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 to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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

Family Lawyers Mosman

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

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

We are keenly aware that dealing with a relationship breakdown is distressing and seeing a lawyer can be a very daunting experience. Having practised almost exclusively in the area of family law for more than 20 years we believe that we are the best-placed family law firm in the local area to deal with you and your matter sensitively and with the best interests of you and your family foremost in mind.

We recognise that no two families (or indeed family breakdowns) are the same. We are not a cookie-cutter law firm and will take the time to get to know you, your family and the distinct facts and circumstances of your case – that is our promise to you. We do this so that we can offer you advice that is tailored to your personal circumstances and can secure a resolution of your matter which reflects the specific needs of you and your family.

Why use Doolan Wagner, your family lawyer Mosman, in your family law matter?

We have been helping separating couples for over 20 years and during that time have assisted hundreds of couples to resolve their family law matters in the most cost-effective way both with and without the Court’s involvement.

  1. We only practice in the area of family law. That means we are in the best position to assist you to resolve your matter because:
    – we have established relationships with many of the local family law practitioners (including local lawyers, barristers and court staff), Child Contact Centres, Meditators, Family Law Arbitrators, etc.
    – we can quickly grasp the important elements of each family law matter; and
    – we are expertly familiar with how family law processes work.
  2. We have lawyers who are Accredited Family Law Specialists registered with the Law Society of NSW – these are experts in all areas of family law and are best placed to assist you in relation to your family law matter.
  3. We have registered Family Dispute Resolution Practitioners for separating couples who are not yet ready to undertake the formal engagement of a solicitor or who want to try to informally resolve their matter using alternative dispute resolution.
  4. Your file will receive personal attention from experienced family lawyers including our Principal and the handling of your matter won’t be passed around the office to junior lawyers unless specifically requested by you.
  5. Every day we:
    – draft family law documents including but not limited to Court Applications, Balance Sheets, Superannuation Splitting Orders, Financial Agreements, Binding Child Support Agreements, Consent Orders, Applications for Divorce and Affidavits;
    – assist clients to formulate sensible parenting plans and negotiate appropriate financial property settlements;
    – review financial disclosure documents, court documents, parties’ evidence and applications for child support assessments;
    – prepare clients for attendances at Court and engaging with the Family Law processes such as attending with Family Consultants; and
    – guide clients through the many challenges that can arise in their lives and within the family unit as a result of separation and divorce.
  6. We are a boutique law firm with overheads to match – we pass on those savings to you so that our fees and charges are competitive. We should be considered the “go-to” company for getting real and good old fashioned divorce law advice.
  7. Our practise has been built up from word of mouth referrals from satisfied current and past clients and local professional people – that’s 20 years of business built up largely from word-of-mouth referrals…enough said.

By engaging Doolan Wagner Lawyers:

  1. You will be choosing an Accredited Family Law Specialist, an expert who practices family law daily.
  2. You will benefit from our ability to quickly (and therefore cost-effectively) understand the important issues in your matter and formulate the right action plan for you and your family.
  3. You will be provided with proper guidance through the separation and divorce processes – we know that separation and divorce are some of the most stressful and challenging experiences which our clients will have to go through during their lifetimes. Having steered many clients’s through the various stages of each of these processes we are best positioned to offer you practical feedback on how to approach many of the situations that separated families may face.
  4. You will be provided with clear advice on what forms part of the “pool of assets” and how best to protect the assets of the relationship.
  5. You will receive sensible, realistic and proactive family law advice in relation to both parenting and financial matters which will stand the test of time.  We will try and anticipate the things that may happen in your future and provide for them in the advice that we give you and work with those “futures” in mind when we negotiate your settlement. Many of our former clients have kept in touch with us over the years to update us about their families and have provided feedback that both the advice we offered and the resolutions we negotiated for them have been appropriate to meet their family’s needs for many years.
  6. You can be confident that we will secure the best financial outcome for you.
  7. You can be assured that we will always act with the best interests of your children in mind.
  8. You will receive our full commitment to resolve your matter as quickly as possible. Your positive experience with us assures our good reputation within the local community.
  9. Don’t make the mistake of choosing the wrong lawyer. The decisions you must make after separation are critical. You and your children’s well-being and your financial security are not worth the gamble.

Our founding principal, Lisa Wagner is a local North Shore mum and an Accredited Family Law Specialist having looked after separating parties on Sydney’s North Shore & Mosman for almost 30 years.

Trained as a Family Dispute Resolution practitioner and in Collaborative Family Law Practice, Lisa and her team possess honed skills to secure favourable and timely out of court settlements.

Many people following separation seek discreet advice and our ongoing specialist family law advice service can prove invaluable to help you along the way navigate issues of child support, parenting and financial settlements.

Taking the first step is never easy however with our proven track record of assisting local couples to resolve their family law matters successfully we urge you to get the ball rolling and get in touch with us.

Call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on 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

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.


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 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.

Children’s Wishes in Separation

Are you separating?

If you are in the process of separation or are thinking about separating and have children, you will no doubt want to understand how your child’s wishes and views are taken into account and how old they have to be before they get to choose who they want to live with.

This is a complex area of family law and is becoming increasingly challenging in today’s world where children from an early age are exposed to more media than ever before.

We live in an information age – it is everywhere.  As a consequence there is an increasing number of experts on everything! Not many of us can say hand on heart that we haven’t dabbled in our own medical diagnosis after “googling” a complaint. With information and the quasi-expertise that it creates we also are increasingly becoming a community that is at risk of feeling entitled. We expect that things will work out the way we want them to work out, all of the time and in every way. This sense of entitlement filters through in many different ways when people separate. One way it sometimes filters through is the way we are going to expect our children’s wishes (often very young children) to be followed in Family Court proceedings about parenting arrangements.

When can my child decide?

This is a question that we are asked frequently in my family law practice. Clearly, as a child reaches a certain age and level of maturity it is difficult to do anything other than what that young adult wishes. By the time a child is fourteen years of age they begin to “vote with their feet”.

What about younger children?

Having been asked this question on countless occasions we thought it would be helpful to set out when and how the Family Court takes children’s views into account in family matters involving parenting.

  1. Firstly, a child is not, and cannot be required, to express his or her own view about parenting matters. However, if a child or children do express a view then those views must be considered by the Court. How does the Court take into account the wishes of a child? Usually those wishes are taken into account in one of three ways:
  2. By having the benefit of a Family Report. A family report is written by a Family Court Consultant (with a background in social science) or another agreed or nominated expert who has interviewed the child or children and considered the dynamic of the particular family.

By appointing an Independent Children’s Lawyer. The legislation now requires a lawyer appointed for children to ensure that if any views have been expressed then they are put before the Court.

Such other means as the Court considers appropriate.

The Court however is not required to adopt the views of the child. The children’s views are not final and the Family Court is only obliged to give such weight to those views as it considers appropriate given all of the facts of the particular case.

Following children’s wishes is often seen to be the easier, less uncomfortable path to take and the easier case to argue. However it is important to understand instances when the Court does not adopt the wishes of the children and instead finds that it is in the best interests of the children that the parenting arrangements after separation be different to the arrangements that the children have expressed a preference for.

When should children’s wishes be departed from?

In different cases the Family Court of Australia has identified different instances when it is not in the children’s best interests that their wishes be followed. Examples of this include:

  1. If the Court has evidence before it that the “favoured” parent may not be committed to facilitating the child to spend time with the other parent.
  2. If the Court has evidence before it that the “favoured” parent lacks respect in dealing with the legitimate opposition the other parent has expressed to one sided and unilateral decisions that the “favoured” parent has made.
  3. If the Court has evidence before it that the “favoured” parent does not acknowledge the validity of the role of the other parent in the child’s life.
  4. If the Court is satisfied that the wishes expressed by the child were not soundly based upon mature and independent consideration but rather as a result of influence or coaxing.

Other considerations including family dynamics and motivations can also be significant. Each family and the views expressed by each child and the basis for those views are individually taken into account to ensure that the best interests of the child are secured. It is a holistic, complex exercise and one that will no doubt continue to evolve.

Other considerations including family dynamics and motivations can also be significant. Each family and the views expressed by each child and the basis for those views are individually taken into account to ensure that the best interests of the child are secured. It is a holistic, complex exercise and one that will no doubt continue to evolve.

If you are separating with children and would like some help navigating this difficult path we are ready to help. We have family law experts with countless years’ experience in parenting matters available to assist you and your family. Call us on 02 9437 0010 for a no-obligation initial consultation. Doolan Wagner Family Lawyers are conveniently located in St Leonards on Sydney’s Lower North Shore.

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

Complex Parenting Matters: Where The Presumptions Don’t Apply

Are you facing a difficult separation?

Do you need help securing the best outcome for your children?

Are you presently involved in a complex family law parenting matter?

If you answered, “yes” to any of these questions then you should read on.

The Family Law Act presumes it is in a child’s best interests for that child’s parent to have equal shared parental responsibility for that child.  This means it is best for both parents to share the duties, powers, responsibilities and authority in relation to the child.

When orders are made for equal shared parental responsibility a court must consider certain arrangements for the time a child should spend with each parent.  Firstly, whether equal time is in a child’s best interests and reasonably practicable, and secondly, where equal time is not appropriate, whether significant and substantial time is in a child’s best interests and reasonably practicable.

In most cases the presumption for equal shared parental responsibility will apply and the child will have the opportunity to have both parents involved in significant decisions for their life and will be able to spend good, quality time with both parents.

In some cases, the law says that the presumption for equal shared parental responsibility should not apply or can be rebutted by evidence that it would not be in a child’s best interest.  Examples where the usual presumption for equal shared parental responsibility may not apply include:

1.    Circumstances of Family Violence.

2.    Drug or Alcohol Abuse.

3.    Where one or both parents are unavailable to care for the child.

Family Violence

The Family Law Act recognises the reality of family violence and the need to protect a child from being exposed to this.  The Family Law Act says that where family violence exists the usual presumption that parents should share parental responsibility will not apply.

If family violence is alleged it is important to put evidence before the court that supports this allegation.  The best way to put this evidence before the court is through subpoena on Police, hospitals and other independent sources that can provide evidence of a history of family violence.  This is because at the beginning of proceedings a Judge cannot cross examine you or your partner to determine the “real story”.  By providing evidence from independent third parties a Judge is able to obtain an unbiased version of events.

Once evidence has been provided of the family violence it is important to decide what sort of orders should be made.  The primary consideration when making parenting orders is how orders can be made to protect the child from being exposed to further family violence.  In practice this can involve a number of different strategies, two of the more common arrangements we consider are whether orders for supervised time need to be sought or whether changeover can be arranged to avoid an alleged victim coming into contact with an alleged perpetrator of family violence.

Drug or Alcohol Abuse

In 2010 the Australian Institute of Family Studies found that following separation around 20% of fathers and 36% of mothers reported issues with drug or alcohol use.  The misuse of drugs or alcohol has a significant impact on a person’s capacity to care for a child.

Although drug or alcohol abuse does not automatically negate the presumption for equal shared parental responsibility it is likely to be rebutted in such circumstances.  Where there is an abuse of drugs or alcohol it is necessary to consider a number of factors.  In respect of making parenting orders the court must consider how to ensure the child’s safety, and, if possible, how to ensure the child continues to have the benefit of a meaningful relationship with the parent.

Other considerations in the practical running of such cases are how best to demonstrate the use and abuse of drugs or alcohol (or disprove the allegation) and how to address the addiction if it is proved.  Tests can be requested, or taken, to prove or disprove use of drugs or alcohol.  These tests can be submitted to voluntarily or ordered by the court.  Another factor to consider is whether some form of rehabilitation is possible.  This can be a difficult decision to make and how the rehabilitation program is undertaken during court proceedings will need to be carefully considered.

Where one or both parents are not available to care

In some cases, one or both parents are not available to care for the child.  This may be for a number of reasons, including death of a parent, imprisonment, disinterest, or by an order of a children’s court denying parent’s access to the child. In these cases it is often grandparents who step in.

The usual presumption that parents should share parental responsibility simply cannot apply in these circumstances.  By necessity the remaining parent, or third party, will be granted sole parental responsibility.

Grandparents or third parties stepping in to care for a child whose parents are not available can face additional practical difficulties in raising a child without orders of the court.  These difficulties may be with Medicare, Centrelink or simply enrolling the child in school.  Orders can help make it clear that you have parental responsibility for the child and are therefore vested with all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child.

At Doolan Wagner Family Lawyers we have dealt with a range of complex parenting matters.  If you are facing a difficult separation and are concerned about what would be best for your children our family lawyers can help you.  Our experience and compassionate approach means that you can feel confident in the advice we give.  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 to speak confidentially to one of our experienced family lawyers on 94370010 or email

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

January 2018 Family Law Case Watch

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

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

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

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

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

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

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

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

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

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

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

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

2017 Family Law Case Watch

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

Bernieres and Anor & Dhopal and Anor (2017)

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

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

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

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

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

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

Calvin & McTier (2017)

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

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

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

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

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

The Full Court upheld the magistrate’s decision.

Bondelmonte (2017)

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

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

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

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

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

Official Trustee in Bankruptcy v Galanis (2017)

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

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

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

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

Surridge (2017)

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

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

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

Wallis & Manning (2017)

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

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

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

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

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

We provide clear advice about protecting your family law interests in both complex and simple matters. Conveniently located in St Leonards on Sydney’s North Shore, we are within easy walking distance of the train station. Please contact us to find out more or speak to one of our lawyers on (02) 9437 0010 or email

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

Family Court asks Lawyers to consider their fees

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

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

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

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

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

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


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

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

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

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

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

Roundtable Conference

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

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

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

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

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

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

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

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

Anton Pillar Orders

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

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

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

What is an Anton Pillar Order?

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

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

Why do they arise in Family Law Matters?

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

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

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

Separation and Divorce – Using Photos in Family Law Matters

Are you needing help after separation?

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

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

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

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

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

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

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

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

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

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

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

If you would like assistance in preparing your family law matter or simply want advice about your separation, please contact us on 9437 0010 or 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.