What is Financial Disclosure in a Separation and why is it so important?
When parties separate and there is a pool of property to divide one of the first questions you will be asked is to provide financial disclosure. Your duty to provide full and frank disclosure in financial proceedings is identified in Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (see Rule 6.06).
This duty is to ensure that all information relevant to the proceedings is available to both parties, including information that one party might not know about. This obligation to the Court exists for the entirety of the matter, from pre-action procedure to finalisation. As a party, you must continue to provide updated information as more documents come into existence or circumstances change right up until your matter is finalised.
What is Full and Frank Disclosure?
You will be asked to provide “full and frank disclosure” when providing your financial disclosure, what does this mean? Full and frank disclosure includes producing an honest and accurate view of all sources of earnings, interest, income, property and other financial resources that are held in each person’s separate or joint names as well as any companies or trusts to which a party has an interest. By providing disclosure, you are verifying the extent of all assets and liabilities available for division. You cannot determine what piece of the pie you receive until you determine how big the pie is, as such disclosure needs to occur.
When filing your Court documents you will be expected to file a Financial Statement, which in essence is a financial summary of all the information you have and will disclose to the other party in one document. You will also be expected to file an Undertaking as to Disclosure which states you have read all the relevant rules and are aware of your duty to the Court and have met such obligation.
The importance of being truthful within these documents cannot be understated, failing to file an Undertaking or filing a false Undertaking can lead to penalties which include fines or a short term of imprisonment.
Negotiating a property settlement should be done so by parties who have been completely honest, this ensures decisions are made from an informed base. By adhering to your disclosure requirements, you are maximising both time efficiency and costs.
Navigating the complexities of separation and property division requires the guidance of an experienced Family Law solicitor. With offices across Sydney, our dedicated team is here to assist – contact us today at (02) 9523 5535 or at info@southernwaters.com.au.
The school holidays can be an exciting time for kids — but for separated parents, they can also bring added stress. Here are our top 6 tips to help make the Easter break more manageable:
1. Plan ahead
Get in early to sort out your Easter holiday arrangements. This gives both parents time to coordinate leave, organise care, and make any travel plans. The more notice you both have, the easier it is to avoid last-minute conflict.
2. Stay child-focused
It can be hard balancing schedules, but the most important thing is to prioritise your children’s needs. Think about what routine disruptions they can handle, what activities they enjoy, and how to keep things positive and consistent for them.
3. Be flexible
Even the best plans can change. Be open to adjusting arrangements if needed — it helps reduce stress and teaches your kids how to handle change calmly and respectfully.
4. Set clear boundaries
Every family is different, but having boundaries in place helps avoid confusion. Agree on what’s reasonable, what’s expected, and how you’ll handle last-minute changes or disagreements.
5. Communicate clearly
Effective communication is key. Stay respectful and focused on the children when discussing plans. Whether it’s over text, email, or in person, aim to be calm, clear, and cooperative.
6. Embrace your own time
While you’ll miss your children when they’re with the other parent, use the time for yourself. Relax, recharge, and reconnect with friends or family — a healthy parent is a better parent.
If you need assistance with co-parenting arrangements, our experienced family law solicitors at Southern Waters Legal are here to help you navigate options that work best for your family. Reach out to us today on (02) 9523 5535 or at info@southernwaters.com.au.
An ICL (Independent Children’s Lawyer) can be appointed in parenting matters in which proceedings have been commenced in the Federal Circuit and Family Court of Australia. An ICL is a court-appointed, legally aided solicitor who independently acts on behalf of a child or children in proceedings. However, they are not appointed in every single parenting matter before the Court.
An ICL does not ‘take instructions’ from children in the same way that solicitors act on behalf their parents. Rather, an ICL acts on the best interests of the child. An ICL is required to consider the views of the child; however, in assessing the matter and all the evidence available, they are to provide the Court with their own perspective about what arrangements they view are in the child’s best interests.
Pursuant to a historical case of Re K [1994] FamCA21, the Court will only appoint an ICL if some or all of the following criteria are met:
- Alleged child abuse;
- Unsuitability of either parent to care for the child;
- Intractable parental conflict;
- Proposal to remove the child far away;
- Alienation of the child from a parent;
- Proposal to separate siblings;
- Cultural/religious difference;
- Neither party is legally represented;
- Special medical procedure is proposed for a child;
- Anti-social conduct of a parent;
- Strong wishes are expressed by a mature child.
As such, there are only specific types of matters in which an ICL is appropriate. If an ICL has been appointed by the Court and a Final Hearing has not occurred, there is a requirement for the ICL to meet with the child to give them the opportunity to express their wishes. The ICL is not, however, required to meet with a child under the age of 5 years, or if the child does not wish to meet with the ICL to express their view.
Although an ICL is paid for by legal aid, partners (mother and father) are requested to contribute to the ICL’s costs in the proceedings unless an exemption is granted.
To speak with one of our experienced solicitors at Southern Waters Legal, contact us at (02) 9523 5535 or info@southernwaters.com.au.
Navigating life as a separated or single parent brings its own set of challenges, which may leave you feeling exhausted and low in emotional resilience. Juggling and separating your feelings about your ex-partner with a child’s feelings about the other parent is challenging.
The phrases and language we use post-separation can either empower our children or inadvertently reinforce negative beliefs that may diminish our children’s emotional resilience and self-esteem. Let’s delve into five toxic phrases that separated parents should avoid, and how to reframe these conversations to foster a positive environment for your children.
Phrase #1: “Your father/mother is useless with money.”
When tensions run high post-separation, it’s easy to vent frustrations about financial matters. However, casting blame on your ex-partner in front of your children can instill a sense of instability and anxiety. Instead, focus on discussing financial responsibilities calmly and constructively. For instance, you might say, “We have different ways of handling money, but we both work hard to provide for you. Let’s talk about how we can budget for things together.”
Phrase #2: “I can’t do this alone.”
Feeling overwhelmed is natural during times of transition, but voicing this sentiment to your children can inadvertently burden them with your emotional struggles. Instead, emphasise your strength and resilience: “It’s challenging to juggle everything, but I’m learning new ways to manage. We are like Dory – we just keep swimming!”
Phrase #3: “Your father/mother is selfish and only thinks about themselves.”
Encourage empathy and understanding: “Everyone has different needs and perspectives. Let’s try to understand where they’re coming from.”
Phrase #4: “Your father/mother never cared about us.”
Instead, focus on positive aspects of the co-parenting relationship: “Your father/mother loves you very much, and we both want what’s best for you.” “Your dad/mum is great at helping you with football practice/cooking/homework”
Phrase #5: “I don’t know how we’ll make ends meet.”
Financial worries are common post-separation, but expressing hopelessness can instil fear in your children. Instead, focus on proactive steps: “We’re making adjustments to our spending so we can manage our expenses better. It might be tough for a while, but we’re working on it together.” “It’s good to have a goal and save for this, let’s set a goal”.
Phrase #6: “I can’t believe your father/mother did that. They’re so irresponsible.”
Reframe to maintain respect: “We may have different ways of doing things, but your father/mother is learning and growing just like we all are.”
Phrase #7: “Your father/mother always causes problems.”
Foster understanding and empathy: “Sometimes we have disagreements, but we’re working on finding solutions that work for everyone and remember that the most important thing is we both love you very much”.
Phrase 8: “Don’t tell your mother/father anything we did and discussed.”
Children need to feel safe across both homes which includes the flow of information. Just as you don’t want to use them as a messenger, you do not want them to feel they live in two separate worlds that cannot cross over.
Aiming to provide a child-centered approach when communicating with our children on difficult topics, can promote a healthier co-parenting environment and protect children from being caught in the middle of parental conflicts. By choosing our words carefully and fostering open, supportive communication, we can empower our children to navigate the challenges of separation with resilience and optimism. This can assist in helping our children build a future where they feel secure, loved, and capable of overcoming any obstacles that come their way.
I’m Separated… Do I need to ask for Consent to travel overseas with my Child? And how do I obtain a Passport?
Many parents wish to travel with their child (or children). Travel is one of life’s greatest luxuries, however many parents do not realise the legal restrictions on taking their child overseas once they have separated from the child’s other parent. Two common questions we often receive as family law solicitors are “Do I need permission from my ex to take my child on a holiday overseas?” and “How do I obtain a passport for my child?”.
Do I need permission to travel?
The general rule is that a child should not be removed from Australia without the consent of both parents or a Court Order. If you try to take a child outside of Australia without either of these things, the child’s other parent could apply to the Federal Circuit and Family Court of Australia (“Court”) for a Recovery Order seeking that you return the child to Australia immediately.
Further, pursuant to sections 65Y and 65Z of the Family Law Act, the parent who intends to travel commits a criminal offence that carries a sentence of up to 3 years in prison, if the child is taken overseas unless:
1. There is a Court Order in place permitting you to take the child overseas; or
2. You have the written consent of the other parent.
The above two provisions apply to cases where parenting Orders have been made, or where Court proceedings have been commenced and parenting Orders are pending.
Can I stop my ex from taking my children overseas?
If you have concerns that the child’s other parent may remove your child from Australia and not return, there are a number of measures in place to prevent your child from leaving the country.
Option 1
One option is permitting travel only to countries that are signatory to the Hague Convention, which is an international treaty between over 90 countries (including Australia). Countries that are signatory to the Hague Convention have agreed to uphold parenting Orders from other signatory countries and force the return of children if they are taken or retained overseas without the other parent’s consent.
Option 2
Another option includes obtaining a Child Alert to prevent the issue of an Australian passport. A Child Alert requires the Department of Foreign Affairs and Trade to scrutinise any passport application received in relation to your child. However, it is important to note that this does not guarantee that the application will not be granted, and it does not stop a child from travelling overseas.
Option 3
A third option is to have your child placed on the Federal Police Family Law Watch List (known as the ‘Airport Watch List’). This would alert the Australian Federal Police if someone were to attempt to travel overseas with your child and they would not be allowed to leave Australia, however, there are limitations to this method.
To apply to have your child’s name added to the Airport Watch List, you need to have:
• Court Orders limiting or preventing the child’s overseas travel and which seek that the Australian Federal Police put the child’s name on the list; or
• A pending application before the Court for such Orders; or
• Have a pending Appeal before the Court for such Orders.
If your child’s name is on the Airport Watch List, you may still travel overseas with your child, however, you will need to provide notice of such travel to the Australian Federal Police.
How do I obtain a Passport?
To obtain an Australian passport for a child, the Australian Passport Office generally requires:
1. Each person who makes decisions in relation to long-term issues (previously known as ‘parental responsibility’) for the child to sign the passport application; or
2. A Court Order made by the Federal Circuit and Family Court of Australia providing one parent with the power to obtain a passport for the child without the other parent’s consent.
In the absence of the above-mentioned Order, and if the other parent will not sign the passport application, you may be able to make an application to the Australian Passport Office for a passport to be issued under ‘special circumstances’. For example, if there is a family violence order in place, there has been no contact with the other parent for an extended period time, or if the travel is urgent.
You may also be able to make an application to the Court seeking an Order for the other parent to sign the passport application, or an Order giving you the sole power to sign a passport application.
What happens if I go to Court?
If you make an application to the Court seeking either of the above-mentioned Orders, the Court will consider various factors, including but not limited to:
• The reason for your travel;
• How long you propose to travel for;
• Whether the child will miss out on time with their other parent and if so, how this can be addressed;
• Which country you are travelling to; and
• If the Court is satisfied that you will be returning the child to Australia.
The Court may also request that you pay a sum of money, called a ‘travel bond’ as security that you will return the child to Australia. More often than not, if one party seeks to go on holiday and their ex-partner refuses to sign an application for the passport, communicating to such ex addressing the following, ensures that the application is signed: Confirmation of travel date/time.
What Court Orders should I seek?
It is important to seek legal advice in relation to the most appropriate Orders to seek to ensure that there are no issues in the future should you wish to travel overseas with your child or apply for a passport for your child. At Southern Waters Legal, our team of family law solicitors are experienced in dealing with overseas travel and passport issues and is here to offer you expert legal assistance.
If you are concerned that a parent may be planning to remove your child from Australia without your consent, you should contact us at (02) 9523 5523 as a matter of urgency, to make an immediate appointment with one of our experienced family law solicitors.
We frequently see situations where two parents end their relationship, and the parent who has reverted to their maiden name, or never actually took their partner’s surname to begin with, wants to know whether they can change their children’s surname. For example, common requests are to hyphenate the children’s name to include both parents’ surnames, or sometimes to change their surname completely. The short answer is that a parent cannot change a child’s surname without the other parent’s consent.
If parties are not able to agree in relation to the proposed change of name and there is no previous Order of the Court allocating sole parental responsibility to one parent, the parent hoping to change the children’s surname is required to file a Court application in the Federal Circuit and Family Court of Australia asking the Court to decide. In making this such decision there are several considerations the Court must consider, however ultimately, the Court must weigh up whether it is in the children’s best interests to change their name, some relevant factors in making this decision include:
• The short–term and long-term effects to the child of the change of name;
• The extent of contact with the parent whose surname the children currently have (past and future);
• The extent to which the child identifies with the parent whose surname they have;
• The extent to which the child identifies with the parent whose surname they do not have;
• Any embarrassment likely to be experienced by the child with the proposed name change;
• Any confusion of identity that may arise for the child, if the surname is or is not changed.
Ultimately as with every family law matter, there is no one guaranteed outcome, and the Court assesses each Application for a change of name on a case-by-case basis and with the best interests of the children at the forefront of its decision–making.
If you’re dealing with a family law matter or want to learn more, our dedicated and highly experienced team of family law solicitors is here to assist. Get in touch with us at (02) 9523 5535 or email us at info@southernwaters.com.
When inheriting jewellery, you might be surprised to learn it can be subject to Capital Gains Tax (CGT), just like other valuable items such as artwork, coins, and antiques. Here’s how CGT can apply to inherited jewellery, and what you need to know to manage it.
Jewellery as a “Collectable” under CGT
For tax purposes, the Australian Tax Office (ATO) treats jewellery as a “collectable” item, meaning it’s subject to special CGT rules.
- Jewellery Acquired by the Deceased Before 20 September 1985
If the jewellery was purchased before this date, it’s considered to have been acquired at its market value on the day the original owner passed away. So, the value when the deceased person passed becomes the “cost base” or starting point for tax calculations if the jewellery is later sold. - Jewellery Acquired After 20 September 1985
If the jewellery was bought on or after 20 September 1985, it’s considered to have been acquired at the price the deceased originally paid for it. This initial cost is then used to calculate any future capital gains or losses if the jewellery is eventually sold. - Jewellery Costing Less Than $500
If the jewellery originally cost less than $500, it’s generally exempt from CGT. That means any gain or loss from a later sale can be disregarded.
Selling the Jewellery and Offsetting Losses
If the jewellery is sold at a loss, this loss can only be offset against capital gains from other collectables in the same year or a later one. It can’t offset gains from other asset types, like shares.
Special Rules for Sets
If the jewellery is part of a set, like a pair of earrings or matching bracelet and necklace, the $500 threshold applies to the whole set, not individual pieces. This means that the value of the entire set needs to be considered together for tax purposes.
Why Keeping Records Matters
One of the biggest issues that often arises with inherited jewellery is figuring out when it was purchased and how much was paid for it. Without this information, determining the right CGT approach can be challenging. By keeping records of purchase dates and prices, you can help make things much easier for the people managing your estate in the future.
If you’re managing an estate or have questions about CGT and inherited assets, speaking to a solicitor can help you understand the rules and make sure everything is handled smoothly. To speak with one of our experienced solicitors at Southern Waters Legal, contact us at (02) 9523 5535 or info@southernwaters.com.au.
The law in NSW has evolved to improve a person’s autonomy and defend their decision-making rights.
As a cognitive responsive law firm, Southern Waters Legal is at the forefront of responding to these changes, consistently looking for ways to support our client’s decision-making as they age.
When people age, their ability to defend what is in their best interests can decline. The NSW Government established a new definition of domestic abuse in February 2024 and made coercive control a criminal offence in July 2024.
For more information please see this link.
Domestic violence is prevalent and can occur in intimate and family relationships at any age. The damage that can occur in such scenarios include: (as described in the attached fact sheet):
- Deliberately harming a person’s mental health or emotional wellbeing e.g., constantly insulting and criticising someone.
- Shaming, humiliating or belittling someone e.g., sharing private information about them or making jokes that harm their self-esteem and dignity.
- Using violence to hurt, control or intimidate someone e.g., physically hurting a person in any way, throwing or breaking things, or driving recklessly to make someone feel unsafe.
- Making threats e.g., threatening to withdraw visa sponsorship, or threatening to take a child out of the country.
- Isolating someone from their friends, family and community e.g., taking away their phone so they can’t contact family and friends.
- Limiting someone’s freedom and independence or controlling their day-to-day choices e.g., making rules about what they can wear or preventing the person from leaving the house or going out alone.
- Controlling or limiting someone’s access to money or their ability to make money e.g., not allowing them to work outside the home to earn money.
These are especially important indicators of matters of concern where a person is of declining decision-making ability. The actions of carers, supporters and personal representatives may (even when well-intentioned) infringe on the rights of the ageing person.
These indicators affect the roles of Solicitors and Guardians who particularly have a high duty of care to the person for whom they are responsible.
These domestic abuse indicators need also to be contrasted to the indicators of Elder Abuse recognised by the Law Society of NSW, that include:
- A client’s solicitor is acting beyond their authority, particularly where it does not benefit the client;
- A client is transferring property for little or no consideration (including by way of a gift);
- A client is due to receive a large sum of money and wishes to have it paid to another person, such as a relative;
- A relative or friend insists on being present at appointments with you, especially where the client might need an interpreter;
- Although the client has assets, their expenses are not being paid, or they report losing money/valuables or being charged for services/overcharged in circumstances where this would be unexpected, such as a relative shopping on behalf of a client;
- A client presents with bruises, or displays fear or anxiety;
- A vulnerable client suddenly changes to a new solicitor;
- A client asks you to be their solicitor or guardian because they do not trust anyone else;
- The matter involves financial transactions that cannot be readily explained; or
- The client is experiencing social isolation and dependence, usually dependence upon an adult child.
Our normal practice is to try to open up a conversation between a person, their personal representative and supporters about the expectations of the person of their representatives about the representatives’ job to be done.
We can use document frameworks such as Memorandum of Wishes and Estate Administration plans to document the expectations of the conduct of personal representatives.
We remain in the hands of our clients to tell us the importance of these issues to themselves and their family. Situations where a person shares their values about their expectation of care normally results in close supportive conduct between a person, their representatives, supporters and carers.
The best results always occur when a person under care is able to be their own advocate for what is in their best interest. Our role then is to support the decision making of our clients.
To speak to one of our experienced solicitors please reach out to us at (02) 9523 5535 or at info@southernwaters.com.au.
Early inheritances and gifts towards adult children are increasingly common as the generational wealth gap widens over time. Can such inheritances and gifts be protected in the event of a separation?
We are often approached from both:
1. Parents who intend to give funds to a child and want to protect the funds from a future separation, or have already advanced such funds; and
2. Adult children, who has received or are going to receive funds from their parents and either:
a. Are in a relationship and want to protect the funds in the event of their separation; or
b. Are going through a separation and are wondering what they can do.
Legal Solution
The options for protecting gifts/early inheritances are limited and depend upon a family’s specific circumstances. However, they include:
• Entering into a loan agreement with your child and/or child’s spouse, ensuring such agreement is drafted correctly, is commercial and is complied with. If this is the case though, is it really a gift?
• An adult child entering into a financial agreement with their partner/spouse that provides for the repayment of the contribution from the parents to either the parents, or, to the child prior to any further distribution. For example, if the parents gifted $500,000 to the child, then upon separation, prior to dividing a pool of assets worth $1 million, the child (or child’s parents) are to receive $500,000, before the remaining $500,000 is divided between the child and their partner.
We commonly see agreements prepared in the absence of family lawyers such as caveats on the title of properties, loan agreements and mortgages that do not meet the requirements of the Federal Circuit and Family Court of Australia. When that occurs the Court must ask whether the funds were a gift (and if so, to whom), or a loan. If they are found to be a gift, then the funds are ordinarily part of the pool of assets available for division between the parties.
What you should not do
If ever there is a thought or intention that funds gifted are to be repaid make sure you action it early. We sadly see good intentions and wishes so often forgotten. So do not sit on your hands and hope it will be an amicable separation where intentions are honoured and you see eye to eye. In our experience that does not occur and there is often a disconnect between parents, their child and the child’s spouse.
Unless you are willing for your gift or early inheritance to be included in a property settlement make sure to speak to a lawyer before any movement of money.
