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The Special Property Lists – for family law clients who have big or small property assets

Alfonso Layson ||

Co-authored by Christopher Gosling

Are you involved in a property matter with your former partner? Depending on your asset pool, there are programs in existence and initiated by the Federal Circuit and Family Court of Australia (FCFCOA) to assist and expedite such property matters.

Property matters with assets up to and including $500,000

If you’re involved in a matter where there is an application for altering property interests pursuant to Family Law Act 1975 (FLA) s 79 or FLA s 90SM filed after 1 March 2020, then your matter would be considered under the Priority Property Pool 500 (PPP500). The essential and encompassing criteria that satisfy a PPP500 matter would be as follows:

  • The net property of the parties (including superannuation interests) is, or is likely to be, $500,000 or less;
  • There are no interests (including but not limited to a family trust, company or self-managed super fund) owned or in the effective control of either party that may involve valuation or expert investigation; and
  • Neither party in the proceedings seeks orders relating to parenting, child support and/or orders by way of enforcement of an order or a parenting/financial obligation.

This list deals exclusively with smaller property matters only. To commence proceedings in a PPP500 matter, filing of an Initiating Application, a PPP500 Financial Summary (form) and a Genuine Steps Certificate would be conducted. Ordinarily, a property matter would entail an affidavit, Financial Questionnaire and Financial Statement to be filed.  However, the necessity to file an affidavit, Financial Questionnaire and Financial Statement is unnecessary until:

  • The FCFCOA directs a party to file an affidavit, Financial Questionnaire and Financial Statement; or
  • Directions requiring the filing of further material are made in preparation for a Final Hearing, following unsuccessful Dispute Resolution event/s.

Initially, the first stage of a PPP500 case involves a Judicial Registrar and seeks to assist parties in reaching an agreement in the shortest possible time (i.e. 90 days or less). Judicial Registrars review all filed applications solely relating to property to ensure early detection of PPP500 matters and make orders in Chambers to advance the matter prior to the initial Court date (Step 1). The first Court date before the Judicial Registrar involves settling a balance sheet of your assets and liabilities, and referring the matter for a conciliation conference, private mediation or Legal Aid conference (Step 2). This is followed by the parties engaging in Dispute Resolution with a Judicial Registrar, external mediator or Legal Aid conference (Step 3) but only if there is a prospect that the matter can settle. If the matter does not settle, a second Court date will be held, the balance sheet will be checked and the case will be referred to a Senior Judicial Registrar or Judge (Step 4).

Senior Judicial Registrars or Judges would be involved in managing the second stage of a PPP500 case if the matter lasts for more than 90 days, whereby a procedural hearing (Step 5) and Final Hearing (Step 6) would be entailed. Also, a matter will be referred to a Senior Judicial Registrar or Judge if:

  • There has been significant non-compliance with orders;
  • An Application in a Proceeding has been filed which raises new interim issues;
  • An application has been filed seeking parenting or child support orders; or
  • There are issues of jurisdiction in dispute, such as the existence of a de-facto relationship.

However, to enable to negate the use of employing the FCFCOA in a prolonged property matter (notwithstanding the size of the asset pool), the parties are free to seek and enter into a final consent order at any time.

Property matters with assets up to and over $20,000,000

If you want to know whether you’re eligible to have your matter considered and heard in the Major Complex Financial Proceedings (‘MCFP’) List (which commenced on 1 October 2021), the essential and encompassing criteria that satisfy an MCFP List matter would be:

  • involving a contested net asset pool of $20 million or more; and
  • involving a complex disputed issue such as:
    • serious allegations of non-disclosure;
    • serious disputes in relation to valuations or other expert reports;
    • substantial assets held through a trust/corporate entity or offshore;
    • substantial third-party claims to the asset pool;
    • serious allegations of fraud; or
    • other complex questions of law or novel points of law; and
  • not involving a parenting dispute, or if it does, the parenting dispute can be considered and determined separately at a discrete hearing, or referred to Dispute Resolution, such as a Parenting Dispute Resolution Conference.

The MCFP List is employed to more efficiently deal with commercially complex financial Family Law matters. The MCFP List is also intended to attain:

  • a just, efficient and timely resolution of MCFP List Cases, at a reasonable and proportionate cost to the parties in all the circumstances; and
  • ensure the efficient use of the judicial and administrative resources available for the purposes of the Court.

The MCFP List is attained through the following methods:

  • identifying and narrowing the issues in dispute, including through the requirement, where appropriate, for pleadings, strict timetabling for the finalisation of disclosure, valuations and any other expert evidence;
  • ordering Dispute Resolution to occur at the earliest appropriate opportunity; and
  • where Dispute Resolution is unsuccessful, intensive case management to ensure proceedings are ready for final hearing as soon as practicable.

If you and/or your former partner seek to be included in the MCFP List at any time after the First Court Event, the National Assessment Team of the FCFCOA can be contacted and provided with:

  • the file number and file name for the proceeding; and
  • an explanation of how the proceeding meets the criteria for inclusion in the MCFP List.

If your matter is successful as being suitable for the MCFP List, it will be administratively transferred (pursuant to FLA s 51 or s FLA s 149) from Division 2 (in which Division all family law matters commence) to Division 1 (in which Division family law matters containing a significant financial value are heard) of the FCFCOA. Prior to a matter in the MCFP List being heard before a Senior Judicial Registrar or Judge, it is incumbent upon the parties to have:

  • agreed upon a suitable form of Dispute Resolution, including whether the matter or part of the matter is suitable for arbitration; and
  • made a reasonable and genuine attempt to resolve interim issues by negotiation or private mediation, as required by rule 4.03 of the Family Law Rules.

If you’re wondering as to the rationale behind the MCFP List, you need not look further than the words of the FCFCOA Chief Justice William Alstergren, pursuant to his media release of 30 September 2021:

  • “The MCFP List aims to ensure that complex financial matters are dealt with more efficiently and consistently by providing specialised case management that is tailored to the needs of the case.”
  • “Proper management of these complex cases will ensure efficient use of the Court’s resources. This will benefit other urgent and priority cases that also need to be heard in a timely manner.”
Conclusion

Depending on your property matter and its entailing assets (whether they be modest or of high value) Coleman Greig Lawyers is here to provide professional and practical legal advice. We will navigate your matter in a relatively stress-free, knowledgeable and cost-effective way.

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