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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Family Court Update: New Discrete Property List to streamline property pools under $500,000.00

The Federal Circuit Court of Australia has improved the process for dealing with disputes that only involve property, where the value is less than $500,000.00. To that end, the Court has released its second Practice Direction of 2020, which sets out new guiding management principles for cases that meet the definition of a “Priority Property Pool under $500,000 Case” (PPP500).

The direction follows the 2019 Australian Law reform Commission Final Report, “Family Law Into The Future: An Inquiry Into The Family Law System” and pilot programs trialling the increased use of registrars for property matters, implemented to reduce the backlog of matters requiring judges. The Practice Direction has the effect of establishing a ‘Discrete Property List’ in the Brisbane, Parramatta, Adelaide and Melbourne registries of the Federal Circuit Court of Australia to streamline property only matters with asset pools of under $500,000.

Benefits

The changes to the system have been implemented to reduce delays and costs to parties, and to provide an overall more effective system for the resolution of family law disputes. It will provide a number of benefits to eligible litigants such, as:

  • the intensive monitoring of compliance with orders,
  • reduced delays in getting financial cases through the alternative dispute resolution process,
  • more opportunities for settlement at an early stage, and
  • a reduced number of Court appearances.

To help you understand these changes and how they may impact your matter, we have summarised the key fundamentals below.

Does this change affect me and/or my matter?

The Practice Direction affects all PPP500 cases which are filed on or after 1 March 2020. If your matter is already in the Court system, there will not be an alteration to its case management.

To identify whether your case is likely to be considered a PPP500 case, consider the following:

1. Was the application filed in the Brisbane, Parramatta, Adelaide or Melbourne registries of the Federal Circuit Court?

2. Does the application relate solely to property matters and not in relation to any of the following:

  • Parenting matters,
  • Child support matters,
  • Child maintenance matters,
  • Contravention matters, or
  • Enforcement matters.

3. Does the value of the net property pool (including any superannuation interests) amount to less than $500,000?

4. Are there no entities owned by either of the parties, or in the effective control of either of the parties, which require valuation or expert investigation?

If the answer to the above questions is “yes”, it is likely your matter will be eligible to be listed before a Registrar on the Discrete Property List.

Is the Court application process different for a PPP500 case?

The major difference for PPP500 cases is that because their purpose is to provide a quicker and cheaper means of resolving disputes, the Court rules are relaxed so that parties are not required to file an Affidavit or a Financial Statement with their application.

In place of the usual documents, a PPP500 case can be commenced by filing a PPP500 Financial Summary together with the usual Initiating Application (or Response, if you are the Respondent to the proceeding). The last section of the Financial Summary will require parties to collate a ‘balance sheet’ which will be utilised by the Registrar to finalise the asset pool and settle any dispute regarding the values of assets earlier in the proceedings to enable the focus to shift to the division of assets sooner.

What happens after I make an application and my case is identified as PPP500?

The first thing that will happen once your application is filed is that you will be allocated a Registrar to your matter. Registrars assist judges in managing their workload in an efficient way, without compromising either the independence or quality of judicial decision making. They have some judicial powers which must be exercised according to law in a fair and impartial manner.

The Registrar will lead the first few stages of case management and then, if the matter is not resolved, the matter will progress to a judicial stage where a judge will become involved. It is envisaged that the Registrar-led part of the process will last for no longer than 90 days.

The Court has reduced the case progress into six major stages with the first four stages to be led by the Registrar, and the last two stages to be led by the Judge.

Stage 1

If the matter is declared a PPP500 case, a Registrar is appointed to the case and will make some preliminary orders before the first Court date. These orders may include directions to obtain expert valuations or the exchange of discoverable documents.

Stage 2

The matter will be listed for a first Court date before the Registrar. The Registrar will help the parties finalise the asset pool and will make an order for the parties to attend a conciliation conference or a private mediation.

Stage 3

The parties will attend the conciliation conference or private mediation ordered by the Registrar. This will provide parties the opportunity to resolve matters between themselves, now that financial documents have been exchanged and all necessary valuations have been obtained.

Stage 4

If no agreement is reached at the conciliation conference or mediation, the matter will be set for a further Court date before the Registrar soon thereafter. The Registrar will re-visit the balance sheet (containing the values of all assets in the pool) and make any necessary adjustments, and otherwise refer the matter to a judge.

Stage 5

The parties will be heard before a Judge at a procedural hearing. At the hearing, the Judge will provide directions for a final hearing and make orders for the parties to file additional documents. There will also be opportunities to negotiate a final settlement at this hearing.

Stage 6

If the matter is not resolved, there will be a final hearing before a Judge.

So, what’s the verdict – is this change good or bad?

Overall, this should be a positive change for every litigant it impacts.

Separation is a challenging process and it becomes increasingly more difficult the longer a matter is drawn out. These changes aim to shorten the process to allow parties to end their financial relationships as efficiently as possible, which will in turn allow them to move on with their lives.

It also aims to address the often disproportionate costs of litigating the division of small matrimonial asset pools, to increase accessibility of the justice system to parties who require judicial intervention but do not have sufficient funds for extensive litigation.

Even for litigants who may not be eligible to receive the direct benefits, there are positive flow on effects for other family matters. For example, litigants who have a parenting dispute in addition to a dispute regarding property. These litigants will experience the indirect benefit of the Court system being more efficient as a whole. Utilising Registrars for smaller property matters will increase the availabilities of judges to assist with other matters, including parenting matters and complex property matters.

How can Sharrock Pitman Legal help?

We are Accredited Family Law Specialists, having extensive experience and expertise in assisting customers with their family law matters. If you need advice, please contact our specialist family law team on 1300 205 506 or via email at family@sharrockpitman.com.au, and it would be our pleasure to assist you.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Alana Di Paola

For further information contact

Katharine Layne

Katharine is a Senior Associate of Sharrock Pitman Legal.

She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Katharine on (03) 8561 3319.

More on

Family Law

Family Court Update: New Discrete Property List to streamline property pools under $500,000.00

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.