Supervision Orders in Family Law Matters

Every day the Family Court and the Federal Circuit Court are asked to make Orders that are in the best interests of children. In undertaking this work the Court must first address the two primary considerations, namely:

  1. Promoting children having a meaningful relationship with both parents; and
  2. Protecting a child from harm.

When these two considerations are in conflict the Court must make Orders to protect a child from harm. Protecting a child from the risk of harm is where the emphasis lies in family law matters.

The difficult balancing act that follows from these primary considerations can sometime result in Orders being made for the supervision of the time a child or children spend with the parent who, it is alleged, presents an unacceptable risk to the child in all of the circumstances of that particular case.

Supervision Orders are usually met with a very mixed response. They are seen by many as being artificial, onerous and intrusive. They are by no means ideal but they may provide the best solution that the family law system can offer in certain cases.

Orders that provide for the time a child spends with his or her parent to be supervised:

  1. Can significantly protect a child from harm;
  2. Can provide a level of comfort to the parent with whom the child is living, usually the person who may have made an allegation of family violence or child abuse or assessed that the child is afraid of the other parent;
  3. Can protect an alleged perpetrator from unfounded allegations of family violence, child abuse and neglect;
  4. Can address a situation where a child has asked to have someone present;
  5. May be appropriate if the child hasn’t seen the parent for some time and a gradual reintroduction will help.
  6. Supervision Orders can redress an untested complaint that a parent’s capacity is significantly diminished.

If supervision Orders have already been made in your family law matter or if you believe that they may need to be considered in your case then what do you need to think about?

The kinds of questions that you will need to ask yourself include:

  1. Who should be the supervisor
  2. How should the supervisor be chosen?
  3. Should the supervisor be a person known to you, e.g. a mutual friend or family member, or a professionally paid supervisor?
  4. Is it realistic to commit to an arrangement requiring long term supervision?
  5. How often should the visits be supervised for?
  6. How frequent should the visits be?
  7. The circumstances of any supervision (and the associated costs) as these are significant factors.
  8. Is a Children’s Contact Centre an appropriate alternative? Often the waiting lists at these facilities can be long.
  9. Can other people, e.g. siblings and extended family members, attend a supervised visit?
  10. How should changeover occur?
  11. Who is going to meet the costs of supervision? The fees for a professional supervisor can run close to $100 per hour on average, often more. This can quickly become a prohibitively expensive arrangement.

Working through all of these questions when you are not under a strict time pressure, e.g. at Court, can help you develop the best strategy for your family if an Order for the supervision of time with the children is a possible outcome in your case.

Doolan Wagner Family Lawyers offer Accredited Family Law Specialists able to help you with all of these parenting questions and your parenting matter in general. We are conveniently located in St Leonards on Sydney’s Northshore within easy walking distance of the train station. Please contact us to find out more or speak to one of our specialists on 94370010 or enquiries@familylawyersdw.com.au

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

Family Law Ryde

Separating? Needing help with your divorce?

Are you presently experiencing a family relationship breakdown or needing help making custody arrangements for your children?

You may be negotiating with your partner or spouse about how to divide your assets? Doolan Wagner Family Lawyers have been helping people from the Ryde area with their separation for more than twenty years.
Our Accredited Specialist family and divorce lawyers provide premium family law advice and can help you know where you stand and what your rights and your responsibilities are.
Separation and divorce can be really difficult. Feeling confident to take the next step can make all the difference.

Our family law experts have the experience to help you achieve the best outcome possible. We act in all family law matters:

Parenting:

  • Advising people on all issues including child support, the court’s approach and emerging legal issues such as assisted fertility.
  • Drafting court documents and parenting agreements that incorporate informal parenting plans.
  • Acting in parenting disputes which are before the Family Court and Federal Circuit Court. Sometimes these involve an Independent Children’s Lawyer or interested third parties such as grandparents and/or serious allegations of abuse and/or family violence.
  • Providing family dispute resolution and mediation services. We help couples negotiate arrangements for the care of their children in a way that promotes the best interests of the child and the “family unit”.

Financial/property settlements:

  • Requiring the legal transfer of a real estate or motor vehicle and/or effecting payment of settlement monies to a former partner/spouse (including by way of effecting a superannuation split) and/or the physical exchange of furniture or personal effects between the parties.
  • Assisting clients to unravel themselves from complicated corporate structures. Sometimes these include family trusts, family businesses and self-managed superannuation funds. This often requires clients to obtain advice and/or participation from other independent professionals e.g. accountants, expert valuers and financial planners. Securing tax-effective final settlements and protecting clients from potential risks.
  • Advising people experiencing the breakdown of a de facto relationship. This includes the division of property and/or arrangements for the care of children.
  • Assisting clients to negotiate with their former spouse or partner in relation to spouse maintenance, child support and adult child maintenance.
  • Using alternate dispute resolution processes and collaborative practice including negotiation, round table conferences, mediations and arbitration.
  • Drafting and reviewing settlement documents including Applications for Consent Orders, Consent Orders, Binding Financial Agreements and Deeds of Release.
  • Court representation in disputes which cannot be resolved using alternate dispute resolution processes and collaborative practice and preparing clients for the family law courts process including drafting and reviewing court documents such as Applications, Responses, Financial Statements, Affidavits, Subpoena, interim applications etc.
  • Providing family law advice with regard to estate and succession planning issues, including the provision of advice to protect your family’s assets against claims by third parties (including new spouses and second families) and protecting yourself against a future Succession Act claim.

Divorce Applications include those for couples who have been living separately and apart under one roof and those requiring substituted service on a spouse who is difficult to locate and/or serve.

We have been working with people from Ryde for more than two decades and have come to know that the Ryde community has undergone real change.

As a result of significant residential and corporate developments taking place in and around the Ryde area and the Macquarie Park Corridor, the majority of people in the area are now aged between 20-49 years. Ryde households are commonly made up of dual-income married couples with children. The majority of people living in Ryde are understood to be owner-occupiers of property that they have owned outright for some time or own with a secured mortgage.

Many of our clients from the Ryde area are looking for assistance with negotiating their property/financial and parenting matters with their former partners/spouses. They are also looking to obtain advice to assist them to remain living within the Ryde community or in surrounding suburbs such as Macquarie Park, Gladesville, Lane Cove, Marsfield, Epping, Rhodes, Putney, Denistone, North Ryde, Eastwood etc.

Whatever your personal circumstances are, you can trust that we will take the time to listen to your story and hear your needs because we never offer a “one size fits all” approach. We always endeavour to ensure that all advice and directions given by us are tailored to each of our client’s individual situations and their family’s specific requirements.

Our principal, Lisa Wagner is an Accredited Family Law Specialist who is recognised by the Law Society of NSW. Lisa’s years of working exclusively in the area of family and divorce law mean that no matter what your particular circumstances are, she is a leader in the family law arena and will provide you with the best family law advice, support and court representation through the separation and divorce process.

Our strong team of family lawyers have developed a wealth of knowledge and expertise in all areas of family law. Their solid experience gained helping people from all walks of life means that we can guarantee that our family lawyers are best placed to assist you to deal with the often difficult and confronting circumstances that can follow separation and divorce.

Doolan Wagner Family Lawyers are committed to providing the highest quality legal advice to all clients. We pride ourselves on providing sensitive and personal service and support. We appreciate how challenging the separation and divorce process can be and recognise that your children and your financial security are two of the most important things to you.

Obtaining timely expert family law assistance and advice from a specialist family lawyer, either as you contemplate separation or divorce or promptly following your separation can be critical.

This is because whilst family, friends and other professionals can provide support through the separation process, only a highly experienced family lawyer can give you proper family law advice and assistance in relation to your rights and your responsibilities and help you develop a proper legal strategy.

By getting family law assistance and advice early you can take the next steps on your post-separation journey with certainty. You will be able to confidently approach the family law processes and/or negotiations with your former partner or spouse. Starting to resolve your matter from this position will see you better placed to negotiate with your former spouse or partner. And those negotiations are more likely to secure the most favourable outcome that will work for you and your family.

It may surprise you, but keeping things out of the court arena, wherever possible, is one of our biggest aims.

We know that matters listed before the Courts are delayed. For this reason, we will do whatever we can to keep your relationship breakdown as amicable as possible. We can advise you on how best to approach each set of circumstances as they arise. We also won’t contribute negatively to what is already a difficult time for you. We are professionals who will do our best to settle your matter using collaborative practice and avoid the court process wherever possible.

Despite this, as highly experienced family lawyers, we understand that sometimes some families/couples require the assistance of the Family Court to resolve their matter. If you need to approach the Court or are involved in family law proceedings then you can be assured that our experienced family lawyers are very capable of providing you with strong court representation and are best placed to assist you in respect of arranging the preparation and filing of court documents and evidence for such proceedings and/or preparing you for attending Court.

Our Services:

  • Drafting all types of Family Law Agreements
  •  Financial/Property Settlements including drafting settlement documents
  •  Children/Parenting matters
  •  Spouse Maintenance
  •  De facto Relationships
  •  Divorce
  •  AVO/Domestic Violence
  •  Court representation in the Family Court and Federal Circuit Court
  •  A full range of Family Dispute Resolution and mediation services. We can also provide s.60I certificates when required.
  •  Using collaborative processes to achieve optimal outcomes for our clients. See more information about how we use these processes here.

Doolan Wagner Family Lawyers is conveniently located in St Leonards, in close walking distance to the St Leonards train station.  St Leonards train station has regular train services running directly to/from North Ryde, Macquarie Park and Epping via Chatswood.

Our team of highly regarded family lawyers and registered Family Dispute Resolution Practitioners at Doolan Wagner Family Lawyers can help you with all your family law needs. So call us on 94370010 or enquiries@familylawyersdw.com.au

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

Divorce Lawyers Ryde FAQ’s

Doolan Wagner: 2015 in Review

As a director of Doolan Wagner Family Lawyers I am writing this blog post about some 2015 developments and issues in family law including issues relating to parenting and immunisation of children, family law valuations, mediation trends and the new “cashless” family court registries.

Are you grappling with immunisation issues?

Children are immunised at birth and at the 6 month, 12 month, 18 months and 4 year mark.  Children are also immunised against HPV at the 12-14 year mark.  Australian research shows that in 2015 it is becoming increasingly common for some parents to be concerned about vaccine safety and its effectiveness.  In fact, it is becoming more common for separated parents to disagree on whether to immunise their children, or whether to continue to immunise their children even though they may have commenced a schedule of immunisation before they separated.  Another situation of conflict that can arise over immunisation is when parents are organising overseas travel with their children, to a country that strongly recommends immunising against certain diseases.

So what happens in 2015 if you and your partner disagree on this important decision and at what point does the Court step in?

The Court can become involved in disputes over immunisation where parents assume differing positions in respect of whether or not to immunise their child.  This is different to situations where parents jointly decide that their child needs a ‘special medical procedure.’ If you or your partner file an application to seek orders that a child be immunised, or seek an injunction to prevent the other parent from immunising your child, you will find yourself before the Court.

If you and your partner find yourselves in dispute over immunisation and approach the Family Court for assistance, the court will always ask the question “what is in the best interest of the child?  In the cases of Duke-Randall & Randall [2014] FamCA 126, Kingsford & Kingsford [2012] FamCA 889 and Redden & Mains [2010] FMCAfam 1338, the Court has determined that given there were no contraindicators it was in the best interest of the child to be immunised.

Valuations in Family Law Matters

In 2015 we have seen a growing need to obtain expert valuations of corporate and business structures, personal and commercial goodwill, residential, commercial and industrial real estate and employee stock options to name but a few as part of resolving the financial affairs of separating couples. Long gone are the days of straightforward family law matters with many clients now needing to rely upon forensic accountants and expert valuers to assist in a resolution of their financial affairs.

All family law valuations need to be approached with the particular facts and circumstances of each matter clearly prioritised. The appropriate methodology to be applied will depend very much on the individual aspects of each case.

In circumstances where for example your former spouse holds a share or a minority interest in a business, as part of that valuation process it is necessary to consider what discount (if any) should apply to the value of that commercial interest. If you and your partner are in a dispute about the value to attribute to your ownership of a minority interest the Court will ask the parties “what is the value of the shares to the shareholding party?”…it is questions of “the value to owner” and “the highest and best use” that the Family Court looks to when establishing the appropriate value of such an interest not broad valuation concepts such as the “hypothetical purchaser/vendor” principle.

There are many methodologies and considerations at play when undertaking a valuation exercise for family law purposes and determining what is a just and equitable division of property. Capital gains tax implications and tax consequences generally are crucial to bring to the table when seeking to secure a “clean break” of property and financial matters after a separation. Engaging an appropriately qualified expert at this time can be a critical move. Knowing who to engage, how to instruct the expert and what questions to ask can make a significant difference to the outcome in your case.

Mediation Trends in 2015

The use of mediation in family law has continued to grow in 2015, including the use of solicitor assisted family law mediation.

Mediation is a method of alternative dispute resolution (ADR) whereby parties attempt to resolve their matter using the services of an independent third party (mediator) to negotiate a settlement.

Doolan Wagner Family Lawyers offers mediation services and has a Registered Family Dispute Resolution Practitioner to assist clients in relation to their family law matters.

So what have we noticed in 2015?

Generally we have noticed that there has been an increasing interest to  avoid the court process altogether by negotiating, as well as using mediation and other alternative dispute resolution mechanisms to resolve their outstanding family law matters.  This has likely occurred due to lengthy delays in and the often prohibitive costs of engaging in the family law  court system.

However we have also found that some parties have been hesitant to engage in ‘private’ mediation when they have sought independent legal advice. In those cases we have seen that many parties have preferred to engage in solicitor assisted mediation to negotiate and/or settle their matter.

Solicitor assisted mediation can be helpful to parties because experienced family law solicitors bring additional skills to the negotiation table and can also help their clients see more clearly beyond the emotional aspects of their family law matter. This may empower a party and put them in a better position to negotiate with their former spouse to resolve outstanding issues or their matter as a whole.

Family Court Registries Going “Cashless” from 1 July 2015

For some time there have been murmurings amongst family lawyers and court staff that the Family Law Registries would only accept payment by credit card (or EFTPOS if paying in person).

From 1 July 2015 the Family Law Registries will no longer accept payments by cash or cheque. All Family Law Registries will now require all filing parties to provide an original completed and signed Credit Card Payment Authority Form with all documents attracting filing fees at the time those documents are being filed in the Court.  No longer will cash or other means of payment be acceptable.

What does that mean for you?

Really, it’s not a big deal…In early 2015 Doolan Wagner Family Lawyers took the pre-emptive step of implementing the “cashless” payment method to pay court filing fees. This means our clients have been using this “new” system for some time. Wherever possible we have also been using the Commonwealth Courts Portal to e-file documents for our clients, saving them more time and money.

If you are separated or thinking of separating and need help with:

– parenting issues including immunisation issues

– securing the best outcome in your family law matter where complex financial and/or business interests are involved

– considering mediation for you and your former spouse to resolve outstanding matters, or

– filing family court documents, paying federal circuit court fees and payment methods generally…

or any other family law matter…then contact Doolan Wagner Family Lawyers on enquiries@familylawyersdw.com.au or (02) 9437 0010 for further information on how we can help you. We are conveniently located in St Leonards on Sydney’s Lower North Shore and are easily accessible by public transport and car.

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.

New Family Court Judge Appointed

On 28 May 2015 the Federal Government announced the appointment of former Commonwealth Attorney-General Mr Robert McClelland as a Judge of the Family Court of Australia.  Mr McClelland will commence his appointment on 16 June 2015 and will be based in the Sydney Registry of the Family Court.  Following swearing in, he will be referred to as ‘His Honour McClelland, J.’

Prior to this appointment, Mr McClelland had developed an impressive profile in the community.  In 1996 he was elected as the Federal Member for Barton and following this position, undertook service as Australia’s Attorney-General.  Prior to his political career Mr McClelland practiced as a solicitor and was called to the Bar in 2011.  He is currently a partner at Carroll & O’Dea Lawyers.

At Doolan Wagner Family Lawyers we welcome Mr McClelland’s appointment to the Family Court Bench in the Sydney registry.  During his term as Commonwealth Attorney-General during the period 2007 to 2011, Mr McClelland was committed to improving the family law system and was responsible for the introduction of several important changes to the Family Law Act 1975, which aimed at improving support to separating families and advancing the family law system in its response to issues surrounding family violence and child abuse.  In 2011 Attorney-General McClelland introduced legislation that redefined domestic violence, in turn placing greater weight on child safety.

Today, the definition of ‘family violence’ at s4AB of the Family Law Act 1975 is as follows:

For the purposes of this Act, family violence means 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.

During 2011, the amendments to the Family Law Act 1975 included a paring back of the evidentiary burden of proving a child’s risk of violence.  At that time, Mr McClelland noted that the Family Law Legislation Amendment Bill 2011 would create a safer and fairer family law system and put the safety of children first.  “It will help people within the system to understand and recognise family violence and child abuse, and encourage them to act”, he said.  Mr McClelland supported and promoted the child’s right to a meaningful relationship with both parents, but highlighted that the child’s best interest was paramount.  In this regard, he was of the view that shared care from both parents was supported, but only where it was safe for the child.

During his tenure as Attorney-General, Mr McClelland also highlighted the need for further alternative dispute resolution mechanisms in the family law context and was resilient in his commitment to increasing options available for resolving disputes out of the courts, especially for parenting and property matters.  Mr McClelland spoke of the need to attend family dispute resolution, not just in parenting matters, but also in property and spousal maintenance matters.  In this way, Mr McClelland continued to focus on how best to use court resources in applying suitable resolutions to family law matters.

If you or someone you know is experiencing family violence, or you are in dispute with your partner over property or parenting issues, then Doolan Wagner Family Lawyers can help you.  Call 02 9437 0010 or email enquiries@familylawyersdw.com.au to arrange a confidential discussion.

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

Divorce, Nullity and Annulment

Divorce, nullity and annulment are words that are often used interchangeably by people seeking to end their marriages. In Australia divorce, nullity and annulment have very different legal meanings and each of these avenues must be approached in very different ways.

Do you know the difference?

Divorce

Divorce marks the legal end to your marriage. It dissolves a valid marriage according to civil law. Since the Family Law Act 1975 established the principle of a no fault divorce the only ground for a divorce in Australia is the irretrievable breakdown of the marriage. Long gone are the days of private investigators peering over backyard fences to prove infidelity. Now, you simply need to establish that you have been living separately and apart (even if under the one roof) for at least a period of twelve months prior to filing an Application for Divorce.

Parties are regarded as living separately and apart under one roof when they separate if they continue to physically live in the same home. This may occur because financially they cannot afford to separate and maintain two separate homes or because there are children of the marriage who would be to disadvantaged at that time by having their parents live separately.

When parties live separately and apart under one roof and make an Application to the Court for a Divorce they are required to provide extra information. This information is contained in an Affidavit. The information in the Affidavit satisfies the Court that there has been a change in the marriage and the parties have separated. It is also sometimes necessary that an independent third party provides a supporting Affidavit which sets out what they knew about the parties separation. Some of the information required in the Applicant’s Affidavit includes:

  1. What changes have taken place in respect of sleeping arrangements, such as no longer sharing a marital bed and now sleeping in separate bedrooms or in separate beds.
  2. How there has been a reduction in shared activities or family outings, such as not attending “family lunches” with each party’s extended families or parents taking turns to take the children on outings but not going on those outings together as a family.
  3. How the parties have reduced undertaking household responsibilities for each other, such as cooking and washing laundry only for themselves.
  4. Whether there has been some division of finances, such as each party opening and operating their own separate bank account and using this money to meet their personal costs.
  5. Whether you have told family and friends of your separation.
  6. Why you have continued to live in the same home after separating and whether you have any intentions of changing those living arrangements.
  7. Any government departments you have advised of your separation such as Centrelink or the Child Support Agency.
  8. The arrangements made for any minor children whilst you have been living under the one roof.

The Court is interested to know what care arrangements have been put in place for children following separation and whether the parties are contemplating any changes to those arrangements after obtaining their Divorce. A child of the marriage includes:

  1. any child of you and your spouse, including children born before the marriage or after separation; or
  2. any child who was treated as a member of your family prior to separation such as an adopted child, step-child or foster child.

Some of the issues surrounding care arrangements for each child that are considered relevant by the Court include:

  1. Where the child lives and who the child lives with, such as new partners, grandparents, other children or an independent third party like a housemate. If a child lives with both parents in a “shared care” arrangement then information should be provided in respect of both homes.
  2. Whether one party spends time with and/or communicates with the child but they do not actually live with that person.
  3. Who financially supports the child and in what way.
  4. Whether the child is healthy or suffers from a health condition and what treatments (if any) the child is receiving.
  5. How the child is being educated and how they are progressing with their education.
  6. Any other matter which the Applicant believes the Court ought to know about the child.

Nullity

Asking the Court for a decree of nullity is asking the Court to find that there never was a valid marriage. The Court can only make a finding that there never was a valid marriage in very limited circumstances. These circumstances are:

  1. That the couple were too closely related to be allowed to marry. Details of what relationships are regarded as “too close” are contained in the Marriage Act 1961. In recent years these rules have been relaxed so now aunts, uncles and cousins are free to marry each other.
  2. That the actually marriage ceremony was a fake. This may happen if:
    2.1.  A completed Notice of Intended Marriage form, which is required by law, is not given to a marriage celebrant at least one month before the wedding or is given more than eighteen months before the wedding.
    2.2.  An unauthorised celebrant performs the marriage. Only an authorised celebrant can legally perform a marriage. There are three kinds of authorised celebrants being Commonwealth-registered marriage celebrants, Ministers of religion of a recognised denomination who perform religious ceremonies and State officials who perform civil ceremonies.
    2.3.  The marriage took place overseas and was not recognised as valid under the law of the country in which it took place at the time it took place and/or the marriage would not have been recognised as valid under Australian law if the marriage had in fact taken place in Australia.
  3. That at least one of the parties did not provide a real consent. The types of things that enable a party to prove their consent was not forthcoming include:
    3.1.   Where there was a mistake as to the identity of the other person or a total lack of understanding as to what the ceremony actually was; or
    3.2.  One of the parties did not have the mental capacity to understand the nature and effect of the ceremony; or
    3.3.  The marriage was obtained by duress or fraud.
  4. That one of the parties was not of marriageable age, which is defined in the Marriage Act 1961as being eighteen (18) years of age. Permission to marry after the age of sixteen (16) years may be obtained from the Court.
  5. That the marriage was bigamous i.e. because one of the parties was already married to someone else at the same time.

Annulment

An annulment is most widely understood as being a religious declaration. Broadly speaking an annulment recognises that even though a marriage was valid (and even if children are borne to that marriage) the union or bond of the marriage did not come into being. This can be the case even if there is a great deal of love, commitment and genuineness in the marriage.

An annulment does not have any effect in civil law i.e. it is not a divorce.

An annulment is a request made to a religious body asking that religious body to find that at least one of the parties to the marriage lacked the capacity to enter into the sacred bond or union of marriage. In this process the Church, Synagogue or other religious body focuses on somewhat different considerations including the level of the parties’ maturity at the time of the marriage, their ability to act responsibly and independently, their level of freedom and their ability to resist outside influences.

In some religions it is also necessary to apply for a “religious” divorce which is recognised by the religion in addition to applying for a Divorce through the Court. In Islam this is known as talaq and in Judaism as a get. These religious divorces are granted by a religious body upon request but do not have any effect in civil law i.e. it is not a recognised legal divorce.

If you would like to know more about divorce or want to talk about the possibility of being successful in securing a declaration of nullity from the Family Court, then get in touch with us at Doolan Wagner Family Lawyers by calling 02 9437 0010 or emailing enquiries@familylawyersdw.com.au to arrange a confidential discussion. We guarantee that we can help you.

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

Divorce Costs Rise After 2015 Budget

Family law costs are understandably a big consideration for a couple when they separate.

Putting aside for a moment the costs of your family lawyer, court fees in the Federal Circuit Court and the Family Court place a significant financial burden on families facing separation.

If you are looking to file an Application for Divorce in the Federal Circuit Court a filing fee of $845 is presently payable. Unless you qualify for the limited fee relief that is available these court costs are payable whether you file the Divorce Application solely or jointly with your former spouse.

Fees are also payable to the Court at various stages of all family law proceedings. Currently these fees include:

  1. A fee of $320 if you wish to file an Initiating Application in the Federal Circuit Court for parenting orders;
  2. A fee of $155 if you wish to file Consent Orders in the Family Court;
  3. A fee of $55 if you wish to issue a Subpoena in the Federal Circuit Court; and
  4. A fee of $805 per day if you are the Applicant in Family Court proceedings and your matter is listed for final hearing.

It is easy to believe that these court costs quickly add up and over time, if your family law matter does not resolve, these fees can amount to thousands of dollars.

The 2015 Federal Budget Papers reveal that from 1 July 2015 the Government is looking to raise these fees even higher.

What will this mean?

It is yet to be seen what impact these anticipated fee hikes will have on separating families.

Most likely huge jumps in family court fees will further impair access to justice for many already marginalised families.

This may spur separating couples to explore alternate dispute resolution and other “out of court” options to resolve their family law disputes. Increasingly we are seeing family mediation and collaborative practice as popular avenues for separating couples looking to keep their family law costs down. Our divorce lawyers are highly experienced in “out of court” family law settlement negotiations.

The increase in fees may also act as a greater deterrent to some families making them less likely to properly document their negotiated agreements in Consent Orders. As a consequence many families may miss out on the necessary protection and certainty that Consent Orders can provide.

Choosing not to document a family law settlement properly can have long lasting, serious and unintended consequences. It may mean that your former spouse comes back down the track and tries to make a claim against you or even your Estate when you thought that “that part of your life” was behind you. Without a property settlement being formally documented you will not have available to you many stamp duty and other tax concessions that may otherwise apply.

It can only be hoped that some of this revenue raising will be returned to the Court itself and provide crucial additional funding necessary to adequately resource the Court’s administration. In turn an increase in court resources may have the benefit of reducing the current waiting times that parties face when they separate and are required to approach the Court for relief.

Presently these delays in the Sydney Registry of the Family Court and Federal Circuit Court extend beyond a year. Many separating couples hope to resolve their matter quickly so that they can move forward with their lives. All court delays add to frustrate and undermine this desire to achieve an early closure after separation.

Even though we have very little control over the Federal Budget there are some steps you can take to manage these creeping court costs. If you would like specialist family law advice about your separation and divorce so that you can contain your overall legal costs then contact us at Doolan Wagner Family Lawyers on enquiries@familylawyersdw.com.au or call 9437 0010. We have Accredited Family Law Specialists and Registered Family Dispute Resolution Practitioners here 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 Anxiety & Child Custody

Do you have a child who is suffering from separation anxiety? Is your family experiencing a separation?

Children suffering separation anxiety and children at the centre of child custody disputes are both topics that have individually received a great deal of attention.

If you are separating and have a child or children who have in the past or continue to experience separation anxiety you may want to know what the Family Court might do.

Separation and divorce are widely understood to be hugely stressful life experiences and as much as we, as adults, try to shield our children in the process it is almost inevitable that separation and divorce fundamentally affects children’s lives.

When children of separating parents are resilient and conflict between their parents is low there is a strong likelihood that they will continue to thrive and meet all the developmental milestones at a similar rate to their peers. This conclusion is consistently reflected in research. However, when children are more vulnerable, the Court is sometimes asked to intervene and make decisions about how to protect a child’s best interests.

This is just what the Federal Circuit Court was asked to consider in the case of Harricks & Harricks [2014] FCCA 2724.

In that case a nine year old boy had in early 2012 been identified by his then treating psychologist as meeting the diagnostic criteria for separation anxiety disorder. This young boy was the focus of the Court’ attention in the Federal Circuit Court case of Harricks & Harricks [2014] FCCA 2724.

By way of background the young boy’s parents met whilst the mother was living and working abroad. The mother fell pregnant when she was dating the father and returned to Australia to live. After a short time the father followed her to Australia where they married. The parties separated in November 2005 when the little boy was only two months of age. The extent of time that the father had spent with the boy and his involvement in his life in the early years was the subject of dispute at the trial. However for periods of time the little boy had spent time most weekends, including overnight time, with his father as well as living with his father for a period in about mid-2010 when the mother was involved in a serious motor vehicle accident as a result of which she experienced severe spinal injuries and was required to undergo a period of hospitalisation. The mother reported at hearing that since birth the little boy had experienced difficulties with sleep and had, since starting school, exhibited behaviours related to a generalised anxiety disorder including crippling panic attacks, losing bladder control, poor concentration at school and overwhelming shyness. In 2011 the mother sought help and was referred to a clinical psychologist who from November 2011 to early February 2012 consulted with the little boy on six separate occasions. Some progress was identified however by late 2012 the little boy’s anxiety was reported by the mother to have significantly heightened to the point where the mother was having difficulty ensuring that the little boy either attend school or spend time with his father.

In early 2013 the father commenced family law proceedings and notwithstanding several family law Consent Orders being subsequently made, by early 2012 his relationship with his young son had broken down completely. No one suggested that the father was the cause of the young boy’s anxiety but rather that the child’s separation anxiety was severely impacting on his ability to have a relationship with his father among other things.

The child’s treating psychologist was asked to provide both information, reports and answers to questions in relation to the child and, shortly following a telephone conversation with the Court’s Family Report writer declined to further assist the child citing an unfamiliarity with court process as one of her significant reasons. The Court made no criticisms of the treating psychologist and in fact went to significant lengths to recognise the professional manner in which she had both assisted the child and attempted to assist more broadly the family and their respective family law representatives.

The pressing issue before the Court when it was first listed for trial was the need to obtain an alternate medical service to treat the child’s diagnosed medical condition, particularly his separation anxiety. It was suggested to the Court that an alternate service was difficult to source given the broader medical community’s reluctance to become drawn into family court litigation.

After considerable effort, over a period of two days, the Court made an interim order with the consent of all parties restraining each party and the Independent Children’s Lawyer from subpoenaing any treating medical practitioner or member of staff of any public health agency providing treatment to the child to either attend Court and give evidence or to request any such service provider to provide a report. The ability of the parties to issue subpoena for the production of any medical records provided by such further service provider however remained intact.

This case touches upon and highlights the continuing tension that exists between the law and the medical profession in respect of the disclosure of information and the like that doctors and treating clinicians regard as confidential in nature. This is a tension that continues to exist and is difficult to navigate particularly in family law matters. The interim orders made by consent in this case outlined a practical way forward to ensure that the boy’s best interests were properly served.

Having assisted family law clients on Sydney’s North Shore for more than twenty years we have found that a number of families with children experiencing anxiety reported to us of having been helped by the “Cool Kids” program run by Macquarie University. Whilst this is not the only service provider it is a highly regarded provider and assists people from the Sydney Metropolitan area and is conveniently located for those people living on Sydney’s North Shore, in the Inner West and Ryde. It is also easily accessible by public transport (train) from Chatswood given the new train station located at Macquarie University.

If your child is receiving treatment for anxiety or another sensitive issue and your family is also experiencing a separation you can be confident that Doolan Wagner Family Lawyers are well placed to assist you navigate the best way forward for your child.

If you are separating or involved in family law litigation involving your children and want to talk about how best to approach this particular situation then call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners here to help at this really 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.

Are you looking for a highly experienced family lawyer?

For over two decades we have been assisting and advising people from the Lindfield area in preparation for and through their separation and divorce. During that time our family lawyers have seen a significant change in the demographics of the area.

Today, with many people likely to marry and separate at older ages, more and more of our clients from the Lindfield area are “child free” “empty nesters” who no longer have dependent children living at home or alternatively have high-school aged children who are becoming more independent, and perhaps undertaking the final years of their schooling.

As long time practicing family lawyers we know that a separation can be instigated by one or both parties, may be long and carefully planned for, or can come completely out of left field for one of the parties. Whatever the situation might be we know that a separation is never easy or pain-free for either party. We know that the parties are likely to experience some sense of loss and grief, to feel heartbroken or sad and to feel like their situation is really harsh, bewildering, and drawn-out. However we know with our professional help it will get better and you will secure an outcome that works for you…eventually your separation and divorce will become a short chapter of your backstory.

As a result of seeing more and more financially “stable” and mature clients we have discovered that, instead of worrying about how their separation will affect their young children, many are looking for advice on how to approach their new “single” life and all the challenges that this brings. Many want to achieve long-term financial security and to maintain the lifestyle they have come to enjoy and accordingly we have found that these clients are more concerned with:

  • becoming financially independent;
  • having access to superannuation to fund their retirement years;
  • having an unencumbered and suitable primary residence;
  • managing living separately and apart under the same roof for a period of time;
  • maintaining relationships formed with their local community;
  • ensuring that their decision making is based on the reality of their situation including their future needs and any health concerns;
  • having reasonably amicable relationship breakdowns;
  • protecting family assets against claims by third parties including new partners, second families and creditors;
  • being in the position of supporting adult children of the relationship through university/tertiary studies, their careers and entering into Sydney’s property market;
  • divesting themselves of assets, complicated corporate structures (such as family businesses) and family trusts;
  • untangling the often complicated financial background of their lives which may have been in place for decades; and
  • wanting or needing to undertake a career change and/or to retrain in their chosen field, or secure employment on a part-time basis as part of a transition to retirement strategy, or in the case of younger clients needing to fund their new single living arrangements.

As Accredited Family Law Specialists who are recognised by the Law Society of NSW our family lawyers are expertly placed to assist people from all walks of life in respect of all family law matters, and in particular we undertake work on financial settlements on a day-to-day basis. We have assisted past clients with all manner of financial settlements, from the straight-forward to the more entangled and complex. We know that a separation and/or divorce can be the most devastating event that a person can experience. At Doolan Wagner Family Lawyers our expert family lawyers are strongly committed to providing all of our clients with the highest level of sensitive and personal service and support as they navigate their way through the highs and lows of their separation and divorce. Our collaborative approach in nearly all of our family law matters attempts to:

  • provide clients with the highest level of input in the settlement process and to allow the parties to keep the channels of commination open so that there is as minimal an effect on their ongoing relationship as possible;
  • give parties a higher level of control of their matter than the alternative court-based methods; and
  • allow independent professionals to have input into the settlement negotiations and/or drafting/review of settlement documents to ensure that the parties will have the most tax effective, financially viable outcome possibly achievable in their circumstances.

We also understand that often our clients are wanting to maintain their dignity, want to continue to have strong relationships with their families and wish to be able to share in future family special occasions including their family weddings, christening and birthdays, as well as Easter and Christmas celebrations. Our Accredited Family Law Specialists are experts at navigating what can be the very difficult family law terrain. Their special and thoughtful assistance will put you in the best position to maintain the most positive relationships with your ex-partner/spouse and your extended family possible. By striving, wherever possible, to use a collaborative approach in each matter

We have often assisted clients who are entangled in long term financial arrangements by helping them to get an idea of the “big picture” through the obtaining of independent financial and accounting advice (including expert forensic accounting professionals) and engagement of expert valuers to value assets and liabilities of the relationship such as real estate, chattels (including furniture, antiques and artworks), corporate entities, agricultural interests, self-managed superannuation funds and the like.

We also have a significant amount of experience in assisting couples with their negotiations of property settlements, both direct between the parties with us providing legal advice from “side stage” and through our attendance at roundtable settlement conferences, mediations and arbitrations. Following on from many of those successful negotiations our family lawyers have been responsible for the drafting and/or reviewing of “iron clad” terms of settlement (contained in financial agreements or Consent Orders) which contain provisions for superannuation splitting, spousal maintenance and the divestment of jointly accumulated assets and liabilities. We have also assisted parties with their representation in court proceedings and have significant experience in dealing with the court process and other family law practitioners.

Whatever your circumstances are, we promise you that we will listen to you to ascertain your wants, needs and concerns so that we can offer you tailored advice which fits your personal circumstances and secures a resolution of your matter which reflects your specific goals.

In our experience we have found that, regardless of the complexity of the financial settlement at hand, it is very important that you have a clear legal strategy in place prior to coming to the negotiating table or engaging in the court process so that you are able to maximise your property settlement entitlements. 

Our Services:

  • Family Dispute Resolution and mediation services including collaborative practices.
  • Preparation of clients in the creating of a “master plan” (legal strategy) for undertaking negotiations with their former partner or spouse;
  • Property/Financial Settlements, including superannuation splitting, spouse maintenance and adult child support provisions; In particular ensuring that we obtain the most tax effective settlement for all of our clients;
  • Drafting and reviewing settlement documents including Consent Orders, Binding Financial Agreements, Deeds of Release in respect of commercial entities and Release Agreements in respect of future Succession Act claims;
  • Coordinating your family law matter with regard to estate and succession planning issues;
  • Providing assistance with respect to the securing of future income streams;
  • Divorces, including separation under one roof;
  • De facto Relationship matters.

Making the decision to separate or divorce is never easy and is likely to have a profound effect on you, your financial security and your family generally. Getting specialist family law advice and guidance early in your separation will set you on the right path towards a steadier and more certain future. If you are separated or are thinking about separating and would like to know where you would stand financially in a family law property settlement we know we can help you because we have highly regarded Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners on our team. So please take the first step and call us on 9437 0010 or email enquiries@familylawyersdw.com.au

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

What to do when children don’t want to go home

What do you do if your children don’t want to go home after contact? Have you ever been faced with this dilemma at contact changeover times?

We are frequently asked questions like “Do I have to return the children?”

These sorts of questions often arises in the context of returning the children to the parent with whom they normally live after they have been away on holidays with the other parent.

Of course, the right answer to that question is only able to be given when all of the circumstances of the particular family situation are known. However the paramount consideration in all parenting cases is the best interests of the children. So how does this overriding principle help answer the question?

Essentially, it is necessary to weigh up all the necessary factors and then balance the two primary considerations namely:

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

These primary considerations must be considered in every parenting case.

In circumstances where there are no parenting orders in place the Court must consider all relevant matters including the age and wishes of the child, his or her relationship with both parents, the attitudes each parent takes to promoting the child’s relationship with the other parent and the current circumstances of the child and how those circumstances have arisen in order to help it balance what is best for the child.

So, if a child of tender years who has enjoyed a wonderful “Disneyland-esque” type holiday with the parent with whom they do not normally live, throws a tantrum at the prospect of returning to the routine of home then it is unlikely that those facts will support the “holidaying” parent retaining the child. This is even more so in circumstances where that parent may have coaxed or influenced the child to behave in that way.

The Court would expect such a parent at the end of the holiday to behave responsibly and in the best interests of the child and return him or her to their primary home notwithstanding that they might have been having a meltdown.

On the other hand, if two teenage children, over the course of an extended period of time (be it holidays or not), at the end of a holiday disclose certain concerning matters relating to the home of the other parent and indicate strongly that they wish to stay with the “holidaying” parent then such circumstances may warrant a change in the living arrangements for those children. However it is only in very limited situations that any change can be enforced simply by retaining the child and not taking steps to formalise this arrangement. The expression “possession is nine tenths of the law” certainly does not apply when it comes to children, nor should it.

The appropriate course in all cases, including where there is an unacceptable risk to the child, is to file an urgent Application setting out the Orders you seek, namely for the child or children to live with you and providing an Affidavit in support of that Application setting out the reasons for the Orders sought. These reasons may include:

  1. The children are refusing to go to school if they are returned to their “resident” parent;
  2. Or, as is commonly the case, the children are threatening or actually running away; or
  3. In more difficult cases a child or children may threaten harm to themselves or to others.

If Court Orders are already in place which require a parent to return children to the other parent at a certain time and those Orders are disobeyed then the breach can result in a parent being found in contravention of the Orders and facing penalties including fines and/or imprisonment (however this rarely occurs). It is important to understand though that a parent who has been able to show a “reasonable excuse” to explain why they have breached a parenting Order can successfully defend contravention proceedings.

At all times it is crucial to place the child’s best interests as your priority. Taking a step back and reflecting on the overall situation can sometimes help a parent to make the best decision in what can be understandably an otherwise extremely harrowing dilemma.

If you are experiencing these dilemmas and really don’t know what step to take next or how to handle the situation and do what is best for your kids get in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer accredited family law specialists to help you with parenting and 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.

Separation, A 2014 report into Australian Family Law

If you have separated or are thinking about separating and are wanting to know what is going to happen next and how long the process is going to take then keep reading as this article contains some very useful information.

The Attorney General’s Department has recently released an extensive report “Post- Separation Parenting, Property and Relationship Dynamics After Five Years” to enquire into the long-term impact of the 2006 Family Law Reforms.

In summary, the 2006 Family Law Reforms were designed with the main objectives of:

  • Strengthening family relationships;
  • Preventing parental separation, where possible;
  • Encouraging both parents to remain involved in children’s lives after separation;
  • Protecting children from violence and abuse; and
  • Supporting families to avoid court proceedings when making parenting arrangements after separation.

Encouragingly, the report found that:

  1. Most mothers and fathers describe their post-separation relationship with their former spouse in positive terms, i.e. either friendly or cooperative. Less positive relationships were more commonly described as distant rather than conflictual or fearful.
  2. The frequency of communication between the parents after separation tended to reduce over time however in the majority of families taking part in the survey, separated parents were talking to their ex-spouses about their children on average each week.
  3. The majority of parents reporting emotional abuse by the other parent had reduced significantly over the five year period however many still describe being the subject of humiliating insults, circulation of defamatory comments and to a lesser extent knowing of the other party’s whereabouts.
  4. There was a reduction over time in the safety concerns about the children when in the care of the other parent. The large majority of those who continued to hold safety concerns at the end of the five year period had reported their concerns to authorities (e.g. police) or other services. The presence of mental health issues or alcohol and/or substance abuse was considerable among the group where safety concerns remained an issue.
  5. The majority of parents who used services for information and advice believed that such services and advice had helped them settle their family dispute after separation. The proportion who considered the service they received as the most helpful and of the greatest benefit were those parents who used a family lawyer.
  6. The majority of parents had sorted out their parenting arrangements during this period with the two most common parenting arrangements being either the children living with their mother for the majority of nights or in a shared care arrangement. Shared care arrangements were more common in primary and early secondary school aged children. In 6 out of 10 families those care arrangements had changed during the five year period that the survey focussed on.
  7. About 45% of parents had resolved their property dispute within twelve (12) months of separation and another 25% within two (2) years of their separation. The remaining 30% who took longer than two (2) years to resolve their property dispute tended to have a higher level of assets and required additional time to work through all the issues.
  8. Payments of child support were, in the majority of cases, paid in full and on time. However a significant proportion of paying fathers reported some resentment because they had no say in how the child support money was being spent.
  9. Parents reported favourably about their children’s wellbeing after separating including their progress in learning, peer relationships and overall development.

Further, there did not seem to be a strong link between the type of post separation “care time” parenting arrangements and a child’s wellbeing.

However, it is to be noted that a minority of parents continued to report significant difficulties. These included experiencing ongoing family violence and abuse, maintaining safety concerns about children and/or continuing to experience a conflictual and fearful post-separation relationship with their former spouse. In concluding the report noted that professionals in the family law system overall play a constructive and coordinated role in untangling the serious predicament that separating families can face. People experiencing a separation are significantly benefited by engaging family law experts to assist them right from the start.

At Doolan Wagner Family Lawyers we strive to assist our clients through the separation and divorce process each and every day. If you are separating and want professional help and guidance at each critical stage then call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists who are experts in all areas of family law and are here to help you at this stressful 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.