What you need to know about family therapy sessions if you are separated.

Parenting matters are often very stressful for all parties involved, children included. It is also an area that is fraught with complex emotional issues and can become increasingly complicated, particularly when the children begin entering into young adulthood.

The challenge in these sort of cases is to assist parents to recognise the need to support their children, whilst at the same time ensure that the children maintain a meaningful relationship with both parents, having regard to the paramount considerations outlined in Section 60CC of the Family Law Act 1975.

In some parenting matters, it is not unusual for one or more than one child to resist contact with one of their parents. The reason for the resistance can sometimes be nuanced and challenging for the Court to respond to. Whilst the Court can make any Orders it feels is in the child(ren)’s best interest, it is futile to make such Orders without first understanding (and dealing with) the emotional issues and/or trauma the child or children may have. In those instances, it is in the parties’ interest that they and/or the children consider attending family therapy.

In the event the parties do undertake family therapy in the context of separation, the next question is whether that therapy will be reportable or non-reportable.

 

So what does reportable family therapy and non-reportable family therapy mean in the context of family breakdown?

 

As the name suggests, reportable family therapy is where the family therapist will report to the Court as to the progress of the therapy. In some cases, a Court will direct families to engage in family therapy where the parties are made aware, at the outset, that the therapist will be called on to provide evidence to the Court. They may also be required to outline the parties’ progress with family therapy.

In some other circumstances, the Court may order parties or the child(ren) to participate in non-reportable family therapy. This means that the parties and the children attend upon a therapist in a completely confidential setting, without the fear that any information disclosed at those sessions will be disclosed at some point in the Court matter.

 

When and how is family therapy accessed?

Whilst there is no set rule as to when family therapy should be considered, it is often best introduced relatively early in any famiy law matter. Insodoing it allows underlying and important issues to be therapeutically addressed and possibly resolved or narrowed as quickly as possible, and without the need for unnecessary and often blunt Court intervention.

Although, it should be noted that parties can begin family therapy at any stage in the matter, and indeed, it is often encouraged by the Court.

 

What are the advantages and disadvantages of reportable family therapy?

There are clear advantages and disadvantages with respect to engaging in family therapy which is reportable to the Court, as follows:

 

Advantages:

  1. If an Independent Children’s Lawyer is appointed, they would be able to speak with the family therapist on a regular basis to discuss ongoing issues and challenges, the progress of family therapy, and whether there are any matters or concerns the Court should be made aware of.

 

  1. Following on from the above, should the Court become aware of any issues which arise in family therapy, it is able to make Orders which deal with this issue. For example, if one party has anger management issues, then the Court could order a party to enrol and participate in an anger management course to address this challenge.

 

  1. In the event that a Court orders a Family Report to be conducted in a matter, then the expert appointed to prepare the report would be able to speak with the family therapist and better understand the complexities of the issues in dispute.

 

  1. The family therapist would likely have access to Court material, which would allow them to be better informed of both parties’ allegations. Meaning, they would not be limited to only one party’s account. This can overcome problems that can arise should a “complete picture” not be available. For example, in the case of Maher & Mills (2015), it was found that the family therapist involved was providing the child with counterproductive counselling as he was accepting unconfirmed allegations of sexual abuse from only the mother. Eventually, his evidence was found to be inadmissible as he had “lost professional impartiality” in accepting the mother’s evidence unquestioningly.

 

Disadvantages:

 

  1. Some parties may feel apprehensive or appear to be disinterested in the process, especially in circumstances where the Court may become aware of the issues addressed during family therapy. As a result, parties may be less receptive to opening up to the therapist and meaningfully engaging in the therapy. Alternatively, parties may also be deliberately selective in what they say to the therapist as they know it may contradict what was said to the Court.

 

  1. When children (who are often significantly affected by parental separation) meet with a therapist, it is often a very delicate and fragile relationship. So when a practitioner reports on matters discussed with that child, it may damage their relationship, which might prevent any real progress from developing in the future.

 

 

What are the advantages and disadvantages of non-reportable family therapy?

 

Similarly, there are advantages and disadvantages of engaging in non-reportable family therapy. They include:

 

Advantages:

 

  1. By ensuring that the family therapy is completely confidential, it allows the parties (and the children) to feel as though they are in a safe space to discuss the issues in dispute, and in some cases, to allow a party to confront and accept any damage, they may have inflicted (whether consciously or unconsciously).

 

  1. Non-reportable family therapy ensures that the important relationship between the practitioner and the party is protected as it avoids the risk that parties (and more importantly, children) may feel betrayed by a practitioner disclosing private information to the Courts. In the case of Hastings & March (2019), the trial Judge was asked to determine whether to permit into evidence the Subpoena material of a family therapist who had been treating the children for a number of years. The judge had serious concerns about the “potential damage to the therapeutic relationship” between the children and the therapist and as such upheld the objection and did not allow the material into evidence.

 

 

Disadvantages:

 

  1. The Court (and if applicable the Independent Children’s Lawyer) would be unable to discuss family therapy with the practitioner. This also includes an expert who has been appointed to prepare a family report, which means that the report could potentially not contain crucial information that would be relevant for the Judge to make a determination.

 

  1. The family therapist may not be provided with all the necessary and relevant information in order to provide an effective therapeutic service, and in turn, his or her involvement with the family may actually be more harmful than beneficial.

 

 

In conclusion, whether family therapy is reportable or non-reportable, it is evident that any additional assistance by an experienced family therapist would be a vital resource for families undergoing separation. However, parties should carefully consider at the outset, if possible, whether any family therapy that is appropriate for them (and their children) to participate in, should be reportable or non-reportable.

 

About the Authors:

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

Connect with Lisa on LinkedIn: Lisa Wagner

 

Anthony Saba is a Family Lawyer at Doolan Wagner Family Lawyers. Anthony has worked for the past five years exclusively in family law in two other specialist CBD family law firms before joining Doolan Wagner Family Lawyers. He has experience in many other areas of law including commercial disputes, criminal matters and care and protection work.  Anthony has acted in complex property matters and parenting matters including difficult relocation matters and in matters where domestic violence has factored heavily. Anthony is currently completing his Masters in Family Law.

 

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

Separation and Divorce – How Best to Weather the Storm

The North Shore of Sydney has been battered in recent weeks by unprecedented storms leaving homes and many families hugely impacted as 2019 draws to an end.  Property has been lost and tensions have flared as manageable commutes turn into nightmare gridlocks.

Coupled with the end of the school year and the Christmas/New Year festivities it is to be expected that many local families are feeling the heat.

If your relationship is already strained, then you may be contemplating separating from your spouse or de-facto partner.  Even if it is not something you are wanting, you may find yourself on the receiving end of news from your partner or spouse that they no longer want to keep the marriage going.

If you are in this situation then it is important that you do your best to be prepared and stay in the driver’s seat.  Calling us can make the difference to how you weather this different kind of storm. Doolan Wagner Family Lawyers has been assisting separating couples on the North Shore of Sydney and Sydney’s Northern Beaches for a very long time.

The Principal, Lisa Wagner is a local resident, an Accredited Family Law Specialist, a nationally registered Family Dispute Resolution Practitioner and skilled in Collaborative Family Law Practice. Lisa has been successfully helping separating couples resolve their family law matters for nearly 30 years and leads a small, select team of experienced professionals who work tirelessly to ensure the best outcome for you and your family should you be facing a separation or marriage breakdown.

Why Choose Doolan Wagner?

Rather than hear only what we have to say – click here to listen to what some of our previous clients say;-

https://vimeo.com/340127113

  How to choose the best Family Lawyer for you

 Choosing the right family lawyer is a very important decision to make.  To help you choose the right family lawyer for you please click on the links below to read some further helpful information:

What options are available to stay out of court?

 There are many paths to take when deciding how best to resolve your family law matter after you separate.  Collaborative Practice, Mediation and Arbitration, are just a few.   Every family law matter is unique and speaking to a specialist family lawyer is critical.  In the meantime if you want to view more information on some of these “out of court” options, please click on the links below:

However, if an out of court settlement is not possible we are experienced in representing you in court.

 

 What Will It Cost?

“A divorce need not be expensive. Doolan Wagner Family Lawyers offers a no-obligation initial consultation at a fixed cost”.

We pride ourselves on being cost-competitive whilst reflecting the specialist service and advice that we provide.

We are always available to discuss our fees with you and the likely charges that you will incur should you decide to retain us.

Please click on the link below to find out some further information on how to keep your family law costs down:

What is the Next Step?

Please call us.  We are open every weekday between 8.30 am – 5.00 pm and are conveniently situated close to St Leonards train station. Street parking is readily available outside our doorstep.

Importantly we are closed over the Christmas and New Year period, reopening at 8.30 am on Monday 13 January 2020.

In the meantime here is some information you may find useful from a few of the 2019 cases we have successfully handled this year.

Restraining A Person From Entering A Residence or a specified area in which a residence is situated

At times continuing to live in the same house as your ex after separation is near impossible. Coercive and controlling partners or even longstanding toxic dynamics which might impact children can prove sufficient to justify the exclusion of one partner from the matrimonial property. The restraints afforded in this way can be extended to the personal protection of parties if they have been married.  Looking at the particular circumstances of the cohabitation, including what housing alternatives an ousted party may have significantly determine the success of applications for exclusive occupation and ancillary relief.

Preventing A Parent From Leaving Australia

The Family Court of Australia has the power to prevent a parent from leaving Australia in circumstances where a child has been removed overseas. Restraining a person’s freedom of movement can be an effective strategy to secure the return of a child to Australia particularly when that child has been removed to a country which is not a signatory to the Hague Convention. In many ways, this is a remedy of last resort and so will not be granted by the Court lightly. Persuasive evidence must be presented to convince the Court that it is in the child’s best interests that such an order be made. In doing so, the court is likely to require details as to who is the primary carer and the effect on the child of any order that is made.

Separating Under The Same Roof

The high cost of living in Sydney often means that people stay living together in the same house after they separate. When it comes time to get a divorce people in this situation are required to provide extra evidence (in Affidavit form) setting out the circumstances of them living separately and apart under the same roof. This additional evidence must detail how one spouse communicated to the other that they regarded the marriage as over. Particulars of how the relationship then changed is also critical. A supporting affidavit from a friend, neighbour or family member is also necessary for setting out what they know of your particular circumstances. If the responding spouse objects to the Divorce Application proceeding a hearing by a Senior Registrar in the court may be set.

Who gets to keep the dog?

In Australia, Courts have a limited capacity to determine “living arrangement” for pets as there is no legislation that governs family law and pets. At present, pets are dealt with as “property” in the Family Court of Australia and accordingly, would be subject of a property order like any other items of property including real estate and furniture.  In circumstances where you and your partner or you and your children are all very attached to your family pet, one option which may be favourable to you is to negotiate Orders relating to your pet to allow you to share the possession of the pet. For example, the pet may live with you whilst the children are in your care and with your ex-partner while the children are in their care. This is just one option available to you and we would invite you to come and speak with us if you are experiencing difficulties determining who your family pet will live with.

Does delay in resolving your family law matter, matter?

The short answer is yes. You have one (1) year from the time of your Divorce Order becoming effective to file an Application seeking property orders with the Court. If you have been in a de facto relationship, you have two (years) from the date of separation to file an Application seeking property orders. In the event that you do not file within these time frames, the Court may not hear your case. You will need to seek leave pursuant to Section 44 (3) of the Family Law Act to have you Application heard “out of time”. If you have separated but are not intending to settle matters by way of entry into Consent Orders, we recommend that you seek legal advice.

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 send us an email at 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.