Power of Attorney’s, (POA)s, are a vital tool for ensuring the best care for when you are older and may lose mental capacity and may require someone to take care of you in your older years. However, Power of Attorney’s also make the principal (person being taken care of) susceptible to financial abuse, and with 30% of all financial abuse cases involving elder people, Power of Attorney abuse is a common. This article provides suggestion, not legal advice, on actions to take if POA abuse occurs.

If you or another person may be the victim of POA abuse, then one of the first steps would be to request a review of your attorney’s (person handling the principal’s assets), financial dealings with your assets. Since attorneys have a fiduciary duty (duty to keep proper records, act in the principal’s best interest, avoid conflict of interests, etc), they must produce proper documentation of their dealings with the principal’s assets, which can be reviewed by a lawyer or financial agent to check for irregularities and any misconduct. Before confronting the attorney directly, ensure documentation of the suspected misconduct has been gathered and saved.

Next, if the principal has not lost their mental capacity, then the principal can revoke the POA and contact the attorney as well as cut off any remaining access to their assts. If the principal has lost their mental capacity, then another person can refer the matter to the Guardian Division of NCAT, which can freeze their access and appoint a new financial manager.

In all cases of POA abuse, contact a lawyer and the NSW Ageing and Disability Abuse Helpline at 1800 628 221, and contact NSW Police. Ensure all evidence of financial misconduct is saved and ready to be used in court. Before confronting the attorney, gather evidence of the timeline from start of appointment as attorney to present of events, bank statements and correspondence to ensure the attorney cannot do further harm. Sometimes, urgent action may be required to freeze assets and ensure no further harm can be done, so act quickly and preserve all evidence.

A court of NCAT can order the attorney to repay all the money and surrender any assets they stole or bought with the money from the principal’s estate, so recovery of lost assets is fully possible. Remember, while you may feel like there is no recovering, there are legal pathways which can help you recover from POA abuse and you are not alone.

Estate planning is often seen as a straightforward task: write a will, appoint an executor, and decide who receives your assets. In reality, family law can heavily influence whether your plan works as intended. Relationship changes—such as marriage, separation, divorce, or entering a de facto relationship—can alter who may benefit from your estate, who might challenge your will, and what assets you actually have to distribute.

One of the biggest issues is that relationship breakdowns frequently leave unfinished financial ties. If a couple separates but does not finalise a property settlement, a former spouse or de facto partner may still argue they have a financial entitlement connected to the relationship. Even if you update your will to remove an ex-partner, the practical risk remains: unresolved obligations and dependency issues can lead to disputes after death.

Family law outcomes also shape the size and composition of your estate. A property settlement can transfer real estate, adjust savings, and split superannuation. This means a will drafted before separation or before settlement may no longer match your actual asset position. For example, if you expected to leave a jointly owned home to children but later transfer it as part of a settlement, that gift may be impossible to carry out unless the will is updated.

Blended families are another area where family law and estate planning intersect. Many people want to provide for a new partner while protecting assets for children from an earlier relationship. Without careful planning, this can create competing expectations and increase the chance of conflict. A surviving partner may need ongoing support, while children may expect to inherit assets connected to their parent. Clear and current estate planning is critical to reduce uncertainty and dispute risk.

It is also important to remember that not all assets pass through a will. Superannuation death benefits and life insurance may be paid according to binding nominations or trustee discretion, not the will. If nominations are outdated—particularly after separation—benefits may be paid to a former partner contrary to your current intentions.

Where there are minor children, estate planning must address more than distribution. Guardianship appointments and trustee structures should reflect real family arrangements, including any shared care or complex co-parenting dynamics.

In practice, the best approach is to review your will and related documents whenever your family situation changes. Coordinating estate planning with family law advice—especially during separation, divorce, or re-partnering—helps ensure your estate plan remains effective, reduces the risk of disputes, and increases the likelihood your wishes will be carried out.

Sutcliffe v Harper [2025] NSWSC 54 confirms that caregiving contributions are relevant, but not determinative, in a family provision claim under the Succession Act 2006 NSW. Care, including domestic assistance, companionship, supervision and other non-financial support, may strengthen the competing claim of the person who provided it. Conversely, a claimant’s limited caregiving contribution may weaken the claimant’s moral claim relative to another beneficiary, but it does not necessarily establish that the provision made for the claimant was adequate.

In Sutcliffe, the claimant was the deceased’s adult son, Mark. The principal competing beneficiary was his sister, Lisa, who had provided substantial care for the deceased over a number of years. Mark had maintained less consistent contact and had made materially fewer caregiving contributions. Those matters favoured Lisa, but did not defeat Mark’s claim. The Court ultimately ordered further provision of $171,426 for Mark, rather than the approximately $300,000 he had sought.

Statutory framework

Under s 59 of the Succession Act 2006 NSW, the Court asks:

1. whether the provision made for the eligible applicant was inadequate for the applicant’s proper maintenance, education or advancement in life; and
2. if so, what provision ought to be made.

The considerations in s 60 may inform both questions. They include:

• the relationship between the applicant and deceased;
• the deceased’s obligations or responsibilities to the applicant and competing beneficiaries;
• the estate’s size and nature;
• each person’s financial resources and needs;
• contributions made by the applicant to the deceased’s welfare or to the acquisition, conservation or improvement of the deceased’s estate;
• benefits previously given by the deceased;
• the applicant’s character and conduct; and
• any other matter the Court considers relevant.

Caregiving ordinarily falls most directly within the applicant’s contributions to the deceased’s welfare. Where care was provided by a competing beneficiary rather than the claimant, it remains relevant to the deceased’s obligations to that beneficiary and to the comparative justice of making an order that diminishes that beneficiary’s entitlement.

Principles concerning caregiving contributions

1. Caregiving is relevant even if it has no direct financial value

The statutory concept of a contribution to the deceased’s welfare is not confined to money, property improvement or services capable of commercial valuation. It can encompass:

• personal care;
• transport and attendance at appointments;
• domestic assistance;
• emotional support and companionship;
• supervision and crisis assistance;
• coordinating medical, financial or residential arrangements; and
• allowing the deceased to remain at home or maintain independence.

The Court does not ordinarily calculate such care at an hourly or market rate. The contribution informs the strength of the caregiver’s claim upon the deceased’s bounty and the deceased’s corresponding moral or familial obligations.

2. Caregiving is not an independent entitlement to reimbursement

A family provision order is not compensation for services rendered. Nor is the jurisdiction designed to reward virtue or equalise the efforts of siblings. Caregiving is one consideration within the broader evaluative judgment required by ss 59 and 60.

Accordingly, extensive care does not automatically entitle the caregiver to the estate, and the absence of care does not automatically disqualify another eligible person. The ultimate question remains whether the testamentary provision for the claimant was adequate and, if not, what order is appropriate having regard to all competing claims.

3. A competing beneficiary’s care may justify unequal testamentary treatment

Where one child has assumed substantial responsibility for an elderly parent and another has had less involvement, the Court may regard a larger benefit to the caregiver as rational and justified. That consideration can:

• support the deceased’s decision to divide the estate unequally;
• reduce the amount of further provision ordered for the claimant;
• weigh against disturbing property or benefits received by the caregiver; and
• demonstrate that the deceased owed significant obligations to the caregiver as well as to the claimant.

In Sutcliffe, Lisa’s years of care were a substantial counterweight to Mark’s application. The secondary account of the judgment identifies Mark’s limited caregiving relative to Lisa as one reason why his claimed amount was excessive.[^2] The Court nevertheless did not treat Lisa’s contribution as conclusive.

4. Limited care or imperfect family relations do not necessarily answer adequacy

The Court considers the substance and history of the relationship, not merely the quantity of physical care. Relevant matters may include:

• geographical separation;
• the deceased’s independence or refusal of assistance;
• periods of estrangement and their causes;
• the frequency and quality of contact;
• emotional support;
• whether another person had already assumed the primary caring role; and
• whether the claimant’s conduct was sufficiently serious to diminish the deceased’s obligation.

In Sutcliffe, the deceased had recorded a view that Mark loved her less and did not sufficiently include her in his life. Despite inconsistent contact, the Court found that they still had a close relationship.[^1] His lesser caregiving role therefore reduced the comparative strength of his position but did not eliminate the parental obligation relevant to proper provision.

5. Caregiving must be weighed against need, resources and previous benefits

Care is not considered in isolation. In Sutcliffe, matters relevant to Mark’s position included his fluctuating self-employed income, home ownership, savings, mortgage liability, lack of contingency funds and previous gifts exceeding $60,000.[^1][^2] These considerations had to be assessed alongside Lisa’s caregiving and the substantial benefit she obtained through the jointly owned home.

The decision illustrates that a claimant who contributed little care may still receive further provision where financial circumstances demonstrate a need for greater security. Equally, previous financial assistance and existing assets may limit the appropriate award even where inadequacy is established.

6. Non-estate benefits affect the comparative assessment

The deceased’s principal home passed to Lisa and her husband by survivorship and therefore did not form part of the estate. The deceased’s superannuation also fell outside the estate and was divided between Lisa and Mark.[^1] Although such assets are not necessarily available for a family provision order, their receipt can be relevant to the parties’ resources, the practical distribution of the deceased’s wealth and the strength of competing claims.

Thus, Lisa’s caregiving supported her claim, but the substantial survivorship benefit she received also affected the overall balance. The Court was not limited to comparing the percentages stated in the will without regard to the property passing outside it.

7. The weight of care is comparative and fact-sensitive

The significance of caregiving depends upon matters such as:

• its duration, intensity and regularity;
• whether it involved personal sacrifice;
• whether it displaced paid care or preserved estate assets;
• whether the caregiver lived with the deceased;
• the deceased’s level of dependence;
• whether the care was motivated by affection, expected inheritance or an agreement;
• benefits already received by the caregiver, including accommodation or property;
• the needs and resources of the caregiver; and
• the claimant’s needs and the deceased’s obligations to the claimant.

A long period of demanding care involving substantial sacrifice will ordinarily carry more weight than occasional assistance. However, even extensive care must be balanced against the caregiver’s existing benefits and the genuine needs of other eligible persons.

Application of those principles in Sutcliffe

The practical effect of the decision was a compromise between competing considerations:

• Lisa’s substantial care strengthened her competing claim and supported her receiving more than Mark.
• Mark’s lesser involvement and previous financial benefits reduced the force and amount of his claim.
• Mark nevertheless remained an adult child with a close relationship with the deceased and identifiable financial insecurity.
• Lisa had received the benefit of the jointly owned property outside the estate.
• The deceased’s 2015 will no longer operated against the same asset structure that existed when it was made.
• Evidence of the deceased’s later intention could not itself informally rewrite the will, but it was relevant to the family provision assessment and the surrounding circumstances.
• Further provision was warranted, although not at the level Mark sought.

The order of $171,426 demonstrates that caregiving may materially limit an award without barring it altogether.

Sutcliffe v Harper does not establish a caregiving formula or a presumption in favour of the principal carer. It confirms a holistic and comparative assessment. Non-financial care can substantially strengthen a beneficiary’s competing claim and justify unequal treatment, while a claimant’s lack of care can reduce the claimant’s relative moral claim. Neither factor displaces the central statutory inquiry into adequate and proper provision, assessed against the claimant’s financial position, relationship with the deceased, prior benefits, estate structure and the legitimate claims of others.

Spousal maintenance is an important aspect of Australian family law, providing financial support to a former spouse or de facto partner after separation or divorce. This article explains what spousal maintenance is, when it may be awarded, and the key factors the court considers.

What Is Spousal Maintenance?

Spousal maintenance is a payment made by one party to their former spouse or partner to assist with living expenses when they are unable to adequately support themselves.

It is separate from child support, which is specifically for the care of children.

When Can Spousal Maintenance Be Claimed?

A person may claim spousal maintenance if, after separation, they cannot meet their reasonable living costs and the other party has the capacity to pay.

Common reasons for needing support include:

• Caring for young children
• Age or health issues affecting the ability to work
• Limited earning capacity due to time spent out of the workforce

Types of Spousal Maintenance

Spousal maintenance can be arranged in several ways:

• Periodic payments: Regular payments made weekly, fortnightly, or monthly
• Lump sum payments: A one-off payment
• Payment of specific expenses: Covering costs such as rent, utilities, or medical bills

Time Limits

Applications for spousal maintenance generally need to be made within 12 months of a divorce becoming final, or within two years of the end of a de facto relationship. Extensions may be granted in limited circumstances.

Conclusion

Spousal maintenance can provide important financial support for those unable to adequately support themselves after a relationship ends. The court considers factors including the applicant's financial needs and the other party's capacity to pay, with the aim of achieving a fair outcome for both parties.

Understanding your rights and obligations regarding spousal maintenance can help you make informed decisions during family law proceedings.

Elder law in Australia addresses the legal and practical issues affecting older adults, including health, estate planning, powers of attorney, and guardianship. Older people can become embroiled in family law disputes though not so much between themselves, but in the maelstrom that can arise from the breakdown of their children’s relationships. A critical intersection involves disputes among adult children over guardianship or financial management when an elderly parent experiences cognitive decline, illness, or incapacity.

Guardianship and Administration

Guardianship arrangements are made when an individual cannot make personal decisions due to diminished capacity. Under the Guardianship and Administration Act 2019 (Victoria) and similar frameworks across Australia, Victorian Civil and Administrative Tribunal (VCAT) in Victoria and NSW Civil and Administrative Tribunal (NCAT) in New South Wales may appoint that guardians are empowered to make decisions about their health, living arrangements and daily care. It also states that administrators are responsible for managing finances, paying bills, and handling legal contracts.

Guardianship is distinct from financial management as one safeguard personal wellbeing, while the other manages financial matters. Orders can be restrictive or supportive, depending on the capacity of the older adult.

Causes of dispute among adult children

Disputes among adult children over guardianship and administration typically stem from conflicting claims to appointment, allegations of mismanagement or abuse, financial or personal conflicts of interest, long-standing family tensions and poor communication or documentation, all of which can exacerbate misunderstandings and heighten sibling rivalry.

Disagreements often arise when multiple children believe they are best placed to act on behalf of their parent either because of proximity, caregiving involvement or perceived competency. Allegations of neglect, financial exploitation or unfair treatment can intensify conflicts, while motives linked to inheritance, financial gain or business interests may clash with siblings focusing on the parent’s welfare. Pre-existing family tensions frequently resurface and gaps in communication such as inadequate sharing of medical, financial or care-related information, further complicate the resolution process. These interlinked factors collectively contribute to disputes that tribunals seek to address through mediation, capacity assessment and strategic appointments that prioritise the parent’s best interests.

Congratulations to Judge Steven Middleton and Judge Sandra Taglieri on their appointments to the Federal Circuit and Family Court of Australia (FCFCOA) — Family Court (Division 1), and to Ms Tracy Flintoff on her appointment to FCFCOA (Division 2). Judge Middleton and Judge Taglieri were previously Division 2 judges, and Ms Flintoff was previously a Senior Judicial Registrar.

These appointments across different divisions have prompted a simple question many separating families (and even practitioners) ask: what is the difference between the two “branches” of the FCFCOA — Division 1 and Division 2 — and why does it matter? While many people refer to “the Family Court” as if it is a single court, the FCFCOA family law system is structured into two divisions that work together, with different roles particularly when it comes to case complexity, hearing length, and appeals.

Division 2: where most family law cases are dealt with

For most families, FCFCOA (Division 2) is where their case will start — and where it will usually stay. In practice, the majority of parenting and property matters are managed and finalised in Division 2.

A key practical point is that final hearings in Division 2 are generally capped at 4 days. This affects what kinds of cases are suitable to be finally determined there, particularly where a matter requires extensive oral evidence.

Division 1: more complex matters, more experienced judges, and appeals

FCFCOA (Division 1), is more likely to deal with the most difficult and complex family law matters. Division 1 is also generally regarded as having more experienced and senior judges, and a move from Division 2 to Division 1 is commonly viewed as a promotion for a Judge. For parties, the key benefit is that cases which are too complex or time-consuming for a shorter final hearing can be managed and determined in a division designed to accommodate that level of complexity, including through its appeal work.

Examples of matters more likely to be allocated to Division 1:

• Appeal matters, including appeals from decisions made by judges in Division 2 (for example, where a party says the Division 2 judge made a legal error or reached a decision that should be set aside or changed).
• Complex Financial List matters, such as property proceedings involving an asset pool over $20 million.
• Cases with a large quantity of witnesses, where the evidence cannot realistically be heard within the Division 2 four-day hearing cap.

Differences in Rules

Both Divisions are governed by the Federal Circuit and Family Court of Australia Rules 2021. However, each division has some rules which are slightly different and the rule differences are largely practical elements.

• Costs (if awarded): there are differences in the scale of costs that may apply depending on whether the matter is in Division 1 or Division 2.
• Interim hearings: there are differences affecting the length of affidavit material that may be filed and relied upon in interim applications.

Freedman & Gopalan Solicitors is experienced in running matters in both Division 1 and Division 2. Whichever division a case proceeds in, parties can expect their matter to be dealt with within a skilled judicial system designed to determine family law disputes fairly and according to law.

When a relationship breaks down, many people assume family law disputes must end up in Court. In reality, most matters resolve without a final Court hearing. Court can be important in urgent or high-risk situations, but for many families it is a last resort because it can be stressful, slow, and expensive. Understanding the alternatives can help you choose a pathway that is safer, faster and more practical.

When Court might be necessary

Court may be appropriate (or urgent) where there are serious concerns such as:

• Family violence, abuse, or child safety risks;
• Threats, harassment, stalking, or coercive control;
• A parent withholding a child, or a risk a child may be taken without consent;
• A party refusing to disclose financial information, or hiding assets; or
• Repeated non-compliance with existing arrangements.

Even in Court proceedings, many cases still settle before trial. Court is often a process for managing risk, setting interim arrangements, and encouraging resolution—not only for deciding a final outcome.

Mediation (family dispute resolution)

Mediation is a structured negotiation with an independent third party (the mediator) who helps people reach agreement. The mediator does not take sides or impose a decision.

Mediation can be used for parenting issues (like living arrangements and time with each parent) and financial issues (like property settlement). It can be arranged through community-based services, private mediators, or lawyers who support you through the process.

Mediation may suit you if you want:

• A practical solution and can negotiate safely;
• More control over the outcome; or
• A quicker resolution than Court.

It may not be appropriate if there is a significant safety risk or if one person cannot participate freely due to fear or intimidation. Where there are risk issues, specialist pathways (including legally assisted mediation and safety planning) may be needed.

Lawyer-assisted negotiation

Some matters resolve through correspondence or roundtable conferences between lawyers. This can be helpful where communication between the parties is strained, where the issues are complex, or where you want a clearer structure around disclosure and settlement proposals.

A negotiated agreement can often be formalised, giving both parties more certainty and reducing future disputes.

Arbitration (a private decision-maker)

Arbitration is different from mediation. In arbitration, the parties appoint an independent arbitrator (often an experienced family law practitioner) to make a binding decision, usually about financial/property disputes. It is more like a private, streamlined version of a Court determination.

Arbitration can be useful when you:

• Have a narrow issue to decide (for example, how property should be divided);
• Want a decision sooner than the Court timetable; or
• Want more flexible scheduling and a more private process.

Arbitration is generally not used for all parenting disputes, particularly where complex risk issues are present.

How to choose the right path

A good starting point is to identify what you need most: safety, speed, certainty, privacy, or a binding decision. Many families use a staged approach—negotiation first, mediation if needed, arbitration for financial issues where agreement is not possible, and Court only where required.

If you are unsure, early legal advice can help you understand which process fits your situation and what information you should gather before you start.

While both divorce and annulment end a marriage, they do so in different ways. A divorce is the legal dissolution of a valid marriage, whereas an annulment is a court order declaring that a marriage is null and void from its inception.

How does a divorce work?
A divorce legally terminates a marriage on the grounds of a “no-fault” divorce system in Australia. This is where courts do not consider why a marriage has ended and you only need to prove that the marriage has broken down irretrievably (evidenced by 12 months of separation). This results in both parties being free to remarry and legal orders for property and children are made.

How does an annulment work?

An annulment (or decree of nullity) declares a marriage void, treating it as if it never legally existed, and is often used to bypass the 12-month separation requirement for divorce. An annulment granted by a religious institution has no effect on civil law and does not legally end a marriage, and children born of an annulled marriage are still considered legitimate.

Key differences:

The key differences between divorce and annulment include validity, time requirement and legal standing.

• Divorce ends a marriage, while an annulment proves the marriage was never valid.
• Divorce requires 12 months separation while an annulment can be received immediately.
• In an annulment, the court finds the marriage was never legally valid.

When is an annulment possible?

An annulment is only granted on specific, narrow grounds. This can include:

• One or both parties were already married;
• One or both parties were not of legal age (usually under 18, or 16-18 but without permission from the court);
• The marriage was entered under duress, fraud or mistake;
• One party was mentally incapable of understanding the marriage contract; or
• The parties are close relatives.