In 2004 Part VIIIAA was introduced to the Family Law Act, giving the Court powers to make orders and injunctions against third parties. A third party includes a person or entity other than the two people in the intimate relationship.
There are a broad range of reasons why a third party may be, or wish to be joined to family law proceedings. These may include where:
- they are a business partner of a party;
- they are a creditor of a party;
- they have an interest in property or an entity that forms part of the property pool;
- they have entered into a financial relationship with one or both of the parties;
- they have entered into a financial relationship with an entity that forms part of the property pool;
- the orders sought can only be realised by the third party;
- they were party to transaction designed to defeat another former partner’s claim;
- they need to be restrained from dealing with an asset for an order to be effective;
- they are a Trustee in Bankruptcy for one of the parties;
- they are a governmental agency or institution.
It is not unusual for a family business to play a leading part in the assets and financial resources of the relationship. This means parents of a separated child can be drawn into court proceedings as the trustees or appointors of a family trust and/or directors and shareholders of a family company that their child worked for during the relationship.
Our experienced Sydney family lawyers have acted for and advised many different types of third parties to Family Law disputes – ranging from public companies, banks, superannuation funds, family trusts, adult children, creditors, siblings and parents. The matters have involved everything from the protection or recovery of assets to the relevance of a subpoena.
Often these matters are complex and require knowledge outside the narrow confines of an average Family Law matter. At the same time, trying to approach the interest of these third parties from a purely commercial background without an understanding of the far-reaching power of the Family Court of Australia or Federal Circuit Court of Australia is not an option.
It is important to note that before joining a third party, consideration must be given to the costs that are likely to be incurred by third parties through their involvement. Their costs have to be compared against what might be gained financially by an application to include them. Put simply, the net gain must be significant because the third party can obtain an oppressive costs order against the applicant, should the applicant be unsuccessful in their action against the third party.
Similarly, we have acted for parties seeking to oppose or affect a third party/s rights. Most commonly this involves advice in relation to complex family structures like family trusts and companies and sham transactions.
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Family Law Articles
Marital separation (including divorce) and de facto separation is an unfortunate reality of the world that we live in. While some manage to navigate the emotional minefield with minimal anguish, most end up embroiled in bitter legal proceedings. While financial concerns are often of great importance when separating, far more important are matters of the heart: children. When making arrangements for children in a divorce, the Court will place the greatest amount of importance on the “best interests” of the child. But do those best interests include the child’s own wishes?