High Conflict Situations – Six Top Tips

5 September 2019

Have you ever tried negotiating with your ex to resolve an issue only to be met with your ex failing to acknowledge his or her role in a problem and instead, blaming you for everything?

Or what about your ex going from one extreme to the other – i.e. being very amicable with you one minute and being completely aggravating the next?

If so, you may be dealing with a High Conflict ex / situation.

Here are six (6) tips to assist you when faced with such a predicament:

  1.     Respond briefly and firmly in writing

What do you do when you receive a hostile email, text message or social media message from your ex? Chances are that reading these sorts of communications will be greatly upsetting to you and you might feel like firing one right back. Take a deep breath and pause.

This is the response your ex is looking for – a new reason to continue the ongoing conflict and trade insults back and forth and, by extension, keep in contact with you.

As family lawyers, we see the worst of it and can assure you that anything you write is likely to end up being included in an affidavit and read by a Judge, who is tasked with the role of adjudicating your dispute.

If the communication warrants a response, ensure that your reply is brief, to the point, and firm. Otherwise, if it serves no other purpose, simply ignoring it may turn out to be the best option for you.

  1.     Shift your focus from engaging in the conflict to problem solving

When dealing with a high conflict personality, it can be easy to get caught up in the drama or feel like you need to continuously defend yourself. All that happens from that course of action is that you feel emotionally exhausted.  Dealing with conflict is hard.

Again, if the communication does not serve any purpose or does little to advance a resolution to your issue, then refrain from engaging. Offer up possible solutions to resolve the conflict and don’t take it to heart if all your suggestions are rejected – this may just be your ex’s way of trying to keep fanning the flames of the conflict. It does however, make it extremely difficult to see an end to your matter.

  1.     Don’t identify their own bad behaviour

When you are dealing with a reasonable person, it makes sense to point out an issue that may be contributing to the problem.  Providing some insight in this way may be well received. This is not the case for people with a High Conflict personality.

Chances are that any attempt to help and assist the person with a High Conflict personality will be perceived as an attack.  This is unlikely to resolve the situation. Take heart in the fact that it is likely that your ex will experience conflict with most other people that he or she meets also.  The conflict that you are experiencing is not contained solely to you.

  1.     Limit communication to the bare minimum

The less you engage with your ex, the less chance there is for something new to erupt. If you have kids together, it is likely that you will need to communicate sometimes to figure out parenting arrangements and changeover times etc. – respond only in relation to matters surrounding the kids.

  1.     In a high conflict parenting matter, consider a detailed Parenting Plan / Orders

The more detailed the parenting arrangements are, the less likely that there will be something which arises in the future that sets off another dispute. Of course, when drafting a Parenting Plan / Orders, it is not possible to capture every slight possibility or eventuality that may occur – however, it will help reduce further disputes if you ensure clear provisions are made for things like:-

      • Live with / spend time with arrangements during term time and school holidays;
      • Special occasions such as Easter, birthdays, Father’s Day / Mother’s Day, Christmas;
      • Communication – when a parent can call / FaceTime the child when he or she is not otherwise in that parent’s care;
      • Notification clauses – for example, notifying the other parent if the child is sick or requiring medical treatment etc.; and
      • Travel arrangements – what if one parent wants to go on an overseas holiday with the child at one point in the future? How do you foresee that working?
  1.     Engage a Professional to deal with the situation on your behalf

If all else fails, consider engaging an experienced family lawyer to assist you resolve the dispute. Professionals are generally skilled in dealing with high conflict cases and personality traits and he or she may be the best person to take the heat out of your conflict and redirect the conversation towards workable solutions for the both of you.

Doolan Wagner Family Lawyers offer specialist family law advice 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 enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We 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.

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 practised 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 that 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 lawyer 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 to 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 practise 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:

  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 clients’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 well-being 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

December 2018 Family Law Case Watch

What is required to initiate Property proceedings when you separated from your de-facto spouse a significant time ago?

Section 44(5) of the Family Law Act 1975 (Cth) (“the Family Law Act”) allows de-facto parties to initiate proceedings in respect of property or maintenance orders in de facto relationships if the application is made within the period (the standard application period) of:

  1. Two (2) years after the end of the de-facto relationship; or
  2. 12 months after a financial agreement between the parties was set aside or found to be invalid; or
  3. Both parties consent to the application.

The Act provides that proceedings may be instituted “out of time” in certain situations. In the recent case of Gadzen & Simkin [2018] FamCAFC 218, the Family Court considered in detail the application of that law and explained what type of circumstances qualify.


Mr Gadzen (“the de facto husband”) and Mrs Simkin (“the de facto wife”) commenced cohabitation in 2001. The de facto husband was then aged 51 years and the de facto wife was aged 45 years. There were no children of the relationship and the parties separated in 2009. The parties since married other parties, with the de facto wife commencing cohabitation with her current husband in 2013 and marrying him in 2016.

At the beginning of the relationship the de facto wife had net assets worth a total of $83,000. The de facto husband’s total net assets were valued at $4,750,000, which included various residential properties, businesses and trust interests.  It was undisputed that the de facto wife made no direct or indirect financial contribution to the acquisition, conservation or improvement of the de facto husband’s various properties or businesses.

During the relationship, the de facto husband contributed significantly to the de-facto wife’s finances. The de facto husband added the de facto wife to his self-managed super fund, contributing $100,621 to her membership in that fund. On 27 March 2015 the de facto wife withdrew her membership with that fund and an amount of $213,118 was rolled out to the de facto wife’s nominated superannuation fund.

Later in their relationship, the de facto husband established a family trust for the de facto wife and transferred fifty (50) per cent of his shareholding in one of his companies to that trust for no consideration. The de facto wife’s shareholding in that Trust was transferred back to the de facto husband following separation in about 2015 for $25,000, a sum significantly less than its initial value.

It was undisputed that following separation the de facto husband continued to make financial contributions to the de facto wife by way of informal agreements between the parties, including:

  1. Paying a deposit of $100,000 on the purchase of residential premises in the de facto wife’s sole name and making interest-only mortgage repayments on behalf of the de facto wife until the end of December 2017, totalling $268,301;
  2. Paying the de facto wife’s rent from separation in April 2009 until the purchase of the above property in October 2010, totalling $31,199;
  3. Purchasing furniture and electrical equipment for the de facto wife in the sum of $20,000;
  4. Providing a legacy to the de facto wife in the sum of $1,000,000 in his Will with the terms of such Will to remain unchanged for two (2) years; and
  5. Giving to the de facto wife one third of the balance of his superannuation account, The Gadzen Superannuation Fund.

The de facto wife filed an application on 25 January 2018 seeking orders under section 90SM and 90SE of the Act for the purpose of property and maintenance orders. The Application filed by the de facto wife was seven (7) years out of time and therefore required the Court to determine whether leave should be granted for the proceedings to be dealt with.

Family Law

As set out above, section 44(5) of the Family Law Act provides the standard application period for initiating proceedings, generally speaking, this requires proceedings to be initiated within two (2) years of a de facto relationship breaking down (in the case of a marriage, section 44(3) provides the standard application period as twelve (12) months from the date of divorce or decree of nullity).

Pursuant to section 44(6) of the Act (or section 44(4) in the case of a marriage), the Court may grant a party leave to apply after the end of the standard application period if it is satisfied that:

  • Hardship would be caused to the party or a child if leave were not granted; or
  • In the case of an application for an order for the maintenance of the party – the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

Section 44(4) in the case of a marriage and section 44(6) in the case of de facto relationships are in identical terms and, for practical purposes, the requirement for granting leave under section 44(6) will follow the authorities in respect of section 44(4).

Section 44(4) was considered in the earlier case of Whitford and Whitford in which the Court emphasised that hardship within the meaning of the section must first be established for the Family Court to exercise its discretion and grant leave. In discussing hardship, the Full Court in Whitford said:

The hardship referred to in section 44(6) is the hardship which would be caused to the applicant… if leave were not granted. The loss of the right to institute proceedings is not the hardship to which the subsection refers.

In Sharp the Court noted that:

Hardship is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship.

In assessing hardship… the applicant must have a prima facie claim worth pursuing or a “real” possibility of success.

The meaning of “hardship” in subsec. 44 (4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment.

These authorities provide that, in determining an application for leave, the applicant must demonstrate a prima facie or arguable case and, having regard to all of the circumstances, that if it were not heard would result in hardship to the applicant or a child of the marriage. This will take into account the costs or likely costs to be incurred in pursuing a claim.

At First Instance

In the present case of Gadzen & Simkin the trial judge found that the de facto wife would suffer hardship if leave were not granted for her to bring property settlement and maintenance proceedings against the de-facto husband and made an Order granting leave.

In determining the question of hardship the trial judge extracted a segment of the de facto wife’s Affidavit, outlining her current income and expenses and the fact that the de-facto husband ceased paying mortgage payments. On this evidence the trial judge found that hardship was established.

On Appeal

It was found that the trial judge erred in determining the question of hardship as she failed to undertake any consideration of whether the de facto wife had a prima face or arguable claim and whether the loss of her right to make that application would lead to hardship that was substantial having regard to all the circumstances of the case, including her potential costs in pursuing that claim.

The Full Court found that in all of the circumstances, the de facto wife received very significant benefits post-separation. In total it was estimated that the de-facto wife had received $467,121 in post separation benefits and it was estimated that she would expend approximately $150,000 pursuing her claim.

Taking into consideration all the evidence, the Full Court found that even if the de facto wife’s potential claim succeeded, it was unlikely to equate to, let alone exceed, the benefits which she already held, together with what she had received from the de facto husband following separation.


It is possible to initiate Court proceedings where separation occurred a significant time ago however hardship must be proved in order for the Family Court to grant leave to make an application after the standard application period. In making this determination, the Court must have regard to all of the circumstances of case.

We hope that our December 2018 Case Watch has provided you with some clarity about the role of the Family Court where proceedings are initiated out of time.

If you have 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.

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.

January 2018 Family Law Case Watch

In January 2018, the Family Court of Australia held in the matter of Sigley and Sigley [2018] FamCA 3 (10 January 2018) that Australian parents who had entered into a commercial surrogacy agreement in the USA, could register the American Court Order which gave them parenting rights over their child in an Australian Court.

The Applicants in this case were seeking to register Orders made by a Court in the United States of America. The Applicants were the biological parents of twin daughters however, the children were born as a result of a surrogacy agreement between the Applicants and a “gestational carrier”.

The Applicants are both Australian citizens, originally from Victoria. They met and married in the United States in 2015 and continue to reside there.

The Applicant Mother suffers from a medical condition which prevents her from carrying a baby through pregnancy to full-term. As such, the Applicants’ twin daughters were conceived through assisted reproductive technology by the in vitro fertilisation of the Applicant Mother’s ova using the Applicant Father’s sperm, and with the help of another woman into whose womb the embryos were transferred. The children were born in 2017.

The birth of the twins was facilitated in the United States (the State is not identified on the Court record for privacy reasons) through what the Applicants concede was a “commercial” surrogacy agreement between the Applicants and the woman who carried the baby through gestation to birth. A copy of this “commercial” gestational surrogacy agreement was adduced in evidence. It provides for payments by the Applicants to the gestational carrier at various stages during the pregnancy for various things, but it describes them as “reimbursement for pregnancy-related expenses.” It expressly states that the agreement is “not an agreement for payment for the children or payment for the relinquishment of parental rights to the children.” Nevertheless, the Judge observed that the Applicants and their solicitors describe the surrogacy agreement as a “commercial” one.

A key consideration for the Judge in this matter was whether the overseas child Order that came into existence as a consequence of a “commercial” surrogacy agreement might have difficulty attracting the favourable exercise of jurisdiction to register it in an Australian Court for public policy reasons. These include the fact that in Queensland, New South Wales and the Australian Capital Territory, to enter into “commercial” surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence.

In his reasons for judgment, the Judge identified that the Applicants reside in the USA and not one of those jurisdictions. He noted that whilst they intend to return to live in Australia sometime in the future, it is not to one of the three jurisdictions mentioned above, but rather the State of Victoria. The Applicants had entered into a “commercial” surrogacy agreement and they sought the registration by the Family Court in Australia of an American Court Order that gives them the parenting rights over their child. If they were residents of Queensland, New South Wales or the Australian Capital Territory, they would have, prima facie, committed a criminal offence.

However, as the solicitor for the Applicants pointed out in his submissions, Victoria allows intended parents to enter into “commercial” surrogacy arrangements overseas and has not sought to criminalise such behaviour. Entry by the Applicants into the “commercial” surrogacy agreement was lawful in the USA, particularly in the state where the twins were conceived.  In addition, the Australian government has not determined to criminalise entry by Australian citizens or residents into commercial surrogacy agreements overseas as, arguably, it could do.

The judge decided that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the Applicants.

The judge was satisfied that the Order made in the American Court should be registered in Australia.

If you have recently separated or have a Family Law enquiry, please contact us on 94370010 or enquiries@familylawyersdw.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

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

2017 Family Law Case Watch

As 2017 draws to a close, we reflect on some of the key cases that have shaped the year in Family law. Read on for a snapshot into the unique and diverse area of Family Law…

Bernieres and Anor & Dhopal and Anor (2017)

In 2017 for the first time ever, the Family Court ruled on the issue of ‘parentage’ in relation to a child born as the result of a surrogacy arrangement.

In this case, the sperm of the child’s biological father was used to fertilise an egg sourced as a result of a commercial surrogacy arrangement, with the surrogate mother living in India.

The first and second appellants to the Family Court decision were the biological father (whose sperm was used to fertilise the egg sourced via the commercial surrogacy arrangement) and his partner, who has no biological link to the child.

The Full Court held that even despite the ‘father’ being the child’s biological father, for the purpose of the Family Law Act, it does not necessarily equate to him being a ‘parent’ for the purposes of the Act. His partner, with no biological links to the child, is even less likely to be considered a legal ‘parent’.

The basis for the Appeal was whether the primary judge had failed to make declarations of parentage in relation to the child, however the Full Court upheld the primary judge’s decision. Sadly, the child’s parentage remained undetermined.

There is no doubt that as commercial surrogacy arrangements become more prevalent, there will be increasing discussion in relation to this judgement. Watch this space…

Calvin & McTier (2017)

Attempting to achieve an amicable post-separation relationship with your former spouse may not always result in the best outcome in Family Law matters…

This 2017 case explores the important and often unthought of connection between post separation inheritances and finalising property orders as quickly as possible following separation.

In this case the parties, who enjoyed an amicable post-separation relationship, had been separated for three years when the husband received a substantial inheritance from his father in the amount of $430,686. Neither the husband nor the wife had taken steps to deal with the division of their property between the date of separation and the date at which the husband received the inheritance.

The magistrate ruled that the inheritance should be included in the matrimonial asset pool, which would see it comprise some 32% of same. The husband appealed to the Full Court arguing that his inheritance should be dealt with separately to the rest of the matrimonial asset pool.

This case serves to highlight the discretionary nature of family law proceedings which may result in entirely different outcomes depending on the judge presiding over the matter. The second lesson flowing from this case is to remember that property orders serve to finalise your financial relationship with your ex-spouse and that in the absence of property orders, your financial relationship will continue.

The Full Court upheld the magistrate’s decision.

Bondelmonte (2017)

In this case, there were interim parenting orders in place that provided for the parties three children to live with their father and spend time with their mother. The two elder children were boys aged 16 and 14 and the parties also had a 12-year-old daughter.

The children’s father took the two elder children on an overseas holiday to New York. The father ultimately decided not to return the two children to Australia at the end of their holiday.

In this case, the trial judge ordered the return of the children to Australia. One of the live issues in the case was whether the trial judge had erred in failing to consider the wishes of the children who were almost 17 and 15 years of age. It was the wish of the two boys to remain in New York with their father.

The Full Court in upholding the decision accepted that whilst the children expressed a desire to remain in New York, he considered that there were other matters about which the boys did not appear to have given any thought. Principal amongst them was the effect of their separation from their mother and their sister and their relationship with their mother and their sister. In addition, the effect on their sister who was separated from her brothers.

Furthermore, the Full Court held that the father evidenced a ‘flagrant disregard’ for the parenting orders that were currently in place which was a matter relevant to his consideration of what was in the best interests of the children. The Full Court held that the father expressed an attitude towards the responsibilities of parenthood that, if left unchecked, would send a poor message to his two sons, who on the evidence, were considered to be very impressionable.

Official Trustee in Bankruptcy v Galanis (2017)

This 2017 case dealt with the ability of a trustee in bankruptcy to set aside a financial agreement.

The facts of the case concerned a husband and wife who purchased a property together as tenants-in-common with the wife owning 60% and the husband 40%, respectively. The wife had met 100% of the purchase price of the property. When the parties separated, the husband was discharged from bankruptcy. Two years later, they entered into a financial agreement pursuant to section 90 of the Family Law Act which required that the husband transfer all of his right title and interest in the matrimonial home to his former wife.

The official trustee of the husband’s estate sought an order that the agreement reached between the husband and wife should be set aside and that 40% of the net profits of the sale of the former matrimonial home should be paid to the official trustee in order to be distributed amongst the creditors of the husband.

The Full Court held that a discharged bankrupt does not have standing pursuant to the Family Law Act to set aside a financial agreement. However, if the husband was an undischarged bankrupt, the trustee would have had standing pursuant to the Family Law Act.

Surridge (2017)

The 2017 case of Surridge is a sage reminder to parties to Family Law proceedings and their solicitors to ensure that the obligation to provide full and frank disclosure of financial circumstances is adhered to.

The case concerned non-compliance with this obligation by the husband. The applicant wife appealed against the property orders on the basis of a number of appealable errors, including the husband’s consistent failure to comply with his duty to provide full and frank disclosure of his financial circumstances. These errors ultimately produced a set of orders that were manifestly unfair to the wife and therefore prompted her appeal.

The wife was successful in her appeal and the husband’s failure to comply with his obligation ultimately positioned him as somebody who lacked credibility and furthermore, turned on its head an outcome which may have been deserved in his favour, but for his lack of adherence to this obligation.

Wallis & Manning (2017)

The Full Court in this 2017 case approached the issue of assessing significant contributions made by both of the parties at the commencement of a long marriage.

In so doing, the Full Court analysed a number of cases in order to compare significant factors including the nature and length of the relationship, the nature and characteristics of the contributions made by the parties, and the timing of the contributions.

While recognising that no two cases nor their factual matrixes are the same, the Full Court held in this case that the comparison of like cases should be utilised more widely to assess contributions pursuant to section 79 of the Family Law Act, especially in light of the highly discretionary Family Law jurisdiction.

The full Court allowed the appeal and provided an opportunity for the parties to provide further submissions, and to re-exercise its discretion. It considered in detail a number of comparable cases referred to by the parties and others with similar facts and circumstances.

Stay tuned to see what 2018 brings for Family Law. We will be investigating the trailblazing cases of 2018 as they emerge and we look forward to sharing them with you.

We provide clear advice about protecting your family law interests in both complex and simple matters. Conveniently located in St Leonards on Sydney’s North Shore, we are within easy walking distance of the train station. Please contact us to find out more or speak to one of our lawyers on (02) 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.

Family Court asks Lawyers to consider their fees

Are you thinking of separating? Do you want to ensure common sense prevails through your separation and that legal fees are only incurred where necessary? Are you concerned you will dissipate significant assets just by stepping into a family lawyer’s office?

In a decision handed down in the Family Court on 11 December 2017 the presiding Judge criticised the collective costs incurred by the husband and wife of $860,000 in their parenting and property proceedings labelling them “outrageous”.

Justice Benjamin explained in his decision in Simic & Norton 2017 FamCA (11 December 2017) that he has “observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation” and made specific reference to the responsibility of lawyers acting in these matters to ensure that the action taken by them is a “fair, reasonable, competent and proportional professional service”.

Given that the collective legal fees incurred were close to $1,000,000, His Honour said that in this case, investigation was warranted.

As family lawyers, we work with people who are usually in a situation they do not want to be in or have not foreseen. Separation is out of our client’s control, and clients can find themselves lumped into a complicated process which they are not at all familiar with. Family lawyers are in a unique position to assist people with disputes that could not otherwise resolve because of our particular knowledge, skill set and problem solving abilities. Given the nature of the territory, family lawyers are in a position of responsibility that they must take very seriously.

While family law litigation is sometimes necessary, there are many strategies family lawyers (and their clients) can utilise in order to avoid unnecessarily entering into Court proceedings, or minimising costs once Court has commenced. A couple of the options are the following:


Mediation is an opportunity for the parties to discuss options for settlement with the benefit of an independent third party who can both facilitate discussions and provide reality testing for what could happen in that particular case. In specific cases, the parties may agree to an evaluative process whereby the mediator gives an opinion as to the merits of each party’s arguments and potentially a view on the likely outcome.

Ordinarily, the parties each attend a mediation with their respective lawyers. Mediation can be very effective for parties who do not wish to engage with the Court process but have particular important issues that require discussion and legal intervention. For example, the particulars of how property can be divided, mechanics of complicated orders required and or specific needs or requirements that must be considered for the best interests of the parties children to be provided for.

Mediation can occur in “shuttle” form where the parties would prefer not to be in the same room as one another and the mediator simply moves between two rooms and facilitates the conversation.

One mediation session can explore many issues during the allocated time. By contrast if the same issues were only dealt with via legal letters, both parties would incur significant fees and may not reach a result.

The costs of a mediator can be shared equally, or paid by one party or the other.

Roundtable Conference

Roundtable Conferences are a discussion between the parties along with their lawyers.

Roundtable Conferences suit particular matters, one example would be where the parties have a modest asset pool or, where there are defined disputes between the parties that do not necessarily require an independent party to resolve.

One of the benefits of a Roundtable Conference is that it is relatively low cost as the parties do not need to pay the costs of a mediator.

While Mediation and Roundtable Conference are two good examples of ways to minimise legal costs in a family law matter, in some cases, neither of these approaches will be appropriate. The best action for a particular case will always be to determine the strategy having regard to the specific facts, the means and attitudes of the parties and their respective representatives.

Irrespective of how much money is involved in a dispute, people (rightly so) have things they would much rather prioritise spending their money on than legal fees. I am sure the parties in Simic & Norton would happily receive their $860,000 back into their bank accounts.

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

Doolan Wagner Family Lawyers is located in St Leonards on the North Shore of Sydney and are just a short walk from St Leonards Train Station and the Crows Nest shops. Doolan Wagner Family Lawyers service clients all over the Sydney Metropolitan and Northern Beaches areas. Call us today on 94370010 or 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.

Anton Pillar Orders

Have you recently separated? Are you concerned that your former spouse might be concealing information from you? Are you eager to progress a timely settlement of your matter?

If so then continue reading as the below information is likely to be of great assistance to you.

Anton Pillar Orders or ‘search orders’ (as they are more widely recognized) are gaining increasing traction in Family Law.

What is an Anton Pillar Order?

An Anton Pillar Order is the result of an Application to the Court, typically made on an urgent, ‘ex parte’ basis i.e. in the absence of and without notice to the recipient. The Order, if made, is designed to preserve important evidence pending the hearing of the Applicant’s case, for example, where the Court deems that there is a significant risk that such evidence might otherwise be tampered with or destroyed. An Anton Pillar Order compels the recipient of the Order to permit specified persons comprising the ‘search party’ to enter the recipient’s home or business premises to search, inspect, copy and remove the items described in the Anton Pillar Order.

An Anton Pillar Order is considered an extraordinary remedy given its highly disruptive and intrusive nature.

Why do they arise in Family Law Matters?

  1. Financial matters.Family Law solicitors attempting to progress a property matter may encounter a ‘stalemate’ when their opposing party is not forthcoming with disclosing documents in relation to their financial circumstances. Issuing a subpoena to compel the production of such documents is the first port of call. There are, however, increasing incidents of non-compliance in relation to subpoenas. This is especially the case in complex financial matters where third parties are involved. For an Anton Pillar Order to be justified, it would have to be proved that the sought-after documents are at risk of being imminently destroyed, thereby creating the need to ‘catch-out’ the recipient of the order.
  2. Parenting matters where there is an allegation of risk.In parenting matters where there are very serious allegations of risk, the Family Court may waive a person’s right to privacy so that harmful or illegal material may be seized in order to protect the best interests of a child. This may assist the Court to determine necessary conditions for a parent to communicate and spend time with a child. It is however imperative that when carrying out a search order not only the objectives of the order are met. Of equal importance is keeping the potential for disruption or damage to the recipient to a minimum and similarly, avoiding a breach of the Court’s processes. For example, the search party must include an Independent Lawyer who will supervise the search (and the Applicant’s solicitors) in addition to explaining the terms of the order to the recipient and making them aware of their rights in relation to the order.

If you would like advice in relation to the above information or assistance in relation to your separation, please contact us on 94370010 or enquiries@familylawyersdw.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

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

Coupledom – Are you in a De Facto Relationship?

Are you wondering whether your relationship is a bona fide de facto relationship?

Although it may be assumed that someone in a de facto relationship has the same rights as someone in a marriage, what sometimes happens when your relationship falls apart is that your partner alleges that they were never in a bona fide de facto relationship with you.

You may have been living with your partner and been in a relationship for more than two years but this may not be enough on its own to qualify your relationship as being recognised by the law as a bona fide de facto relationship.

So what does the law define as a de facto relationship?

Without a marriage certificate or the registration of your de facto relationship, the onus is on you to prove that your relationship existed under the laws of a State or Territory.

Section 4AA of the Family Law Act 1975 sets out the Meaning of de facto relationship and says

(1)  A person is in a de facto relationship with another person if:

(a)  the persons are not legally married to each other; and

(b)  the persons are not related by family (see subsection (6)); and

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The actual meaning of the definition whilst first appearing simple can get complicated.

So what considerations constitute a ‘genuine domestic basis’?

Part 2 of section 2AA of the Family Law Act 1975 sets out the criteria namely:

(a)  the duration of the relationship;

(b)  the nature and extent of their common residence;

(c)  whether a sexual relationship exists;

(d)  the degree of financial dependence or interdependence and any arrangements for financial support between them;

(e)  the ownership, use and acquisition of their property;

(f)  the degree of mutual commitment to a shared life;

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  the care and support of children;

(i)  the reputation and public aspects of the relationship.

This all sounds quite standard and reasonable but where it gets tricky is determining how much consideration a Judge may give to each of the criteria given that the court, in determining whether a de facto relationship exists, can have regard to such matters, and attach such weight to any matter, as may seem appropriate to it in the circumstances of the particular case.

Considering other cases helps us see how these criteria have been applied by the Court to ascertain if your relationship meets this criteria of living together on a “genuine domestic basis’.

One of the cases that has really shaken up the status of de facto parties having to prove their relationship is the case of Jonah and White [2011] FamCA 221. In this case there was a long relationship of 17 years, an exclusive sexual relationship apart from the Respondent also being married at the time and having a few one night stands and the Respondent contributed and financially supported the Applicant over 11 years.

Despite these factors his Honour at paragraph [60] said ‘In my opinion, the key to that definition of being in a de-facto relationship is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”  Further at paragraph [66] ‘In my opinion, the key to that definition (of being in a de-facto relationship) is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”.

The fact the parties had kept their finances separate, each maintained their own household, there was no evidence of a relationship between the applicant and the respondent’s children, there was no mingling with each other’s friends as a couple, and they did not spend time with each other’s extended families, was enough to support the notion that there was not a merger of lives or ‘coupledom’ between the parties to evidence their relationship was on a ‘genuine domestic basis’.

This case also considers the amendments made to the Family Law Act in March of 2009 which allowed the inclusion of another type of de facto relationship and this is one that allows those in a relationship with someone who may also be married or a same sex relationship at the same time as another relationship to be recognised under the law.

Therefore, your wife/husband and mistress/paramour may both have a right to make a claim against you if your relationship breaks down.

Another case where the parties were this time found to be a de-facto couple on a ‘genuine domestic basis’ is the case of Asprey & Delamarre [2013] FamCA 214. Despite conflicting evidence, her Honour found there was a relationship of eight (8) years, the parties lived in separate houses apart from a period of weeks after the birth of each of their children, they had considered living together and undertook searching for a home. It was found that they both had the intention to spend time together as a family just each on their own terms. Both parties were self-employed and maintained separate bank accounts. When they were together both parties shopped together and at paragraph [56] “At no time were the parties indifferent to each other or their shared life”. They were both involved with the care of their two children and involved with the respondent’s sons from his previous marriage. They spent time with each other’s families and held social events where they were known as a couple. In conclusion her Honour Clearly J’s judgement referred to the  “merger of two lives into coupledom” from  Jonah and White (2011) 45 Fam LR 460 at [60] that allowed her to infer that the parties were able to demonstrate a relationship of mutual commitment to a joint life and the notion of coupledom that determined the parties were in fact in a relationship on a genuine domestic basis.

It is important to remember that Applications to the Court must be made within two (2) years from the end of a de-facto relationship if an agreement cannot be finalised and documented.

If you would like assistance in understanding more about de facto relationships and your entitlements or simply want advice about your separation, please contact us on 94370010 or enquiries@familylawyersdw.com.au to discuss in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

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

Separation and Divorce – Using Photos in Family Law Matters

Are you needing help after separation?

Do you want to know how to better manage your family law matter? If you do, read on for some important information.

As technology advances, so too does our tendency to seek to capture every moment of our lives. With the advent of smart phones and photo-sharing apps such as Facebook and Snapchat, it is even easier to capture these moments and share them among our friends.

Not a week goes by when one of our family lawyers does not receive a photo or in some cases files of hundreds of photos intending to provide evidence of something that has or hasn’t happened or perhaps something that, despite protests to the contrary and denials, does in fact exist. Over my twenty plus years of practice in family law I have seen a lot of photos. I have seen photos taken by a wife of a safe full of jewellery that the husband was denying existed. I have seen photos of bundles of hundred dollar notes, amounting to thousands of dollars, rolled up in a sock drawer. I have seen photos of pantries full of tinned food past it “use by date”, photos of sunburnt children and other photos of children with grazes, bites and rashes all over their bodies. I have been asked to look at photos of people’s dishevelled bedrooms, kitchens, homes, cars and quite simply photos of people’s dishevelled lives.

So, can these photos be used as evidence in family law matters and if so, how can they be used?

Whilst the rules of evidence may be more relaxed in family law court matters they still apply. The Family Court and Federal Circuit Court also have particular rules and regulations that prescribe what must be done in order to be able to rely on certain types of evidence. Each individual case must be considered on its own unique facts and circumstances. Photos are said to “tell a thousand words”. This is sometimes true and photos in family law cases can be good evidence, in fact they can provide the best evidence.

But a cautionary warning…the use of photos in family law matters can backfire. It can leave the person who took the photo open to heavy crossfire, even if that person never ends up having to step into the witness box and face the pressure of cross-examination.

The utilisation of photos in family law matters can often say as much about the photo-taker as the photo itself:

  1. Were you trespassing when you opened the safe?
  2. Why didn’t you comfort your sunburnt child instead of taking a photo of their pain?
  3. What steps did you take to obtain assistance and support for your ex-spouse when you could see that running the house was becoming too much?
  4. Where were your children when you took a photo of their unfinished homework?

If the evidence is improperly obtained, the Court has a discretion to strike out any piece of such evidence.

It is otherwise important to consider that, whilst a photo may prove useful in demonstrating a fact, it must be considered whether the evidence itself is relevant. For example, does any legal privilege apply? It must also be considered whether the evidence is in fact relevant, so you might be able to prove that your former partner was not where they said they would be on a given occasion, however, you must consider what this fact goes towards to proving.

There is no right or wrong answer to any of these questions. A photo is simply a snapshot in time and not a complete picture. Telling the full story in family law matters is a very nuanced and at times sophisticated process. Ensuring that you present the true picture can be a tricky business and a photo without a full story and a tested explanation is, in our experience as family lawyers, often only of limited use.

If you would like assistance in preparing your family law matter or simply want advice about your separation, 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.