What are the legal implications of parental alienation?

Parental alienation is a term which is used to describe when one parent (the “alienating” parent) behaves in a certain way to undermine and damage the other parent’s relationship with a child.

Whilst this term is considered to be controversial and there is a reluctance by the Court to label certain behaviour as this, it is apparent that behaviour which falls under this definition is becoming more and more common, particularly when there are parenting proceedings on foot. The uncertainty arising from COVID-19, is likely to see an increase of these cluster of behaviours.

Case Law

In determining what is in the best interests of the child, the Court must consider primary considerations as set out in Section 60CC of the Family Law Act 1975, being:

  1. The benefit of the child having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Although there is reticence for the Family and Federal Circuit Court to identify and label a parent’s behaviour as “parental alienation”, there have been numerous cases where the Court has recognised such behaviour and accordingly made orders to change primary residence in circumstances where one parent poses an unacceptable risk of harm.

In Lankester v Cribb [2018] FamCACF 60 (6 April 2018), the Mother was the primary carer of a nine-year-old child and it was alleged by the Mother that the Father of the child had sexually abused her.

During the course of the proceedings, evidence was produced demonstrating that the Mother had been frequently questioning the child about sexual abuse including, on one occasion, having recorded the conversation and the child’s complaints. Whilst there had been medical examinations of the child and an assessment undertaken by the Department which concluded there was no evidence of sexual abuse, it was the Mother’s view that the Father had sexually abused the child.

Also read: Q& A | Separation, Child Custody and Parenting

After the Family Consultant met with the parents and child, it was expressed by the Consultant that in their opinion as a result of the Mother’s behaviour namely the unfounded allegations, the child would be “exposed to continuing distress and confusion about her relationship with [the Father] whilst she lives with [the Mother]”. Further, that as a result of the Mother’s behaviour, each changeover would be a “highly stressful experience” for the child which would likely affect the child’s emotional and social development, in turn impacting upon the child’s capacity to connect positively with her Father.

Although the Court recognised that changing a child’s primary residence may result in grief, loss, confusion and a high level of stress, these adverse consequences were considered to be outweighed by the risk the Mother posed to the child should the child continue to live with her. On the basis that the Mother posed an unacceptable risk of harm to the child while in her care, the Court ordered that the child’s time with the Mother be suspended for a period of six months, after which time there be a staged reintroduction of time (including planned supervised and unsupervised time) with the Mother.

Similarly, in Goldman v Goldman [2018] FamCACF 65 (12 April 2018), the Court changed the primary residence of the two children (aged 11 and 13) as a result of the Mother’s behaviour. This was largely based on the Single Expert’s opinion that the children had a “close dependent relationship” with the Mother which was “not conducive to good future mental health”.  The Court also formed the view that the Mother was entirely focused on punishing the Father by “… turning the children’s affections away from him” which in turn caused emotional harm to the children and posed a continuing unacceptable risk of harm to them.

The consequences of parental alienation

As a consequence of the Mother’s behaviour, a change of residence was ordered which resulted in the children living with the Father. The Court also ordered that the children’s time with the Mother be suspended for a period of four weeks, after which the children spent supervised time with the Mother for one year, and thereafter in accordance with a gradual and incremental increase of unsupervised time.

It is not often seen that the Court orders a change of residence for children from one parent to another. Where it is established, however, that one parent’s behaviour has (and will continue to) harmfully impact a child and/or their relationship with the other parent, the Court will consider such an outcome. This is the case even if such behaviour is not labelled as “parental alienation”.

Doolan Wagner Family Lawyers offer specialist family law advice and are based in St Leonards on Sydney’s North Shore.  If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.  We have a dedicated team of experienced family lawyers to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.

About the Authors:

Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: linkedin.com/in/lisawagnerdwfl

Ashleigh Middlin is an Associate at Doolan Wagner Family Lawyers. Ashleigh’ s background in child protection and matters of domestic and family violence has created in her a highly empathetic approach towards her clients. She is focused on assisting clients to finalise their matter as efficiently and cost-effective as possible. Ashleigh’s areas of expertise include property settlements, including negotiated agreements, lawyer-assisted mediations, parenting matters relating to the care of children including negotiated agreements and litigation and child support and spousal maintenance matters.

Connect with Ashley on LinkedIn: linkedin.com/in/ashleighmiddlin

Disclaimer:

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.

 

Divorce & Family Lawyers North Shore

Doolan Wagner Family Lawyers provide trusted divorce and family law advice and assistance to people on Sydney’s North Shore & North Sydney.

Are you looking for an Accredited Family Law Specialist lawyer on Sydney’s North Shore? Doolan Wagner Family Lawyers are pre-eminent family law solicitors you can rely on. For more than two decades our family lawyers have been assisting people in Sydney with their family law matters.

Our family lawyers’ expert experience and skills are recognised by the Law Society of New South Wales through its Accredited Specialist Scheme.

Our Services

We are expertly placed to assist you in relation to all family law matters including:

  • Divorces
  • De facto relationship matters
  • Same-sex relationship matters
  • Financial/property settlements
  • Parenting matters (including pertaining to assisted fertility issues)
  • Child support & Child Custody
  • Strong court representation
  • Assisted reproduction technology and Surrogacy
  • Some of the Issues Our Clients Face
  • Do you know the difference between a Divorce and a separation?
  • What about the difference between a property/financial settlement and a Divorce?

Believe it or not, although the words are often used interchangeably each of these matters is a very different legal issue with different ramifications. We can help you understand the differences and guide you through the family law process as it applies to your particular circumstances.

  • Did you know that until recently the law treated couples living in a De Facto arrangement very differently from couples who were married?
  • Did you know that the date of your separation can affect how the law applies to you?

If you’re living with someone else and you’re uncertain about your rights, we can help you work out what you’re entitled to.

  • You’ve probably heard a lot in the media about recognition of same-sex relationships and same-sex marriage.
  • Did you know that in recent years there have been significant reforms to the Australian legal framework which have allowed better recognition of same-sex couples and their children?

If you’re contemplating separating from your partner and you’re uncertain about your rights or responsibilities or how this may affect your children, we can help you understand your entitlements.

  • Have you used assisted fertility procedures to help you have a family?
  • Have you used a surrogate or donor to help you create your family?
  • Do you know what your rights and responsibilities are? Do you know theirs?
  • Do you know how your child legal rights may be affected by assisted fertility issues?

Family Law Accredited Specialists are required to undertake continued learning specifically in respect to issues relating to family law. Our divorce solicitors are well positioned to advise you in relation to all family law issues. We will provide appropriate legal assistance to you as you navigate this difficult new terrain.

  • Do you know what factors influence the calculation of child support by the Child Support Agency?
  • Do you know what changes in your or your former partner’s circumstances would allow for a change to the child support assessment?
  • Do you need a Binding Child Support Agreement?
  • Did you know you can be paid child support for a child aged over eighteen years of age if they’re still attending school?

Our highly experienced family lawyers are well versed in respect of the “rules” pertaining to child support and can provide you with clear advice on your rights and responsibilities in relation to all aspects of child support.

Why Choose Doolan Wagner?

We understand that people are often worried about involving themselves in what they fear are complex and expensive legal processes. We will give you clear and concise legal advice and guidance.

We are a specialist firm located conveniently in St Leonards on Sydney’s Lower North Shore. Visiting us is relatively stress-free and will help you avoid the congestion of Sydney’s CBD and the North Sydney Commercial Precinct. We are an easy 15-20 minute drive from Hornsby, Ryde, Gladesville, Chatswood and St Ives and there is ample street parking nearby. We are also only a short 2-3 minute walk from St Leonards train station. There are regular trains from Central, Hornsby and Epping. St Leonards station is a major stop for various local buses.

Affordable Family Lawyers North Sydney

And as a smaller firm, we don’t have the same overheads as some of the larger “city-based” firms. We understand that families facing a family breakdown are often facing added financial pressures as well. We do our best to keep your costs down by offering highly competitive rates. Our competitive fees don’t mean you will get anything other than top-quality legal advice and assistance because we promise that you will not just be a file in a cabinet to the family lawyers at our firm. We believe in giving all of our client’s personal care and attention.

Also read: How Much Does a Divorce Cost?

We also recognise that often clients may be confused about what the “real” or “live” issues are. Knowing how best to approach obtaining appropriate legal solutions in their divorce and separation is important. As a firm that only practices in the area of family law, our family lawyers have the level of experience that clients are looking for to assist them to face their separation, divorce and other family law issues with confidence. We can get to the “heart” of your matter quickly and won’t waste your time or money focusing on issues that don’t matter.

We will guide you through every aspect of your family law matter, from the first stages of legal planning through to finalisation of your family law matter. It is our view that, no matter how complex or simple your matter appears to be, it is essential to obtain early legal assistance from an experienced family lawyer (preferably an Accredited Family Law Specialist) so that you can get the answers you need. This will enable you and your family to positively move forward with your lives. It is very important that you have a clear legal plan prepared prior to engaging in any family law processes, whether it be approaching the negotiating table or filing an Application in the Court. We can help you with developing your legal strategy and assist you throughout the family law process.

Expert Divorce Lawyers North Sydney

We know that our help can put you in the best position to secure the optimal outcome that works for you and your family. Our Accredited Family Law Specialists are skilled at negotiating the often challenging family law setting. Their approaches, together with their sensitive and personal service and support, will put you in the best position free from uncertainty and unnecessary worry.

Whatever your circumstances are, we promise you that we will handle your matter with your personal circumstances at the forefront of our minds. We will listen to you to ascertain your wants, needs and concerns so that any advice we provide to you is tailored to your specific needs. We are not afraid to adapt our methods and approaches to suit your family’s needs and can either provide a sensitive approach or strong court representation, depending on your needs.

We have family lawyers who have had extensive experience in the collaborative law process and are collaboratively trained. By being able to engage in a more collaborative legal process in the majority of our family law matters we attempt to enable our clients to have the utmost input and control over their matter. This approach also allows independent professionals to contribute to the legal process to ensure that the parties will have the most appropriate, effective and positive outcome possibly achievable in their matter. And it also helps keep our clients costs down because we will do our best to settle matters by alternate dispute resolution mechanisms such as negotiation, roundtable settlement conferences, mediations and arbitrations.

If you’re still not convinced we can help you, perhaps reading some of our client testimonials will set your mind at ease…

Take the Next Step…

Facing issues in relation to intimate family or relationship matters can be stressful, daunting and worrisome. These matters have the potential to affect your emotional wellbeing, as well as have a substantial effect on the wellbeing of other family members and your finances. Obtaining timely specialist family law advice, guidance and support in relation to all family law matters will set you on the best path forward.

If you live or work on the North Shore of Sydney and:

  • are experiencing a relationship breakdown; or
  • need advice regarding your family’s circumstances; or
  • want to know more about your rights and responsibilities; or
  • just need to know where you stand…

We can help you because Lisa Wagner & her family law team is made up of highly experienced Accredited Family Law Specialists and highly regarded registered Family Dispute Resolution Practitioners. So, take the next step and call us on 9437 0010 or email enquiries@familylawyersdw.com.au to find out how we can 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.

Divorce Lawyers North Shore FAQ’s

Back to School Costs After Separation – How Far Can Your Child Support Payments Go?

The payment of Child support continues to incite much heated conversations.  Whilst a government report commissioned a few years ago found that of those people surveyed:-

  1. many believed that the amount of child support being paid was considered to be about right; and
  2. many said that the actual child support that was being paid was being paid in full and on time.

we often hear people complaining that they are paying too much child support or not getting enough child support.

The basic child support formula is complicated and multi-layered. It relies upon detailed research into the costs of raising children in different age bands as its starting point. The basic formula then takes into account the parents respective relevant incomes and the amount of time that each of the children spend with each parent in determining an appropriate level of child support to be paid and/or received. The formula also makes allowances for new siblings and other dependents and for other “life” considerations. There are grounds upon which you can seek to change an administrative assessment of child support if, for example, you can satisfy the Department of Human Services that the income of one or both parents is not properly taken into account or the costs of raising your child or children are special in all of the circumstances. Provided you meet particular provisions these matters can also be considered by the Family Court.

However, how relevant is the basic formula for separating families living in most areas of Sydney?

Perhaps two of the biggest factors relevant to large parts of Sydney that are not necessarily captured in the basic child support formula are:

  1. The high costs of housing in Sydney; and
  2. The growing propensity to send children to private schools especially at the secondary school level.

These two factors weigh heavily on the budgets of most families not just those experiencing separation. Creeping housing costs in Sydney are difficult to escape. The cost of education and in particular “back to school” fees are also significant and are costs that we cannot have a great deal of control over.  Availing yourself of the second hand uniform stall or recycling hand-me-down clothes and books goes only a small way towards making ends meet.

The basic child support formula is meant to cover the costs of public school education and associated expenses including uniforms, shoes, stationary, books and the like.

Payments of child support do not “spike” in January/February each year to take extra “back to school” costs into account. If you are receiving child support and are obliged to meet all the “back to school” costs yourself then you either need to try to budget for this expensive time of year over the course of the previous twelve months, or as most people do, use credit cards and spend the next few months playing “catch-up”.

Private school fees and the extra expenses charged at most private schools along with the extra “back to school” costs generally are only payable by an ex-spouse if you have secured a departure order from the Court or have entered into a Binding Child Support Agreement with your former spouse or partner requiring that all or a proportion of those expenses are paid. In either case provision can be made for the payment of a raft of “back to school” expenses that are incurred at the start of the year or at other times including:

  • Laptops, IPads and IT expenses (even maintenance, repair and replacement costs)
  • Hockey sticks, team uniforms sports equipment and registration costs
  • Musical instruments, tuition and examination charges
  • Incursions, excursions and even overseas immersion trips
  • Camp fees, Cadets and Duke of Edinburgh

No matter what your budget or your circumstances after separation, it is vital to understand what all your true child costs are and also what they are likely to be moving forward, including non-recurring costs like “back to school” expenses. It is also essential to determine what real income will be available to meet all of these costs. “Back to school” costs which spike at the start of each year are a strong reminder of how important this is. This is true for all families but particularly so for families experiencing separation. Clearly setting out who will be responsible for all of these child related expenses is crucial and these obligations should be clearly included in a Binding Child Support Agreement or Court Orders. Without any settlement being documented in this way there is no real obligation for either parent to meet these costs and these costs can be really felt as children get ready to return to school each year.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you would like some more information about child support or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.  Lisa Wagner is the founding principal of Doolan Wagner Family Lawyers, an Accredited Family Law Specialist and a nationally registered Family Dispute Resolution Practitioner on Sydney’s North Shore.  We also have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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.

May 2019 Family Law Case Watch

Do you wish to change your child’s surname following a separation from your former partner? Alternatively, has a request been made by your former partner to change your child’s surname?

The recent case of Teke & Cefai [2019] FamCA 114 (“Teke & Cefai”) considered the question of changing a child’s name in peculiar circumstances of a father having been absent from the child’s life for the best part of eight years.

Background

In this case an Application to change a child’s name was made to the Family Court of Australia by the mother in respect of a child of the relationship, born in 2010, following a separation from the father and subsequent Consent Orders being made in 2012. The Application initially came before the Court in November 2018 however was adjourned on two occasions to provide the father with an opportunity to appear and respond to the proceedings. Directions were made that all parties attend or be represented at the Hearing with all Orders and filed documents to be served on the father by way of email.

On 26 February 2019, the judge found that the father had no interest or responsibility for the child given that he had never complied with the Consent Orders in 2012 and did not appear before the Court in respect of the most recent Application by the mother. The judge was satisfied that the father was served with the relevant documents and provided with sufficient opportunity to participate in the proceedings and that the matter could proceed without his interests being taken into account.

Law/Application

In accordance with the mother’s Application, the judge discharged the orders made in 2012 and ordered that the child live with the mother and that she have sole responsibility for all decisions of a major, long-term nature. The judge then turned his attention to the mother’s request to change the child’s surname to that of her own.

Pursuant to the Victorian equivalent of section 28 of the Births, Deaths and Marriages Registration Act (NSW) 1995, a Court is permitted to approve a proposed name change if it finds that it is in the child’s best interests.

In considering whether to approve the proposed change of the child’s name in this matter, the judge took into account the following factors:

  1. The father had shown little interest in the child since 2012. He had not provided any financial support nor had he provided any recognition of the child’s birthday or other special days. The mother indicated that 2013 was the last time she received communication from the father until November 2017 when he sent her an email. The judge stated that that “email is quoted in the affidavit and it is enlightening to indicate how he shows a complete lack of responsibility [for the child]”.
  1. The mother has been the sole person responsible for all decisions and care relating to the child since 2012.
  1. The best interests of the child pursuant to sections 60CA and s60CC of the Family Law Act 1975 (Cth), including:
  • One of the primary considerations being the child having a meaningful relationship with both parents was considered however it was the judge’s view that, “The child cannot benefit from a relationship that does not exist”.
  • The child’s views based on her maturity and level of understanding pursuant to section 60CC(3)(g). In this matter it was found that the child was at a stage in life where identity is an issue for her and her surname is causing her embarrassment and distress.

For a period of approximately six (6) months the child had asked her mother at least once a week why she could not change her name as having her father’s surname caused her distress. The distress arose when her name was called out at school assembly and children around her ask why she has two surnames when she does not have a father. The child recognises that children normally have a father and she does not understand why that is not the situation for her.

  1. The child would argue that she did not understand why she is required to keep her father’s name when she does not know where her father is or, indeed, who he is.

The judge ultimately approved the mother’s proposal to change the child’s name.

A similar line of reasoning was adopted by the Family Court of Australia in the earlier case of Reagan & Orton [2016] FamCA 330.

Conclusion

Changing a child’s surname is not considered lightly by the Family Court of Australia as it is a “major long-term issue” affecting the care, welfare and development of the child (section 4, Family Law Act 1975 (Cth)). As such it cannot be determined by only one parent. It is not often that the consent of the other parent to change the child’s surname is obtained as ordinarily the other parent will not agree to sever the bond that is created by having the same surname and wishes to “continue” the family name.

Applications to change a child’s name are often contested and the likelihood of succeeding in Court will depend entirely on the facts and evidence available in support of a particular case, as well as the judge’s discretion. It is important to remember that any decision with respect to a child concerning major long-term issues should be made jointly, and if Court intervention is required, will be made having regard to the best interests of that particular child.

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 your matter 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.

Moving out of Sydney after Separation

Are you seeking to relocate with your child?

Or are you facing a relocation application by your former spouse?

Read on to find out more about family law relocation applications.

In making a decision in respect of parenting arrangements, including the determination of relocation applications, the Court takes into account the primary considerations as set out in Section 60CC of the Family Law Act 1975 as to what is in the best interests of the child.

In determining what is in the child’s best interest the Court must take into account the following primary considerations in accordance with Section 60CC of the Family Law Act 1975:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

When making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. We note, however, that the presumption of equal shared parental responsibility is rebutted in circumstances where family violence has occurred.

Further, pursuant to section 65DAA of the Family Law Act 1975, if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

  1. Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
  2. Consider whether the child spending equal time with each of the parents is reasonably practicable; and
  3. If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

So, how does the above relate to a relocation application?

Firstly, no particular section of the Family Law Act 1975, specifically sets out the law in respect of the issue of relocation. Rather, each relocation case is considered in the context of the best interests of the children and particularly Part VII of the Family Law Act 1975.

In the case of A v A: Relocation Approach (2000) FLC the Full Court of the Family Court set out an approach to be used as a guide in determining parenting cases involving relocation. When considering parenting orders in the context of a relocation application by one parent, the case of A v A stands as authority for the following:

  1. That the issues of relocation and the best interests of the child must be considered as interdependent matters;
  2. A persuasive argument in support of or against, the proposed relocation does not need to be set out;
  3. The interests of both the relocating parent and the non-relocating parent must be evaluated in the context of the best interests of the child;
  4. The Court is not obliged to disregard the legitimate interests of the parents. However, where there is a conflict between the legitimate interest of the child’s parents, the paramount consideration of the child’s best interest interests must be given priority.
  5. The parent seeking to vary the present arrangements and ultimately change the child’s place of residence bears the onus of satisfying the Court that the relocation is in the child’s best interests.

Other considerations that the Court will take into account when determining a relocation application account include:

  1. Whether a meaningful relationship between the child and the non-relocating parent could be maintained despite the reduced time with the non-relocating parent. Also relevant to this consideration are the child’s age and the relocating parent’s willingness to facilitate a relationship.
  2. The benefit to the child having a meaningful relationship with both parents.
  3. The need to protect the child from physical or psychological harm and from being subject or exposed to abuse, neglect or family violence.
  4. Any views expressed by the child.
  5. The nature of the relationship the child has with each parent and others.
  6. The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long term issues, spending time, communicating with and maintaining the child.
  7. The likely effect of the proposed move on the child.
  8. Whether the practical difficulty and expense of the child spending time with the other parent will substantially affect the child’s right to maintain personal relations and contact with both parents on a regular basis. For example, if the child is an infant, telephone contact is difficult meaning that communication with the other parent is limited.
  9. Whether an order which is sought would be least likely to lead to further court proceedings being initiated by the other party.

FAQS – here are some of the questions that we are asked frequently:

  1. Can I move overseas or interstate with my child without the permission of their father/mother?
  2. What if I can’t afford to stay in Sydney but my partner is refusing to agree to me relocating?
  3. Will my partner be successful in relocating with my child?

If you are considering relocating or your partner is attempting to relocate with your child or you have pondered any of the above questions, we are available to talk about how best to approach this particular situation and look forward to hearing from you.  We are conveniently located in St Leonards on Sydney’s Northshore within easy walking distance of the train station. Please contact us to find out more or speak to one of our specialists on 94370010 or email 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 Lawyers Mosman

Divorce Lawyer servicing couples and families in the Mosman area. Divorce Lawyers helping separating couples for over 20 years.

Are you looking for an experienced family lawyer to help you with your separation and divorce?

We are keenly aware that dealing with a relationship breakdown is distressing and seeing a lawyer can be a very daunting experience. Having practiced almost exclusively in the area of family law for more than 20 years we believe that we are the best placed family law firm in the local area to deal with you and your matter sensitively and with the best interests of you and your family foremost in mind.

We recognise that no two families (or indeed family breakdowns) are the same. We are not a cookie-cutter law firm and will take the time to get to know you, your family and the distinct facts and circumstances of your case – that is our promise to you. We do this so that we can offer you advice which is tailored to your personal circumstances and can secure a resolution of your matter which reflects the specific needs of you and your family.

Why use Doolan Wagner, your family lawyers Mosman, in your family law matter?

We have been helping separating couples for over 20 years and during that time have assisted hundreds of couples resolve their family law matters in the most cost-effective way both with and without the Court’s involvement.

  1. We only practice in the area of family law. That means we are in the best position to assist you to resolve your matter because:
    – we have established relationships with many of the local family law practitioners (including local lawyers, barristers and court staff), Child Contact Centres, Meditators, Family Law Arbitrators, etc.
    – we can quickly grasp the important elements of each family law matter; and
    – we are expertly familiar with how family law processes work.
  2. We have lawyers who are Accredited Family Law Specialists registered with the Law Society of NSW – these are experts in all areas of family law and are best placed to assist you in relation to your family law matter.
  3. We have registered Family Dispute Resolution Practitioners for separating couples who are not yet ready to undertake the formal engagement of a solicitor or who want to try to informally resolve their matter using alternative dispute resolution.
  4. Your file will receive personal attention from experienced family lawyers including our Principal and the handling of your matter won’t be passed around the office to junior lawyers unless specifically requested by you.
  5. Every day we:
    – draft family law documents including but not limited to Court Applications, Balance Sheets, Superannuation Splitting Orders, Financial Agreements, Binding Child Support Agreements, Consent Orders, Applications for Divorce and Affidavits;
    – assist clients to formulate sensible parenting plans and negotiate appropriate financial property settlements;
    – review financial disclosure documents, court documents, parties’ evidence and applications for child support assessments;
    – prepare clients for attendances at Court and engaging with the Family Law processes such as attending with Family Consultants; and
    – guide clients through the many challenges that can arise in their lives and within the family unit as a result of separation and divorce.
  6. We are a boutique law firm with overheads to match – we pass on those savings to you so that our fees and charges are competitive. We should be considered the “go to” company for getting real and good old fashioned divorce law advice.
  7. Our practice has been built up from word of mouth referrals from satisfied current and past clients and local professional people – that’s 20 years of business built up largely from word-of-mouth referrals…enough said.

By engaging Doolan Wagner Lawyers in Mosman:

  1. You will be choosing an Accredited Family Law Specialist, an expert who practices family law daily.
  2. You will benefit from our ability to quickly (and therefore cost effectively) understand the important issues in your matter and formulate the right action plan for you and your family.
  3. You will be provided with proper guidance through the separation and divorce processes – we know that separation and divorce are some of the most stressful and challenging experiences which our clients will have to go through during their lifetimes. Having steered many client’s through the various stages of each of these processes we are best positioned to offer you practical feedback on how to approach many of the situations that separated families may face.
  4. You will be provided with clear advice on what forms part of the “pool of assets” and how best to protect the assets of the relationship.
  5. You will receive sensible, realistic and proactive family law advice in relation to both parenting and financial matters which will stand the test of time.  We will try and anticipate the things that may happen in your future and provide for them in the advice that we give you and work with those “futures” in mind when we negotiate your settlement. Many of our former clients have kept in touch with us over the years to update us about their families and have provided feedback that both the advice we offered and the resolutions we negotiated for them have been appropriate to meet their family’s needs for many years.
  6. You can be confident that we will secure the best financial outcome for you.
  7. You can be assured that we will always act with the best interests of your children in mind.
  8. You will receive our full commitment to resolve your matter as quickly as possible. Your positive experience with us assures our good reputation within the local community.
  9. Don’t make the mistake of choosing the wrong lawyer. The decisions you must make after separation are critical. You and your children’s wellbeing and your financial security are not worth the gamble.

Our founding principal, Lisa Wagner is a local North Shore mum and an Accredited Family Law Specialist having looked after separating parties on Sydney’s North Shore & Mosman for almost 30 years.

Trained as a Family Dispute Resolution practitioner and in Collaborative Family Law Practice, Lisa and her team possess honed skills to secure favourable and timely out of court settlements.

Many people following separation seek discreet advice and our ongoing specialist family law advice service can prove invaluable to help you along the way navigate issues of child support, parenting and financial settlements.

Taking the first step is never easy however with our proven track record of assisting local couples to resolve their family law matters successfully we urge you to get the ball rolling and get in touch with us.

Call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We offer Accredited Family Law Specialists and are experts in all family law matters.

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 Lawyers Mosman FAQ’s

Enjoying Christmas and Other Family Celebrations After Separation

Australian’s love a celebration.

If you’re not convinced, scroll back to recent photos of kids in their Halloween regalia or think about your walk down the aisle of your local supermarket in the first week in October seeing the shelves already stocked with tinsel and stockings.

Making decisions about how your family celebrates these special occasions can be difficult. With all the wonderful events and facilities available to us on Sydney’s North Shore we are really spoilt for choice. Willoughby Carols in the Park, Mosman Carols by Candlelight at Balmoral Rotunda, and Pymble Carols in the Park, just to name a few Christmas events in this area.

It doesn’t change when you separate. In fact managing celebrations for your family after separation can present even greater challenges.

Trying to cram two celebrations into one day, even when you live in close proximity to your former spouse, can lead to mounting tensions and frayed nerves.

It can be particularly tough trying to reach agreement with your ex-spouse about how your children will spend special occasions each year.

There are really sound options available to separating families to resolve these differences and avoid extraordinary delays and costs that are incurred when the Court gets involved.

First and foremost it is important to be open minded and embrace marking these celebrations in different ways. In all separations where children are involved the paramount principle is determining what is in their best interests. When deciding how to provide for special occasions in family law matters it is important to really place the children’s interests first.

As children get older their wishes become more important. If your children love spending time with their cousins on Christmas night then, even after separation, it is important that you do all things possible so as to make that happen. If there is a history of an Easter egg hunt at Nanny’s home then try not to make arrangements so that they will miss out on that fun. Make plans that will work for them.

Not only do plans for special occasions need to be very child focussed, they also need to be flexible. Not all family celebrations are set in stone from year to year. It usually works best if you try to accommodate these arrangements to ensure that your children enjoy the best that each of you and your respective extended families can offer.

After separation some families choose to alternate occasions each year. In even numbered years Christmas might be spent with Mum and Easter with Dad and then in odd numbered years the children will spend Christmas with Dad and Easter with Mum. Other families decide to “split” these special occasions so that the children can spend some time with both Mum and Dad each year. This can work well for families who live in very close proximity of each other. Otherwise it can be disastrous, especially for the children…sitting in a car for two or more hours on Christmas Day is simply not their idea of fun and remember it’s really about them.

Also, remember that special occasions are special because you make them special…when couples separate it may be time to think about creating new traditions. If your children will be with the other parent on Christmas Day consider creating a Christmas Eve celebration. If your children are with the other parent at Easter time invent a new Anzac Day tradition of trips to Balmoral Beach, Clifton Gardens or Naremburn Park. You can even see fireworks on Darling Harbour on a Saturday night if you want to organise your own child-friendly mid-year New Year’s Eve celebration!

There is a good chance that you will find everything you need in your local shopping centre to quickly make that party happen. Because Australians love a celebration, you can almost guarantee that you will be able to find party gear for almost any public holiday which certainly makes it easier to “get into the spirit” and really celebrate with your children. And just like you would at Easter or Christmas, make sure to get photos or keepsakes of your celebration so you can remember and have real records of the happy times spent with your children in years to come.

Reaching agreement with your ex-spouse about any matter can be difficult. Special occasions can bring even greater angst.

I am sure that if most of you were asked what Christmas means to you then typical answers would be “stockings” or “Christmas dinner” and “presents under the tree”.

Don’t forget that Christmas also symbolises new birth and new beginnings. Coming just on the tail end of Christmas is a brand new year and all that represents.

In family law matters, especially when considering special occasions, reminding yourself about the message of “new beginnings” can help you adjust to the necessary changes that separation brings and ensure that you and your family continue to celebrate and enjoy special occasions for many years to come.

Finally, none of these tips on their own are likely to achieve success. It is critical that you learn to communicate with your ex-spouse (even if that is just by way of email or text) so that everybody understands what arrangements are in place and what is expected of them, and nobody, most importantly the children, are disappointed.

So to recap, some helpful suggestions to ensure you reignite the “celebration” in your celebrations after separation:

  1.  Remain child focussed.
  1.  Be flexible in your thinking.
  1.  Create new traditions.
  1.  Be clear and certain about arrangements.
  1.  Keep the channels of communication open.

These tips will all ensure that you and your family continue to enjoy and celebrate special occasions even in the event that your family have separated.

If you are experiencing a separation, haven’t made plans for an upcoming celebration or special occasion, and really don’t know what step to take next or how to handle the situation and do what is best for your kids then please get in touch with us at Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We are conveniently located in St Leonards on Sydney’s Lower North Shore. We offer accredited family law specialists to help you with parenting and all family law matters.

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.

Children’s Wishes in Separation

Are you separating?

If you are in the process of separation or are thinking about separating and have children, you will no doubt want to understand how your child’s wishes and views are taken into account and how old they have to be before they get to choose who they want to live with.

This is a complex area of family law and is becoming increasingly challenging in today’s world where children from an early age are exposed to more media than ever before.

We live in an information age – it is everywhere.  As a consequence there is an increasing number of experts on everything! Not many of us can say hand on heart that we haven’t dabbled in our own medical diagnosis after “googling” a complaint. With information and the quasi-expertise that it creates we also are increasingly becoming a community that is at risk of feeling entitled. We expect that things will work out the way we want them to work out, all of the time and in every way. This sense of entitlement filters through in many different ways when people separate. One way it sometimes filters through is the way we are going to expect our children’s wishes (often very young children) to be followed in Family Court proceedings about parenting arrangements.

When can my child decide?

This is a question that we are asked frequently in my family law practice. Clearly, as a child reaches a certain age and level of maturity it is difficult to do anything other than what that young adult wishes. By the time a child is fourteen years of age they begin to “vote with their feet”.

What about younger children?

Having been asked this question on countless occasions we thought it would be helpful to set out when and how the Family Court takes children’s views into account in family matters involving parenting.

  1. Firstly, a child is not, and cannot be required, to express his or her own view about parenting matters. However, if a child or children do express a view then those views must be considered by the Court. How does the Court take into account the wishes of a child? Usually those wishes are taken into account in one of three ways:
  2. By having the benefit of a Family Report. A family report is written by a Family Court Consultant (with a background in social science) or another agreed or nominated expert who has interviewed the child or children and considered the dynamic of the particular family.

By appointing an Independent Children’s Lawyer. The legislation now requires a lawyer appointed for children to ensure that if any views have been expressed then they are put before the Court.

Such other means as the Court considers appropriate.

The Court however is not required to adopt the views of the child. The children’s views are not final and the Family Court is only obliged to give such weight to those views as it considers appropriate given all of the facts of the particular case.

Following children’s wishes is often seen to be the easier, less uncomfortable path to take and the easier case to argue. However it is important to understand instances when the Court does not adopt the wishes of the children and instead finds that it is in the best interests of the children that the parenting arrangements after separation be different to the arrangements that the children have expressed a preference for.

When should children’s wishes be departed from?

In different cases the Family Court of Australia has identified different instances when it is not in the children’s best interests that their wishes be followed. Examples of this include:

  1. If the Court has evidence before it that the “favoured” parent may not be committed to facilitating the child to spend time with the other parent.
  2. If the Court has evidence before it that the “favoured” parent lacks respect in dealing with the legitimate opposition the other parent has expressed to one sided and unilateral decisions that the “favoured” parent has made.
  3. If the Court has evidence before it that the “favoured” parent does not acknowledge the validity of the role of the other parent in the child’s life.
  4. If the Court is satisfied that the wishes expressed by the child were not soundly based upon mature and independent consideration but rather as a result of influence or coaxing.

Other considerations including family dynamics and motivations can also be significant. Each family and the views expressed by each child and the basis for those views are individually taken into account to ensure that the best interests of the child are secured. It is a holistic, complex exercise and one that will no doubt continue to evolve.

Other considerations including family dynamics and motivations can also be significant. Each family and the views expressed by each child and the basis for those views are individually taken into account to ensure that the best interests of the child are secured. It is a holistic, complex exercise and one that will no doubt continue to evolve.

If you are separating with children and would like some help navigating this difficult path we are ready to help. We have family law experts with countless years’ experience in parenting matters available to assist you and your family. Call us on 02 9437 0010 for a no-obligation initial consultation. Doolan Wagner Family Lawyers are conveniently located in St Leonards on Sydney’s Lower North Shore.

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.

Complex Parenting Matters: Where The Presumptions Don’t Apply

Are you facing a difficult separation?

Do you need help securing the best outcome for your children?

Are you presently involved in a complex family law parenting matter?

If you answered, “yes” to any of these questions then you should read on.

The Family Law Act presumes it is in a child’s best interests for that child’s parent to have equal shared parental responsibility for that child.  This means it is best for both parents to share the duties, powers, responsibilities and authority in relation to the child.

When orders are made for equal shared parental responsibility a court must consider certain arrangements for the time a child should spend with each parent.  Firstly, whether equal time is in a child’s best interests and reasonably practicable, and secondly, where equal time is not appropriate, whether significant and substantial time is in a child’s best interests and reasonably practicable.

In most cases the presumption for equal shared parental responsibility will apply and the child will have the opportunity to have both parents involved in significant decisions for their life and will be able to spend good, quality time with both parents.

In some cases, the law says that the presumption for equal shared parental responsibility should not apply or can be rebutted by evidence that it would not be in a child’s best interest.  Examples where the usual presumption for equal shared parental responsibility may not apply include:

1.    Circumstances of Family Violence.

2.    Drug or Alcohol Abuse.

3.    Where one or both parents are unavailable to care for the child.

Family Violence

The Family Law Act recognises the reality of family violence and the need to protect a child from being exposed to this.  The Family Law Act says that where family violence exists the usual presumption that parents should share parental responsibility will not apply.

If family violence is alleged it is important to put evidence before the court that supports this allegation.  The best way to put this evidence before the court is through subpoena on Police, hospitals and other independent sources that can provide evidence of a history of family violence.  This is because at the beginning of proceedings a Judge cannot cross examine you or your partner to determine the “real story”.  By providing evidence from independent third parties a Judge is able to obtain an unbiased version of events.

Once evidence has been provided of the family violence it is important to decide what sort of orders should be made.  The primary consideration when making parenting orders is how orders can be made to protect the child from being exposed to further family violence.  In practice this can involve a number of different strategies, two of the more common arrangements we consider are whether orders for supervised time need to be sought or whether changeover can be arranged to avoid an alleged victim coming into contact with an alleged perpetrator of family violence.

Drug or Alcohol Abuse

In 2010 the Australian Institute of Family Studies found that following separation around 20% of fathers and 36% of mothers reported issues with drug or alcohol use.  The misuse of drugs or alcohol has a significant impact on a person’s capacity to care for a child.

Although drug or alcohol abuse does not automatically negate the presumption for equal shared parental responsibility it is likely to be rebutted in such circumstances.  Where there is an abuse of drugs or alcohol it is necessary to consider a number of factors.  In respect of making parenting orders the court must consider how to ensure the child’s safety, and, if possible, how to ensure the child continues to have the benefit of a meaningful relationship with the parent.

Other considerations in the practical running of such cases are how best to demonstrate the use and abuse of drugs or alcohol (or disprove the allegation) and how to address the addiction if it is proved.  Tests can be requested, or taken, to prove or disprove use of drugs or alcohol.  These tests can be submitted to voluntarily or ordered by the court.  Another factor to consider is whether some form of rehabilitation is possible.  This can be a difficult decision to make and how the rehabilitation program is undertaken during court proceedings will need to be carefully considered.

Where one or both parents are not available to care

In some cases, one or both parents are not available to care for the child.  This may be for a number of reasons, including death of a parent, imprisonment, disinterest, or by an order of a children’s court denying parent’s access to the child. In these cases it is often grandparents who step in.

The usual presumption that parents should share parental responsibility simply cannot apply in these circumstances.  By necessity the remaining parent, or third party, will be granted sole parental responsibility.

Grandparents or third parties stepping in to care for a child whose parents are not available can face additional practical difficulties in raising a child without orders of the court.  These difficulties may be with Medicare, Centrelink or simply enrolling the child in school.  Orders can help make it clear that you have parental responsibility for the child and are therefore vested with all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child.

At Doolan Wagner Family Lawyers we have dealt with a range of complex parenting matters.  If you are facing a difficult separation and are concerned about what would be best for your children our family lawyers can help you.  Our experience and compassionate approach means that you can feel confident in the advice we give.  We are conveniently located in St Leonards on Sydney’s Northshore within easy walking distance of the train station.  Please contact us to find out more or to speak confidentially to one of our experienced family lawyers on 94370010 or email 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.