For Richer and Poorer: Navigating Difficult Property Settlements Matters in Family Law – 5 program on-demand webinar series

Program 1: From Erosion to Springboards: The Assessment of Initial Contributions Over Time

The approach of the Court to the assessment of initial contributions and the weight that ought to be properly placed on initial contributions at trial has changed over time. From early arguments of erosion to later discussion of springboards – the language employed when discussing how the Court should assess initial contributions is vital, as use of an incorrect term could arguably lead the court into error. To assist practitioners, this session will explore:

• The arguments surrounding the appropriate assessment of initial contributions in property settlement matters
• The current views within the profession as to the ‘erosion’ and ‘springboard’ arguments and the preferred approach to assessing the relevance of the impact of time to initial contributions
• The scenarios in which a just and equitable outcome may arguably call for an assessment of initial contributions that merits ‘special’ recognition

Program 2: Adjusting for Family Violence in Property Settlements

The impact of family violence has been increasingly recognised by the courts in property settlement matters. However, one of the greatest challenges in cases involving family violence is satisfying the evidentiary burden. This session examines the financial consequences of family violence and how the goal posts are changing when it comes to the court’s consideration of evidence. Key issues covered include:

• What circumstances are necessary to raise the Kennon argument?
• Can the Kennon argument apply to post-separation violence and conduct?
• What evidence is required to rely on the argument? How has this evolved over time?
• The rise and recognition of emotional abuse and coercive control
• How the assessment on contributions is calculated: Jabour & Jabour [2019] FamCAFC 78; Benson & Drury [2020] FamCAFC 21; Koch & Kest [2021] FamCA 408; Ferman & Lapham [2022] FedCFamC2F 415
• Future reforms, including ALRC recommendations

Program 3: Trusts in Family Law Property Settlements – A Trustee’s Perspective

Trusts are relatively common in property settlement proceedings. But should you approach the matter differently when you are acting for the Trustee? This session focuses on the strategic and practical implications of running a property settlement case involving a third-party trust from the perspective of acting for the trustee and will explore the following:  

•  When - and when not to - intervene if you are acting for a trustee and when (and how) a third party may be joined
• Obligations of the trustee - in equity, corporations law and in family law proceedings
• Common scenarios where  trustee’s obligations conflict with family law
• Responding to requests for information, documents and subpoenas on behalf of trustee
• Role of the trustee in disclosure, valuation of a trust and its underlying assets

Program 4: Going for Broke: What Family Lawyers Need to Know about Insolvency

Many family law property settlement proceedings now involve third parties and corporate entities. It is increasingly common for one or both spouse parties in property settlement proceedings to be directors of a corporate entity – whether it be a ‘mum and dad’ family business or a multi-million dollar empire. A breakdown in the relationship of the spouse parties can have a significant impact on the financial viability of the business (whether intentional or inadvertent), yet the law of insolvency remains a mystery for many family law practitioners. This session aims to demystify insolvency law for family lawyers and will explore the following:

• The law of insolvent trading - the duty of directors, position of ASIC, potential defences and consequences of insolvent trading

• The impact of insolvency on the asset pool:
  • balancing the interests of the non-bankrupt spouse and creditors
  • what orders can be made in respect of property?
  • treatment of loan accounts

• Practical steps family lawyers can take if acting for a spouse party director where the other spouse party director is the ‘driving force’ of the entity
•  When specialist advice or assistance is required - when urgent action is required and when an entity may require separate representation and/or advice
• Case studies and worked examples

Program 5: Defences to Equitable Claims in Family Property Disputes: Time for the Strategy

In a post Thorne v Kennedy landscape, equity can often be seen by an aggrieved party as a way in which to ensure ‘fairness’ prevails in property settlement matters. The equitable doctrine has underpinned property settlement matters and can be pivotal to the alteration of property interests in family law. This session focuses on what happens when the other side is seeking an equitable claim in a family law property settlement. What defences are available and how are these best run? This session explores:

• Arguing fault and misconduct by the claiming party:
  • laches and acquiescence - how they have been dealt with by the courts in recent years and how to articulate this defence in family law litigation  
  • lack of clean hands
  • damages being an adequate remedy
• The presumption of advancement post the High Court’s decision in Bosanac:
  • the guidance provided by the High Court as to when a voluntary transfer of property may lead to the imposition of a resulting trust 
  • how a resulting trust may impact family law property settlement proceedings
• Spotlight on binding financial agreements and claims involving unconscionability, undue influence and duress, including reflections on the impact of Thorne v Kennedy six years on
• Case studies