When a relationship breaks down, one of the biggest practical questions is how to divide property. In family law, a ‘property settlement’ is the process of distributing property between each spouse party. This doesn’t just mean the family home – it includes savings, cars, businesses, superannuation, and debts. The goal is to reach a “just and equitable” outcome based on the individual circumstances of the relationship.

When can property settlements occur?

Property settlements can occur immediately after separation, or some time following. Parties do not need to wait for a divorce to start sorting out finances. In fact, many people begin this process long before getting divorced so they can move on with certainty.

There are strict time limits to be aware of:

• For married couples – if they are granted a divorce before finalizing the property settlement, any application to the Court for a property settlement must be made within 12 months of the divorce becoming final.
• For de facto relationships – any application to the Court for a property settlement must be made within 2 years of the date of separation.

If parties miss these deadlines, property settlements can still be completed by consent. Otherwise, an Application must be made to the Court to proceed out of time – of which there is no certainty.  

What factors are considered in a property settlement?

A property settlement involves looking at the full financial picture of both people in the relationship. This includes all assets (such as houses, bank accounts, investments, and superannuation) and liabilities (such as home loans, credit cards and personal loans). All property is relevant regardless of whether the item is owned in the name of one party, by the parties jointly, or in a company name or trust.  

The general principles considered when making decisions about property settlements apply similarly to couples in a de facto relationship and marriage, including:

• What each person contributed to the relationship. Contributions include assets owned at the commencement of the relationship, income generated during the relationship, contributions through an inheritance or gift, contributions by way of caring for children, or running the household.
• What are each party’s future needs. Relevantly, this requires an assessment of each party’s income earning capacity, age, health and whether one party or both parties have the responsibility for caring for the children going forward
• What is the effect of any family violence during the relationship on each party’s capacity to contribute financially or non-financially to the relationship.

How can property settlements be resolved?

Most people resolve property settlements without going to Court. Settlements outside of Court are usually achieved quicker, for less cost, and are less stressful than Court proceedings. Some couples can reach an agreement themselves and consult lawyers to formalize the agreement. Other parties use lawyers to negotiate on their behalf or attend mediation where an independent person helps find an agreed pathway forward.

If parties reach an agreement, it is important that agreement is legally binding and enforceable. This can be done in two ways:

1. Consent Orders – when parties reach an agreement about property matters, they can file an Application for Consent Orders with the Court to request the Court make the orders that reflect the property settlement by consent. The Court will only make the orders if the effect of the settlement is just and equitable in all the circumstances. Whilst parties are encouraged to seek independent legal advice, it is not mandatory that the parties have a solicitor acting on their behalf.
2. Binding Financial Agreement – parities can enter into a Financial Agreement to formalize the settlement which does not need to approved by a Court. Both parties to a Financial Agreement are required to obtain independent legal advice regarding the Agreement before it can be finalised.  

Where parties cannot reach an agreement about a property settlement, Court proceedings can be commenced. The process of Court proceedings can be around 12 months and involve multiple Court appearance. There are numerous options during the proceedings for the matter to be resolved by consent – and most matters do. If not, at a final hearing a Judge will review all the evidence and determine the division of property between the parties.

What is meant by the term just and equitable?

The Court will not make an order unless it is satisfied it is just and equitable to do so. This essentially means the outcome must be fair in all the circumstances – not necessarily equal. A common misunderstanding is that property is split 50/50 – that is not what the law requires. The Court will review all relevant factors and review the nature of the property and the effect of the proposed distribution of property on the circumstances of the parties.   

How can Commins Hendriks assist?

We have a team of lawyers in our family law department, and we are well equipped to provide advice at any stage of the property settlement. We recommend a party who has separated obtain independent legal advice at the earliest opportunity following separation to gain insight into how the relevant factors described above may apply to their circumstances, what information they should start gathering, and any particular issues to be mindful of with their property settlement.  Following the first appointment, we are guided by the client as to what level of involvement or assistance we provide.

Our aim is to ensure our clients make informed decisions at each step of the way.  We provide practical and realistic advice regarding potential outcomes, in an empathetic manner.


By Sienna Casanelia and Tara Freeburn

Separation often requires parents to make new arrangements for the care of their children. Whilst every family is different, with varying dynamics, routines, and needs – the legal framework in Australia is centred on one key principle: promoting outcomes that are in the best interests of the child.

Navigating parenting arrangements

Parenting arrangements can be discussed and agreed upon at any stage following separation. Some families are able to reach agreement quickly, while others need time or assistance to work through more complex issues.

Parenting arrangements can cover a range of issues, including:

• Who the children live with
• Where the children live
• How much time they spend with each parent
• How parents communicate about major decisions such as health, education and religion
• Arrangements for holidays, special occasions, and travel

There is no one-size-fits-all model. Arrangements should be tailored to suit the needs of each child and the circumstances of the parents.

Formalising parenting arrangements

Some parents reach a verbal agreement only regarding the arrangements for their children, and they do not require any formality.

Other parents may choose to formalise their arrangements to provide certainty moving forward. This can be done through:

• Consent Orders – legally binding orders approved by the Court.

• Parenting Plans – written agreements that are flexible but not legally enforceable

The appropriate option will depend on the level of formality and certainty the parents are seeking.

What if agreement cannot be reached?

Family Dispute Resolution / Mediation

If agreement cannot be reached, parents are generally required to attempt family dispute resolution before applying to the Court for parenting orders. This process provides an opportunity to resolve matters in a structured setting with the assistance of an independent mediator.

If mediation does not result in an agreement, Court proceedings may be commenced.

However, if there is urgency attached to the situation or in some other specific limited circumstances, Court proceedings can be commenced regardless of whether mediation has been attempted or not.

Applying to the Court for Parenting Orders

Court proceedings involve several stages and are structured to encourage parties to reach agreement wherever possible. Throughout the process, the Court continues to support and facilitate settlement discussions between the parties.

If the matter proceeds to a final hearing, a Judge will determine the outcome based on the evidence before the Court and what is considered to be in the best interests of the child/ren.

What does the Court focus on?

The Court looks at each family’s circumstances individually. The Court’s primary consideration is the safety and wellbeing of the child/ren. This includes examining:

• The need to protect the child from harm, including exposure to conflict or family violence – this is at the forefront of any parenting matter.
• The child’s relationship with each parent and other important people in their lives.
• Each parent’s ability to meet the child’s day-to-day and long-term needs.
• The practical realities of proposed arrangements, including schooling and living arrangements.
• The child’s wishes, whilst having regard to the child’s age and level of maturity.

The Court is assisted through each parent providing evidence about all relevant matters, and also, an independent Child Court Expert providing a report to the Court with various recommendations.

How our team at Commins Hendriks can assist

Parenting matters can be challenging, both legally and emotionally. Obtaining advice early can help you understand your rights and responsibilities, consider your options, and work towards practical outcomes.

At Commins Hendriks, our family law team provides clear, practical advice tailored to the circumstances of each client. We aim to support our clients in making informed decisions while prioritising the best interests of their children.

We can assist with negotiating parenting arrangements, preparing parenting plans and applications for consent orders. We also provide guidance and representation throughout family dispute resolution, including attending mediation where required. Where Court proceedings are necessary, we assist by preparing and lodging Court documents, advising on Court processes and procedure, and representing clients at all Court events.

The loss of a baby to stillbirth is a grief no parent should have to bear. When that loss may have been preventable, families are often left with questions about what went wrong and who is responsible. Parents deserve compassion, support, and the opportunity to seek justice. At Commins Hendriks, we provide legal guidance to families across NSW, the ACT and VIC, helping them understand whether medical care fell below the expected standard and whether a medical negligence claim is possible. Our role is to support parents through the legal process while helping uncover the answers they deserve.

This article explains when a stillbirth may give rise to a negligence claim, how claims are brought, examples of the types of failures that commonly contribute to preventable stillbirths, and what compensation families may be able to seek.

What is “stillbirth” and when might negligence be involved?

In everyday language a stillbirth refers to the loss of a baby during pregnancy or birth after the point at which a baby would be considered viable. Not every stillbirth is due to medical error. However, if clinicians, midwives or hospitals fail to meet the accepted standard of care during pregnancy, induction or labour — and that breach causes or contributes to the baby’s death — there may be grounds for a medical negligence claim.

Common clinical failings that can lead to a preventable stillbirth

While every case is different, some clinical failures frequently feature in stillbirth claims. Examples of common failings include:

• Failure to monitor pregnancy and fetal wellbeing, including not arranging appropriate ultrasounds, growth scans, or heart rate monitoring;
• Failure to diagnose or manage maternal conditions, including such as gestational diabetes, pre-eclampsia, or infections that increase risk;
• Delays in acting on warning signs during labour, including ignoring abnormal fetal heart tracings, reduced movements, or signs of fetal distress;
• Failure to perform a timely caesarean section, including when an emergency delivery was necessary but not carried out in time;
• Inadequate resuscitation or neonatal support after delivery;
• Improper management of medication including prescribing errors or failure to adjust treatment for pregnancy complications.

Every case is different, and determining whether negligence occurred requires careful review by experienced lawyers and medical experts.

What Compensation Can Be Claimed?

While no amount of money can ever replace the loss of a child, compensation can help relieve some of the practical and emotional burdens families face after such a tragedy. Depending on your circumstances, you may be able to claim for:

• Pain and suffering – recognising the emotional and psychological impact you have experienced.
• Medical expenses – including pregnancy, labour, and postnatal care and future treatment expenses.
• Loss of income – if time off work is required for recovery or counselling.
• Care and support services – for assistance with daily life and mental health recovery.

Compensation is not just financial relief — it is also recognition of the harm caused and the accountability that should have been upheld.

Why Choose Commins Hendriks?

• Compassionate support: We understand that discussing the loss of a child is incredibly difficult. Our team approaches every case with sensitivity and respect.
• Proven expertise: With over 100 years of serving communities across NSW, ACT, and VIC, our lawyers have long standing experience in medical negligence claims.
• No-win, no-fee: You will not pay legal fees unless your claim is successful. We also cover disbursements, so you have no upfront costs.
• Local strength: With offices across regional NSW and in Canberra, we are accessible and connected to the communities we serve.
• Passionate lawyers: Claims of this nature deserve a lawyer invested in your outcome and who will advocate strongly for you. Our female led team of medical negligence lawyers are experienced and passionate about birth trauma issues.

We are committed to standing by your side and ensuring your voice is heard.

Case study — KS & XT v Calvary Private Hospital (ACT)

Our medical negligence team is one of the leading teams in the country, with proven results. One of the most significant stillbirth negligence cases in the ACT was run by our team at Commins Hendriks. In KS & XT v Calvary Private Hospital in the Supreme Court of the Australian Capital Territory, induction of labour was started after the pregnancy went overdue. Within a short time, fetal heart monitoring showed abnormal heart activity and repeated bradycardic episodes. The treating team did not escalate care promptly and there was a delay in arranging an emergency caesarean. Sadly, the baby was delivered stillborn.

The Court found failures in care and concluded both the hospital and the treating obstetrician had breached their duties. Damages totalling nearly $900,000 were awarded to the parents for psychological injury and related losses, with liability apportioned between the obstetrician and the hospital. This judgment underlines the legal consequences where timely recognition and response to fetal distress do not occur and demonstrates that families can achieve justice through the Courts.

Limitation periods — act early

Time limits for bringing medical negligence claims vary across states and can be complex. As a general guide, claims must be filed within three years from the date of injury, or in some cases, from the date of discoverability. However, this can vary slightly across jurisdictions and early legal advice is vital. Missing a limitation deadline can prevent a claim proceeding.

Taking the Next Step

If you have experienced the stillbirth of your child and believe medical negligence may have been involved, you are not alone. Legal advice can help you understand your rights, the strength of your claim, and the options available to you.

At Commins Hendriks, we offer a free, confidential consultation to discuss your situation. Our compassionate lawyers will listen, provide guidance, and fight to secure the justice and answers you deserve.

Contact us today to arrange a free consultation with our experienced medical negligence team.

💙 Support services: If reading this article has caused distress, please know help is available. You can call Lifeline on 13 11 14 for free and confidential 24/7 crisis support.

For many rural landowners, leasing out a cottage or running a side business is a smart way to boost income. But recent rulings, such as Wylarah Pastoral Co v NSW Revenue [2024] NSWCAT, show that mixed-use land can have far-reaching consequences, specifically with respect to Land Tax. However, mixed-use land can also impact Capital Gains Tax (CGT), stamp duty, and succession planning.

Land Tax: The Starting Point

Under NSW law, land used for primary production may qualify for a land tax exemption under s. 10AA of the Land Tax Management Act 1956 (NSW). However, if part of the property is leased for residential or commercial purposes, that exemption can be lost. In the case of Wylarah the landowner sought to challenge the Chief Commissioner of State Revenue on the basis that the dominant use of the land was farming cattle, and a rental property was a secondary business only. The Wylarah case confirmed that rental income can tip the balance against primary production being the “dominant” purpose by virtue of the income it generates, rather than the percentage or area basis of the land the second business uses.

Capital Gains Tax (CGT)

When selling or transferring rural property, CGT can apply. While farming businesses may access concessions such as the small business CGT concessions mixed use complicates eligibility. If a portion of the land is used for non-farming purposes, the gain may need to be apportioned, or access to concessions such as main resident exemptions may be impacted.

Stamp Duty

Succession planning often involves transferring land to family members. NSW and VIC offer stamp duty concessions for farming property transfers within families, but these rely on the land being used primarily for primary production. Mixed-use arrangements can jeopardize eligibility and trigger full stamp duty on the transfer.

What Should Landowners Do?

• Keep detailed records: Demonstrate that farming is the dominant use, and ensure when leasing out the property the lease or licence is documented, and the ‘permitted use’ properly explains the activities on the property.
• Seek advice before diversifying, from an accountant, financial planner, and lawyer (where applicable).

About the Author

Winona Page is a senior associate solicitor at Commins Hendriks, who has recently relocated to the Riverina and would be happy to provide tailored advice regarding your superannuation and estate plan.

Please contact Commins Hendriks to make an appointment for advice specific to your situation.

The advice provided above is general in nature and is not formal legal advice.

Meeting a medical negligence lawyer is probably not something you ever had on your bucket list. In fact, many people try their hardest to never engage with a lawyer at all! But if you have experienced medical negligence you are going to need to talk to a lawyer and the good news is – we are here to make it as easy and stress free for you as possible. Here’s what you need to know about meeting a medical negligence lawyer for the first time.

We see our clients either in person or online and the consultation takes around an hour. It’s confidential, obligation-free and designed to give you help to understand the process and options available to you.

Before your appointment – what can help

You don’t need to have everything perfectly organised, many clients come to us with very little information apart from their story, and that’s completely okay.

However, if you do have access to your hospital or GP discharge summaries, lists of referrals, medication lists, appointment dates and timelines, receipts for expenses or any photos that can be very helpful. If you don’t have any of these documents, don’t worry, we can obtain records on your behalf. The most important thing is simply attending the appointment so we can start supporting you.

Discussion of Your Matter

Once you meet up with one of our lawyers, we’ll talk with you about the key details including what happened and when, where you received treatment, the medical care you have had and how the injury has affected your health, work and daily life. This could be your first time talking to a lawyer but its all we do, and we will gently guide you through the information we need.

Advice and Options

Once we understand your situation, we’ll explain whether you may have a claim and the strength of your case. We will talk to you about what compensation might be available and how long the process might take. We don’t use legal jargon and you’re welcome to ask as many questions as you need. Our role is to give you confidence and direction, so you can make informed decisions.

How fees work

One of the biggest questions on your mind is probably (and should be!) how legal fees work. At Commins Hendriks we operate on a no-win, no-fee basis and we cover all upfront costs. There is nothing to pay unless your medical negligence claim succeeds (not all firms do this!). We will also explain our costs agreement clearly before any work begins.  

What happens next

If you choose to proceed, we’ll outline the next steps, usually starting with obtaining your medical records and speaking with independent medical experts. You remain in control throughout (you are the client after all!) and we keep you updated at every stage.

If you or someone you care about has been injured due to medical treatment, early legal advice can make a real difference. Reach out to our experienced personal injury team today for a free, confidential, no obligation discussion today.

Commins Hendriks acted on behalf of the Plaintiffs in KS and XT v Calvary Health Care (2018). In this case, a husband (XT) and his wife (KS) successfully argued that a Canberra hospital had breached their professional duty of care following the stillbirth of their child. 

What happened?

KS was admitted to hospital one week past her due date for a planned induction of labour. She and her husband, XT, arrived at around 4:30pm, and foetal heart monitoring commenced shortly afterwards.

Within half an hour, the baby’s heart rate showed concerning changes. Despite this, the abnormalities were not properly evaluated, and more than an hour passed before the obstetrician was contacted. When notified at approximately 6pm, the obstetrician ordered an emergency caesarean. KS was not taken to theatre for a further 30 minutes. By 7pm, their baby was delivered stillborn.

The Court’s findings

The Court accepted our submissions and found that both the hospital and the obstetrician breached their professional duty of care. As a result, KS and XT were recognised as having suffered psychological injury due to the loss of their child.

The Court awarded substantial compensation to both parents, reflecting the severity and ongoing impact of their trauma. KS received $669,518 and XT was awarded $220,373, in addition to an allowance for legal costs.

Why this outcome matters

The case is a key victory in the ACT for those who have experienced birth trauma and families affected by preventable stillbirth and delayed treatment in the ACT. It confirms that healthcare providers must respond promptly to signs of foetal distress and that failures in monitoring and escalation will not be excused.

The case also demonstrates that Commins Hendriks is a leading firm in the ACT, NSW and VIC for birth trauma matters. We are passionate about women’s health and committed to fighting for justice for those who have suffered devastating loss at the hands of medical malpractice.  

How we support families

We understand seeking legal advice can feel like a daunting process, particularly when also navigating grief and complex medical issues. But we are dedicated to helping clients through this process and providing support every step of the way, to help them get answers and justice for what they have gone through. 

We work on a no-win, no-fee basis and cover all upfront costs, ensuring clients can pursue answers without financial pressure.

If you have experienced birth trauma it’s important to know you are not alone. Our experienced and passionate team of personal injury lawyers are here to advocate for you and provide expert legal advice, helping you to obtain compensation and assist with your recovery. Speak to our team today for a free confidential chat.

While it’s been in force for over a year, now is a good time for all businesses to check how they are meeting their obligations under the Sex Discrimination Act 1984 (Cth) to ensure ongoing compliance with the “positive duty.”

The positive duty was introduced into federal law in December 2022 through the Respect at Work legislation. It requires organisations and businesses to take proactive and meaningful steps to prevent unlawful conduct such as sexual harassment, sex-based harassment, sex discrimination, and hostile work environments from occurring—not just respond after the fact.

This reform stems from a key recommendation of the Respect@Work Report, led by former Sex Discrimination Commissioner Kate Jenkins, which called for a shift from a reactive complaints-based system to one that places responsibility on employers to create safe, inclusive and respectful workplaces.

As of 12 December 2023, the Australian Human Rights Commission (AHRC) has been given stronger powers to investigate and enforce compliance with this duty. These powers apply to all businesses and organisations in Australia—regardless of size—including sole traders, small businesses, large companies, and government bodies.

Importantly, the positive duty does not only apply to employees. It also extends to contractors, labour hire workers, volunteers, apprentices, outworkers, students on work experience, and more.

Employers and persons conducting a business or undertaking (PCBUs) must take reasonable and proportionate measures to eliminate unlawful conduct as far as possible. What is “reasonable” will depend on factors such as the size of the business, its resources, and the nature of the work being performed.

It’s important to note that the positive duty doesn’t replace the existing laws that make sexual harassment and sex discrimination unlawful—it builds on them. Employers remain vicariously liable for unlawful conduct that occurs in the workplace, but now the expectation is that steps are taken to prevent it from happening in the first place.

If you run a business or are responsible for managing staff, it is important to regularly assess whether your workplace culture, systems, training, and complaint-handling procedures align with these new expectations.  Being proactive is not just a legal requirement—it’s a vital part of creating a safe and respectful workplace for everyone and reviewing current practices to ensure ongoing compliance is important.

Reach out to the Employment Law team at Commins Hendriks if you require any guidance on any employment related matter. 

Please contact Commins Hendriks to make an appointment for advice specific to your situation.

The advice provided above is general in nature and is not formal legal advice.

Many people believe writing a Will guarantees their final wishes will be carried out exactly as planned. In accordance with the provisions of the Succession Act (NSW), certain individuals may have the right to challenge a Will if appropriate provision has not been made for them. These claims—commonly known as family provision claims—can significantly impact the distribution of an estate and the wishes of the deceased.

Succession laws exist to ensure people who were dependent on the deceased, such as spouses, children, or other close family members, are not left without reasonable financial support. While the legislative provisions serve an important social function, they can also create uncertainty in estate planning, particularly in families with complex relationships, blended families, or estranged members.

Succession planning is about more than just drafting a Will—it’s about thinking ahead, identifying potential risks, and ensuring that your estate plan is both legally sound and practical. According to Julianne Carroll, Solicitor Director at Commins Hendriks, “A well-drafted Will is only one part of the picture. It’s also important to consider who might challenge your Will and how you can reduce the risks of any future claim.”

Julianne recommends open and early communication with family members, documenting the reasons if there are to be unequal gifts, and seeking professional advice where needed. In some cases, leaving a written statement or a recording with your Will explaining your intentions can help reduce the likelihood of a successful challenge.

Courts consider a range of factors when deciding family provision claims, including the financial needs of the person making the claim, their relationship with the deceased, and the size of the estate. It’s more important than ever to take a thoughtful approach.

If you’re reviewing your Will or helping a loved one with theirs, understanding succession laws can be a key part of safeguarding your wishes. Sound planning today can reduce the risk of disputes tomorrow and ensure your legacy is protected.

Reach out to Commins Hendriks if you need any legal assistance.

Understanding Landholder Duty and when it applies is important to companies and unit trusts that classify as a Landholder. 

1. Landholder Duty is essentially stamp duty that applies to indirect property transfers, such as share transfers in a company or transfers of units in a unit trust that own real estate.
2. Who is a landholder? A landholder can be any of the following who holds land (landholdings) in NSW with an unencumbered land value of $2 million or more:
   • Private unit trust scheme or private company (Private landholder) or
   • Public unit trust scheme or listed company (public landholder)
3. What if the unencumbered value of property is less than $2 million? The threshold for landholder duty is $2 million or more. If the unencumbered value of landholdings owned by a private or public landholder is less than $2 million, landholder duty is not applicable.
4. When does landholder duty apply?  Landholder duty applies when there is an acquisition of a significant interest, through the acquisition of shares or units, in a company or unit trust that has landholdings valued at over $2 million.
5. What is classified as a “significant interest”?  A significant interest means that if all the property is distributed, you are entitled to:
   • For acquisitions made on or after 1 February 2024
     • 50 per cent or more of the property in a ‘private landholder’, or
     • 20 per cent or more of the property in private unit trust schemes, or
     • 90 per cent or more of the property in a ‘public landholder’
   • For acquisitions made prior to 1 February 2024
     • 50 per cent or more of the property in a ‘private landholder, or
     • 90 per cent or more of the property in a ‘public landholder’
   • Acquiring a significant interest does not have to occur in one event. For instance, if you already hold  45 per cent of the shares in a landholder that is a private company and then acquire another five per cent, you may be liable to pay landholder duty.
6. How is landholder duty calculated?  It is calculated at the same rate as transfer duty. It is calculated on the unencumbered value of the landholdings and goods of the landholder at the time a relevant acquisition is made, as well as the number of acquisitions made in a ‘statement period’ (being the period commencing three years before the date of the relevant acquisition and ending on the date of the relevant acquisition).
7. Could I be exempt from landholder duty?  Some examples of possible exemptions, concessions and reduction in duty include:
   • Changes in trustees;
   • When an interest acquired is due to a deceased person’s will;
   • Landholdings consisting of primary production land;
   • Where an interest is acquired as a result of the break-up of marriage and other relationships.
8. When does it have to be paid? Like stamp duty, landholder duty must be paid within three months from the date of making a relevant acquisition. Interest will be applied to any late payments.

Article by Miranda Smith, Solicitor with Commins Hendriks.  Please contact Commins Hendriks to make an appointment for advice specific to your situation. 

The advice provided above is general in nature and is not formal legal advice.