International Family Law and Asset Division

How do I protect my overseas assets during separation?

My relationship has ended but my partner and I are in different countries what do I do?

I have properties and trusts held in several countries but where is the best place to commence my divorce proceedings?

These are the questions being raised by family law clients more regularly as more family law matters are being brought to the Courts attention involving international aspects. This may include overseas properties, monies held in international accounts, international shareholdings and pensions held outside of Australia.

When determining the best way for such matters to be determined, as part of working towards a division of the matrimonial asset pool, the following considerations arise:

  1. Does the Family Court or the Federal Circuit Court of Australia have jurisdiction to determine the case.
  2. Given that various assets may be held in a number of countries, is there a foreign jurisdiction that would also be able to determine your case and are there advantages or disadvantages to your case being heard in a jurisdiction outside of Australia.
  3. If the Australian courts are determined to have jurisdiction to deal with the assets, what is the likelihood of an Australian judgement or court Order being enforced in the country where the asset/s are held.
  4. If proceedings were commenced in another jurisdiction outside Australia, do the Australian courts have the ability to grant an anti-suit injunction to restrain such proceedings from continuing.
  5. Are there multiple jurisdictions that could determine your matter and could certain aspects of you matter be dealt with in Australia and other aspects in the applicable overseas jurisdiction, so as to achieve the best outcome for you.

Another issue to consider is how secure are your overseas assets when they may be held in your former spouse or partners name. You may need to consider if there is a risk that your former spouse or partner may dispose of those assets without your knowledge. If there is an urgent risk you may need to consider obtaining injunctive relief from the Court to prevent assets being dissipated or wasted.

The Family Court of Australia has powers which are in personam in nature. Put plainly, this type of power allows the Court to make an Order compelling a party to deal with a particular (foreign or otherwise) asset. It cannot compel or direct or secure the outcome per se. It does not have the ability to enforce its Orders overseas as such, except to direct a party to comply with its directions.

In some instances, overseas jurisdictions will recognise an Order or decree made in Australia, and will enforce same as if it were an Order or decree of that country. This however varies from country to country and it will be a question for the foreign jurisdiction to decide whether they will recognise an Australian judgment and enforce the judgment against the particular property or asset.

In the recent case of Kent & Kent [2017] FamCAFC 157 one party to the marriage commenced proceedings by way of a Petition for Decree of Dissolution of Marriage in the National Court of Justice in Papua New Guinea. The other party commenced proceedings for settlement of property in the Family Court of Australia. Both parties filed applications seeking anti-suit injunctions against each other and the party in Papua New Guinea also sought a permanent stay of the Australian proceedings.

In this matter the parties met in 1968, were both Australian citizens and following their marriage the parties moved to Papua New Guinea where the husband ran his own business. The wife returned to Australia in 1997 and both parties then visited each other in the two countries up until 2013, when the wife stopped returning to Papua New Guinea. The parties held real estate in Australia and the husband’s business assets were situate in Papua New Guinea.  At the time of separation, the parties had been together for 48 years.

The Full Court found that the stay application was required to be addressed prior to the competing anti suit injunctions and looked at what matters needed to be taken into account in determining if Australia was a “clearly inappropriate forum”. The Full Court took from the case of Henry v Henry (2011) 45 FamLR 269 some of the following considerations:

  1. Whether both Courts have jurisdiction to hear the parties case;
  2. If both Courts do have jurisdiction, will each jurisdiction recognise the other’s orders and decrees;
  3. Which jurisdiction may be able to provide resolution to all of the matters involved;
  4. The time when each of the proceedings were commenced;
  5. The stage at which the proceedings in each of the jurisdictions had reached;
  6. The costs that the parties had incurred;
  7. The connection between the parties and each of the respective jurisdictions;
  8. Whether both parties were able to participate in each of the jurisdictions on equal footing (i.e. in cases where there may be a language barrier); and
  9. Taking into consideration the issues that are particular to that case and the general circumstances of the case.

There are many factors that need to be addressed and properly considered before even reaching the stage of commencing proceedings in such cases. This may seem overwhelming however as an Accredited Family Law Specialist firm, our team can assist you through the process so that you can rest assured that the best approach is taken, for you to achieve the best outcome possible, no matter where your assets may be located.

Please contact us on (02) 9437 0010 or enquiries@dev.elevatebusiness.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional Family Lawyers available to help you.

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

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 enquiries@familylawyersdw.com.au 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 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 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

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 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.

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 enquiries@familylawyersdw.com.au 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.

Coupledom – Are you in a De Facto Relationship?

Are you wondering whether your relationship is a bona fide de facto relationship?

Although it may be assumed that someone in a de facto relationship has the same rights as someone in a marriage, what sometimes happens when your relationship falls apart is that your partner alleges that they were never in a bona fide de facto relationship with you.

You may have been living with your partner and been in a relationship for more than two years but this may not be enough on its own to qualify your relationship as being recognised by the law as a bona fide de facto relationship.

So what does the law define as a de facto relationship?

Without a marriage certificate or the registration of your de facto relationship, the onus is on you to prove that your relationship existed under the laws of a State or Territory.

Section 4AA of the Family Law Act 1975 sets out the Meaning of de facto relationship and says

(1)  A person is in a de facto relationship with another person if:

(a)  the persons are not legally married to each other; and

(b)  the persons are not related by family (see subsection (6)); and

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The actual meaning of the definition whilst first appearing simple can get complicated.

So what considerations constitute a ‘genuine domestic basis’?


Part 2 of section 2AA of the Family Law Act 1975 sets out the criteria namely:

(a)  the duration of the relationship;

(b)  the nature and extent of their common residence;

(c)  whether a sexual relationship exists;

(d)  the degree of financial dependence or interdependence and any arrangements for financial support between them;

(e)  the ownership, use and acquisition of their property;

(f)  the degree of mutual commitment to a shared life;

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  the care and support of children;

(i)  the reputation and public aspects of the relationship.

This all sounds quite standard and reasonable but where it gets tricky is determining how much consideration a Judge may give to each of the criteria given that the court, in determining whether a de facto relationship exists, can have regard to such matters, and attach such weight to any matter, as may seem appropriate to it in the circumstances of the particular case.

Considering other cases helps us see how these criteria have been applied by the Court to ascertain if your relationship meets this criteria of living together on a “genuine domestic basis’.

One of the cases that has really shaken up the status of de facto parties having to prove their relationship is the case of Jonah and White [2011] FamCA 221. In this case there was a long relationship of 17 years, an exclusive sexual relationship apart from the Respondent also being married at the time and having a few one night stands and the Respondent contributed and financially supported the Applicant over 11 years.

Despite these factors his Honour at paragraph [60] said ‘In my opinion, the key to that definition of being in a de-facto relationship is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”  Further at paragraph [66] ‘In my opinion, the key to that definition (of being in a de-facto relationship) is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”.

The fact the parties had kept their finances separate, each maintained their own household, there was no evidence of a relationship between the applicant and the respondent’s children, there was no mingling with each other’s friends as a couple, and they did not spend time with each other’s extended families, was enough to support the notion that there was not a merger of lives or ‘coupledom’ between the parties to evidence their relationship was on a ‘genuine domestic basis’.

This case also considers the amendments made to the Family Law Act in March of 2009 which allowed the inclusion of another type of de facto relationship and this is one that allows those in a relationship with someone who may also be married or a same sex relationship at the same time as another relationship to be recognised under the law.

Therefore, your wife/husband and mistress/paramour may both have a right to make a claim against you if your relationship breaks down.

Another case where the parties were this time found to be a de-facto couple on a ‘genuine domestic basis’ is the case of Asprey & Delamarre [2013] FamCA 214. Despite conflicting evidence, her Honour found there was a relationship of eight (8) years, the parties lived in separate houses apart from a period of weeks after the birth of each of their children, they had considered living together and undertook searching for a home. It was found that they both had the intention to spend time together as a family just each on their own terms. Both parties were self-employed and maintained separate bank accounts. When they were together both parties shopped together and at paragraph [56] “At no time were the parties indifferent to each other or their shared life”. They were both involved with the care of their two children and involved with the respondent’s sons from his previous marriage. They spent time with each other’s families and held social events where they were known as a couple. In conclusion her Honour Clearly J’s judgement referred to the  “merger of two lives into coupledom” from  Jonah and White (2011) 45 Fam LR 460 at [60] that allowed her to infer that the parties were able to demonstrate a relationship of mutual commitment to a joint life and the notion of coupledom that determined the parties were in fact in a relationship on a genuine domestic basis.

It is important to remember that Applications to the Court must be made within two (2) years from the end of a de-facto relationship if an agreement cannot be finalised and documented.

If you would like assistance in understanding more about de facto relationships and your entitlements or simply want advice about your separation, please contact us on 94370010 or enquiries@familylawyersdw.com.au 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 enquiries@familylawyersdw.com.au to discuss your matter. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professionals available to help you.

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

Family Law News

Monday 27 February 2017 marks the start of a 2 week rolling list in the Sydney Registry of the Family Court where 11 judges will have listed before them almost 70 matters for hearing.

It is largely an initiative to address the dire shortage of family law resources and the consequent delays experienced by separating families in the court system. It is yet to be seen whether it will have any real positive long term impact on achieving timely family law outcomes for separating families who have been unable to resolve their matters amicably.

Achieving just and equitable outcomes in family law matters in a cost effective and expeditious way remains a challenge. More and more as a community we look to alternative means to resolve disputes. Mediation, Family Dispute Resolution, Conferencing and now Arbitration remain in the forefront of the minds of most experienced family lawyers in an effort to serve client demand. We simply want the best outcome for our clients and constantly strive to investigate and make use of strategies and forums to achieve that end.

On Saturday 18 February 2017 our family lawyers attended the latest Family Law Intensive Conference in Sydney. The day was well attended and again provided our professional staff with the support and up to date knowledge necessary to remain ahead of the game.

Dr Krabman spoke about family violence and options available for perpetrators of abuse and Federal Court judges and experienced family law barristers were available to share their insights into how the court must now operate so as to deal with the growing demands placed upon it.

The dedication of our professionals is a credit to each of them as they give up their personal time to ensure that the service we provide to separating spouses is second to none.

As a firm we continue to grow in size and are pleased to welcome Lucy Warhurst on board this month as a new addition to our family law team. We pride ourselves on being a strong and hardworking personal team and most importantly a team that is able to relate to and support our clients who face serious personal challenges in their lives

The many hundreds of clients whom we have helped over the years are the reason for our success and growth and to each of them we extend our sincerest thanks.

Despite the challenges that 2017 present, we remain optimistic that positive outcomes are achievable after separation and it remains a privilege to help, advise and represent people experiencing separation and divorce.

Well done Doolan Wagner Family Lawyers.

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 Consent Orders

Are you separating and looking to resolve things without going to Court? Do you need advice about entering into Consent Orders? Are you worried Consent Orders won’t address the specific dates that are significant to your family?

We know that there is no ‘one size fits all’ answer for separating families. Each family is different and accordingly, each family requires a tailored response.

At Doolan Wagner Family Lawyers, we appreciate that the holidays can be stressful time for separating families, particularly when young children are involved. It is for this very reason that we encourage families to address occasions of special significance when preparing Consent Orders.

Consent Orders can be tailored to the individual needs of your family and provide you with stability and predictability in an otherwise tumultuous time. Addressing occasions of special significance in Consent Orders also avoids the stress and conflict that can arise form trying to negotiate last minute arrangements during the holiday period.

We do our best to gain an understanding of the days that are important to your family so that we can prepare orders that address your families needs.

At Doolan Wagner Family Lawyers, our team has experience preparing orders that address parenting arrangements for significant occasions such as: Christmas, Easter, Chanukah, Passover, Yom Kippur, Chinese New Year, Ramadan and Eid to name a few.

We understand that for some families, preserving and sharing these religious traditions with their children is of critical importance. We also understand that parents want to share meaningful time with their children during these religious occasions, and we endeavour to negotiate arrangements that permit such time.

An example of arrangements made for Chanukah include:

1. That During Chanukah:

1.1.  If the children are not otherwise in the Mother’s care, the children will spend time with the Mother as agreed, and failing agreement, on the first night of Chanukah:

1.1.1 From 3:00pm or after school until 5:00pm the following day.

1.2 If the children are not otherwise in the Father’s care the children will spend time with the Father as agree, and failing agreement, on the second night of Chanukah:

1.2.1 From 5:00pm until 5:00pm the following day.

If you would like specialist family law advice in relation to preparing Consent Orders that address religious or cultural holidays that are important to your family, contact us at Doolan Wagner Family Lawyers on 94370010 or enquiries@familylawyersdw.com.au 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.

How long will my divorce settlement take?

Have you separated?

Are you wanting a quick and amicable settlement?

Understandably family law clients want to put their family law matter behind them and move on with their lives as quickly as possible. How easy is this to achieve?

We are usually asked 3 questions by a new client when first approached about a family law matter. The first question is what a likely outcome looks like for them. The next question is usually what steps they need to take to secure that outcome. Last but no less important is the question, “how long will the whole process take?

I have seen parties separate, reach agreement and have Consent Orders made by the Court in the space of six to eight weeks…that is some heady experience.  I have also acted for one or two clients over many years in relation to parenting matters where new issues continued to emerge and conflict was extremely high. Each of these examples probably lie at the extreme ends of the spectrum when considering the length of time it realistically takes to resolve a family law matter.

In 2014 the Attorney-General’s Department released a report entitled “Post-Separation Parenting, Property and Relationship Dynamics After Five Years”. As part of that study the researchers looked at the time it took hundreds of separating couples to resolve their family law matter. That study showed that in 45% of cases couples had resolved their family law dispute within twelve months of separation and another 25% of couples had resolved their dispute within two years of separation with the remaining families taking longer than two years to reach agreement. The report also suggested that the matters that took the longest to resolve were likely to be matters where the size of the pool of matrimonial assets was greater.

These findings support what my experience suggests to me, namely that family law matters take a bit of time to resolve. How long it will take to settle a family law matter however depends on a number of issues including:

  1. The level of complexity involved in the case;
  2. How well organised each party is;
  3. The amount of time that is required to negotiate the particular issues and generally;
  4. The willingness of both parties to reach agreement;
  5. Each party’s readiness to negotiate;
  6. How much each party is dependent on third parties to finalise the process. If a person is waiting on their accountant to prepare updated accounts and the accountant is “snowed under” then the process can quickly “blow out” by many months;
  7. Whether court proceedings are required;
  8. The nature and extent of any forensic tasks that need to be undertaken, e.g. engaging experts.

In most cases the time it takes family lawyers to draft agreements and the time it takes the Court to consider settlement documents and make Orders is usually a small part in the overall settlement process.  The time (and delays) that arise usually do so because:

  1. There is a difficulty in obtaining information and/or documents;
  2. One or both of the parties are reluctant to readily exchange all necessary and relevant information;
  3. One or both of the parties get stuck negotiating and are unable or unwilling to compromise; and/or
  4. One or both of the parties are not emotionally ready to disengage from the other and accept that a separation has occurred.

What does this all mean? After separation it is important to appreciate that a family law settlements can take time. Being realistic about not only what to expect in the settlement but also about how long it will take to reach a resolution allows each person to feel in control of the situation and not get disappointed with the process.

This ultimately frees you up to concentrate on what matters most, your family.

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

If you would like to know more about separation and divorce or want to talk about progressing your family law matter smoothly, then get in touch with us at Doolan Wagner Family Lawyers by calling on 94370010 or enquiries@familylawyersdw.com.au 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.