Family Law Property Division Update <br><span>After the 2024–2025 Reforms- Part 2</span>

What Has Changed in Family Law Financial Matters?

Over the last few years there have been major changes to the way Australian courts deal with financial separation after a relationship breaks down. These reforms affect how property is divided, how spousal maintenance is assessed, and how superannuation is valued and split.

The key changes include the Family Law Amendment Act 2024 (most financial changes commenced on 10 June 2025), new superannuation regulations in 2025, and earlier reforms that allow parties to obtain information about a former partner’s superannuation directly from the ATO via the family law courts. 

How Property Settlements Are Now Decided

The traditional four‑step approach that family law practitioners have used for years has effectively been written into the Family Law Act. The court must now move through a clearer, codified framework and, at every stage, ask whether it is just and equitable to make any property orders at all.

Step 1 – Identify the property pool and contributions.
The court identifies each party’s legal and equitable interests in all assets and liabilities, and considers each party’s financial and non‑financial contributions, including contributions as homemaker and parent.

Step 2 – Assess contributions overall.
Based on those contributions, the court comes to an overall percentage division of the asset pool. This is not a mathematical exercise but a broad assessment of who has contributed what over the course of the relationship.

Step 3 – Consider current and future needs.
The court then considers the parties’ current and future circumstances, including their earning capacities, age, health, the care of children, and other factors that may justify adjusting the contribution‑based percentages to reach a fair outcome.

Step 4 – Make orders only if just and equitable.
Finally, the court decides what actual orders should be made (who gets which asset or liability) and only does so if it would be just and equitable to alter property interests at all. The court is not required to make an order simply because parties are before it.

Family Violence, Economic Abuse and Financial Outcomes

The reforms significantly strengthen how the law deals with family violence, including economic or financial abuse. The definition of family violence now expressly includes conduct such as restricting access to money, incurring debts in the other party’s name, or using dowry‑related abuse to control a spouse.

This has real financial consequences. When assessing contributions, the court can consider how family violence limited a person’s ability to work or contribute. When looking at current and future circumstances, the court can take into account the long‑term economic impact of the violence, including disrupted careers, poor health and reduced earning capacity. These factors can lead to the victim of family violence receiving a larger share of the existing asset pool or more generous maintenance.

Wastage, ‘Add‑Backs’ and Misused Assets

Historically, courts sometimes used “add‑backs” – treating money that had been wasted, spent or moved by one party as if it were still part of the asset pool. That notional amount was then added back to the balance sheet for division. Recent reforms and case law have moved away from treating this notional property as part of the pool.

Instead, the Act now includes an express focus on wastage. The court can consider whether one party has engaged in wasteful or reckless conduct (for example, gambling, extravagant spending, or deliberate dissipation of assets), and what impact that has on the parties’ financial circumstances at the time of trial.

Rather than “adding back” a dollar‑for‑dollar figure, wastage is dealt with holistically: it may affect the assessment of contributions, or be weighed in the “current and future needs” stage to arrive at a just and equitable overall result. The practical message for clients is that preventing wastage before and during separation is far safer than hoping the court will fix the problem later.

Pets, Less Adversarial Processes and Disclosure Duties

Companion animals.
Companion animals (family pets) are still technically treated as property, but courts now have specific guidance on how to deal with them. The court can consider any history of abuse or threatened abuse of the animal, the bond between the animal and either party or any children, and who is best placed to care for the animal. The court can order that a pet be transferred to one party, but it will not order shared “custody” of pets.

Less adversarial processes.
The “less adversarial” approach, which was previously used mainly in parenting cases, can now be applied more readily to financial matters. Judges have greater flexibility to manage evidence and procedure in a way that reduces conflict and cost, including encouraging settlement and focusing on the real issues in dispute.

Stronger and earlier disclosure duties.
The duty of full and frank financial disclosure is now written directly into the Family Law Act. It begins when a party is preparing to start property or maintenance proceedings and continues until the dispute is finally resolved. Parties must disclose all relevant financial information and documents, including bank statements, tax returns, payslips, business records and details of trusts and companies.

Non‑compliance can result in serious consequences: costs orders, the court adjusting the division of property against the non‑disclosing party, or even findings of contempt in extreme cases. Lawyers are specifically required to warn clients about these duties and the risks of non‑disclosure.

Superannuation: Information, Valuation and W.A.

Reforms from 2022 allow a party to apply to the family law courts to obtain superannuation information about their former partner directly from the ATO. This makes it much harder for a person to hide superannuation.

From 2025, new superannuation regulations modernise the way super interests are valued for family law purposes. Updated actuarial factors and valuation methods are designed to reflect current economic conditions and the wider range of retirement‑income products now available.

In Western Australia, de facto couples now have access to superannuation splitting under the Family Law Act, bringing them into line with married and de facto couples in the rest of Australia.

Your Next Step: Practical Planning Tips for Clients

The new legal landscape makes it more important than ever to plan ahead and protect your position, both before and after separation.

  1. Protect against wastage early.
    Where safe to do so, consider how joint accounts are used, set reasonable limits on access to shared funds, and keep good records of significant expenditures. In high‑risk situations involving gambling or other reckless behaviour, you should seek legal advice about how best to safeguard key assets.
  1. Consider separate accounts and clear records.
    Maintaining some separate savings, tracking any gifts or inheritances, and keeping copies of financial documents can make it easier to prove contributions and protect assets if the relationship ends.
  1. Take family violence and economic abuse seriously.
    If you are experiencing controlling or abusive behaviour around money, seek advice early. The law now recognises economic abuse as a form of family violence and allows the court to respond to its financial impacts in property and maintenance outcomes.
  1. Think about asset protection and Binding Financial Agreements (BFAs).
    Before marriage or entering a de facto relationship, or even during the relationship, you may wish to consider a Binding Financial Agreement to clarify how property will be divided if you separate. This can be part of a wider asset protection strategy that considers both creditors and risks posed by a spendthrift or wasteful partner.
  1. Get early legal advice.
    Every situation is different. Early, tailored advice can help you understand your rights, gather the documents you will need, and make informed decisions about negotiation, mediation or court proceedings.
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Who Gets What <strong>$$$</strong> After Separation in 2026? <span>Property Division Without the Legal Jargon. Part 1</span>

Who Gets What In Financial Divorce & Separation

When couples separate, one of the first questions is, “Who gets what?”

Australian family law has a structured way of answering that question. It is not about who is “to blame” for the breakup. It’s about working out a fair and “just and equitable” division of the property you have at the time of the settlement.

In simple terms, the court (or your lawyers in negotiations) usually look at the four steps:

  1. What is in the property pool?
    This includes assets in your name, your ex’s name and sometimes in companies or trusts you control – things like the home, investment properties, savings, vehicles, shares and superannuation.
  1. What were each party’s contributions?
    Contributions are much broader than “who earned the most”. They include:
    • Financial contributions (income, inheritances, savings, lump sums)
    • Non‑financial contributions (renovating a property, unpaid work in a business)
    • Contributions to the welfare of the family (raising children, running the household).
  1. What are your future needs?
    The law then looks at each person’s age, health, income and earning capacity, who is caring for the children, and other responsibilities. If one person is likely to struggle more financially in future, that can justify an adjustment in their favour.
  1. Is the overall result fair?
    Finally, the court stands back and asks: “Is this division just and equitable in all the circumstances?” If not, further adjustments can be made.

How to Investigate Your Desired Outcome

You don’t need to go to court to use this approach. Good family lawyers apply the same logic to negotiate and reach agreement, either directly between lawyers, at mediation or through a formal Binding Financial Agreement (BFA) or Consent Orders filed with the Court.

The law also treats marriages and de‑facto relationships in a very similar way for property division purposes. Time limits apply, so it’s important to get early advice, especially if there are businesses, trusts or overseas assets involved.

Trends and Outcomes in Property Division

Asset pools

  • Court‑filed property cases involve somewhat larger pools.
  • The median net property pool in litigated cases is around $550,000.
  • Approximately half of all court property matters fall below this “small pool” threshold, thus use the small‑claim pathways.

Order splits

  • Where there are children, the primary‑carer or primary‑homemaker party (often the mother) typically receives a modest majority share of the net asset pool.
  • Court decisions and settlement patterns explicitly link higher shares to homemaker and child‑care contributions and to future needs (particularly where one party has the major responsibility for the care of children).
  • Across studies, the primary‑carer share is commonly in the mid‑50s per cent (around 55–60%), with the other party receiving the remaining 40-45%).
  • High-Net-Worth Cases: Adjustments for future needs averaged 8–12% in favour of lower-earning spouse.

Case times

  • Outside the court system, about half of couples who have property to divide resolve their property arrangements within one year of separation.
  • Around 30 per cent take two years or more to reach a final outcome, with longer timeframes more common where asset pools are larger or issues are more complex.
  • Median time to resolution in those small‑pool streams is typically around 4–6 months,

Your next step: free no obligation strategy consult

At Goldman Lawyers, our role is to help you understand your realistic range of outcomes, then design a strategy that protects your financial future while keeping legal costs under control.

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Asset Protection Moves Into The Marriage? GAMBLING & WASTEFUL SPOUSES.

Introduction

How will the Court deal with your financial property dispute now that wastage, stealing, or other losses by one party will now not be added back to the balance sheet (asset pool of the parties).
Goldman Law provides planning tips to avoid property injustices in family law disputes.

What Was The Problem With Add Backs?

In Australian family law financial matters, “addbacks” refer to amounts of money or assets added back into the matrimonial asset pool during property settlements. Addbacks address financial conduct by one party that has unfairly reduced the available assets for distribution.

Common reasons for addbacks include:

  1. Wasteful Expenditure:
    Funds spent recklessly, extravagantly, or without mutual agreement after separation.
  1. Assets Hidden or Disposed of:
    Assets deliberately hidden, transferred, or sold at undervalue to diminish the pool available for division.
  1. Legal Costs Paid from Joint Assets:
    Legal fees paid from joint funds without mutual consent or inappropriately.
  1. Unilateral Use of Joint Assets:
    One party unilaterally accessing joint funds for personal use post-separation, significantly reducing the pool.
  1. Premature Distribution:
    Taking and using property or funds without agreement prior to a formal property settlement, thus altering the equity of distribution.

The Law Prior to the Shinohara Decision

The Australian courts consider addbacks carefully, following the principles established in the landmark case Stanford v Stanford[1], focusing primarily on whether an addback is just and equitable in the context of the overall settlement.

After Stanford v Stanford, In Bevan,[1] Bryant CJ and Thackray J said  “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them” and that such add backs form part of the forms part of the history of the marriage.

The Decision In Shinohara

The Full Court of the Federal Circuit and Family Court of Australia has considered how the post-10 June 2025 amendments to the Family Law Act affect the inclusion of add backs in financial proceedings.

The Full Court rejected the father’s argument that the statutory amendments merely codified case law allowing such add backs. Instead, their Honours clarified:

  • Section 79(3) requires a court to identify and adjust only current property.
  • Add backs must not be placed in the balance sheet for division purposes.

The Court has said that the categories of “notional add-backs” and principles as to adding back property items or expenditure on a ‘dollar for dollar’ basis must not be added back into the balance sheet at all, but taken up as part of either a holistic weighting of contributions, or via s79(5) (i.e. formerly, s75(2)).

In the Shinohara case, the trial judge thus had erred in adding to the balance the “addbacks” and this was notional property, or property that did not exist.

The recent amendments to the Family Law Act were considered not to codify such an action but rather to look at “addbacks” in the context of the history of the relationship; and considerations as to “current and future” circumstances.

…“Section 79(5)(d) directs consideration as to whether a party has engaged in wastage of property or financial resources and its impact on the financial circumstances of the parties at the time of the assessment, being the date of trial,..”[1]

“So that it is clear, s 79 now directs that the categories identified in  Omancini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage. “[2] 

What Has Changed ?

Following the recent amendments to the Family Law Act, notional addbacks cannot be “property: for distribution or orders between the parties. Add backs are and can be taken into account holistically within the broader range of just and equitable considerations that exist post 2024 amendments.

What Does This Mean For Clients?

Family lawyers debate about changing the “form” in the FCFOA to remove addbacks. Sadly, this misses the point as far as what clients now need to do to be protected from wasteful spouses. It is the consideration of such acts holistically to arrive at a just and equitable position between the parties. However, if a party wastes assets, AND there are insufficient assets for a just and equitable division of assets. This remains a serious issue in terms of what is then possible to reallocate in terms of the remaining assets for a fair split.

Client Strategies. You MUST Consider this!

Clients need to ensure that prior to financial proceedings or separation that they:

  1. Make sure that the opportunity to waste assets is minimized.
  2. The keeping of separate assets accounts and possibly separate liquid assets.
  3. Great care is taken in joint liabilities and things such as joint mortgages.

YOU must protect your assets whilst you are married otherwise it may be too late! Goldman Lawyers are experts in asset protection strategies and we welcome an initial strategy discussion.

It’s not just creditors that you have to worry about. Worry about the protection assets from a spendthrift, wasteful or gambling spouse.

Endnotes

[1] (2012) 247 CLR 108

[2] (2013) FLC 93-545 at [79]

[3] Shinhora ibid at para [124]

[4] Ibid at para [125]

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Violence Orders Swamping Our Courts

Apprehended Domestic Violence Orders (ADVOs) are swamping the NSW Local Court system.

An ADVO is a court order that aims to protect a person in need of protection (PINOP) from another person. It is a criminal offence to breach an order.

An ADVO can protect a person from: violence or threats of violence, stalking, intimidation, harassment, and property damage or threatened damage.

In 2020, there were 33830 final ADVOs granted by the NSW Courts, according to the Bureau of Crime Statistics and Research (BOSCAR). This was up from 28812 in 2016, an increase of 17 per cent. This figure does not factor in the number of ADVOs which were not granted.

NSW criminal courts finalised 140,644 court appearances in 2020/21, an increase of 20,394 (17%) from the previous year (120,250 in 2019/20).

On these figures, although the reporting periods do not align exactly, ADVO’s represent roughly one quarter of local court matters finalised in that reporting period. The number of ADVOs applied for by police has been tracking steadily upwards since 2016.

“ADVOs are overwhelming the NSW Local Court system and a new way to deal with these matters has to be found,” Goldman and Co Lawyers’ head of criminal division, Mr Mathew Nott, said.

“The delays in contested matters are an affront to the administration justice and to the rights of the people who stand accused of domestic violence.

“You contest an ADVO, as you have the right to do given the reputational and employment impacts, you need to go before the Courts on at least three occasions and maybe more. The cost can run into thousands of dollars.

“We have one client at Liverpool who has been waiting more than 20 months to have her matter resolved, through no fault of her own.

“Another client is still living with the pressure and will wait 15 months until she is heard at Bankstown.”

Legislators have enacted laws to safeguard the vulnerable and police play a key role in applying to the Courts for protective orders yet there is no doubt the system is being manipulated in some instances.

Police and the courts have become potential playthings of savvy “victims” who make complaints by way of a pre-emptive strike, particularly if there are family law proceedings involving parental custody on foot.

Courts are beset by COVID backlogs, so the delays give the interim ADVOs keep the orders enforceable for lengthy periods even though they may eventually be thrown out.

Even though an ADVO is a civil matter, they are dealt with in the criminal jurisdiction of the NSW Courts.

Mr Nott said one of the issues to resolve was the hardening of police policy which has resulted in a default refusal to negotiate the nature of or the facts underpinning them.

“There is no doubt that many orders would be consented to if police were prepared to amend the facts or the nature of the orders,” Mr Nott said.

“If police softened their policy position, these matters could be resolved in many cases the first time they were before the courts.”

Male and females under 18 are the people most in need of being protected by ADVOs, according to NSW statistics
In the period October 2020 to September 2021 (the reporting period), 5565 young men were the Person(s) in Need of Protection (PINOP). In the same period, 6385 young women were the PINOPs.

The number of female victims was almost double that of male victims with 34453 women being protected by AVOs compared to 17709 men.

In 2020 in NSW, the most AVOs, 195, were issued on the Central Coast of NSW, though Broken Hill had the highest per capita rate of offending with 348.2 offences per 100,000 people.

Males aged 30-39 years were most likely to offend, with 8898 beings subject to orders in the reporting period. Females in the same age range were also the highest offending citizens with 2570 being subject to Orders in the same period.

The most breaches of Orders occurred on the Central Coast.

Amendments to legislation now means the default duration of ADVOs to two years and new provisions allow the court to make an ADVO for an indefinite period.
There are also strategic advantages often used PINOP when police make the application for an ADVO.

The PINOP can reach out and make contact with the person restrained – no crime – to entice the person restrained to reply which constitutes a breach, then denounce that person for breach to the police.

The police will not withdraw an ADVO, as a rule.

The police will, depending upon the officer in charge, will take the defendant’s representations to the victim to consider. This should not be discretionary and should be evidenced.

If you have to deal with an ADVO, contact mathew@goldman-lawyers.com for a free consultation.

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Apprehended Domestic Violence Orders (ADVOs) threaten to swamp the NSW Justice system

The NSW justice system is at risk of being “gamed”

22nd June 2022: Apprehended Domestic Violence Orders are overwhelming the NSW Local Court system. “A new way to deal with these matters has to be found.” according to Goldman and Co Lawyers’ head of criminal division, Mr Mathew Nott. Mr Nott is a Sydney Criminal Lawyer.

An Apprehended Domestic Violence Order (ADVO) is a court order that aims to protect a person in need of protection (PINOP) from another person. An ADVO can protect a person from: violence or threats of violence, stalking, intimidation, harassment, and property damage or threatened damage.  

However significant delays in contested ADVOs are overwhelming the NSW justice system and an affront to the rights of the people who stand accused of such domestic violence criminal offence .

“If you contest an ADVO, as you have the right to do given the reputational and employment impacts, you need to go before the Courts on at least three occasions and maybe more,” Mr Nott said.  

“The cost can run into thousands of dollars. We have one client for domestic violence and family law  at Liverpool who has been waiting more than 20 months to have her matter resolved, through no fault of her own.”

“Another client will have to wait 15 months until she is heard at Bankstown.”

ADVO’s taking up more court time than ever  

In 2020, there were 33,830 final ADVOs granted by the NSW Courts, according to the Bureau of Crime Statistics and Research (BOSCAR). This was up from 28,812 in 2016, an increase of 17%.

This figure does not factor in the number of ADVOs which were not granted but still contested at hearing.

NSW criminal courts finalised 140,644 court appearances in 2020/21, an increase of 20,394 (17%) from the previous year (120,250 in 2019/20).

On these figures, although the reporting periods do not align exactly, ADVO’s represent roughly one quarter of local court matters finalised in that reporting period. The number of ADVOs applied for by police has also been tracking steadily upwards since 2016.

“Legislators have enacted laws to safeguard the vulnerable and police play a key role in applying to the Courts for protective orders, yet there is no doubt that the system is being manipulated in some instances.” Mr Nott said.

“Police and the courts have become potential playthings of savvy “victims” who make complaints by way of a pre-emptive strike, particularly if there are family law proceedings on foot.”

Mr Nott said one of the issues contributing to this current crisis was the hardening of police policy which has resulted in a default refusal to negotiate the nature of or the facts underpinning apprehended violence application  the ADVOs.

The police will not withdraw an ADVO, as a rule.

The police will, depending upon the officer in charge, take the defendant’s representations to the victim to consider, however, in Mr Nott’s opinion, this should not be discretionary and should be evidenced.

“There is no doubt that many orders would be consented to if police were prepared to amend the facts or the nature of the orders,” Mr Nott said.

“If police softened their policy position, these matters could be resolved in many cases the first time they were before the courts.”

Who are ADVOs protecting in our community – the PINPO

Male and females under 18 are the people most in need of being protected by ADVOs, according to NSW statistics

In the period October 2020 to September 2021 (the reporting period), 5,565 young men were the Person(s) in Need of Protection (PINOP). In the same period, 6,385 young women were the PINOPs.

The number of female victims was almost double that of male victims with 34,453 women being protected by AVOs compared to 17,709 men.

In 2020 in NSW, the most ADVOs(195) were issued on the Central Coast of NSW, though Broken Hill had the highest per capita rate of offending with 348.2 offences per 100,000 people.

Males aged 30-39 years were most likely to offend, with 8,898 being subject to orders in the reporting period. Females in the same age range were also the highest offending citizens with 2,570 being subject to Orders in the same period.

The most breaches of Orders occurred on the Central Coast.

Amendments to legislation now means the default duration of ADVOs is now two years and new provisions allow the court to make an ADVO for an indefinite period.

“We have seen instances where a strategic advantage is afforded to the PINOP when police make the application for an ADVO” according to Goldman & Co Lawyers’ head of criminal division, Mr Mathew Nott.

“The PINOP can reach out and make contact with the person restrained – no crime – to entice the person restrained to reply which then constitutes a breach. Then the PINPO denounces that person for breach to the police and they can be charged” says Mr Nott.

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Australia-India: From the Cricket Field to the Courtroom – Lessons in Legal Reform

When Australia and India meet, the competition usually centres on cricket fields under sunlit skies. But in 2024, a new kind of rivalry emerged: the legal landscape. Legal experts now urge India to consider the lessons of Australia’s recent groundbreaking reforms in family law, a bold stride toward economic justice for survivors of domestic violence.

Australia’s Legal Cricket Match: A New Benchmark in Fairness

In Australia, the Family Law Act 1975 recently underwent a monumental change with the addition of Section 79(5). This amendment acknowledges the economic impact of domestic violence—mental or physical—on victims during the division of marital property. By recognizing family violence as a factor that can erode a victim’s contributions to the marital estate, courts are now empowered to increase divorce settlements for survivors. It’s a holistic approach, ensuring that economic justice becomes part of reparative justice.

As principal lawyer Jaswinder Sekhon of the Sydney and international law firm, Goldman & Co Lawyers puts it, “This reform establishes a global benchmark for fairness and justice, ensuring victims aren’t doubly punished—first by their abuser, and then by systemic inequities.”

India’s Legal Scorecard: Fragmentation and Challenges

India, with its diverse cultural and religious fabric, approaches matrimonial property differently. Here, religious personal laws govern marriages, creating disparities. For Hindus, maintenance and alimony exist but lack codified systems for shared marital property. Meanwhile, under Islamic law, the Mehr (dower) system often limits the wife’s financial security.

The Protection of Women from Domestic Violence Act, 2005 (PWDVA), though comprehensive in providing civil remedies, stops short of addressing property division in reparative terms. Ms. Ekta Jhanjhri, a Goldman Lawyers Indian Office Advocate, argues, “There is an urgent need to consolidate fragmented laws into a unified framework that ensures economic justice for domestic violence survivors.” 

A Push for Reform: Lessons Beyond the Border-Gavaskar Trophy

The call for legal reform coincides with strengthening ties between Australia and India, exemplified by the Economic Cooperation and Trade Agreement (ECTA) and the iconic Border-Gavaskar Trophy. Experts believe this camaraderie can extend to legal discourse.

Ms. Jhanjhri suggests leveraging these partnerships to encourage cross-border learning. “Australia’s reforms show how law can actively combat gender inequity. It’s time India follows suit,” she asserts. 

Addressing the Australian-Indian Diaspora

For Indians in Australia, these legal reforms hold immense promise. The community, among the largest migrant groups, grapples with cultural norms that often overlook domestic violence issues. Sekhon underscores the importance of awareness among Australian-Indians, stating, “The adoption of these reforms can redefine the cultural landscape for Indian families in Australia.”

A Roadmap for India: Bold Moves Toward Economic Justice

India’s path to reform, while complex, could benefit from Australia’s example. Key steps include:

  1. Unified Legal Frameworks: Consolidate matrimonial property laws across religions
    to provide equitable solutions
  2. Judicial Training: Equip judges with the knowledge to understand the intersection of
    domestic violence and economic justice.
  3. Community Awareness: Foster dialogue within communities to challenge outdated
    cultural norms.

A New Partnership for Change

With Australia and India collaborating on everything from cricket to trade, expanding this partnership to include family law reforms seems natural. Bold strides in gender-equitable laws could help address the economic vulnerabilities of survivors, not only strengthening India’s legal landscape but also ensuring justice for all.

As the legal field, much like cricket, evolves into a stage for global exchange, let us hope this partnership scores big in championing fairness and justice. Because when it comes to rights, it’s not just cricket—it’s everything

**********

For more information or to arrange interviews, please contact: Ms Kerry Turner,
kerry@goldman-lawyers.com or on 1300-343-560
Goldman & Co Lawyers Pty Limited, www.goldman-lawyers.com

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