Emma Swart

Barrister Information

Profile

Emma Swart practises in family law and appears regularly in the Federal Circuit and Family Court of Australia, Divisions 1 and 2 in Melbourne and interstate and also on occasions in the Family Court of Western Australia.  She is a highly experienced trial advocate in both complex parenting and financial disputes.  She is available to confer on strategy and dispute resolution options before trial.

Emma is a Nationally Accredited Mediator, a Victorian Bar Advanced Mediator and an Registered Family Law Arbitrator. . She is accredited by the Attorney-General (Cth) as a Family Dispute Resolution Practitioner (FDRP) and is authorised to issue certificates under section 60I of the Family Law Act 1975.

Emma is the Chair of Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) and the elected board member for Victoria. She is a foundation member of the Lawyer FDRP Panel, a select panel of dual-qualified Victorian family lawyer dispute resolution practitioners providing high-level family dispute resolution services across Australia and internationally. See lawyerfdrp.com.au

Emma's mediation training includes LEADR Basic Training, Bond University Advanced Mediation Training, Transformative Mediation Advanced Training, College of Law Graduate Diploma in Dispute Resolution Practice, Mentalising Advanced Training UWA 2019.  She has assisted with mediation training for nationally accredited mediators.

Emma represented the Victorian Bar on the Law Council of Australia's Domestic and Family Violence Taskforce and the Law Institute and Victorian Bar Legal Aid Taskforce. She assisted with the Law Institute of Victoria's Submission to the 2015 Family Violence Royal Commission and the Victorian Bar Submission to the Legal Aid Family Law Review.  She is a member and former long serving committee member of the Family Law Bar Association of Victoria. She is a member of the Family Law Section of the Law Council of Australia, the Women Barristers' Association and organises the Victorian Bar Community Choir.

Emma has a particular interest and experience in child relocation matters and was called upon to provide an expert opinion for the Scottish Court on the operation of the Hague Child Protection Convention in Australia where a child had relocated to Scotland pursuant to orders of the Family Court of Australia.

She has a continuing interest in issues around Sexually Transmitted Debt from her experience prior to joining the Bar as a solicitor at the Consumer Credit Legal Services in Victoria and Western Australia. She is familiar with issues around family law and bankruptcy, guarantees and equitable interests in property.

Emma is often called upon to chair CPD events.  Recent papers and presentations include -

"Family Law Property: Complex Property Settlements" for Leo Cussen Institute March 2022, "Enlarging the Asset Pool: Addbacks for Interim Distributions, Wastage and Legal Costs" Legalwise 18th Annual Family Law Conference March 2022, "Not so final after all"Foley's List Zoom August 2020,  "Relocation Application Cases 2019" Leo Cussen Family Law Conference – August 2019, "Recent Developments and Legislative Update in the Family Law Jurisdiction"Leo Cussen Family Law Conference September 2018, "Forests and Trees - s128 Certificates in Family Law" for the Foley's Family Law Breakfast in Sydney August 2018, "Relocation Cases: International and Interstate" Legalwise November 2017, "Sexually Transmitted Debt" JAM conference Vietnam October 2017, as moderator of the Latest Cases session for the LIV CPD Intensive March 2017 and 2016,"Costs: Orders, Offers and Risks"Legalwise Seminar March 2017, "On thin ice - are family lawyers at risk of committing family violence by agency?" Antarctica Cruise Conference January 2017, "Don't wait, Arbitrate! Evaluating the utility of arbitration in family law matters" for the Leo Cussen Family Law Conference September 2015, " What's happening at the Family Violence Royal Commission?" for Foley's Family Law Breakfast September 2015, "Relocation Cases in the Family Court of Western Australia" with Serina Thomson May 2015 Law on the Lounge; "Assessing Interests and Contributions in Family Law Property Cases" in November 2014  for the Bendigo Law Association, "Bevan & Marsh:Two cases on long separations" in June 2014 for the Victorian Family Law Bali Conference, "Latest and Greatest Cases" & "Caveats in Victoria" for the June 2014 Law on the Lounge; “Family Law Case Preparation Workshop” Panellist, TECH-IP Legal Seminars Melbourne 5 March 2014; "Issues under the Umbrella of Parental Responsibility" at the June 2013 Law on the Lounge; "Arbitrations in Family Law" at the June 2012 WA Family Law Conference Law on the Lounge in Bali.

Some reported cases -

Becker & Waterman  [2022] FedCFamC2F 1611 (28 November 2022) - Appeared for Respondent Mother who was successful in obtaining an order for sole parental responsibility and an order for a passport as child was dual citizen requiring the Country B passport to enter as a citizen.

Pires & Nandi  [2022] FedCFamC1F 842 (3 November 2022) - Appeared for Applicant father where sexual abuse alleged against him - unacceptable risk not found and unsupervised time ordered.

Roberts & Liang [2021] FedCFamC1F 44 (5 October 2021) - Appeared for Applicant primary carer, who was not the biological father, and successfully resisted an international relocation application by the mother, who was supported by the biological father who lived outside Australia.

Fink & Mallander [2021] FCCA 1218 (14 May 2021) - Appeared for father in successful application for return of children from one regional Victorian town to another after mother's unilateral relocation.

Kashif & Pires [2021] FamCA 81 (26 February 2021) - Appeared for the mother in an appropriate forum case - Australia or Singapore

Lanka & Dev [2020] FamCA 910 (30 October 2020)  - Appeared for the father in parenting case where the mother wished to relocate the child's residence to India - father successful in retaining child's residence with him in Australia

Mirren & Mirren [2020] FamCAFC 94 (24 April 2020)- Appeal in a case re s79A and s37A where the husband had been given leave to extend time to review the Registrar's decision to make final property orders by consent 6 years earlier.

Tilliard & Pindar [2019] FamCAFC 122 (18 July 2019) - Consent orders in an appeal where the trial judge had included the value of a superannuation pension in payment phase in the asset pool.

Brewer & Brewer [2019] FamCA 247 (18 April 2019) - Successfully resisted husband's application for part property and discharge of previous spousal maintenance order.

Ying & Lang [2018] FamCA 784 (1 October 2018) - Successfully resisted an application for a declaration under s90RD of the Family Law Act 1975 that the parties were in a de facto relationship for over 16 years.

Callahan & Callahan [2016] FCCA 160 (12 February 2016) - Split of assets where long marriage and valuable defined benefit superannuation interest.

Hosking & Butcher [2015] FCCA 2019 (5 August 2015) - No contact due to unacceptable risk from father's mental health and family violence.

Jacob & Lawrence (No 2) [2013] FamCA 544 (23 July 2013) - Successful costs application for party/party costs of whole proceeding.

Jacob & Lawrence [2013] FamCA 188 – Defacto jurisdiction hearing, finding of no jurisdiction as relationship less than 2 years and no substantial contributions leading to serious injustice (and full costs for defendant).

Lackey & Mae [2013] FMCAfam 284 – Children to live with mother and spend supervised time with father after multiple unsubstantiated child protection notifications by paternal family against mother, referral for s121 investigation and prosecution re Facebook postings.

Toogood & Anor v Simpson & Anor [2012] VSC 258 - Obtained judgment for $3.5 million plus interest for breach of agreement between de facto partners. 

Lavery & Lavery [2012] FamCA 126 - Appeared for Independent Children's Lawyer where finding of unacceptable risk of sexual abuse. 

Kuay-Hoa & Hoa and Ors [2011] FamCA 1093 (16 September 2011) - Successful s106B application in large asset pool.  

Knaus & Knaus [2010] FMCAfam 1370 - Confidentiality of counsellor’s notes. 

Bolton & Athol and Ors [2009] FamCA 10 - Successful in return of 4 year old to mother in Victoria after 18 months with grandparents and father in Tasmania.

Chappell & Chappell [2008] FamCAFC 143 - Successful appeal on Equal Shared Parental Responsibility. 

Richard & Briar (No. 4) [2008] FamCA 981- Appeared for Independent Children's Lawyer on change of residence after abduction of child. 

Bracewell & Southall [2008] FamCA 687 - Successful application to restrain solicitor from acting due to conflict of interest.

Warner & Warner [2008] FamCAFC 156 - Successful appeal of orders in small property pool and re-exercise of discretion by Full Court.

Davis & Spring [2007] FamCA 1149 - Successful return of child to Aboriginal mother from Anglo-Australian grandmother and relocation to Central Australia. 

Pallon & Pallon [2007] FamCA 808 - Appeared for Third Parties in settlement of family farm dispute.

D v SV [2003] FamCA 280 - Appeared for the successful appellant in the Full Court of the Family Court in a freedom of movement case.

The information referred to above has been supplied by the barrister concerned. Neither Victorian Bar Inc nor the barrister's clerk have independently verified the accuracy or completeness of the information and neither accepts any responsibility in that regard.

Areas of Expertise

Commercial Law 2 Areas

Family Law 3 Areas

Alternative Dispute Resolution (ADR) 2 Areas

Appellate 1 Areas

Equity & Trusts 1 Areas

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