Doolan Wagner: 2015 in Review

As a director of Doolan Wagner Family Lawyers I am writing this blog post about some 2015 developments and issues in family law including issues relating to parenting and immunisation of children, family law valuations, mediation trends and the new “cashless” family court registries.

Are you grappling with immunisation issues?

Children are immunised at birth and at the 6 month, 12 month, 18 months and 4 year mark.  Children are also immunised against HPV at the 12-14 year mark.  Australian research shows that in 2015 it is becoming increasingly common for some parents to be concerned about vaccine safety and its effectiveness.  In fact, it is becoming more common for separated parents to disagree on whether to immunise their children, or whether to continue to immunise their children even though they may have commenced a schedule of immunisation before they separated.  Another situation of conflict that can arise over immunisation is when parents are organising overseas travel with their children, to a country that strongly recommends immunising against certain diseases.

So what happens in 2015 if you and your partner disagree on this important decision and at what point does the Court step in?

The Court can become involved in disputes over immunisation where parents assume differing positions in respect of whether or not to immunise their child.  This is different to situations where parents jointly decide that their child needs a ‘special medical procedure.’ If you or your partner file an application to seek orders that a child be immunised, or seek an injunction to prevent the other parent from immunising your child, you will find yourself before the Court.

If you and your partner find yourselves in dispute over immunisation and approach the Family Court for assistance, the court will always ask the question “what is in the best interest of the child?  In the cases of Duke-Randall & Randall [2014] FamCA 126, Kingsford & Kingsford [2012] FamCA 889 and Redden & Mains [2010] FMCAfam 1338, the Court has determined that given there were no contraindicators it was in the best interest of the child to be immunised.

Valuations in Family Law Matters

In 2015 we have seen a growing need to obtain expert valuations of corporate and business structures, personal and commercial goodwill, residential, commercial and industrial real estate and employee stock options to name but a few as part of resolving the financial affairs of separating couples. Long gone are the days of straightforward family law matters with many clients now needing to rely upon forensic accountants and expert valuers to assist in a resolution of their financial affairs.

All family law valuations need to be approached with the particular facts and circumstances of each matter clearly prioritised. The appropriate methodology to be applied will depend very much on the individual aspects of each case.

In circumstances where for example your former spouse holds a share or a minority interest in a business, as part of that valuation process it is necessary to consider what discount (if any) should apply to the value of that commercial interest. If you and your partner are in a dispute about the value to attribute to your ownership of a minority interest the Court will ask the parties “what is the value of the shares to the shareholding party?”…it is questions of “the value to owner” and “the highest and best use” that the Family Court looks to when establishing the appropriate value of such an interest not broad valuation concepts such as the “hypothetical purchaser/vendor” principle.

There are many methodologies and considerations at play when undertaking a valuation exercise for family law purposes and determining what is a just and equitable division of property. Capital gains tax implications and tax consequences generally are crucial to bring to the table when seeking to secure a “clean break” of property and financial matters after a separation. Engaging an appropriately qualified expert at this time can be a critical move. Knowing who to engage, how to instruct the expert and what questions to ask can make a significant difference to the outcome in your case.

Mediation Trends in 2015

The use of mediation in family law has continued to grow in 2015, including the use of solicitor assisted family law mediation.

Mediation is a method of alternative dispute resolution (ADR) whereby parties attempt to resolve their matter using the services of an independent third party (mediator) to negotiate a settlement.

Doolan Wagner Family Lawyers offers mediation services and has a Registered Family Dispute Resolution Practitioner to assist clients in relation to their family law matters.

So what have we noticed in 2015?

Generally we have noticed that there has been an increasing interest to  avoid the court process altogether by negotiating, as well as using mediation and other alternative dispute resolution mechanisms to resolve their outstanding family law matters.  This has likely occurred due to lengthy delays in and the often prohibitive costs of engaging in the family law  court system.

However we have also found that some parties have been hesitant to engage in ‘private’ mediation when they have sought independent legal advice. In those cases we have seen that many parties have preferred to engage in solicitor assisted mediation to negotiate and/or settle their matter.

Solicitor assisted mediation can be helpful to parties because experienced family law solicitors bring additional skills to the negotiation table and can also help their clients see more clearly beyond the emotional aspects of their family law matter. This may empower a party and put them in a better position to negotiate with their former spouse to resolve outstanding issues or their matter as a whole.

Family Court Registries Going “Cashless” from 1 July 2015

For some time there have been murmurings amongst family lawyers and court staff that the Family Law Registries would only accept payment by credit card (or EFTPOS if paying in person).

From 1 July 2015 the Family Law Registries will no longer accept payments by cash or cheque. All Family Law Registries will now require all filing parties to provide an original completed and signed Credit Card Payment Authority Form with all documents attracting filing fees at the time those documents are being filed in the Court.  No longer will cash or other means of payment be acceptable.

What does that mean for you?

Really, it’s not a big deal…In early 2015 Doolan Wagner Family Lawyers took the pre-emptive step of implementing the “cashless” payment method to pay court filing fees. This means our clients have been using this “new” system for some time. Wherever possible we have also been using the Commonwealth Courts Portal to e-file documents for our clients, saving them more time and money.

If you are separated or thinking of separating and need help with:

– parenting issues including immunisation issues

– securing the best outcome in your family law matter where complex financial and/or business interests are involved

– considering mediation for you and your former spouse to resolve outstanding matters, or

– filing family court documents, paying federal circuit court fees and payment methods generally…

or any other family law matter…then contact Doolan Wagner Family Lawyers on enquiries@familylawyersdw.com.au or (02) 9437 0010 for further information on how we can help you. We are conveniently located in St Leonards on Sydney’s Lower North Shore and are easily accessible by public transport and car.

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.

New Family Court Judge Appointed

On 28 May 2015 the Federal Government announced the appointment of former Commonwealth Attorney-General Mr Robert McClelland as a Judge of the Family Court of Australia.  Mr McClelland will commence his appointment on 16 June 2015 and will be based in the Sydney Registry of the Family Court.  Following swearing in, he will be referred to as ‘His Honour McClelland, J.’

Prior to this appointment, Mr McClelland had developed an impressive profile in the community.  In 1996 he was elected as the Federal Member for Barton and following this position, undertook service as Australia’s Attorney-General.  Prior to his political career Mr McClelland practiced as a solicitor and was called to the Bar in 2011.  He is currently a partner at Carroll & O’Dea Lawyers.

At Doolan Wagner Family Lawyers we welcome Mr McClelland’s appointment to the Family Court Bench in the Sydney registry.  During his term as Commonwealth Attorney-General during the period 2007 to 2011, Mr McClelland was committed to improving the family law system and was responsible for the introduction of several important changes to the Family Law Act 1975, which aimed at improving support to separating families and advancing the family law system in its response to issues surrounding family violence and child abuse.  In 2011 Attorney-General McClelland introduced legislation that redefined domestic violence, in turn placing greater weight on child safety.

Today, the definition of ‘family violence’ at s4AB of the Family Law Act 1975 is as follows:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

During 2011, the amendments to the Family Law Act 1975 included a paring back of the evidentiary burden of proving a child’s risk of violence.  At that time, Mr McClelland noted that the Family Law Legislation Amendment Bill 2011 would create a safer and fairer family law system and put the safety of children first.  “It will help people within the system to understand and recognise family violence and child abuse, and encourage them to act”, he said.  Mr McClelland supported and promoted the child’s right to a meaningful relationship with both parents, but highlighted that the child’s best interest was paramount.  In this regard, he was of the view that shared care from both parents was supported, but only where it was safe for the child.

During his tenure as Attorney-General, Mr McClelland also highlighted the need for further alternative dispute resolution mechanisms in the family law context and was resilient in his commitment to increasing options available for resolving disputes out of the courts, especially for parenting and property matters.  Mr McClelland spoke of the need to attend family dispute resolution, not just in parenting matters, but also in property and spousal maintenance matters.  In this way, Mr McClelland continued to focus on how best to use court resources in applying suitable resolutions to family law matters.

If you or someone you know is experiencing family violence, or you are in dispute with your partner over property or parenting issues, then Doolan Wagner Family Lawyers can help you.  Call 02 9437 0010 or email enquiries@familylawyersdw.com.au to arrange a confidential discussion.

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, Nullity and Annulment

Divorce, nullity and annulment are words that are often used interchangeably by people seeking to end their marriages. In Australia divorce, nullity and annulment have very different legal meanings and each of these avenues must be approached in very different ways.

Do you know the difference?

Divorce

Divorce marks the legal end to your marriage. It dissolves a valid marriage according to civil law. Since the Family Law Act 1975 established the principle of a no fault divorce the only ground for a divorce in Australia is the irretrievable breakdown of the marriage. Long gone are the days of private investigators peering over backyard fences to prove infidelity. Now, you simply need to establish that you have been living separately and apart (even if under the one roof) for at least a period of twelve months prior to filing an Application for Divorce.

Parties are regarded as living separately and apart under one roof when they separate if they continue to physically live in the same home. This may occur because financially they cannot afford to separate and maintain two separate homes or because there are children of the marriage who would be to disadvantaged at that time by having their parents live separately.

When parties live separately and apart under one roof and make an Application to the Court for a Divorce they are required to provide extra information. This information is contained in an Affidavit. The information in the Affidavit satisfies the Court that there has been a change in the marriage and the parties have separated. It is also sometimes necessary that an independent third party provides a supporting Affidavit which sets out what they knew about the parties separation. Some of the information required in the Applicant’s Affidavit includes:

  1. What changes have taken place in respect of sleeping arrangements, such as no longer sharing a marital bed and now sleeping in separate bedrooms or in separate beds.
  2. How there has been a reduction in shared activities or family outings, such as not attending “family lunches” with each party’s extended families or parents taking turns to take the children on outings but not going on those outings together as a family.
  3. How the parties have reduced undertaking household responsibilities for each other, such as cooking and washing laundry only for themselves.
  4. Whether there has been some division of finances, such as each party opening and operating their own separate bank account and using this money to meet their personal costs.
  5. Whether you have told family and friends of your separation.
  6. Why you have continued to live in the same home after separating and whether you have any intentions of changing those living arrangements.
  7. Any government departments you have advised of your separation such as Centrelink or the Child Support Agency.
  8. The arrangements made for any minor children whilst you have been living under the one roof.

The Court is interested to know what care arrangements have been put in place for children following separation and whether the parties are contemplating any changes to those arrangements after obtaining their Divorce. A child of the marriage includes:

  1. any child of you and your spouse, including children born before the marriage or after separation; or
  2. any child who was treated as a member of your family prior to separation such as an adopted child, step-child or foster child.

Some of the issues surrounding care arrangements for each child that are considered relevant by the Court include:

  1. Where the child lives and who the child lives with, such as new partners, grandparents, other children or an independent third party like a housemate. If a child lives with both parents in a “shared care” arrangement then information should be provided in respect of both homes.
  2. Whether one party spends time with and/or communicates with the child but they do not actually live with that person.
  3. Who financially supports the child and in what way.
  4. Whether the child is healthy or suffers from a health condition and what treatments (if any) the child is receiving.
  5. How the child is being educated and how they are progressing with their education.
  6. Any other matter which the Applicant believes the Court ought to know about the child.

Nullity

Asking the Court for a decree of nullity is asking the Court to find that there never was a valid marriage. The Court can only make a finding that there never was a valid marriage in very limited circumstances. These circumstances are:

  1. That the couple were too closely related to be allowed to marry. Details of what relationships are regarded as “too close” are contained in the Marriage Act 1961. In recent years these rules have been relaxed so now aunts, uncles and cousins are free to marry each other.
  2. That the actually marriage ceremony was a fake. This may happen if:
    2.1.  A completed Notice of Intended Marriage form, which is required by law, is not given to a marriage celebrant at least one month before the wedding or is given more than eighteen months before the wedding.
    2.2.  An unauthorised celebrant performs the marriage. Only an authorised celebrant can legally perform a marriage. There are three kinds of authorised celebrants being Commonwealth-registered marriage celebrants, Ministers of religion of a recognised denomination who perform religious ceremonies and State officials who perform civil ceremonies.
    2.3.  The marriage took place overseas and was not recognised as valid under the law of the country in which it took place at the time it took place and/or the marriage would not have been recognised as valid under Australian law if the marriage had in fact taken place in Australia.
  3. That at least one of the parties did not provide a real consent. The types of things that enable a party to prove their consent was not forthcoming include:
    3.1.   Where there was a mistake as to the identity of the other person or a total lack of understanding as to what the ceremony actually was; or
    3.2.  One of the parties did not have the mental capacity to understand the nature and effect of the ceremony; or
    3.3.  The marriage was obtained by duress or fraud.
  4. That one of the parties was not of marriageable age, which is defined in the Marriage Act 1961as being eighteen (18) years of age. Permission to marry after the age of sixteen (16) years may be obtained from the Court.
  5. That the marriage was bigamous i.e. because one of the parties was already married to someone else at the same time.

Annulment

An annulment is most widely understood as being a religious declaration. Broadly speaking an annulment recognises that even though a marriage was valid (and even if children are borne to that marriage) the union or bond of the marriage did not come into being. This can be the case even if there is a great deal of love, commitment and genuineness in the marriage.

An annulment does not have any effect in civil law i.e. it is not a divorce.

An annulment is a request made to a religious body asking that religious body to find that at least one of the parties to the marriage lacked the capacity to enter into the sacred bond or union of marriage. In this process the Church, Synagogue or other religious body focuses on somewhat different considerations including the level of the parties’ maturity at the time of the marriage, their ability to act responsibly and independently, their level of freedom and their ability to resist outside influences.

In some religions it is also necessary to apply for a “religious” divorce which is recognised by the religion in addition to applying for a Divorce through the Court. In Islam this is known as talaq and in Judaism as a get. These religious divorces are granted by a religious body upon request but do not have any effect in civil law i.e. it is not a recognised legal divorce.

If you would like to know more about divorce or want to talk about the possibility of being successful in securing a declaration of nullity from the Family Court, then get in touch with us at Doolan Wagner Family Lawyers by calling 02 9437 0010 or emailing enquiries@familylawyersdw.com.au to arrange a confidential discussion. We guarantee that 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 Costs Rise After 2015 Budget

Family law costs are understandably a big consideration for a couple when they separate.

Putting aside for a moment the costs of your family lawyer, court fees in the Federal Circuit Court and the Family Court place a significant financial burden on families facing separation.

If you are looking to file an Application for Divorce in the Federal Circuit Court a filing fee of $845 is presently payable. Unless you qualify for the limited fee relief that is available these court costs are payable whether you file the Divorce Application solely or jointly with your former spouse.

Fees are also payable to the Court at various stages of all family law proceedings. Currently these fees include:

  1. A fee of $320 if you wish to file an Initiating Application in the Federal Circuit Court for parenting orders;
  2. A fee of $155 if you wish to file Consent Orders in the Family Court;
  3. A fee of $55 if you wish to issue a Subpoena in the Federal Circuit Court; and
  4. A fee of $805 per day if you are the Applicant in Family Court proceedings and your matter is listed for final hearing.

It is easy to believe that these court costs quickly add up and over time, if your family law matter does not resolve, these fees can amount to thousands of dollars.

The 2015 Federal Budget Papers reveal that from 1 July 2015 the Government is looking to raise these fees even higher.

What will this mean?

It is yet to be seen what impact these anticipated fee hikes will have on separating families.

Most likely huge jumps in family court fees will further impair access to justice for many already marginalised families.

This may spur separating couples to explore alternate dispute resolution and other “out of court” options to resolve their family law disputes. Increasingly we are seeing family mediation and collaborative practice as popular avenues for separating couples looking to keep their family law costs down. Our divorce lawyers are highly experienced in “out of court” family law settlement negotiations.

The increase in fees may also act as a greater deterrent to some families making them less likely to properly document their negotiated agreements in Consent Orders. As a consequence many families may miss out on the necessary protection and certainty that Consent Orders can provide.

Choosing not to document a family law settlement properly can have long lasting, serious and unintended consequences. It may mean that your former spouse comes back down the track and tries to make a claim against you or even your Estate when you thought that “that part of your life” was behind you. Without a property settlement being formally documented you will not have available to you many stamp duty and other tax concessions that may otherwise apply.

It can only be hoped that some of this revenue raising will be returned to the Court itself and provide crucial additional funding necessary to adequately resource the Court’s administration. In turn an increase in court resources may have the benefit of reducing the current waiting times that parties face when they separate and are required to approach the Court for relief.

Presently these delays in the Sydney Registry of the Family Court and Federal Circuit Court extend beyond a year. Many separating couples hope to resolve their matter quickly so that they can move forward with their lives. All court delays add to frustrate and undermine this desire to achieve an early closure after separation.

Even though we have very little control over the Federal Budget there are some steps you can take to manage these creeping court costs. If you would like specialist family law advice about your separation and divorce so that you can contain your overall legal costs then contact us at Doolan Wagner Family Lawyers on enquiries@familylawyersdw.com.au or call 9437 0010. We have Accredited Family Law Specialists and Registered Family Dispute Resolution Practitioners here 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.

Are you looking for a highly experienced family lawyer?

For over two decades we have been assisting and advising people from the Lindfield area in preparation for and through their separation and divorce. During that time our family lawyers have seen a significant change in the demographics of the area.

Today, with many people likely to marry and separate at older ages, more and more of our clients from the Lindfield area are “child free” “empty nesters” who no longer have dependent children living at home or alternatively have high-school aged children who are becoming more independent, and perhaps undertaking the final years of their schooling.

As long time practicing family lawyers we know that a separation can be instigated by one or both parties, may be long and carefully planned for, or can come completely out of left field for one of the parties. Whatever the situation might be we know that a separation is never easy or pain-free for either party. We know that the parties are likely to experience some sense of loss and grief, to feel heartbroken or sad and to feel like their situation is really harsh, bewildering, and drawn-out. However we know with our professional help it will get better and you will secure an outcome that works for you…eventually your separation and divorce will become a short chapter of your backstory.

As a result of seeing more and more financially “stable” and mature clients we have discovered that, instead of worrying about how their separation will affect their young children, many are looking for advice on how to approach their new “single” life and all the challenges that this brings. Many want to achieve long-term financial security and to maintain the lifestyle they have come to enjoy and accordingly we have found that these clients are more concerned with:

  • becoming financially independent;
  • having access to superannuation to fund their retirement years;
  • having an unencumbered and suitable primary residence;
  • managing living separately and apart under the same roof for a period of time;
  • maintaining relationships formed with their local community;
  • ensuring that their decision making is based on the reality of their situation including their future needs and any health concerns;
  • having reasonably amicable relationship breakdowns;
  • protecting family assets against claims by third parties including new partners, second families and creditors;
  • being in the position of supporting adult children of the relationship through university/tertiary studies, their careers and entering into Sydney’s property market;
  • divesting themselves of assets, complicated corporate structures (such as family businesses) and family trusts;
  • untangling the often complicated financial background of their lives which may have been in place for decades; and
  • wanting or needing to undertake a career change and/or to retrain in their chosen field, or secure employment on a part-time basis as part of a transition to retirement strategy, or in the case of younger clients needing to fund their new single living arrangements.

As Accredited Family Law Specialists who are recognised by the Law Society of NSW our family lawyers are expertly placed to assist people from all walks of life in respect of all family law matters, and in particular we undertake work on financial settlements on a day-to-day basis. We have assisted past clients with all manner of financial settlements, from the straight-forward to the more entangled and complex. We know that a separation and/or divorce can be the most devastating event that a person can experience. At Doolan Wagner Family Lawyers our expert family lawyers are strongly committed to providing all of our clients with the highest level of sensitive and personal service and support as they navigate their way through the highs and lows of their separation and divorce. Our collaborative approach in nearly all of our family law matters attempts to:

  • provide clients with the highest level of input in the settlement process and to allow the parties to keep the channels of commination open so that there is as minimal an effect on their ongoing relationship as possible;
  • give parties a higher level of control of their matter than the alternative court-based methods; and
  • allow independent professionals to have input into the settlement negotiations and/or drafting/review of settlement documents to ensure that the parties will have the most tax effective, financially viable outcome possibly achievable in their circumstances.

We also understand that often our clients are wanting to maintain their dignity, want to continue to have strong relationships with their families and wish to be able to share in future family special occasions including their family weddings, christening and birthdays, as well as Easter and Christmas celebrations. Our Accredited Family Law Specialists are experts at navigating what can be the very difficult family law terrain. Their special and thoughtful assistance will put you in the best position to maintain the most positive relationships with your ex-partner/spouse and your extended family possible. By striving, wherever possible, to use a collaborative approach in each matter

We have often assisted clients who are entangled in long term financial arrangements by helping them to get an idea of the “big picture” through the obtaining of independent financial and accounting advice (including expert forensic accounting professionals) and engagement of expert valuers to value assets and liabilities of the relationship such as real estate, chattels (including furniture, antiques and artworks), corporate entities, agricultural interests, self-managed superannuation funds and the like.

We also have a significant amount of experience in assisting couples with their negotiations of property settlements, both direct between the parties with us providing legal advice from “side stage” and through our attendance at roundtable settlement conferences, mediations and arbitrations. Following on from many of those successful negotiations our family lawyers have been responsible for the drafting and/or reviewing of “iron clad” terms of settlement (contained in financial agreements or Consent Orders) which contain provisions for superannuation splitting, spousal maintenance and the divestment of jointly accumulated assets and liabilities. We have also assisted parties with their representation in court proceedings and have significant experience in dealing with the court process and other family law practitioners.

Whatever your circumstances are, we promise you that we will listen to you to ascertain your wants, needs and concerns so that we can offer you tailored advice which fits your personal circumstances and secures a resolution of your matter which reflects your specific goals.

In our experience we have found that, regardless of the complexity of the financial settlement at hand, it is very important that you have a clear legal strategy in place prior to coming to the negotiating table or engaging in the court process so that you are able to maximise your property settlement entitlements. 

Our Services:

  • Family Dispute Resolution and mediation services including collaborative practices.
  • Preparation of clients in the creating of a “master plan” (legal strategy) for undertaking negotiations with their former partner or spouse;
  • Property/Financial Settlements, including superannuation splitting, spouse maintenance and adult child support provisions; In particular ensuring that we obtain the most tax effective settlement for all of our clients;
  • Drafting and reviewing settlement documents including Consent Orders, Binding Financial Agreements, Deeds of Release in respect of commercial entities and Release Agreements in respect of future Succession Act claims;
  • Coordinating your family law matter with regard to estate and succession planning issues;
  • Providing assistance with respect to the securing of future income streams;
  • Divorces, including separation under one roof;
  • De facto Relationship matters.

Making the decision to separate or divorce is never easy and is likely to have a profound effect on you, your financial security and your family generally. Getting specialist family law advice and guidance early in your separation will set you on the right path towards a steadier and more certain future. If you are separated or are thinking about separating and would like to know where you would stand financially in a family law property settlement we know we can help you because we have highly regarded Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners on our team. So please take the first step and call us on 9437 0010 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.