Family & Divorce Lawyers Greenwich

Doolan Wagner Family Lawyers are local to Greenwich and want you to be confident through your separation. Below, we share our tips for Sydney’s North Shore & Greenwich clients to stay confident and in control during this turbulent time.

While you untangle your lives from your ex-partner the key to staying positive is to do a bit of planning now. Doolan Wagner Family Lawyers are close to Greenwich and have helped many families on Sydney’s North Shore find a smooth separation & divorce. Leave the complicated stuff to them to negotiate. You can stay in control by tackling some of these quick tips today.

Preparation at this early stage of separation will avoid delays down the track. Importantly it will create some space so you to take care of yourself. Staying positive will come easily when you are armed with good information and when you stay physically and emotionally well.

We’ve split this summary into two categories:

  • Quick tips you can action today.
  • Information that needs your consideration and legal expertise.

Doolan Wagner Family Lawyers can answer your queries over the phone. Or their office is only 5 mins from Greenwich in St Leonards. They are Sydney’s North Shore divorce specialists who will provide you with peace of mind and a smooth settlement.

Quick tips you can action today.

Stop using social media.

Social media is easily misunderstood and there is no control how it’s perceived by others. Try to keep your separation private and avoid oversharing any details. Be aware, that posting electronically about a family law matter that identifies individuals, including children is an offence. It can damage your case and create issues for you later. Stop posting today.

Get Paperwork Organised

Various documents will need to be referenced during the formalities of a separation. To avoid any delays in the process, gather the appropriate documents into a folder. Once it’s in place, you won’t have to think about it again, and the family lawyer can refer to it as needed.
Here is a quick list to get you started. Original documents are best.
– Passports, marriage certificates, latest bank statements, superannuation records, certificates of title for property, real estate agreements and of course, pre-nuptial agreements.

List the jointly owned assets

Money can be the most contentious aspect of a legal separation or divorce. While a family lawyer can negotiate the terms for you, some planning now will help with pragmatic conversations later. Make a list of the jointly owned assets today.
Include everything, from the family home, investments, and superannuation to the cars, jewellery, art etc. Try to estimate a value for each item and include any associated debt.
Financial settlements are different for each case, and a family lawyer will assess the household budget and consider responsibilities like school fees and mortgages. Doolan Wagner Family Lawyers can explain what’s relevant to your circumstances.

Eat well. Meditate. Exercise.

By staying physically and mentally well during this time, you will be able to cope with extra stress.
Get inspired by food and plan your meals so they are nutritious and balanced.
Meditation is as easy as sitting quietly for 10 mins before bed. Set a timer and breath. It will reset your mind.
Go for a walk after you read this. There are so many benefits to regular exercise. It will alleviate anxiety, create some thinking space, and ensure you get a good night’s sleep.

Explore someplace new to take your mind off the complex issues. Either a coastal walk on Sydney’s North Shore or local bush walk around Greenwich. It will energise you.

Information that needs your consideration and legal expertise.

For most people being armed with good information, means feeling in control and this will help you to stay positive during this process.

The following considerations are essential aspects of separation and divorce. But they may not be straight forward for you. Take your time to make notes and write down questions. You may need to check in with a family lawyer before you make some decisions.

Think about your living arrangements

This may already be decided for you. Or it may feel like a big decision you need to make quickly. Take your time.

First, consider the separation period. Will you live together or apart?

Remember if you’re married you will need to be separated for 1 year before a divorce is finalised, and for a de-facto relationship you have up to 2 years to settle your matter. In this separation period, you may consider living under the same roof for financial or parenting reasons. If this is your choice seek guidance before you commit to it. You will need clear evidence proving that you’re living as individuals, and not as a couple. This includes financial arrangements. It can get complicated and may not be sustainable for you. Ask Doolan Wagner what will work best for you.

If your choice is to live apart. Who will move out?

Is it you? Get advice from to Doolan Wagner Family Lawyers on the impact it may have on your case.

Plan how to co-parent

Address co-parenting arrangements with your ex-partner as soon as you can. Particularly if you’re living apart. A simple plan to co-parent is ideal as it will create a good routine and a secure environment for the children during this time. Write down all the options as an initial step.

Remember it must serve the best interest of the children and it is a shared responsibility of both parents, so be prepared to negotiate. Put some time aside with your ex-partner to discuss it in detail. There are many factors to consider here, including school and sport schedules, work location, and travel between households. If the situation becomes unworkable speak with Doolan Wagner Family Lawyers. The Principal, Lisa Wagner is a registered Family Dispute Resolution Practitioner and can answer your queries over the phone.

Seek professional guidance

Doolan Wagner Family Lawyers are local to Greenwich and are known for their integrity. They will walk you through the intricate legal process and support you with practical advice at each stage.

They specialise in negotiation, mediation, and litigation of legal separations and divorce, including financial settlements and co-parenting agreements.

Also read: Mediation & Family  Dispute Resolution Lawyers

The team is focused on facilitating a hassle-free settlement for you.

When you meet with them in St Leonards, we will,

  • Methodically review your case,
  • Present an assessment of all relevant scenarios for you,
  • Discuss the options available and
  • Provide you with sensible advice.

Doolan Wagner Family Lawyers will keep your legal separation or divorce positive and professional.

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

Family Law for the Future

The Australian Law Reform Commission’s Review of the Family Law System

On 10 April 2019 the Australian Law Reform Commission (ALRC) released their Final Report and Recommendations for improving the current family law system in Australia. The ALRC was directed to consider whether, and if so what, reforms to the family law system are necessary or desirable and in particular what amendments should be made to the Family Law Act (the Act) and other related legislation.

The ALRC made sixty (60) recommendations in response to the inquiry. The full list of recommendations and report can be accessed at https://www.alrc.gov.au/inquiries/family-law-system. These recommendations call for radical reform with the ALRC inquiry finding that the family law system is not currently able to adequately assist Australian separated couples to resolve disputes. The ALRC highlighted the following concerns in respect of the family law system in its current state:

  1. Children are not consistently protected from harm;
  2. People experiencing family violence are not consistently protected from harm;
  3. Disputes are protracted by constraints on the courts and conduct of parties who are unable or unwilling to resolve their dispute quickly and without acrimony, and,
  4. The Act is no longer clear or comprehensible.

While there are a number of recommendations made by the report, some of the recommendations that will have a significant effect on our clients and practice of family law in Sydney are set out below:

Children’s Matters

  1. Recommendation 1: That the federal family courts eventually be abolished and state and territory courts be vested with the relevant power and resources to exercise jurisdiction under the Act concurrently with the relevant state and territory child protection and family violence jurisdiction. This is in contrast to the current situation where families who are experiencing family violence or risk to children may be before the Local Court regarding criminal matters, the Children’s Court regarding risk of harm issues and the Family Courts.
  2. Recommendation 2: That the Australian Government work with the state and territory government so that a national information sharing framework can be implemented in respect of the safety, welfare and wellbeing of families and children.
  3. Recommendation 5: That section 60CC of the Act regarding the considerations of what is in a child’s best interest be amended to include:
    • What arrangements best promote the safety of the child and the child’s carers including safety from family violence, abuse, or other harm;
    • Any relevant views expressed by the child;
    • The developmental, psychological, and emotional needs of the child;
    • The benefit to the child of being able to maintain relationships with each parent and other people who are significant to the child, where it is safe to do so;
    • The capacity of each proposed carer of the child to provide for the developmental, psychological and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and,
    • Anything else that is relevant to the particular circumstances of the child.
  4. Recommendation 7: That section 61DA of the Act be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’.
  5. Recommendation 8: That the legislative pathway under section 65DAA of the Act for considering equal care and substantial and significant care where an order is made for equal shared parental responsibility be repealed.

Property Matters

  1. Recommendation 11: That the Act be amended to specify the steps that a court will take when considering altering property interests of parties to a relationship, and, simplify the list of matters that a court should take into account when considering making an order for the alteration of property interests.
  2. Recommendation 12: That a presumption of equal contributions throughout the relationship be provided for by the Act.
  3. Recommendation 13: That the date for determining the value of the parties’ assets and liabilities be the date of separation.
  4. Recommendation 16: That a presumption that the value of superannuation assets accumulated during the relationship should be split equally between the parties be provided by the Act.
  5. Recommendation 17: That the Act include a template for superannuation splitting orders that are commonly made.
  6. Recommendation 18: That the Act be amended so that the provisions for spousal maintenance and property alteration be dealt with separately and that access to interim spousal maintenance claims be enhanced by use of Registrars in urgent applications.

Encourage amicable resolution

  1. Recommendation 21: The Act be amended so that parties are required to take genuine steps to attempt to resolve their property and financial matters prior to filing an application with the Court and require that a court not hear an application unless a genuine steps statement has been filed. This reflects section 60I of the Act which already requires parties in parenting matters to engage in family dispute resolution prior to making an application to the Court.

Case Management: efficiency and accountability

  1. Recommendation 30: That the Act include as an overarching purpose of Family Law practice and procedure the intention to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families.
  2. Recommendation 36: That the Act be amended to remove the general rule of section 117 that each party bear their own costs and articulate the scope of the court’s power to award costs.

Compliance with children’s orders

  1. Recommendation 38: That parties be required by the Act to meet with a family consultant following final parenting orders where they are made after a contested hearing.
  2. Recommendation 41: That where a final parenting order is already in force the court be required to consider whether there has been a significant change of circumstances and it is in the best interests of the child for the orders to be reconsidered.

A number of other recommendations have been made that seek to address the primary concerns highlighted by the inquiry and attempt to increase the efficiency of the Family Law system and reduce the acrimony resulting from parties’ engagement with that system. Our experience in the Family Law system has provided us with a front row seat to the challenges clients face when experiencing family breakdown.

Given the emotional nature of Family Law practice where significant decisions need to be made by parties regarding the care of their children and the joint wealth that has been accumulated over the course of the relationship, amongst other things, it is always our intention to reduce acrimony and increase the ease and efficiency of resolving Family Law disputes. Our team includes solicitors who are trained in mediation and collaborative law so as to provide alternative options to court and it is our goal to assist clients wherever possible to achieve an out-of-court settlement. It is our view that, regardless of the inefficiencies of the Family Law system, an out-of-court settlement that is negotiated between parties results in a more amicable resolution and one that better reflects the needs of the parties both for themselves financially and for the ongoing care of their children.

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.

Best Family Lawyers Sydney

Doolan Wagner Family Lawyers are one of Sydney’s best boutique family law firms.

Have you been looking for a family or a divorce lawyer in Sydney that you can communicate easily with?

Are you thinking of getting a divorce?

Have you spoken with some family lawyers but are not happy with the answers you received?

Doolan Wagner Family Lawyers are specialists in this area and can guide you through this stressful journey of divorce following separation.

We can help you by:

  • Advising you of your obligations and rights, entitlements and where you stand
  • Drafting parenting plans, consent orders, binding child support agreements, deeds of release and binding financial agreements
  • Representing you in family law mediations, round table conferences, collaborative family practice and arbitrations
  • Appearing in the Family Court of Sydney and Parramatta, the Federal Circuit Court and the Supreme Court of New South Wales
  • Preparing position papers, case outlines and affidavits
  • Running family dispute resolution sessions and if necessary issuing Section 60i certificates
  • Negotiating workable settlements for you
  • Advising you of your legal position including objecting to subpoena material or securing a just and equitable settlement.

What we do:

  • Financial and Property settlements
  • Spouse maintenance
  • Parenting
  • Relocation of children
  • Family violence
  • Collaborative family practice
  • Family dispute resolution
  • Divorce including separation under one roof
  • Paternity
  • Sole parental responsibility
  • Superannuation splitting
  • Out of time financial applications
  • Child support and departure from child support administrative assessments
  • Nullity

Some of our recent successes include:

  1. Urgently securing the return of a 12 month old baby in circumstances where a parent had, contrary to interim orders, taken the child and placed the child at risk
  2. Securing a near-equal shared parenting application for a school aged child in the face of adverse single joint expert psychiatric evidence
  3. Obtaining a costs order from the other party in circumstances where an interim spouse maintenance case with little merit was pursued.

See some of our testimonials here. And also read our Google reviews to see what people are saying about our family law service.

Did you know:-

Stay at home Mum’s

A Stay at home Mum makes contributions to the relationship, the family, the home and the children that are taken into account by the Family Court in a meaningful and not just in a token way.

In a relationship where one of the spouses is the main “bread winner” and all or most of the assets are in one parties name an outcome reflecting this after separation is not a likely result.  Indeed, such an outcome is unlikely to be reflected in a final agreement especially in relationships of medium or long term duration.

In any separation the Court and family lawyers negotiating in the shadow of the law must consider all the contributions, both financial and non financial that have been made during the course of the relationship including contributions as home maker even after separation and even in circumstances where the children are no longer under 18 years of age.

Inheritances

Inheritances can be quarantined from a settlement if both parties agree but otherwise are taken into account when determining a just and equitable division of property following the end of a marriage or a defacto relationship.

How does this occur?

Perhaps, unlike many other area of family law the treatment of inheritances by the court can be highly discretionary.  Each trial judge can take an inheritance into account and make adjustments to parties as they see appropriate applying justice and equity to the particular facts.  Often trial judges consider both a global and an “asset by asset” approach in determining what is a fair outcome; at times utilising a 2-pools approach ie the matrimonial pool excluding the inherited assets and the pool of matrimonial assets comprising the inheritance.

This is a highly sensitive and difficult area of family law and it doesn’t just stop when an inheritance is received.  Prospective inheritances may also be considered however for this to occur certain elements need to be present and the way in which the courts treats a prospective inheritance may not be how you would like it to be treated.

Stock Options

Increasingly employees stock options feature as part of the matrimonial pool to be considered when couples separate.  Determining whether such options are property or a financial resource turns on whether or not they are yet vested.  Valuing such property or attempting to quantify a financial resource of this kind is challenging and may not result in a settlement that you are expecting.  The conditions and restrictions attached to those options which impact a valuation can usually be found in the particular staff contract or plan.

The treatment of the employee benefits in family law matters can be complex and ensuring they are appropriately managed in a settlement for both parties is crucial and requires experienced family lawyers to address these challenges.

Prohibition departure orders

Were you aware that your freedom to travel in and out of Australia may be restricted if child support payments are not up to date?  This consequence can hugely impact a separated family in many unintended ways and acts as a sage reminder to ensure everyone is fully aware of their rights and entitlements following separation.

Succession Act Release

Importantly entering into Consent Orders dealing with your property ends any claim your ex has against your current assets however it does not prevent him or her making a claim against your estate when you pass away.  Some parties are understandably concerned by this possibility occurring while other parties feel such an outcome is acceptable.  Knowing what is best for you and what can be done to protect your estate when you separate is sometimes overlooked.  Ensuring that all legal consequences of your separation are taken care of is critically important.  Doolan Wagner Family Lawyers situated at St Leonards deal on a daily basis with these issues and can quickly help you secure a settlement of all aspects of your matter following a separation.

How we are different

  1. We are a small team specialising in family law and related matters and as such we are very good at what we do.
  2. A large number of our clients are referred from past and current happy clients and other local professionals. We do not operate on large advertising budgets nor incur significant overheads that are passed onto you in higher fees.
  3. We invest in our people. Each of our professional staff hold degrees in associated disciplines or have completed or are studying a Masters course in family law.  We have solicitors trained in collaborative practice and family dispute resolution and this benefits you, our client.
  4. We are centrally located north of Sydney’s CBD making it convenient for you to meet with us. Street parking is readily available and we are a block away from St Leonards train station.
  5. The founding principal Lisa Wagner is an accredited specialist and has been successfully acting for families on Sydney’s north to northern beaches for almost 30 years. We have long standing relationships with specialist family law barristers, accountants, property valuers, forensic specialist including hand writing experts and lawyers practicing in overseas jurisdiction.  This helps keep you ahead and ensures you achieve the best outcome at all times.
  6. We only agree to take on cases that we can genuinely manage. Your lawyer will be available and not over-run with so many matters that you can never speak to them.  We pride ourselves in being service focused and delivering personal legal advice, support and assistance.

Our fee structure is:

  1. Transparent
  2. Fair
  3. Highly competitive

It is natural to feel concerned about the costs of engaging a family lawyer.  It is important to ask questions about what your lawyer will charge.

We offer a no obligation reduced rate fixed fee initial consultation.  Your first meeting with us is likely to be the most important meeting you have and as such we do not offer this service free of charge.

We believe that at your first meeting with us you need to have more than a “meet and greet”.  Proper legal advice takes time and if it doesn’t you should be concerned.  You need to be confident that your family lawyer has all the important facts so that the advice they provide you with is reliable.

Ask yourself:

  • Will my family lawyer take the time to understand my situation?
  • Is my family lawyer providing the best family law advice for me?

Whilst not every family law matter is unique most family law matters have unique elements that when put together require specialist family law advice.  Sometimes simple small matters are very complex involving emerging and conflicting or unsettled case law.  At times what appears a complex family law matter may in fact be resolved simply.  A good family lawyer would be able to see through the background facts and quickly get to the heart of what your matter is about and how best to help you.

No matter is too big or too small.

If you have questions about your separation, get in touch today.

Talk to me; Lisa Wagner ( principal of Doolan Wagner ) if you would like more information on divorce or want a resolution of your parenting or property matters or just want some preliminary advice.  We are happy to take your call on (02) 9437 0010. There is no obligation. Or if you have a moment visit us at www.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.

Our Principal, Lisa Wagner, is an Accredited Specialist in family law. Lisa has been recognised by the Law Society of New South Wales and her peers as possessing the necessary skills, experience and practical “know how” in this increasingly specialised area of law.

This singular focus enables us to channel our resources into maintaining a top knowledge of Family Law, as well as being able to provide comprehensive advice regarding the range of legal options and solutions available to you.

We are also experienced family law litigators, with the honed skills and invaluable years of court experience to expertly present your case. While going to court can be often avoided, if and when the need to do so arises -you’ll be glad that you are represented by a confident and experienced litigation team.

Tips for you to help keep your Family Law costs down

We understand that divorce and separation is wrought with costs.  The emotional cost of separation and the costs of maintaining two homes can be really significant.  We understand that you need to do what you can to keep in control of the additional costs of legal representation and so we have set out some tips below to help you save money on the legal costs associated with your divorce. 

  1. Use your time with us wisely. Like most service professionals (e.g. doctors, accountants) we bill in incremental units of time.  As soon as we start working on your matter you are charged in blocks of 6 minutes of time.  To help you maximise the efficiency of our billing system it is always best to plan ahead before meeting with us or talking to us on the telephone.  Save your questions for one conversation rather than ringing every time you have something on your mind.  This can result in significant savings for you.
  1. Divorce or separation is particularly stressful and in our experience you need somebody you can talk with about the emotional issues you face. We are not trained in this area and so engaging the services of a counsellor to help you or relying on a friend may be a more appropriate alternative at times.
  1. The more work you can do for us the less work we will have to do for you. Generally we will require a lot of information.  You are usually our best source of this information.  Our checklists and questionnaires assist us to gather this information in an efficient way. This is a really good opportunity for you to save money.  Completing this “homework” means we don’t need to gather the information from elsewhere.  This can save you a lot of money.
  1. Not only do we require lots of information but it is usually the case that this information needs to be shared with the other side. Being your own “legal assistant” and providing us with copies of documents means that we do not have to take time to copy documents and this can be a huge saving in overheads for you.
  1. Do your best to look at your divorce or separation as a business transaction as hard as that may be. It does not make any sense to pay us $500 to get you something worth only $25.  Your frame of mind in divorce or separation can often be one of the most significant components of the entire case and can have a huge bearing on how the case is run and ultimately how expensive the matter is for you.  This is equally true of your ex-partner and spouse.  If you are facing a former spouse who is resentful or hostile towards you it is likely the action is going to take longer and your fees are going to be greater than what they would otherwise have to be.
  1. Keep open to compromise. Not many spouses “win” in a divorce.  It is more a question of how well the mutual loss is controlled.  Keeping a “middle of the road” approach often makes sense.  Being flexible and creative in your thinking and working towards a settlement rather than remaining entrenched in a position is a good headspace to be in.  The more amicable the conduct between you and your “ex” the more likely the matter can be resolved quickly and the less time we will have to spend on your case which ultimately keeps your legal costs down.
  1. You should not forsake good legal support. Hiring a professional Family Lawyer is expensive.  However hiring an amateur lawyer can cost you more in the long run.  Getting proper legal advice is highly beneficial and can reduce your stress by providing you with clarity about your rights in the legal process.  On a practical note:-
  • Get legal advice early on from an experienced Family Lawyer;
  • Make notes along the way of the questions you want answered;
  • Do not try to prepare complicated documents on your own. You may save money at the start but this can become more expensive later when we need to fix any mistakes that have been made in the absence of proper legal advice;
  • Do not try to use litigation or protracted settlement discussions as a way to punish your “ex”. Your ex’s past behaviour or even their present attitude may be unpleasant or even abusive.  However it is best to concentrate on the bigger picture and secure a sensible agreement as soon as possible.
  • Provide full disclosure of all your financial interests. A failure to disclose any financial interests can have a devastating effect on any agreement you reach with your ex and can also significantly add to costs.
  • Finally, it is critically important to keep us fully informed of all significant events. However it is not necessary to copy us in on the minutiae of day to day interactions with your ex unless this is part of a “bigger” picture that is causing difficulties and needs a legal solution.

As your Family Lawyer, we take on our role with a strong depth of knowledge and experience, and with great respect for you our client.  We understand that you may be in a stressful and emotional frame of mind when you meet with us and because of this we want you to take the time to understand the above tips.  If you are able to take our tips on board we are confident that you will be able to keep your legal costs at a reasonable level and reach the right outcome for 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.

7 things you ought to know: common misconceptions in Family Law

Separation is a confusing time and there are a lot of people out there who want to throw in their “two cents”. Support after separation is great, vital even, but when it comes to what the law says it’s important to get it right.

In this article we help myth bust a few of the common misconceptions that come from getting advice on Facebook or Joe Bloggs down the road.

  1. You don’t have to be divorced to get property orders

A lot of people seem to think that divorce and property orders should go hand in hand. Or that you need to be divorced before you can get property orders. Although as Family Lawyers we think it is best to wrap everything up at once, you don’t need to be divorced in order to get property orders.

People often refer to the “12 month rule”. This refers to the length of time required by the Family Law Act that you need to be separated before you can get divorced and the time after being divorced from which you can seek property orders. You can be separated forever and never get divorced. You can also apply for property orders whilst you are still living together or two minutes after you leave.

  1. Just because your name is not on the title doesn’t mean you’re not entitled

There is a common view that if parties had no joint assets there should be no distribution of the property. The Family Law Act gives Courts the power to deal with any asset or interest belonging to either of the parties or jointly. If the property has all stayed in one person’s name and the other party has no access to the property that does not preclude them from an order that might give them access to the property. This flows into another common misconception people often have about parties to a relationship who stay at home…

  1. Just because you never worked doesn’t mean you won’t get part of the pie

The Family Law Act sets out a range of matters to be considered when deciding how the assets of a relationship should be divided up. Significantly, the contributions of each party need to be considered. The Family Law Act clearly states that contributions are not just monetary, they can be about home maintenance or improvements, parenting or home maker. Each case will be decided differently but just because you never worked definitely does not rule you out.

  1. You can be separated and divorced even whilst living in the same house

In Sydney’s current environment it can be hard enough finding the money to support a family living under one roof with two salaries, let alone trying to manage two households. More and more we are noticing that people will continue to live in the same house after they separate for financial reasons or because it is easier on the children. Both of these reasons are totally valid.

As mentioned above, you need to have been separated for a period of 12 months before you can apply for a divorce. “Separation” is not defined solely by one person moving out. The Court takes into consideration factors like sleeping arrangements, sex after separation, care arrangements for the children and public perception of your relationship when determining whether or not you have been separated for 12 months.

  1. Mum doesn’t automatically get “full custody”

The approach of Courts in relation to who children should live with and how that should be determined has changed dramatically over the last few decades.

First and foremost, the Court doesn’t talk about custody anymore, they talk about who the children should live with or spend time with. Secondly, the factors the Court needs to consider are far more extensive than ‘who was the primary carer during the relationship’, whether this was mum or dad is important but not the deciding factor. The most important thing the Court wants is for the child to have the benefit of a meaningful relationship with both parents. How this will look will vary case to case but there is no presumption that mum automatically gets primary care.

  1. Equal shared parental responsibility does not mean equal time

The Family Law Act addresses parental responsibility. Children have rights, parents have responsibility. There is a presumption that it would be best for children if their parents could share parental responsibility and consult about major issues in their lives. The Family Law Act goes on to say that if an order is made for equal shared parental responsibility they need to consider whether equal time is appropriate but these are not the same thing and one does not determine the other.

Where an order is made for Equal Shared Parental Responsibility the people sharing the responsibility are to consult each other about major long-term issues concerning the children and make a genuine effort to come to a joint decision about that issue. Many parents who do not spend equal time with their children will have an order made for Equal Shared Parental Responsibility, which puts an onus on the parents to discuss things like schooling, religion, health, name and living arrangements where either party might seek to move.

  1. Property orders after separation are not guaranteed

Up until recently there was a prevailing wisdom that after separation everyone would get a piece of the pie. The High Court has recently clarified that you cannot assume that just by nature of a separation there should be any adjustment of property interests. This might be because each party has about what they should have in their own names, or because one of the parties has not contributed in a way that would justify an alteration. What’s important to consider is whether an alteration of property interests is ‘just and equitable’ this is determined by the various factors set out in the Family Law Act.

If you are recently separated or have a family law enquiry we invite you to contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss you matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you work out the fact from fiction during 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.

Bankruptcy and Binding Financial Agreements (Part 1)

What happens when parties enter into a Binding Financial Agreement and one party subsequently becomes bankrupt?

What do you do when the one asset pool to be divided is in circumstances where there are competing claims between the bankrupt’s spouse or partner and the bankrupt’s creditors?

If you find yourself in a situation like this and are unsure of the next steps, read on.

Broadly speaking, individuals thinking about asset protection are primarily concerned with protecting assets from attack either through a family breakdown, poor business or investment decisions, bankruptcy or a family provision claim.

So, what happens when family law and bankruptcy intersect?

In such circumstances, the non-bankrupt partner may find him or herself competing against claims from unsecured creditors for a share in the bankrupt’s assets. Conversely, in a scenario where one party intends to frustrate or prevent their former partner from obtaining a share of assets, that party may attempt to use bankruptcy proceedings to put assets out of the reach of their former partner. In a situation like this, the non-bankrupt partner may find him or herself competing for a share of the assets against “fake creditors”.

Generally, in relation to both married and de facto couples, the presence of a third party in proceedings and the subsequent conflict between the claims of the former partner and creditor(s) is dealt with extensively in Part VIIIAA (subsections 90AA to 90AK) of the Family Law Act 1975 (Cth).

With respect to Binding Financial Agreements (‘BFAs’), the items of property that can be dealt with by parties in a domestic relationship under such a document may comprise of assets including domestic and international real estate, personal property, superannuation, spousal maintenance, child support, and future inheritances. There are strict legislative requirements to enter into same and, of course, one needs to consider the grounds for review as to what circumstances may set them aside.

In relation to bankruptcy proceedings, they are dealt with under the Bankruptcy Act 1966 (Cth). A person may be made bankrupt either by a creditor’s petition[1] or through a debtor’s petition.[2] A trustee in bankruptcy is then appointed and the bankrupt’s property then vests in the trustee,[3] albeit he or she is permitted to retain certain household items and any interest in a regulated superannuation fund.[4] The bankrupt’s property consequently becomes available to be divided amongst his or her creditors.[5]

So how do BFAs hold up in the face of bankruptcy?

Prior to the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth), BFAs held up pretty well in that the tax man was generally unable to obtain a share of a bankrupt’s assets once a BFA had been correctly executed. This was seen in the case of Australian Securities and Investments Commission v Rich and Anor [2003] FAMCA 114 wherein O’Ryan J was tasked with answering the question as to whether the Family Court had the jurisdiction to set aside Financial Agreements on the application of a third party, in this case – the Australian Securities and Investments Commission (‘ASIC’).

In this case, the Husband was a founding Director of One.Tel Ltd and had numerous business interests. Between 17 May 2001 and 4 June 2001, the Husband transferred and altered the ownership of his assets. On 29 May 2001, the board of Directors of One.Tel Ltd resolved to place the company into administration. On 31 May 2001, the parties entered into the Financial Agreement pursuant to section 90C (during marriage). On that same day, ASIC started investigating the Husband in relation to suspected contraventions of the Corporations Act 2001 (Cth).

ASIC tried to rely upon sections 90KA and 90K(1)(b), arguing that the Financial Agreement was void or voidable. However, this point was futile if ASIC did not have standing, being the ability to bring an action before the Family Court.

Both the Husband and Wife in that case filed responses seeking an order that the application by ASIC be dismissed for similar reasons. The Husband submitted that there was no jurisdiction to grant the relief whereas the Wife submitted that the application should be summarily dismissed as there was an absence of a triable issue and that the application was so flawed that it could not succeed.

The Court reasoned that the definition of a “matrimonial cause” provided that the proceedings be “between the parties to a marriage”. Accordingly, given that ASIC cannot be a party to the marriage – the application by ASIC was not a “matrimonial cause”. Thus, the Court did not have jurisdiction to hear the matter by ASIC and subsequently dismissed the application. His Honour did note, however, that “there are good policy reasons why” it is appropriate for the Family Court to determine whether third parties may apply to set aside BFAs – however this did not address the issue of jurisdiction.[6]

Further, His Honour went on to state that:

it is of concern to me that the consequence of my finding is that the Family Court has no jurisdiction to deal with an application by an unsecured or contingent creditor to set aside a financial agreement in circumstances where the interests of such a third party are or may be adversely affected by the terms of the agreement. This position in contrary to that taken by the court over a number of years in circumstances where an order was made under section 79 or an agreement approved under section 87.”[7]

Following this case, the legislation was amended to rectify this position and it is now easier for trustees in bankruptcy to attack BFAs resulting in them being more susceptible. Why? Because prior to the amendments, the Bankruptcy Act 1966 (Cth) exempted a ‘maintenance agreement’ from its purview. This is no longer the case. The definition of ‘maintenance agreement’ contained within s 5(1) of the Bankruptcy Act 1966 (Cth) was further clarified so as to exclude “Financial Agreement within the meaning of the Family Law Act” following interpretation issues.

We will continue looking closely at the intersection between Binding Financial Agreements and Bankruptcy in our next article, so remember to return to our website soon. In particular, in our next post we will look at a couple of cases following the amendments to the Bankruptcy Act 1966 (Cth) and how this affects BFAs in Family Law.

[1] Bankruptcy Act 1966 (Cth) s 43.

[2] Bankruptcy Act 1966 (Cth) s 55.

[3] Bankruptcy Act 1966 (Cth) s 58.

[4] Bankruptcy Act 1966 (Cth) s116(2).

[5] Bankruptcy Act 1966 (Cth) s116(1).

[6] Australian Securities and Investments Commission v Rich and Anor [2003] FAMCA 114 at [95].[7] Australian Securities and Investments Commission v Rich and Anor [2003] FAMCA 114 at [115].

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.

Judicial Mediations in Family Law

Has the other party in your matter proposed Judicial Mediation?

Do you need help in understanding what this entails? If so, read on.

In late 2018, Practice Note 1 was issued relating to judicial mediations for family law matters in the Federal Circuit Court of Australia and it commenced on 1 January 2019.

Essentially, what this entails is a mediation that is facilitated by a judicial officer of the Court rather than a Family Dispute Resolution Practitioner or Mediator. There are numerous reasons why judicial mediation may be considered advantageous to parties trying to resolve their family law dispute and the community in general.

Generally, a typical mediation process would entail the following:

  1. Introductory stage / brief description of the issues (i.e. why are we here today);
  2. Summary by the Mediator (depending on the particular Mediator);
  3. Discussion and exploration of the issues and/or agenda;
  4. Private meetings between the parties and the Mediator;
  5. Discussion of options and alternatives;
  6. Evaluations of proposals; and finally
  7. A decision is reached – whether or not that means settling the matter or proceeding with Court action.

It must be kept in mind that the above process is an approximate outline only. Mediation styles often vary greatly between different Mediators and the circumstances of your family law matter.

Having regard to the unique circumstances of every family law matter, the flexibility of mediations allows for a more individually tailored approach, which is advantageous especially for people after separation who may find themselves self-represented considering that, otherwise, they may experience greater difficulties with the formal and strict processes involved in litigation in the Federal Circuit Court of Australia and/or the Family Court of Australia.

The Practice Note sets out guidelines in relation to matters such as the criterion for suitability for mediation, preparation, attendance and conduct at the mediation and confidentiality. Your family law matter may be suitable for judicial mediation if it meets any of the following criteria:

  1. If both parties are legally represented;
  2. If the docket Judge determines that the matter is suitable for judicial mediation;
  3. Property disputes;
  4. Parenting disputes when there are no serious allegations of risk and/or domestic and family violence;
  5. Appropriate child support matters;
  6. Compliance with orders for a prior unsuccessful private mediation;
  7. A risk that your legal costs and time of the trial will greatly outweigh the subject of the dispute; and
  8. Any other matter that the docket Judge deems to be suitable.

Subject to notifying all other parties, a party who wishes to have a Judge facilitate a Mediation and help finalise their family law matter can make an oral application in the Federal Circuit Court of Australia or apply in writing to the docket Judge in Chambers. You will also be able to set out, either orally or in writing, the basis for why you think the matter is suitable for Judicial Mediation. The other party will then be given a chance to respond as to whether or not he or she will consent to the Judicial Mediation.

It should be kept in mind that the docket Judge for your family law matter cannot be the Judicial Mediator due to the vital need of impartiality. It is for this reason, that in the event that you are ordered to attend judicial mediation, your mediation will be facilitated by another judicial officer of the Court. Following the mediation, if you and the other party were unable to reach an agreement, the Judicial Mediator will have no further involvement in your matter.

Judicial Mediations, like any other mediation, are still subject to the confidentiality provisions in Section 131 of the Evidence Act 1995 (Cth). This will allow both you and your ex-partner to explore the options and alternatives frankly, without the fear of the other party using any information against you later in Court. Additionally, the Judicial Mediator will not, without the express approval of all parties, meet individually with a party and his or her lawyer. Rest assured that whatever is discussed in those private meetings will remain confidential and the Judicial Mediator will not disclose information provided in those sessions to the other party without your consent.

Finally, Judicial Mediation is not intended to be a substitute for private mediation conducted by appropriately qualified mediators, but may be an option for appropriate matters. It is expected that the parties and their lawyers will exhaust all mediation alternatives, prior to judicial mediation. It should be kept in mind that judicial mediations are to only be utilised as a last effort or attempt to resolve the matter before proceeding with the litigation.

Apart from mediation, there are different forms of Alternative Dispute Resolution available to people with family law matters. The Family Law Rules 2004 suggests that people should attempt direct negotiation, arbitration and counselling prior to litigating a family law dispute. This is especially important when considering the preservation of ongoing relationships in parenting matters. At Doolan Wagner Family Lawyers, we are very mindful of preserving our clients’ costs and their post-separation relationships and we will work together with you to reach an appropriate outcome for your family law matter.

If it is the case that your Judicial Mediation was unsuccessful, your matter will then be referred back to the docket Judge, who may then make further directions, and if needed, trial directions.

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

Surviving Cross-Examination 8 Best Tips

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

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

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

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

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

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

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

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

2.       It is important to tell the truth.

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

3.       Body language is everything.

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

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

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

5.       Remember why you are there.

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

6.       Do your best to remain in control.

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

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

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

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

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

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

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

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

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

Child Abuse Allegations

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

Background

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

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

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

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

How does the Magellan Program manage cases?

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

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

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

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

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

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

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

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

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

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

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

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