Divorce & Family Lawyers North Shore

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

Are you looking for an Accredited Family Law Specialist lawyer on Sydney’s North Shore? Doolan Wagner Family Lawyers are pre-eminent family law solicitors you can rely on.

For more than two decades our family lawyers have been assisting couples with their family law matters.

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

Our Services

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

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

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

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

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

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

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

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

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

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

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

Why Choose Doolan Wagner?

We understand that people are often worried about involving themselves in what they fear are complex and expensive legal processes.

We will give you clear and concise legal advice and guidance.

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

Affordable Family Lawyers North Shore

And as a smaller firm, we don’t have the same overheads as some of the larger “city-based” firms.

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

Also read: How Much Does a Divorce Cost?

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

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

Expert Divorce Lawyers North Shore

We know that our help can put you in the best position to secure the optimal outcome that works for you and your family.

Our Accredited Family Law Specialists are skilled at negotiating the often challenging family law setting. Their approaches, together with their sensitive and personal service and support, will put you in the best position free from uncertainty and unnecessary worry.

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

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

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

Take the Next Step…

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

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

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

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

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

Divorce Lawyers North Shore FAQ’s

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Neutral Bay Family Law

Doolan Wagner Family Lawyers have been providing expert advice to people in Neutral Bay and surrounding areas for close to three (3) decades and understand the common issues and questions that arise for the local community.

Located on Sydney’s lower north shore, Neutral Bay continues to appeal to young professionals, wealthy families and retirees.

According to the Australian Bureau of Statistics in 2016 Neutral Bay had a population of 10,488, most of who were aged between 25 and 44 years, comprising married (37.6%) and couples in a de-facto relationship (17.7%). About half of the families in Neutral Bay had children.

Often our clients from Neutral Bay and its surroundings:

  1. Are concerned about the division of their respective hard-earned assets and their entitlements in relation to their ex-partner’s assets.
  2. Are considering future parenting arrangements and how to meet the payment of private school fees and best achieve sensible child support agreements.
  3. Are wanting to secure their superannuation and retirement income ensuring stability and certainty in retirement.

Engaging a family lawyer can be a daunting step. At Doolan Wagner Family Lawyers we understand that each matter is unique and we tailor our advice to suit you. Each and every one of our clients is important to us and we endeavour to achieve the best result for all of our clients bearing in mind that engaging a family lawyer means that you are likely experiencing one of the hardest times in your life.

If you are looking for an Accredited Family Law Specialist near Neutral Bay, along with an experienced and dedicated team of family lawyers, then contact us at Doolan Wagner Family Lawyers to arrange an initial consultation for a reduced fixed rate and have all of your family law questions answered.

Read on to learn about some of the commonly raised Family Law issues that may be important to you. And also view our range of family law services.

family lawyers neutral bay

It’s often not 50/50

A lot of separating couples seek legal assistance to divide their assets and liabilities however are not aware of what factors will be considered, what they’re entitled to and how the Court will assess their situation.

So how does the Court approach a matter where both parties have made their own respective contributions? And, how would the Court consider a situation where one party had been predominantly a “homemaker” or “stay-at-home parent” and the other the “breadwinner”?

In relation to Family Law matters, the approach normally taken in all property applications is a four-step process. These four steps are:

1. Identifying the net asset pool which includes the value of all the property of the relationship, less the debts of the relationship.

2. Assessing the contributions made by each of the parties. Basically, contributions may be any of the following:

2.1. Direct financial contributions including being towards the acquisition of assets.

2.2. Indirect financial contributions, for example where one party’s income is used to buy the groceries each week to enable the other party’s wages to be applied directly towards the mortgage.

2.3. Non-financial contributions, including contributions as a homemaker and parent.

3. Making any adjustment needed to be made to take into account “future needs” factors such as the age and state of health of each of the parties, financial circumstances, care of children and earning capacities.

4. Structuring a settlement that is just and equitable.

It is important to remember that each matter will be assessed on its own particular facts.

Also read: Lane Cove Family Lawyers

Are inheritances included in a property settlement?

An inheritance received by a party can be included as an asset available for distribution in the matrimonial pool of assets however may be treated differently from other property depending on the particular facts of a case.

For example, an inheritance received early in a long relationship and applied towards a mutually owned asset of the parties is characterised as a financial contribution by that party however the significance of it will diminish over time.

If an inheritance is deemed to be unavailable for distribution as it is not yet available, an adjustment can be made to the remaining assets when taking into account the future needs of both parties and the benefit the particular party has as a consequence of a prospective inheritance.

family lawyers neutral bay

How is superannuation considered?

Ordinarily, the current values of parties’ entire superannuation entitlements are included in any Balance Sheet. This does not, however, prevent superannuation benefits or entitlements as at the commencement of a relationship or accrued after separation, from being asked to be considered outside a Balance Sheet or excluded/quarantined. Each case will turn on its particular facts. Generally, parties may negotiate how their superannuation entitlements are considered and/or divided and the Court will likely accept any agreement the parties achieve in the event that it is part of an overall just and equitable resolution of their financial matter.

Can I make a claim for ongoing financial support from my ex?

A party may make a claim for spouse maintenance in the following circumstances:

  1. If the party is unable to support herself/himself adequately;
  2. If the other party has the capacity to provide financial assistance.

An application for spouse maintenance is separate to a property settlement in family law. It is more likely to be considered by a party where that party to the relationship was predominantly a “homemaker”, is of poor health, is required to care for children in addition to themselves and in any event, has a lower employability level and capacity to support themselves.

An example of a person who may wish to claim spouse maintenance from their former partner would be a party who had been in a lengthy relationship and considered a “homemaker” and became financially dependent on their former partner.

Can I prevent my ex from making a claim for ongoing financial support?

In short, the answer is yes. A Financial Agreement can operate to prevent future claims for spouse maintenance.

As the name suggests, however, it is an “Agreement” that is required to be entered into by both parties and comply with specific legislative requirements in order for it to be valid. This includes obtaining independent legal advice.

Neutral Bay Family Lawyers
Separation can be hard at any age and at Doolan Wagner Family Lawyers in Neutral Bay we can make the process so much easier.

How can I protect my estate from a potential claim from my partner in the future?

Importantly, achieving a property settlement by way of Consent Orders also does not protect your estate from a claim being made against it by your former partner upon your passing.
Similarly, Consent Orders do not prevent you from making a claim against your partner’s estate after their passing.

This could be a significant consideration for a retiree, particularly where the separation from their former partner was on “bad terms”. A Deed of Release however can be entered into at any stage to protect one’s estate from a former partner’s potential future claim on their estate.

Without this documentation being prepared, both you and your former partner are eligible to make a claim against the other’s estate. Some people are of the view that the possibility of a further claim being made against their estate by their former partner is to be expected or is a fair outcome. In certain circumstances clients may not want to abandon their ability to make a claim against a former partner’s estate at a later time should their ex pre-decease them. Other people feel very strongly about the need to protect their estate against such a possible claim. A Deed of Release will assist in finalising all possible claims between them and their former partner, both now and upon their death.

How do I formalise parenting arrangements in relation to my children?

Often when parties separate, the child/ren of the relationship are caught in a battle between their parents in respect of parenting arrangements.

Separating couples with children have to additionally consider future parenting arrangements and child support issues.

Parenting Consent Orders can deal with a huge number of the issues parents face in a separation including where the child will live, the time spent with the other parent, parental responsibility, school holidays, special occasions and communication. The primary consideration in parenting matters is the best interests of the child. It is a distinct principle in family law and it will be paramount in all parenting matters.

Child Inclusive Conference (“CIC”)

In the event that parents cannot reach an agreement about parenting arrangements, a CIC is an available option as part of the Court process to assist families.

A Family Consultant selected by the Family Court will conduct your CIC and will hold separate interviews with you, your former partner and your child/ren in order to understand your family’s situation and your respective perspectives. We note that a CIC has a particular emphasis on assisting the Court to understand the experiences of the children after separation and at the present time.

It is important to note that a CIC is not a confidential process. After your CIC, a memorandum will be released including conversations, information obtained by the parties and child/ren and the Family Consultant’s recommendations arising from the process.

Binding Child Support Agreement

Many parents who would be able to make an application for an Administrative Assessment through the Department of Human Services prefer to enter into an agreement on their terms and so opt to enter into a Binding Child Support Agreement.

A Binding Child Support Agreement will formalise your agreement with the other parent in relation to child support payable for the child/ren and provides certainty about financial support for the child/ren in the future.

Applying for a Divorce – what’s involved?

Most parties choose to get divorced soon after separation in order to formalise the end of their marriage. In Australia, a person may not remarry if they are still married to another person. Preparing a Divorce Application, waiting for a Divorce Hearing and obtaining a Divorce Order from the Family Court, all take time. The process may be prolonged if your former partner is not agreeable to the divorce. Proactive steps can be taken to ensure this process is not unnecessarily delayed.

In order for a Divorce Application to be accepted and a Divorce Order to be made, the Court must be satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve (12) months immediately preceding the date of the filing of the Divorce Application.

Family Law authorities have established that there are three (3) elements which need to be present for separation to be proven, namely:

1. Intention;

2. Communication; and

3. Action/Change in behaviour.

Parties to a marriage may be held to have separated and to have lived separately and apart however notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other. In each case, the question of whether parties have separated will be a question of fact. Broadly, some factors that the Court may consider include the:

1. The financial situation of the household and relationship;

2. Nature of the relationship and household;

3. Sexual relationship of the parties; and

4. Public knowledge of the separation.

It is important to note that an application for property orders must be made within twelve (12) months of your divorce order taking effect. Once this time lapses, you will have to obtain the Court’s permission to initiate property proceedings and this is not obtained lightly.


Are psychologist notes really confidential in family law matters?

Most information that is shared with health professionals will be confidential and is prohibited by law from being shared with anyone, except in limited cases where there is a greater need to protect the safety of the patient or another member of the community.

Evidence such as counselling notes must be relevant to the issues presented before the Court in order to be admissible. If the evidence cannot “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” it would not be relevant to the case (s55 Evidence Act 1995 (Cth)).

Therefore, information is legally confidential will not suffice in protecting it from being exposed in family law proceedings. Family law courts are flexible in accepting evidentiary material in order to understand and successfully resolve parenting matters involving children and are willing to assist a party in protecting particular aspects of evidentiary material in order to render the remaining relevant material admissible.

Are there any alternatives to Court?

Alternative dispute resolution affords parties different processes to assist them in resolving their matter out of Court.

Mediation is a very common form of alternative dispute resolution where parties to a dispute, with the assistance of a mediator, identify issues, develop options, consider the respective parties desires and endeavour to reach an agreement. The mediator simply conducts the mediation however does not have an advisory or determinative role.

Collaborative Law is another process available that is led by lawyers representing each of the parties and where it is agreed that the lawyers will cease to act for their clients in the event that the matter proceeds to litigation.

The court is a time-consuming, costly and unpredictable process that most clients wish to avoid. Engaging in alternative dispute resolution in family law matters should be an important consideration for most parties. It would not be suitable however for matters involving violence.

Lisa Wagner - Doolan Wagner Family Lawyers
Meet Lisa Wagner from Doolan Wagner Family Lawyers

Doolan Wagner Family Lawyers – how can we help you?

We are a reputable specialist family law firm located conveniently on Sydney’s lower north shore. We are local to Neutral Bay residents and consistently strive to achieve the best outcome for our clients.

Every matter is different and we explore all available and suitable options including mediation, negotiation, collaborative law and litigation for our respective clients in potentially the most challenging period of their lives.

We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.

Being less than a ten (10) minute drive from Neutral Bay and located only a block away from St Leonards train station, come see us for an obligation-free confidential consultation and understand where you stand.

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.

June 2019 Family Law Case Watch

Are you in a difficult Family Law battle and feel you cannot actively participate in it? Do you think that you have personal circumstances impeding on your ability to do so? Do you have a family member or close friend who knows your state of affairs as well as you do, if not better, who you would trust to provide instructions on your behalf? If you find yourself in this position, read on to understand in what circumstances a “Case Guardian” may be appointed to manage the conduct of a family law case.

The recent Family Law case of Genesalio & Genesalio [2019] FamCAFC 85 contemplates the relevant criteria to be met in order for a Case Guardian to be appointed, and whether the Husband in this particular case, who suffered from various medical disorders and diseases, qualified under that criteria.


The multiple medical co-morbidities that the Husband had been diagnosed with in the matter included:

  1. End stage kidney disease;
  2. Ischaemic (Coronary) heart disease, which reduces blood supply to the heart;
  3. Hypertension;
  4. Type 2 diabetes mellitus;
  5. Renal anaemia; obstructive sleep apnoea; and
  6. Major depression.

The Husband’s kidney disease required that he attend hospital for dialysis every second day and this stress and anxiety could potentially lead to him suffering a heart attack. Given his heart disease. In fact, shortly after attending a Hearing on 8 November 2018, the Husband spent six (6) days in hospital with heart attack symptoms.

The Husband’s general practitioner (“GP”) produced a number of reports (dated from 1 September 2017 to 18 October 2018) indicating that the Husband needs to avoid stress to prevent a heart attack and specifically highlighted that he is at risk of a heart attack or stroke by being in Court. The GP said generally that the Husband “has no capacity to engage in Court requirements, and… any Court proceedings be delayed until his condition stabilised medically”. The GP made further significant remarks including, that:

  1. Any participation in litigation or Court attendance would be hazardous to the Husband’s health;
  2. The physiological impact of stress on the Husband may elevate his blood pressure which in turn would place significant strain on his heart and potentially lead to further Acute Myocardial Infarctions or strokes; and
  3. There is enough risk of death for the Husband to prevent him from making Court appearances for the indefinite future.

Due to the Husband’s circumstances, the Husband’s brother sought an order to be appointed as the Husband’s Case Guardian.

The Wife in the present case, opposed the appointment of a Case Guardian for the Husband, relying on the GP’s most recent Report dated 18 October 2018 which stated that the Husband’s comorbidities should not impact his “cognitive capacity or ability to give instructions or transport himself to Court” if required, and therefore it is not necessary for the Husband to have a Case Guardian appointed. Further, that there has been no more recent medical evidence since that the Report dated 18 October 2018, and no evidence of any hospitalisation following the Court Hearing since November 2018.


The dictionary to the Family Law Rules 2004 (Cth) (“the Rules”) defines “a person with a disability” as follows:

“Person with a disability, in relation to a case, means a person who, because of a physical or mental disability:

  • Does not understand the nature or possible consequences of the case; or
  • Is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

Part 6.3 of the Rules relates to Case Guardians and relevantly outlines that a person who is a manager of the affairs of a party is taken to be appointed as the Case Guardian of that party, if the person has (rr 6.09, 6.10(2) and 6.08A):

  1. Filed a Notice of Address for Services;
  2. Filed an Affidavit;
  3. Consents to the appointment as the Case Guardian; and
  4. Has no adverse interest to the case of the party needing the Case Guardian.

Further, a party will only require a Case Guardian if that party is suffering from a relevant disability (Thorn & Thorn [2017]  FamCA 950).

There is no dispute in the present case that the Husband was suffering from the disorders/diseases that he claimed and there is no suggestion that he does not understand the nature or possible consequences of his case due to those disorders/diseases. What is in contention is whether the Husband “is not capable of adequately conducting… the case”.


The Full Court of the Family Court contemplated that the stress and anxiety that would be caused by the Husband appearing in the appeal proceedings and conducting his case could possibly result in the Husband being hospitalised and even suffering a heart attack. The Full Court stated that “it would be naïve to proceed on the basis that the Husband no longer suffered from the medical conditions” and noted that there have been no appearances in Court by the Husband in recent months that could compare to the gravity of the appearance in November 2018, which led to the Husband’s hospitalisation for six (6) days.

The Full Court of the Family Court ultimately found that the Husband suffers from a disability that impeded on his ability to adequately conduct the appeal proceedings, and a Case Guardian was required. It is important to note that the Application by the Husband’s brother to be appointed as Case Guardian was made in the context of the Husband having two (2) appeals before the Court. This is relevant because any order made as a result of an Application in an appeal can only be for the purposes of those appeal proceedings.

In addressing whether the Husband’s brother had an adverse interest in the Husband’s case, the Full Court considered the brothers’ respective interests in certain trusts and pieces of real estate however said that these matters have not yet, and may never, arise in the property settlement proceedings and in any event, those issues have no relevance to the appeal proceedings.


A disability, whether physical or mental, may not suffice for the appointment of a Case Guardian in a Family Law matter. The broader criteria will have to be met and each case will depend on its own respective circumstances and the gravity and impact of those circumstances.

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

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

Mediations and Domestic / Family Violence – a beginners guide

What do you do when there has been domestic and/or family violence (‘DFV’) in your life and the other party wants to proceed to Mediation? Are you still required to attend?

What if you have been the victim of DFV but you actually feel safe enough to attend a Mediation? Are you automatically excluded?

Matters involving DFV are often considered to be inappropriate for Mediation, given that the issue of a power imbalance evident in many relationships involving DFV is contraindicated to mediation as an appropriate forum for resolving disputes. A Section 60I Certificate will in many of these cases be issued by the Mediator or Family Dispute Resolution Practitioner (FDRP) for that reason. But what if you don’t want to have to go to Court to achieve your desired outcome? Will this mean that all avenues of Alternative Dispute Resolution are unavailable to you?

These are some of the common questions that arise when trying to resolve family law disputes after separation in matters involving DFV. If you find yourself in a similar situation, read on as this article will discuss what can be done to help.

Defining Domestic / Family Violence – What does it involve?

Domestic violence takes shape in many forms and does not discriminate between different cultures. It is widely acknowledged that the majority of people who experience domestic, family and sexual violence are women. But men can also be the victims of DFV. Domestic violence may come in the form of physical, sexual, financial, emotional or psychological abuse – with all forms displaying the application of power and control over another person at its core. Unfortunately, most victims who have experienced violence in any of its forms know their perpetrator intimately.  The difficulty with emotional and psychological abuse is that, unlike physical abuse, its scars are often invisible.

The Family Law Act 1975 (Cth) provides that family violence means behaviour that is “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”.  It further provides examples of such behaviour, including but not limited to:

  • Assault;
  • Sexual assault or other sexually abusive behaviour;
  • Stalking;
  • Derogatory taunts;
  • Property damage;
  • Animal abuse;
  • Financial abuse;
  • Controlling behaviour such as not allowing the family member to keep connections with his or her family, friends or culture; and
  • Unlawfully depriving the family member of his or her liberty.

You can see from the above list that the legislation acknowledges that not all forms of violence are physical and can also include behaviours encompassing psychological abuse. It is noteworthy at this point to be alert to the fact that evidence suggests perpetrators of these types of violence may actually try and use the family law system to reinforce their control and intimidate the other party, resulting in a conundrum for many family lawyers and FDRPs. And so, how do we recognise the signs of psychological abuse and power imbalances in these types of matters? And also, how do we address them?

Addressing Power Imbalances

Various factors cause power imbalances – for example, whether it is gender, culture, education, a lack of confidence and/or skills, a disability or a disparity in finances (and, subsequently, unequal access to resources such as legal advice).

Having regard to the fact that there may be some hidden aspects and/or complexity to a relationship dynamic that others may be unaware of, it is important to discuss these issues in extensive detail with your family lawyer during a consultation (or Mediator during the intake process). This process cannot be rushed and it is important to utilise the consultation/intake process to its full potential.

Family mediators and lawyers especially need to understand the different layers of conflict that may be present in any given situation, which is difficult as family dynamics, and thus the conflict may be complicated.  However, no matter how diligent the FDRP is during the intake process, a vulnerable party may not feel comfortable disclosing all the details of his or her relationship, and consequently, those matters may be inadvertently screened as being able to proceed.

It is also interesting to note that there are often many matters where domestic violence has occurred and is widely acknowledged, yet both parties are still content to proceed to mediation. In those circumstances, an FDRP or Mediator may be hesitant to conduct the mediation for the reasons outlined above. In the event parties who fall under this category are seeking formal orders, apart from the prospect of reaching Consent Orders (at mediation or otherwise), there is little recourse available to them to help resolve their dispute other than to litigate, which may lead to a further deterioration in the post-separation relationship.

Perhaps one reason why this is the case may be to ‘protect’ the vulnerable party from entering into an agreement that may be considered unfair or unsafe to that person. In any event, it is possible that removing the option of mediation for these families, it may actually result in poorer outcomes in the long term.

So what can we do?

Legally Assisted Mediations

One method of addressing power imbalances may be for the parties to be legally assisted. In particular, the presence of experienced family lawyers can assist vulnerable parties whom, research suggests, are the ones most likely to settle for quick relief without a lawyer present.

However, the presence of lawyers at mediation may also pose certain challenges. Some may argue that there are certain lawyers who are adversarial by nature and unable to operate any other way. Some lawyers may attempt to protect their clients by ‘silencing’ them – which is not conducive to reaching a negotiated agreement.

In any event, you should consider the approach of your family lawyer and whether that approach is likely to be of benefit to you. Many clients report that having a lawyer present at a Mediation is especially helpful due to the quick availability of legal advice when one is considering his or her options and alternatives – and to assist in protecting a vulnerable party’s interests.

Shuttle / Telephone / Online Mediations

Shuttle mediations are conducted by having the parties in separate rooms. The parties do not physically see one another and the mediator travels between the rooms carrying back and forth different proposals, options and alternatives. Shuttle mediations provide a lot of scopes to identify options and “reality test” possible solutions. They can however sometimes suffer the consequence of “Chinese whispers” – with the recipient not always hearing what the speaker intended to say because it is conveyed independently by a third person as not everyone is in the same room.

Telephone and online mediations are useful in matters where geographical distance may be a considerable factor and are conducted entirely through telephone / videoconferencing.

An advantage of these modes of mediation is that their use acts as an automatic safety mechanism in that it physically separates the parties whilst allowing them to have some productive discussions. At any time, if the discussions become quite emotional and heated, there is the opportunity for the mediator to disconnect the line and recommence at a later stage.

An obvious downfall to these forms of mediation is the fact that the mediator cannot truly know and see whether the parties are adhering to the confidentiality provisions – for example, they may be allowing one of their family members to silently observe the discussions taking place and so on. Further to this concern, is the use of technology to secretly record these discussions, which apart from being illegal, would be a significant breach of trust and good faith.

Presence of a Support Person

A disadvantaged party may be assisted through the use of a support person, who is, as the name suggests, essentially in attendance to be there and support him or her. This person is generally a trusted family member or friend but can also be a professional caseworker.  Support persons are not actively involved in the mediation but are on hand to lend emotional support.

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, or believe that you have been subjected to domestic violence and need urgent legal advice 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.

Moving out of Sydney after Separation

Are you seeking to relocate with your child?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Family Lawyers Mosman

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

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

We are keenly aware that dealing with a relationship breakdown is distressing and seeing a lawyer can be a very daunting experience. Having 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

Thinking about getting a Divorce – What you need to know

Separating with your significant other is a nerve-wracking time. Perhaps you have been thinking about this for a while or perhaps your partner has asked for a divorce out of the blue. How will you divide your assets? What if there are children involved? How will the children cope with the new arrangements? There are so many different aspects arising from a separation or divorce – things like property settlement, parenting arrangements, spousal maintenance and so on. Here is a handy list of things to keep in mind when you find yourself in a situation like this.

  1. It is not the end of the world

Life will still continue – you will just need to adjust to a new normal. There are many people who find themselves in this situation and you are not alone. Make sure that you have a good support network around you to help you through this difficult time.

  1. Get your documents sorted

In family law matters, there is a requirement for full and frank financial disclosure. If you still have an amicable relationship with the other party, sit down together, grab a glass of wine or a cup of coffee and start going through your finances together. It will save you both time and money if you are able to the legwork yourselves. However, if you have a strained relationship with the other party and are in the dark about what property the other has, and if you are still living in the family home, use that opportunity to gather whatever documentation you can in relation to your financial affairs.

If you can’t obtain any further information from the other party about your finances, consider engaging a lawyer to help assist with this part of the process.

  1. Time limitations if you get a Divorce Order before settling your property

Many people are unaware that a Divorce Order triggers a 12-month time limit for the parties to settle their property matters. Generally, the decision is made to deal with the property matter first, and then apply for a Divorce after finalising the property matter, so that no one is under the pressure of time constraints. If you are divorced, and are yet to finalise your property, it is not the be all and end all – you may have to file an Application out of time and you will still have your entitlement to a just and equitable property settlement but it is just an extra hoop to jump through so avoid it if you can.

  1. Always act in the best interests of your child or children

When there are children involved, remember that they will also need time to adjust to the new arrangements. Time and time again, we see people involving children in conflict between adults. We can assure you that this is not looked upon favorably by the Court. Make sure that you keep the best interests of your child or children at the forefront of your mind and check in with them regularly to see if they need any further help.

  1. Speak to a family lawyer – even if you only want an initial consultation

This point is so important even if you and the other party have agreed how to move forward following your separation. Every situation is different and unique and a lawyer will help provide you with clarity and guidance as to how to formalise your agreement. Knowledge and a more detailed understanding of the process will empower you to make the best decision for you and your family.

  1. Court as a last resort

There may be some cases where Court is unavoidable. Thankfully, it is only a small number of people that find themselves in this situation. Arm yourself with legal advice from a reputable specialist family law firm.

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.

Bankruptcy and Binding Financial Agreements (Part 2)

Picking up from Part 1 of this Article, we now turn to a couple of family law cases that were handed down after the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) was passed.

In CPPIB Credit Investments Inc v Ren [2017] NSWSC 771, Ms Kong and Mr Ren had been married for approximately 10 years. They divorced in September 2016. In November 2016, the parties entered into a BFA pursuant to section 90C (that is, during marriage). The BFA provided that a Warrawee home worth $11.5 million be transferred to the Wife, which at the time was owned by the parties as joint tenants.

An action was commenced by CPPIB Credit Investments in the New South Wales Supreme Court against the Husband to recover an amount in excess of $50 million, for which the applicant argued that the Husband was liable under a guarantee.

On 28 April 2017, the New South Wales Supreme Court made an order freezing assets including the Warrawee home. Ms Kong (who was now the former Wife of Mr Ren) filed a notice of motion seeking that the freezing order be dissolved so far as it affected her. Ms Kong argued that the freezing order be lifted on the ground that the Warrawee property was subject to the BFA and that Mr Ren no longer had any interest in the property.

Ball J stated that it was common ground that, should the Court find that the Warrawee property was the subject of a BFA, the freezing order should not continue against Ms Kong.[1] However, should the converse be true, the freezing order was to stay pending further order of the Court.

CPPIB submitted that the BFA was not binding, primarily for two reasons:-

  1. Firstly, that the agreement was entered into after Mr Ren and Ms Kong divorced and therefore, was not an agreement pursuant to section 90C (which deals with Financial Agreements during marriage); and
  2. Secondly, that the Court could not be satisfied that Mr Ren received a copy of the Certificate of Independent Legal Advice signed by the Wife’s lawyer pursuant to section 90G(1)(ca) given that there appeared to be some inconsistencies with respect to the dates.

Ball J accepted both these submissions.

In relation to the first point, Ms Kong unsuccessfully submitted that the Court could not be satisfied that her divorce would be recognised in Australia, given that she had filed divorce proceedings in China in or about April 2016. Ball J rejected this argument, positing that the circumstances were sufficient to conclude that the divorce satisfies the requirements of section 104, and therefore, would be recognised.

In relation to the second point, Ball J acknowledged that, under section 90G(1A), a Financial Agreement may be binding if section 90G(1)(ca) was not formally complied with “if a court is satisfied that it would be unjust and inequitable if the agreement were not binding” – however, went further to say that there was no evidence before the Court to come to this conclusion.

Ms Kong also unsuccessfully submitted that, even if the document was not found to be a BFA, the freezing order should not be continued because there were multiple freezing orders over the property, each with differing conditions as to how the proceeds of sale were to be dealt with, which in turn may not be possible to comply with.

The Court ordered that Ms Kong’s motion be dismissed with costs and that the freezing order made by the Court continue pending further order of the Court.

The Husband became bankrupt on 5 April 2018.

It appears that, had the parties complied with the strict legislative requirements to render a BFA binding in nature, the outcome of this case may have been starkly different.

In Official Trustee in Bankruptcy v Galanis [2017] FamFC 20, a separated Husband and Wife entered into a BFA requiring the Husband, a discharged bankrupt, to transfer all his right, title and interest in the former matrimonial home to the Wife.

The Official Trustee in Bankruptcy (“Trustee”) had filed an application seeking orders that the BFA between the Husband and Wife be set aside.

The Family Court of Australia was tasked with the question of whether it had the jurisdiction to hear and determine this matter, given that the Appellant was arguing that the primary judge erred by failing to find that proceedings brought by the Official Trustee fell within the definition of a “matrimonial cause” in sections 4(1) and 4A.

In this matter, Ms Galanis (the first respondent) and Mr Dukas (the second respondent) commenced their relationship in 1999 and purchased a property together in 2002 as tenants in common with Ms Galanis owning 60 per cent and Mr Dukas owning the remaining forty (40) per cent. Despite the unequal ownership, Mr Dukas submitted that Ms Galanis provided the entirety of the purchase price. The parties married in 2006 and subsequently separated in October 2011.

In 2008, Mr Dukas (the Husband) became bankrupt. He was subsequently discharged from the bankruptcy in October 2011 – at the same time of his separation.

In February 2013, the parties entered into a BFA pursuant to section 90D (after a Divorce Order is made) requiring the Husband to transfer to the Wife all of his right, title and interest in the former matrimonial home. The Wife was also to discharge the mortgage and indemnify the Husband against any further liabilities relating to the property.

In July 2013, the Trustee filed an application in the Federal Circuit Court of Australia seeking that:-

  1. The Financial Agreement between the First Respondent and the Second Respondent be set aside;
  2. Forty (40) percent of the net proceeds from the sale of the matrimonial home be paid to the Applicant for distribution amongst creditors in the bankrupt estate of the Second Respondent Husband; and
  3. That the Court considers the issue of costs.

In January 2014, the Wife filed an Application in a Case seeking that the proceedings be dismissed, successfully arguing that the Court did not have the jurisdiction to hear the matter because the application by the Trustee did not constitute a “matrimonial cause” as contained within section 4(1). Upon its transfer to the Family Court of Australia, the matter was dismissed. The Trustee appealed.

On appeal, the Trustee contended it was a “government body acting in the interests of the creditor” pursuant to section 4A(1)(b)(iii). The Wife again, submitted that the Court did not have jurisdiction. The Court expressly stated that the Trustee was not a government body under that definition, contrasting the role of the Trustee with ASIC, which is a Commonwealth entity.

Accordingly, the appeal was dismissed with costs.

Thus, BFAs are entered into to provide certainty and predictability to parties in relation to the division of assets or the maintenance of a party when a relationship breaks down. Put simply, they are intended to protect a party’s financial position. Ultimately, there is no effective method of predicting the future with certainty when dealing with a change of circumstances or impracticability of adhering to the agreement – which appears to be the biggest weakness of using BFAs as an asset protection vehicle.

In terms of its use as an asset protection vehicle when a party subsequently becomes bankrupt – evidently, it was often misused to the bankrupt’s advantage prior to the amendments to the Bankruptcy Act 1966 (Cth) following ASIC v Rich and Anor [2003] FAMCA 114. However, apart from the result in CPPIB Credit Investments Inc v Ren [2017] NSWSC 771 which occurred due to a drafting error and deviation from the strict legislative requirements, the cases discussed above were found in favour of the parties seeking to uphold the BFA in the face of bankruptcy – albeit, due to technicalities. It appears that whilst the effectiveness of BFAs in protecting assets from attack in a bankruptcy has diminished somewhat, they have also done what was intended to be achieved.

Key Takeaways:

  1. It is important to remember that Binding Financial Agreements are not “bulletproof” and can be set aside in certain circumstances such as fraud, duress, a change in circumstances and so on.
  2. The 2005 amendments now allow creditors to have standing to apply to set aside a Binding Financial Agreement.
  3. Those seeking to enter into Binding Financial Agreements are well advised to obtain a second opinion from another legal professional and obtain financial advice from other professionals.

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.

[1] CPIBB Credit Investments Inc v Ren [2017] NSWSC 771 at [5].

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.