May 2018 Family Law Case Watch

Who bears the costs in Family Law proceedings?

Understandably, many Family Law litigants consider it to be unjust when they are either forced to initiate or respond to Family Law proceedings at significant cost. As a result, Family Law solicitors are frequently asked whether a Costs Application can be brought against an opposing party.

Pursuant to Section 117 of the Family Law Act 1975 (“the Act”), each party to proceedings under the Act shall bear his or her own costs. Unfair as it may seem, successful Costs Applications in Family Law matters are the exception not the rule. Accordingly, litigants should be warned not to conduct their matters with the hope of relying on a Costs Application.

The recent Family Court case of Jenkins & Jenkins however, is an example of a successful Costs Application brought by a Wife against her Husband. This case provides invaluable insight into how the Court exercises its discretion when applying the exceptions to the general principle that parties shall bear their own costs in Family Law proceedings.

The breadth of the Court’s discretion includes making Costs Orders that it “considers just” and “relevant,” in addition to considering:

1.      The financial circumstances of each of the parties;

2.      The conduct of the parties in relation to the proceedings;

3.      Whether any party to the proceedings has been wholly unsuccessful in the proceedings; and

4.      Whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings and the terms of any such offer.

The facts in this matter relevant to the Costs Application concerned the Wife who was seeking that her Husband pay her costs of and incidental to, an Application in a Case seeking interim spousal maintenance and other financial orders relating to a Family Trust. The Husband in his Response document, sought to have the Wife’s Application for spousal maintenance dismissed and he did not propose paying her any other amount by way of spousal maintenance. He also sought to have that part of the Wife’s Application dealing with the Family Trust dismissed and he did not propose any alternate orders in relation to Trust administration matters.

The matter was allocated a date for Hearing and both parties attended Court. Prior to entering the Court room, the parties participated in negotiations and an agreement was ultimately reached. The parties accordingly requested that the Judge formally make the Orders contained in the agreement they reached outside the Court room.

The agreement reached provided that the Husband pay the Wife spousal maintenance in the amount of $457 per week. In respect of the Family Trust, orders were made including: that outstanding tax returns be lodged, that the 2015 trust income be distributed equally between the parties, and that the 2016 and 2017 trust income be distributed totally to the husband (with some limitation as to the Husband’s ability to draw on that income for the 2017 financial year and any future years pending the finalisation of the parties’ property settlement). The orders also required the Trust income to be paid into the bank account of the Family Trust as opposed to the Husband’s personal bank account. There was an additional order included that had not appeared in the Wife’s original Application, namely, that the Husband pay the amount of $2,169.50 for the repair of the boundary fence at the former matrimonial home.

The Wife’s original Application had envisaged that the Husband pay her spousal maintenance in the amount of $689.14 per week and she ultimately received $457 per week. In addition, the Wife conceded in the agreement that the Husband receive the income from the Family Trust for the 2016 financial years onwards (in accordance with the above-mentioned conditions.

The solicitor for the Husband, when making submissions in respect of the Wife’s Costs Application, made the assertion that the Husband, while not wholly successful, was also not wholly unsuccessful and therefore each party should bear their own costs in respect of the compromised agreement that was reached at Court.

The Judge however, in considering the conduct of the matter leading up to the hearing and in particular, in reviewing the letters of offer and counter-offers exchanged between the parties, considered that the proceedings could have been resolved prior to the hearing had it not been for the unreasonable conditions proposed by the Husband. The Judge’s reasons included the fact that an agreement was reached on the day of the Hearing without any mention of such conditions previously and consistently required by the Husband.

The Judge was satisfied that although the Husband knew of the Wife’s need and his own capacity to contribute to her financial support, the Wife had to bring an Application in order to obtain the outcome that she ultimately obtained. The Judge opined that the Wife had been put to considerable expense by paying her solicitor to prepare and file the Application and in retaining Counsel to appear at the hearing. The Wife incurred further costs in paying for her solicitor to prepare and file the Costs Application and in retaining and instructing Counsel to appear at that Hearing.

The Judge was also satisfied with the evidence that the Husband was earning around $184,000 before tax per year and had approximately $51,000 in bank accounts. The Wife, in stark contrast, was earning $7,800 per year and had approximately $1,700 in her bank accounts.

The Judge was therefore satisfied that the circumstances justified an order for costs being made and ordered that the Husband pay to the Wife the sum of $6,000 towards her costs of and incidental to her Application in Case filed in July 2017.

We hope that our May 2018 Case Watch has provided you with clarity in respect of who bears the costs in Family Law proceedings and the matters that the Court may consider when applying their discretion to award a Costs Order.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@dev.elevatebusiness.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Surviving Cross-Examination 8 Best Tips

Has your Family Law matter been set down for Final Hearing?

If so, you will most likely be facing cross-examination. Cross-examination is a critical part of the Final Hearing process and can be an extremely nerve-wracking experience.

You may be wondering how to answer the difficult questions posed in cross-examination. Read on to find out our 8 best tips for surviving cross-examination.

1.       When asked a ‘yes’ or ‘no’ question, answer ‘yes’ or ‘no’.

The moment you say ‘because’, is a pretty good indication you have gone too far.

The right answer to questions under cross-examination is usually the simplest, most honest answer. This usually means providing direct ‘yes’ or ‘no’ answers.

Appearing in the witness box should not been seen as an opportunity to retell your story or add to it. You will have already had the opportunity to provide evidence in chief in the form of your Affidavit. The Judge will have read this material.

The more you try to explain your answers, the more opportunities you are giving your former spouse’s barrister to trip you up. Remember that the judge will have read your Affidavit and the Judge’s understanding of a context will usually not require you to elaborate.

2.       It is important to tell the truth.

It may feel like you are doing yourself a disservice by agreeing with a question which represents you in an unfavourable light, however, being honest goes to your credibility. Agreeing that you perhaps behaved badly in a prior situation can show insight into your own understanding of your behaviour and your ability to self-reflect.

3.       Body language is everything.

Remember that you are not only being examined on what you say, but also how you say it. This means it is important to be aware of your tone and body language. Something as simple as flicking your finger nails can give the impression that you are disinterested.

4.       You won’t be able to speak to anyone once you’re under cross-examination

You never realise how hard it is not to engage in conversation until you’re told you can’t and if ever there were a time you needed to speak with someone, it’s during cross-examination. Once cross-examination has commenced, witnesses giving evidence are not allowed to speak to their legal representatives. For this reason, it helps to be as prepared as possible. If you have questions that you want to ask your lawyer, make sure that you have asked them before you are called to the witness box.

5.       Remember why you are there.

Amidst the stress of a final hearing, clients often lose sight of the reason they are there. If your case is about parenting, it is about the best interests of your children. Worrying about being represented in an unfavourable light and showing anger towards your former partner often distracts you from what is most important.

6.       Do your best to remain in control.

Take nothing personally. Questions that make you feel angry or that provoke you to argue are designed to do just that. Barristers have extensive experience in asking questions of this kind. If you are able to remain calm, your ability to self-regulate in life in general, not just in the witness box is reflected. This is what the judge wants to see. The worst thing you can do in this situation is to be seen to be arguing. Remain courteous but firm.

7.       Do not try to pre-suppose the reason for the question.

Trying to pre-suppose the reason for a question can lead you to give a dishonest answer and giving a dishonest answer provides the Barrister with an opportunity to trip you up even further.

Presupposing the reason for a question can also result in you volunteering information that can also be used to ensnare you.

8.       You should generally avoid absolutes, such as ‘always’ and ‘never’.

Generalising through the use of absolutes is one of the surest ways to trip yourself up in cross-examination. If you say you ‘never’ do or say certain things, you give the barrister an opportunity to seek out the one situation which was an exception to your rule. This allows the opposing barrister to chip away at your credibility.

If you are facing a Final Hearing and would like to know more about cross-examination and the process to Final Hearing or want to talk about progressing your family law matter smoothly, then get in touch with us at Doolan Wagner Family Lawyers by calling 02 9437 0010 or emailing enquiries@familylawyersdw.com.au

Our office is conveniently located in St Leonards on Sydney’s Lower North Shore and our team of family lawyers are ready to speak confidentially with you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Child Abuse Allegations

As Family Lawyers, we know that some of the most complex and difficult cases our clients face are those which involve child abuse allegations. We have prepared this article to provide some guidance to our clients as to the court process that applies to child abuse matters.

Background

In 1998, the Magellan program was introduced by the Family Court of Australia to prioritise and intensively case management child abuse cases. These cases specifically concern children of all ages whose parents or carers have been accused of the most serious allegations of sexual and/or physical abuse.

When serious allegations are made against a parent or a carer, it is just as important to protect children from abuse as it is to ensure that parents and carers who are unjustly accused of child abuse are cleared in a timely manner. It is therefore critically important in either situation that such cases do not remain in the Family Law Courts for several months or years without finality.

The Family Court has the Magellan Program in all its registries, such as in Sydney and Parramatta.

In our experience, clients who find themselves involved in a Magellan case require timely and accurate legal advice and the support of skilled legal advocates. Clients in this situation also require ongoing support from non-legal professionals such as Psychologists.

How does the Magellan Program manage cases?

When a Notice of Child Abuse, Family Violence, or Risk of Family Violence has been filed a Magellan Registrar will review it to see if it fits the Magellan criteria. Alternatively, abuse allegations may arise during the course of proceedings in the Federal Circuit Court. In such cases the Judge may refer the matter to the Family Court for the attention of a Magellan Protocol, most often as a result of a Notice of Child Abuse, Family Violence or Risk of Family Violence being filed that contains serious allegations of sexual abuse and/or physical abuse.

If the case meets the relevant criteria the Magellan Registrar will refer the matter to the Magellan Program and thereafter a team consisting of Judges, Registrars and Family Consultants at each Registry work collaboratively to manage the case. The main goal is to complete the case within 6 months of referral to the Program.

In our experience, the first thing that the Magellan Registrar will do is order a report from Family and Community Services NSW (FACS). If clients are in another state or territory, the Magellan Registrar will order a report from the equivalent child protection authority. In the report, FACS will be asked to provide comments on the matter including the following matters:

  1. Will FACS intervene in the Family Court proceedings?
  2. Has FACS investigated the allegations presently before the Court or previous sexual abuse and/or pyshical abuse allegations? What was the outcome and why?
  3. Does FACS have any recommendations as to the management of the case or other relevant information for the Family Court?

At this initial stage, the Magellan Registrar is also likely to order that subpoenas be issued to FACS and the Police if relevant as well as appoint an Independent Children’s Lawyer on behalf of the child or children concerned.

In our experience, very few Magellan matters settle due to the high stakes involved for clients and children alike.  When the matter goes to a Final Hearing, the Court will be considering whether or not to make the following decisions:

  1. a finding that the abuse actually occurred or
  2. that there would be an unacceptable risk of abuse to the child or children if they were to spend time and communicate with a particular parent or carer.

In our experience, a finding that abuse actually occurred is very rare.  It is therefore more common for the Court to consider whether or not there is an unacceptable risk in making orders for a child to spend time and communicate with a parent.

At Doolan Wagner Family Lawyers we are skilled at working with Independent Children Lawyers and liaising with Family and Community Services. We are able to support you by making appropriate referrals to non-legal professionals along the way and securing you the best possible legal Counsel.

If you or someone you know finds themselves involved in Magellan proceedings, Doolan Wagner Family Lawyers has the expertise to assist you from the initial stages of your matter through to Final Hearing.

If you would like assistance in preparing your family law matter or simply want advice, please contact us on 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professionals available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

A time of change in the Family Law System

Our experience tells us that clients are very concerned about delays in accessing justice, especially when it can take years to reach a Final Hearing in the Family Law Courts.  Our clients also tell us that the Family Law system is difficult to navigate and that its existing processes do not always meet their needs.

The passage of the Family Law Act in 1976 by the Whitlam Government was a radical change in itself 42 years ago. For example, as part of the legislation, a Divorce system was introduced where it was not necessary to prove whose fault it was that the marriage ended.  This was a major change because in the past it was often necessary to hire private detectives to obtain proof of adultery, in applicable cases.

Despite how radical the Family Law Act was in 1976, it has not undergone a comprehensive review and it is timely that this occur to take into account the changing needs of Australian children, married couples, de facto couples and their families in a very different social, political and economic landscape to 1976.

On 9 May 2017 the Turnbull government announced that it would ask the Australian Law Reform Commission (“ALRC”) to do the first comprehensive review into the family law system since the commencement of the Family Law Act in 1976.

The timeframe for the ALRC to report to the Attorney General is 31 March 2019.

In terms of reference material, the ALRC is directed to look at existing reports about the family law system, to include surrogacy, family violence, access to justice, child protection and child support. It also is to look at reports about interactions between the Commonwealth Family Law System and other fields such as child protection and child support.

In terms of consultation, the ALRC is to consult with family law, family relationship, social support services and health stakeholders who have expertise in family law and family dispute resolution. Documents are to be distributed widely so that members of the public and stakeholders can have their say.

The Attorney-General has asked the ALRC to enquire into and report on reforms addressing:

  • the appropriate, early and cost-effective resolution of all family law disputes;
  • the protection of the best interests of children and their safety;
  • family law services, including (but not limited to) dispute resolution services;
  • family violence and child abuse, including protection for vulnerable witnesses;
  • the best ways to inform decision-makers about the best interests of children, and the views held by children in family disputes;
  • collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems;
  • whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial
  • resolution of parenting and property disputes;
  • rules of procedure, and rules of evidence, that would best support high quality decision‑making in family disputes
  • mechanisms for reviewing and appealing decisions
  • families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness;
  • the underlying substantive rules and general legal principles in relation to parenting and property;
  • the skills, including but not limited to legal, required of professionals in the family law system;
  • restriction on publication of court proceedings;
  • improving the clarity and accessibility of the law; and
  • any other matters related to these Terms of Reference.

Call for submissions

The ALRC called for submissions on 13 March 2018 and they are due on 7 May 2018.

The ALRC invites submissions in response to the 47 questions and analysis in the Issues Paper, which is available on the ALRC website at alrc.gov.au/publications.

People who have had recent experiences with the system have an opportunity to share these with the ALRC anonymously through a Tell Us Your Story portal on the ALRC website – www.alrc.gov.au/content/tell-us-your-story

Potential reforms

Child Representation?

In relation to children, perhaps we will see a delineation in the role of the Independent Children’s Lawyer for children under 12, such that they are independently represented, and for children over 12, such that they are directly represented. There may be some fluidity in terms of whether the Independent Children’s Lawyer is to be an independent representative or a direct advocate based on non-age based considerations eg. intellectual capacity, mental health and an individual child’s level of maturity.

Property and Finances?

We have observed that a great deal of court time and resources is consumed case-managing property disputes that could more efficiently and cost effectively be dealt with at an early stage by alternative dispute resolution thereby freeing up already limited court time and resources.

Perhaps it will be made compulsory for clients to attend a form of Family Dispute Resolution in relation to Property and Financial matters with some specific exemptions. The exemptions should mirror those which currently apply to Parenting disputes, such as where there are allegations of family violence or there is genuine urgency.  Perhaps issuing a certificate for property matters to clients, that mirrors the section 60I certificate, might be implemented.

Other changes?

It is an uncertain time for the Family Law Courts at the moment and there will be several unknown changes coming in the future.

Lawyers and others involved in the Family Law system are both engaged in the process and eager to see the outcomes of the review and the reforms that flow from that to better improve the experience of separating couples.

Doolan Wagner Family Lawyers will certainly be closely watching the progress of the review into the Family Law system.

Regardless of what these changes are and potential reforms on the horizon, we consider that it is crucial that any parent involved in the Family Law system prioritises their well-being. Separation, and disputes over property and/or children are undoubtedly some of the most stressful and uncertain times anyone can ever face.

Doolan Wagner Family Lawyers continues to specialise in this complex and fraught arena. We remain committed to assisting all parties in navigating the Family Law System.

If you need assistance with a family law matter please don’t hesitate to call us on (02) 9437 0010 or email us. on enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

“You get the house, I’m taking the dog” – Pet Custody in Family Law Disputes

Ever wonder who would get the dog in circumstances of separation or divorce? Worried that if you break-up with your spouse you might never see your dog again? You are not alone.

Some people cannot imagine spending money on legal fees to argue in the Family Court the issue of who keeps a family dog, to others a dog is priceless.

The Full Court of the Family Court has determined several cases on this specific issue insodoing determining who retains the family dog in the process of settlement. While many people would say, like parenting matters relating to biological children, that the determination should be made with reference to the “best interests” of the dog, the Court has determined that animals are to be treated as property for the purposes of family law disputes.

So what does this mean for you? Were all those walks, vet visits, and dog brushing in vain?

Here are some examples of how the Court determined who would retain the dog:

  •  Where the Husband kept the dog  – Langley & Bramble [2008] FamCA 437
    The Husband secured Orders that he retain the dog despite the Wife arguing that the dog belonged to the child and that she believed that the dog was not residing with the husband but instead on a farm. The Wife supported her application by asserting that “the child does not return to her with dog hairs on her”. Watts J, the presiding Judge was not persuaded by the Wife’s assertions and ultimately accepted the Husband’s evidence that the dog was owned by him prior to the relationship and that the dog continued to reside with him and not on some undisclosed farm.
  • Where the Wife kept the dogs – Benford [2012] FMCAfam 8
    In this case the Wife sought to retain both of the parties’ dogs. By contrast, the Husband sought that the dogs be divided amongst them by each of them choosing one to retain. The Husband stated in his evidence, ‘Yes, well, we can’t come to an agreement on the valuation, so my counsel and I decided – or I decided – that the only real way out of it … is to divide them.’
    The presiding Federal Magistrate, Federal Magistrate Roberts formed the view that the Husband had not strongly adhered to one position and as such, that the wife would keep the dogs.

  •  Where the child kept the dog – In Jarvis & Weston [2007] FamCA 1339
    In this case the Father resisted the dog being moved from his home to the home of the Mother and child arguing that the Court had no jurisdiction and that he otherwise wanted more time to consider his position.
    Justice Moore indicated that should the father wish to argue the Court’s jurisdiction that jurisdiction would be found, stating “[W]hether the issue falls to be considered under the accrued, associated, inherent, or parens patriae jurisdiction of the Court, it can be found should the need arise.”
    Ultimately Her Honour concluded “The boy is attached to the dog. The dog is to go with the boy.”

Who will keep the family pet will turn upon the individual facts of your particular matter and it is clear from these decision that there is always be an element of Court discretion.

If you are looking for family law advice in relation to retaining a pet, or family law advice in general, Doolan Wagner Family Lawyers dedicated team works with their client’s and undertakes a genuine cost benefit analysis of each possible approach to their matter when providing their advice. If you wish to reach the best outcome for your particular matter having regard to your budget, we encourage you to contact us to discuss your matter today.

Doolan Wagner Family Lawyers is located in St Leonards on the North Shore of Sydney and are just a short walk from St Leonards Train Station and the Crows Nest shops. Doolan Wagner Family Lawyers service clients all over the Sydney Metropolitan and Northern Beaches areas. If you need assistance with a family law matter please don’t hesitate to call us on (02) 9437 0010 or email us on enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Family Law Case Watch: March 2018

Are you in the midst of property proceedings? Will you have sufficient funds to support yourself and your children until your matter has concluded?

In the recent Family Court decision of McLaren and Zerafa [2018] FamCA 154, the Court was asked to make urgent financial provision for a Mother and her children in such circumstances and this case provides a very helpful and easy to understand illustration of how the Court can intervene.

The facts of the case concerned the breakdown of a de facto relationship which commenced in 2010. The parties have two children, currently aged six and four respectively. Upon their separation in 2017, the Mother commenced proceedings in the Family Court of Australia. From the date of separation, the mother and children continued to reside in the former matrimonial home. As this asset comprised a significant source of the parties’ equity, they decided to enter into Consent Orders providing for the sale of same and that and upon settlement, that the Mother receive a distribution from the sale proceeds in the amount of $50,000. The Mother’s urgent Application subsequently arose in circumstances where the settlement of the home was due to occur on 23 February 2018 and the Orders provided that the Mother and children must vacate same by 16 February 2018. In her evidence, the Mother stated that she had relied on a belief that the Father would financially provide for her and the children after their home had sold until final hearing. The Father refuted this position in his Response. The Mother and the children were consequently left in a position where they were facing having nowhere to live and insufficient funds to secure alternative accommodation.

The Mother’s urgent Application was that the Father provide her with funds to secure alternative accommodation for her herself and the children. The matter was afforded a hearing in the Family Court before Her Honour Justice Rees the very next day after it was filed.

More particularly, the Mother sought Orders that either the Father secure the lease of a home for herself and the children, or alternatively, that pursuant to Section 90SG of the Family Law Act 1975 (Cth), the Father pay to her, lump sum maintenance which would be sufficient to cover one year’s rent for accommodation. The Mother also sought further Orders for spousal maintenance. In her evidence, the Mother asserted that she had entered into the Consent Orders providing for her to receive funds by way of interim payment upon settlement of the former matrimonial home, on the basis of a belief that the Father would ensure that she and the children would have somewhere to live pending settlement. Whilst the Father denied that this was a reasonable belief on the part of the Mother, it remained an urgent concern before the Court that as at 23 February 2018, the Mother and the parties’ two small children, would have nowhere to live and no source of funds to pay for alternate accommodation.

In making her decision, Her Honour took into account the fact that the parties had lived throughout their relationship in the Eastern Suburbs area of Sydney. They noted that the children were settled in that area and in particular, that the elder child attended school in the Eastern Suburbs. The Mother had made enquiries into the cost of suitable rental accommodation for herself and the children which was estimated at $2,800 per week. Justice Rees identified in her Reasons for Judgment that a person in the financial position of the Mother would not secure a rental premise in the vicinity of $3,000 per week without paying substantial funds in advance. Her Honour therefore made a maintenance Order pursuant to Section 90SG of the Family Law Act 1975 (Cth) that required payment to the Mother of an amount equivalent to twelve (12) month’s rent in advance from the proceeds of the sale of the former matrimonial home. Justice Rees did not elect to modify the Orders that had already been made in relation to spousal maintenance. Her Honour made an Order that provided for payment of $145,000 (being approximately 12 months’ worth of rent at $2,800 per week) with an immediate payment to the Mother the amount of $40,000 on 12 February 2018, as proposed by the Father and the payment of the balance of $105,000 from the proceeds of sale of the former matrimonial home, on the settlement of same.

This recent Family Law case provides a positive insight into the remedies that the Court will consider in order to assist a party requiring urgent financial assistance while their proceedings are yet to be finalised.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.