The Law Handbook 2024

Chapter 4.1: Marriage and divorce 263 d there are circumstances of an exceptional nature relating to the welfare of the child and the applicant will suffer hardship if the order is: – not varied; or – all the parties to the proceedings give consent. 5 The court has a duty to determine the financial relations between the parties once and for all if this is possible. 6 An officer of the court may sign documents to give effect to court orders where a party neglects or refuses to comply with an order. 7 Section 85 deals with transactions intended to defeat claims under the Act. 8 Conveyances made under any maintenance agreement, deeds/orders made under Part VIII are normally not liable to stamp duty in Australia. 9 Rights of appeal must be commenced not later than one month after the day when the order is made. Further time may be granted at the discretion of the judge. Legal advice should always be obtained prior to agreeing to any consent order or agreement. 10 When the house is in the name of one party only, the other party may be able to have a caveat placed on the title to protect their interest in the house. A caveat is a legal document giving notice to potential purchasers or mortgagees of the other party’s interests. Appeals The following appeals are possible: 1 Appeals to the Full Court of FCFCOA : section 94 provides a system of appeals from the exercise of original jurisdiction. 2 Appeals to the High Court are only available by special leave of the High Court, or upon a certificate of the Full Court of FCFCOA, that an important question of law or of public interest is involved. 3 Appeals from the state Magistrates’ Court : a person aggrieved by a decree of a state Magistrates’ Court may, within the time that is prescribed, appeal to FCFCOA. Appeals from the state Magistrates’ Court to the superior court are by way of a rehearing. 4 An appeal to Division One from Division Two of FCFCOA on a point of law is possible as of right. No appeal against a decree of dissolution of marriage can be made after the decree has become absolute. Procedure 1 Appeals from a single judge of Division One of FCFCOA to the Full Court of FCFCOA must be filed within one month of the decree appealed against. 2 Appeals from the Magistrates’ Court must be filed within one month of the decree appealed against. Costs and fees Generally, each party to proceedings under the FL Act pays their own costs (s 117). However, the court can order one party to pay costs, after considering: • the financial circumstances of each of the parties; • whether any party is receiving legal aid; • the parties’ conduct in relation to the proceedings; • whether the proceedings were commenced because of the failure of a party to comply with previous orders; • whether any party has been wholly unsuccessful; • whether an offer in writing of settlement has been made; and • any other relevant factor. One person may offer to settle the proceedings. When the court considers the case before it, it does not have notice of the offer until the case is concluded and the question of costs is raised (s 117C). If the matter before the court is frivolous or vexatious, the court can dismiss the matter and order costs against the applicant (s 118). Solicitors’ charges for family law matters are governed by chapter 19 of the court’s rules. The FL Act allows solicitors to make a contract to charge more than the existing scale. Before doing so, a solicitor must advise the client to obtain independent legal advice in relation to any such agreement. Check the fee scales for FCFCOA with the court.