the other parent in the school holidays and communication (for example, video communication at set times and with regular frequency).

Where a parent has been subjected to family violence by the other parent, the Court will give consideration to whether the arrangements promote the safety of the child (and the caring parent).

In making a decision about relocation, there is (generally) no easy answer.  Discussions about resolving a matter will involve one parent compromising on their position significantly, or both.  The Court will ultimately balance the parties’ competing proposals and make a determination about what they consider is in the child’s best interests.

If you are considering relocating with your child, you should speak with a specialist family lawyer to understand your rights and obligations.  You can contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced lawyers.

Author: Anika Buckley, Associate

Christmas Arrangements: Things to Think About

Many separated couples have very different ideas about how they would like to organise their Christmas arrangements between the children. Parents want to enjoy the magic of Christmas with their children, especially while they are young. It is important for separated parents to really consider how they will split Christmas as early as possible, so that they can organise their own holiday plans, and avoid conflict where possible.

There are a few arrangements that parents could consider in terms of how to celebrate Christmas with their children, as follows:

1. Splitting Christmas Day

Most parents want to spend Christmas Day with their children. One option is to arrange time such that a child spends Christmas Eve to the middle of Christmas Day with one parent, and then from the afternoon of Christmas Day to Boxing Day with the other parent.

A benefit of this arrangement is that the child gets to spend Christmas Day with both of their parents, and extended families. However, some parents do not have such an amicable relationship and decide that seeing their ex-partner on the day would be too stressful, or perhaps too tiring for the children. In those circumstances they can consider other arrangements as set out below.

2. Alternating Christmas Day

Some parents decide that they will forgo spending Christmas Day with their children every year, and instead spend alternating Christmases. This could mean that a child spends time with one parent from 24 December to Boxing Day with one parent, and with the other parent the next year and so on.

3. Alternating weeks

Other parents decide that they want the option to travel for Christmas Day, and will agree to a week of time, or longer, around Christmas to enable travel to occur each alternating year.

It is important to remember that when you are considering parenting arrangements around Christmas, it should be about the traditions and quality of time you spend with your children and not necessary principled about spending time with them on 25 December each year. 

Time to file an application in Court for Christmas arrangements in any given year is the second Friday of November. This year it has already passed.

If you do not file an application with the Court by that date, you are unlikely to get any hearing (or a decision) from the Court in time for Christmas. If you do not have the arrangements settled for Christmas time this year, you should consider attending an urgent mediation to discuss the arrangements with your ex-partner.

If you would like specialist family law advice about parenting arrangements at Christmas, please contact Robinson + McGuinness today to arrange an appointment on (02) 62257040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Catherine Finucane, Associate

Recent surrogacy reform in the ACT

The Parentage (Surrogacy) Amendment Bill 2023 came into effect in the ACT on 10 July 2024, bringing about a series of amendments to surrogacy arrangements in the ACT.

The reforms are directed to making surrogacy arrangements more accessible to hopeful parents, and to bring the ACT legislation in line with surrogacy arrangements across the country.

The primary changes to surrogacy arrangements in the ACT are:

1. It is no longer a requirement that there be two intended parents of a surrogacy arrangement, and a single person not in a marriage or de facto relationship may pursue a surrogacy arrangement;

2. The timeframes in which an application must be made to the ACT Supreme Court for a Parentage Order have been relaxed, in some circumstances;

3. To provide surrogates and intended parents greater access to fertility services and greater freedom of movement, it is no longer a requirement that a child born of a surrogacy arrangement be conceived and birthed within the ACT. Intended parents who wish to make an application to the ACT Supreme Court for a Parentage Order may utilise assisted reproductive technology treatment, or birth a child outside of the ACT;

4. It is no longer a requirement that there be a genetic connection between the child and the intended parents. Prior to the recent amendments, it was required that one intended parent provide genetic material used for conception;

5. Whilst commercial surrogacy remains unlawful in the ACT (and all other Australian states and territories), hopeful parents wishing to enter into a surrogacy arrangement are now permitted to advertise a proposed altruistic surrogacy, to improve their prospects of connecting with a surrogate;

6. The Parentage Amendment 2024 which also came into effect from July 2024, provides a prescribed list of antenatal and postnatal expenses which are deemed to be “reasonable expenses” for which a birth parent may seek reimbursement;

7. The amendments place greater emphasis upon the Court’s ability to exercise discretion to grant a Parentage Order where it is in the best interests of the child to do so.

For specialist legal advice in relation to surrogacy arrangements, contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced lawyers.

Author: Margot McCabe, Associate Director.