Divorce & Family Lawyers North Shore

Doolan Wagner Family Lawyers provide trusted divorce and family law advice and assistance to people on Sydney’s North Shore & North Sydney.

Are you looking for an Accredited Family Law Specialist lawyer on Sydney’s North Shore? Doolan Wagner Family Lawyers are pre-eminent family law solicitors you can rely on. For more than two decades our family lawyers have been assisting people in Sydney with their family law matters.

Our family lawyers’ expert experience and skills are recognised by the Law Society of New South Wales through its Accredited Specialist Scheme.

Our Services

We are expertly placed to assist you in relation to all family law matters including:

  • Divorces
  • De facto relationship matters
  • Same-sex relationship matters
  • Financial/property settlements
  • Parenting matters (including pertaining to assisted fertility issues)
  • Child support & Child Custody
  • Strong court representation
  • Assisted reproduction technology and Surrogacy
  • Some of the Issues Our Clients Face
  • Do you know the difference between a Divorce and a separation?
  • What about the difference between a property/financial settlement and a Divorce?

Believe it or not, although the words are often used interchangeably each of these matters is a very different legal issue with different ramifications. We can help you understand the differences and guide you through the family law process as it applies to your particular circumstances.

  • Did you know that until recently the law treated couples living in a De Facto arrangement very differently from couples who were married?
  • Did you know that the date of your separation can affect how the law applies to you?

If you’re living with someone else and you’re uncertain about your rights, we can help you work out what you’re entitled to.

  • You’ve probably heard a lot in the media about recognition of same-sex relationships and same-sex marriage.
  • Did you know that in recent years there have been significant reforms to the Australian legal framework which have allowed better recognition of same-sex couples and their children?

If you’re contemplating separating from your partner and you’re uncertain about your rights or responsibilities or how this may affect your children, we can help you understand your entitlements.

  • Have you used assisted fertility procedures to help you have a family?
  • Have you used a surrogate or donor to help you create your family?
  • Do you know what your rights and responsibilities are? Do you know theirs?
  • Do you know how your child legal rights may be affected by assisted fertility issues?

Family Law Accredited Specialists are required to undertake continued learning specifically in respect to issues relating to family law. Our divorce solicitors are well positioned to advise you in relation to all family law issues. We will provide appropriate legal assistance to you as you navigate this difficult new terrain.

  • Do you know what factors influence the calculation of child support by the Child Support Agency?
  • Do you know what changes in your or your former partner’s circumstances would allow for a change to the child support assessment?
  • Do you need a Binding Child Support Agreement?
  • Did you know you can be paid child support for a child aged over eighteen years of age if they’re still attending school?

Our highly experienced family lawyers are well versed in respect of the “rules” pertaining to child support and can provide you with clear advice on your rights and responsibilities in relation to all aspects of child support.

Why Choose Doolan Wagner?

We understand that people are often worried about involving themselves in what they fear are complex and expensive legal processes. We will give you clear and concise legal advice and guidance.

We are a specialist firm located conveniently in St Leonards on Sydney’s Lower North Shore. Visiting us is relatively stress-free and will help you avoid the congestion of Sydney’s CBD and the North Sydney Commercial Precinct. We are an easy 15-20 minute drive from Hornsby, Ryde, Gladesville, Chatswood and St Ives and there is ample street parking nearby. We are also only a short 2-3 minute walk from St Leonards train station. There are regular trains from Central, Hornsby and Epping. St Leonards station is a major stop for various local buses.

Affordable Family Lawyers North Sydney

And as a smaller firm, we don’t have the same overheads as some of the larger “city-based” firms. We understand that families facing a family breakdown are often facing added financial pressures as well. We do our best to keep your costs down by offering highly competitive rates. Our competitive fees don’t mean you will get anything other than top-quality legal advice and assistance because we promise that you will not just be a file in a cabinet to the family lawyers at our firm. We believe in giving all of our client’s personal care and attention.

Also read: How Much Does a Divorce Cost?

We also recognise that often clients may be confused about what the “real” or “live” issues are. Knowing how best to approach obtaining appropriate legal solutions in their divorce and separation is important. As a firm that only practices in the area of family law, our family lawyers have the level of experience that clients are looking for to assist them to face their separation, divorce and other family law issues with confidence. We can get to the “heart” of your matter quickly and won’t waste your time or money focusing on issues that don’t matter.

We will guide you through every aspect of your family law matter, from the first stages of legal planning through to finalisation of your family law matter. It is our view that, no matter how complex or simple your matter appears to be, it is essential to obtain early legal assistance from an experienced family lawyer (preferably an Accredited Family Law Specialist) so that you can get the answers you need. This will enable you and your family to positively move forward with your lives. It is very important that you have a clear legal plan prepared prior to engaging in any family law processes, whether it be approaching the negotiating table or filing an Application in the Court. We can help you with developing your legal strategy and assist you throughout the family law process.

Expert Divorce Lawyers North Sydney

We know that our help can put you in the best position to secure the optimal outcome that works for you and your family. Our Accredited Family Law Specialists are skilled at negotiating the often challenging family law setting. Their approaches, together with their sensitive and personal service and support, will put you in the best position free from uncertainty and unnecessary worry.

Whatever your circumstances are, we promise you that we will handle your matter with your personal circumstances at the forefront of our minds. We will listen to you to ascertain your wants, needs and concerns so that any advice we provide to you is tailored to your specific needs. We are not afraid to adapt our methods and approaches to suit your family’s needs and can either provide a sensitive approach or strong court representation, depending on your needs.

We have family lawyers who have had extensive experience in the collaborative law process and are collaboratively trained. By being able to engage in a more collaborative legal process in the majority of our family law matters we attempt to enable our clients to have the utmost input and control over their matter. This approach also allows independent professionals to contribute to the legal process to ensure that the parties will have the most appropriate, effective and positive outcome possibly achievable in their matter. And it also helps keep our clients costs down because we will do our best to settle matters by alternate dispute resolution mechanisms such as negotiation, roundtable settlement conferences, mediations and arbitrations.

If you’re still not convinced we can help you, perhaps reading some of our client testimonials will set your mind at ease…

Take the Next Step…

Facing issues in relation to intimate family or relationship matters can be stressful, daunting and worrisome. These matters have the potential to affect your emotional wellbeing, as well as have a substantial effect on the wellbeing of other family members and your finances. Obtaining timely specialist family law advice, guidance and support in relation to all family law matters will set you on the best path forward.

If you live or work on the North Shore of Sydney and:

  • are experiencing a relationship breakdown; or
  • need advice regarding your family’s circumstances; or
  • want to know more about your rights and responsibilities; or
  • just need to know where you stand…

We can help you because Lisa Wagner & her family law team is made up of highly experienced Accredited Family Law Specialists and highly regarded registered Family Dispute Resolution Practitioners. So, take the next step and call us on 9437 0010 or email enquiries@familylawyersdw.com.au to find out how 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 Lawyers North Shore FAQ’s

Back to School Costs After Separation – How Far Can Your Child Support Payments Go?

The payment of Child support continues to incite much heated conversations.  Whilst a government report commissioned a few years ago found that of those people surveyed:-

  1. many believed that the amount of child support being paid was considered to be about right; and
  2. many said that the actual child support that was being paid was being paid in full and on time.

we often hear people complaining that they are paying too much child support or not getting enough child support.

The basic child support formula is complicated and multi-layered. It relies upon detailed research into the costs of raising children in different age bands as its starting point. The basic formula then takes into account the parents respective relevant incomes and the amount of time that each of the children spend with each parent in determining an appropriate level of child support to be paid and/or received. The formula also makes allowances for new siblings and other dependents and for other “life” considerations. There are grounds upon which you can seek to change an administrative assessment of child support if, for example, you can satisfy the Department of Human Services that the income of one or both parents is not properly taken into account or the costs of raising your child or children are special in all of the circumstances. Provided you meet particular provisions these matters can also be considered by the Family Court.

However, how relevant is the basic formula for separating families living in most areas of Sydney?

Perhaps two of the biggest factors relevant to large parts of Sydney that are not necessarily captured in the basic child support formula are:

  1. The high costs of housing in Sydney; and
  2. The growing propensity to send children to private schools especially at the secondary school level.

These two factors weigh heavily on the budgets of most families not just those experiencing separation. Creeping housing costs in Sydney are difficult to escape. The cost of education and in particular “back to school” fees are also significant and are costs that we cannot have a great deal of control over.  Availing yourself of the second hand uniform stall or recycling hand-me-down clothes and books goes only a small way towards making ends meet.

The basic child support formula is meant to cover the costs of public school education and associated expenses including uniforms, shoes, stationary, books and the like.

Payments of child support do not “spike” in January/February each year to take extra “back to school” costs into account. If you are receiving child support and are obliged to meet all the “back to school” costs yourself then you either need to try to budget for this expensive time of year over the course of the previous twelve months, or as most people do, use credit cards and spend the next few months playing “catch-up”.

Private school fees and the extra expenses charged at most private schools along with the extra “back to school” costs generally are only payable by an ex-spouse if you have secured a departure order from the Court or have entered into a Binding Child Support Agreement with your former spouse or partner requiring that all or a proportion of those expenses are paid. In either case provision can be made for the payment of a raft of “back to school” expenses that are incurred at the start of the year or at other times including:

  • Laptops, IPads and IT expenses (even maintenance, repair and replacement costs)
  • Hockey sticks, team uniforms sports equipment and registration costs
  • Musical instruments, tuition and examination charges
  • Incursions, excursions and even overseas immersion trips
  • Camp fees, Cadets and Duke of Edinburgh

No matter what your budget or your circumstances after separation, it is vital to understand what all your true child costs are and also what they are likely to be moving forward, including non-recurring costs like “back to school” expenses. It is also essential to determine what real income will be available to meet all of these costs. “Back to school” costs which spike at the start of each year are a strong reminder of how important this is. This is true for all families but particularly so for families experiencing separation. Clearly setting out who will be responsible for all of these child related expenses is crucial and these obligations should be clearly included in a Binding Child Support Agreement or Court Orders. Without any settlement being documented in this way there is no real obligation for either parent to meet these costs and these costs can be really felt as children get ready to return to school each year.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you would like some more information about child support or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.  Lisa Wagner is the founding principal of Doolan Wagner Family Lawyers, an Accredited Family Law Specialist and a nationally registered Family Dispute Resolution Practitioner on Sydney’s North Shore.  We also have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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

Neutral Bay Family Law

Doolan Wagner Family Lawyers have been providing expert advice to people in Neutral Bay and surrounding areas for close to three (3) decades and understand the common issues and questions that arise for the local community.

Located on Sydney’s lower north shore, Neutral Bay continues to appeal to young professionals, wealthy families and retirees.

According to the Australian Bureau of Statistics in 2016 Neutral Bay had a population of 10,488, most of who were aged between 25 and 44 years, comprising married (37.6%) and couples in a de-facto relationship (17.7%). About half of the families in Neutral Bay had children.

Often our clients from Neutral Bay and its surroundings:

  1. Are concerned about the division of their respective hard-earned assets and their entitlements in relation to their ex-partner’s assets.
  2. Are considering future parenting arrangements and how to meet the payment of private school fees and best achieve sensible child support agreements.
  3. Are wanting to secure their superannuation and retirement income ensuring stability and certainty in retirement.

Engaging a family lawyer can be a daunting step. At Doolan Wagner Family Lawyers we understand that each matter is unique and we tailor our advice to suit you. Each and every one of our clients are important to us and we endeavour to achieve the best result for all of our clients bearing in mind that engaging a family lawyer means that you are likely experiencing one of the hardest times in your life.

If you are looking for an Accredited Family Law Specialist near Neutral Bay, along with an experienced and dedicated team of family lawyers, then contact us at Doolan Wagner Family Lawyers to arrange an initial consultation for a reduced fixed rate and have all of your family law questions answered.

Read on to learn about some of the commonly raised Family Law issues that may be important to you. And also view our range of family law services.

It’s often not 50/50

A lot of separating couples seek legal assistance to divide their assets and liabilities however are not aware of what factors will be considered, what they’re entitled to and how the Court will assess their situation.

So how does the Court approach a matter where both parties have made their own respective contributions? And, how would the Court consider a situation where one party had been predominantly a “homemaker” or “stay-at-home parent” and the other the “breadwinner”?

In relation to Family Law matters, the approach normally taken in all property applications is a four-step process. These four steps are:

1. Identifying the net asset pool which includes the value of all the property of the relationship, less the debts of the relationship.

2. Assessing the contributions made by each of the parties. Basically, contributions may be any of the following:

2.1. Direct financial contributions including being towards the acquisition of assets.

2.2. Indirect financial contributions, for example where one party’s income is used to buy the groceries each week to enable the other party’s wages to be applied directly towards the mortgage.

2.3. Non-financial contributions, including contributions as a homemaker and parent.

3. Making any adjustment needed to be made to take into account “future needs” factors such as the age and state of health of each of the parties, financial circumstances, care of children and earning capacities.

4. Structuring a settlement that is just and equitable.

It is important to remember that each matter will be assessed on its own particular facts.

Also read: Lane Cove Family Lawyers

Are inheritances included in a property settlement?

An inheritance received by a party can be included as an asset available for distribution in the matrimonial pool of assets however may be treated differently to other property depending on the particular facts of a case. For example, an inheritance received early in a long relationship and applied towards a mutually owned asset of the parties is characterised as a financial contribution by that party however the significance of it will diminish over time.

If an inheritance is deemed to be unavailable for distribution as it is not yet available, an adjustment can be made to the remaining assets when taking into account the future needs of both parties and the benefit the particular party has as a consequence of a prospective inheritance.

How is superannuation considered?

Ordinarily, the current values of parties’ entire superannuation entitlements are included in any Balance Sheet. This does not, however, prevent superannuation benefits or entitlements as at the commencement of a relationship or accrued after a separation, from being asked to be considered outside a Balance Sheet or excluded/quarantined. Each case will turn on its particular facts. Generally, parties may negotiate how their superannuation entitlements are considered and/or divided and the Court will likely accept any agreement the parties achieve in the event that it is part of an overall just and equitable resolution of their financial matter.

Can I make a claim for ongoing financial support from my ex?

A party may make a claim for spouse maintenance in the following circumstances:

  1. If the party is unable to support herself/himself adequately;
  2. If the other party has the capacity to provide financial assistance.

An application for spouse maintenance is separate to a property settlement in family law. It is more likely to be considered by a party where that party to the relationship was predominantly a “homemaker”, is of poor health, is required to care for children in addition to themselves and in any event, has a lower employability level and capacity to support themselves.

An example of a person who may wish to claim spouse maintenance from their former partner would be a party who had been in a lengthy relationship and considered a “homemaker” and became financially dependent on their former partner.

Can I prevent my ex from making a claim for ongoing financial support?

In short, the answer is yes. A Financial Agreement can operate to prevent future claims for spouse maintenance. As the name suggests however, it is an “Agreement” which is required to be entered into by both parties and comply with specific legislative requirements in order for it to be valid. This includes obtaining independent legal advice.

Neutral Bay Family Lawyers
Separation can be hard at any age and at Doolan Wagner Family Lawyers in Neutral Bay we can make the process so much easier.

How can I protect my estate from a potential claim from my partner in the future?

Importantly, achieving a property settlement by way of Consent Orders also does not protect your estate from a claim being made against it by your former partner upon your passing.
Similarly, Consent Orders do not prevent you from making a claim against your partner’s estate after their passing.

This could be a significant consideration for a retiree, particularly where the separation from their former partner was on “bad terms”. A Deed of Release however can be entered into at any stage to protect one’s estate from a former partner’s potential future claim on their estate.

Without this documentation being prepared, both you and your former partner are eligible to make a claim against the other’s estate. Some people are of the view that the possibility of a further claim being made against their estate by their former partner is to be expected or is a fair outcome. In certain circumstances clients may not want to abandon their ability to make a claim against a former partner’s estate at a later time should their ex pre-decease them. Other people feel very strongly about the need to protect their estate against such a possible claim. A Deed of Release will assist in finalising all possible claims between them and their former partner, both now and upon their death.

How do I formalise parenting arrangements in relation to my children?

Often when parties separate, the child/ren of the relationship are caught in a battle between their parents in respect of parenting arrangements.

Separating couples with children have to additionally consider future parenting arrangements and child support issues.

Parenting Consent Orders can deal with a huge number of the issues parents face in a separation including where the child will live, the time spent with the other parent, parental responsibility, school holidays, special occasions and communication. The primary consideration in parenting matters is the best interests of the child. It is a distinct principle in family law and it will be paramount in all parenting matters.

Child Inclusive Conference (“CIC”)

In the event that parents cannot reach an agreement about parenting arrangements, a CIC is an available option as part of the Court process to assist families.

A Family Consultant selected by the Family Court will conduct your CIC and will hold separate interviews with you, your former partner and your child/ren in order to understand your family’s situation and your respective perspectives. We note that a CIC has a particular emphasis on assisting the Court to understand the experiences of the children after separation and at the present time.

It is important to note that a CIC is not a confidential process. After your CIC, a memorandum will be released including conversations, information obtained by the parties and child/ren and the Family Consultant’s recommendations arising from the process.

Binding Child Support Agreement

Many parents who would be able to make an application for an Administrative Assessment through the Department of Human Services prefer to enter into an agreement on their terms and so opt to enter into a Binding Child Support Agreement.

A Binding Child Support Agreement will formalise your agreement with the other parent in relation to child support payable for the child/ren and provides certainty about financial support for the child/ren in the future.

Applying for a Divorce – what’s involved?

Most parties choose to get divorced soon after separation in order to formalise the end of their marriage. In Australia, a person may not remarry if they are still married to another person. Preparing a Divorce Application, waiting for a Divorce Hearing and obtaining a Divorce Order from the Family Court, all take time. The process may be prolonged if your former partner is not agreeable to the divorce. Proactive steps can be taken to ensure this process is not unnecessarily delayed.

In order for a Divorce Application to be accepted and a Divorce Order to be made, the Court must be satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve (12) months immediately preceding the date of the filing of the Divorce Application.

Family Law authorities have established that there are three (3) elements which need to be present for separation to be proven, namely:

1. Intention;

2. Communication; and

3. Action/Change in behaviour.

Parties to a marriage may be held to have separated and to have lived separately and apart however notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other. In each case, the question of whether parties have separated will be a question of fact. Broadly, some factors that the Court may consider include the:

1. The financial situation of the household and relationship;

2. Nature of the relationship and household;

3. Sexual relationship of the parties; and

4. Public knowledge of the separation.

It is important to note that an application for property orders must be made within twelve (12) months of your divorce order taking effect. Once this time lapses, you will have to obtain the Court’s permission to initiate property proceedings and this is not obtained lightly.

Are psychologist notes really confidential in family law matters?

Most information that is shared with health professionals will be confidential and is prohibited by law from being shared with anyone, except in limited cases where there is a greater need to protect the safety of the patient or another member of the community.

Evidence such as counselling notes must be relevant to the issues presented before the Court in order to be admissible. If the evidence cannot “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” it would not be relevant to the case (s55 Evidence Act 1995 (Cth)).

Therefore, information is legally confidential will not suffice in protecting it from being exposed in family law proceedings. Family law courts are flexible in accepting evidentiary material in order to understand and successfully resolve parenting matters involving children and are willing to assist a party in protecting particular aspects of evidentiary material in order to render the remaining relevant material admissible.

Are there any alternatives to Court?

Alternative dispute resolution affords parties different processes to assist them in resolving their matter out of Court.

Mediation is a very common form of alternative dispute resolution where parties to a dispute, with the assistance of a mediator, identify issues, develop options, consider the respective parties desires and endeavour to reach an agreement. The mediator simply conducts the mediation however does not have an advisory or determinative role.

Collaborative Law is another process available that is led by lawyers representing each of the parties and where it is agreed that the lawyers will cease to act for their clients in the event that the matter proceeds to litigation.

Court is a time-consuming, costly and unpredictable process that most clients wish to avoid. Engaging in alternative dispute resolution in family law matters should be an important consideration for most parties. It would not be suitable however for matters involving violence.

Lisa Wagner - Doolan Wagner Family Lawyers
Meet Lisa Wagner from Doolan Wagner Family Lawyers

Doolan Wagner Family Lawyers – how can we help you?

We are a reputable specialist family law firm located conveniently on Sydney’s lower north shore. We are local to Neutral Bay residents and consistently strive to achieve the best outcome for our clients.

Every matter is different and we explore all available and suitable options including mediation, negotiation, collaborative law and litigation for our respective clients in potentially the most challenging period of their lives.

We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.

Being less than a ten (10) minute drive from Neutral Bay and located only a block away from St Leonards train station, come see us for an obligation-free confidential consultation and understand where you stand.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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

Share Options

Are you separating and you or your partner entitled to a share option?

 Are you unsure how share options are valued or treated in a Family Law matter? 

Read on to find out more about share options and how they are valued and characterised in Family Law disputes.

Share options are increasingly issued to employees as part of their remuneration package or as an incentive-based or performance-based term of employment. It is used as a means of linking employee performance to shareholder value. Typically there is a period of time before an employee is able to exercise the option by purchasing shares which raises two (2) important questions to be answered related to share options in family law property proceedings:-

  1. Are share options considered property or a financial resource?
  2. How are share options valued?

WHAT IS A SHARE OPTION?

Before considering how the law answers these two (2) questions it is important to understand what a share option is and the terminology surrounding options.

A share option is the right to buy a share or defined quantity of shares, at a specified price (the “exercise price” aka the “strike price”). As the name suggests it is not an obligation to purchase.

There are two varieties of share options namely:

  1. American options, which are the most common form, and allows for the option to be exercised at any time up to a specified date (the “expiration date”); and
  1. European options which allow for the option to only be exercised on the expiration date.

Usually the options that are granted do not vest immediately and the employee will only be entitled to the options after some time and often over a period of years. The shares are said to have vested on the date which the employee becomes entitled to the beneficial interest in the option, that is, the date the options are exercisable. However, it may be that, pursuant to the agreement between the employer and employee, there are still restrictions on the transfer of the options (e.g. that they cannot be transferred to another person or that they can only be transferred for a specific price). Vested options constitute those options where the vesting criteria have been satisfied (e.g. the specified period of time has passed or the employee remains gainfully employed by the employer) and the employee is able to exercise the option, but has not done so. An option is unvested when the vesting criteria has not yet been met.

The exercise date refers to the date on which the option is exercised, that is, the shares are purchased by the employee that is the subject of the option.

ARE SHARE OPTIONS PROPERTY OR A FINANCIAL RESOURCE?

What is the difference between property and a financial resource?

The Family Law Act 1975 (Cth) (‘the Act’) provides a circular definition of property as “property to which [the parties are jointly or a party of the relationship is] entitled, whether in possession or reversion”. The Act does not define what a financial resource is but it can be considered as a financial benefit that is likely to be given to a party in the future such as impending inheritance under a will, long-service leave entitlements, employment/partnership pension schemes or payment as a beneficiary of a discretionary trust, but is not property that a party currently has or is not currently entitled to receive.

The consequences of this distinction are that as an asset, the Court has the power to make orders with respect to property (pursuant to sections 79 and 90SM of the Family Law Act 1975 (Cth)). A financial resource however can only be considered when deciding on a just division of the rest of the property. At best it may result in an adjustment of property to the other separating party. Nonetheless how the Court treats share options can be critical when large portions of the net matrimonial pool are tied up as financial resources.

How does the Court characterise share options?

The Full Court of the Family Court in Hurst v Weber (2009) FamCAFC 137 overturned the decision of Federal Magistrate Baumann who treated the unvested share options as a financial resource due to performance hurdles, including remaining employed with company, which was required in order for the options to vest. The Court determined that they should have been treated as property.

The Court affirmed this view in Nielson & Nielson (2012) FamCA 70 maintaining that employee share options are to be treated as property not as a financial resource with the value of the property to be ascertained by discounting for various risks. Loughnan J commented that property is not determined by its ability to be sold. Importantly in this case the Husband agreed with the Wife that they were property, but submitted that they should be “treated” as a financial resource. The Court rejected this argument holding that if it is accepted to be property, then it cannot be dealt with in some other way.

Crisford J in Beaton & Ballam [2014] FCWA 20 held that unvested employee share options ought to be treated as a financial resource adopting the reasoning of Ryan J in Beklar & Beklar [2013] FamCA 327. Some factors which point to share units being characterised as a financial resource rather than property include whether they can be sold or dealt with before they vest, whether the holder receives nothing more than dividends on the underlying shares prior to them vesting, and evidence showing that the holder is unlikely to be employed when the share units vest.

The Federal Circuit Court of Australia held in Russel & Russell [2016] FCCA 137 that unvested share options were to be considered a financial resource. In this case the husband was granted a number of unvested shares over a number of years, however those shares would only vest and consequently he would only have the right to sell those shares, three (3) years after they were allocated to him, on the condition that the company satisfied a number of performance indicators.

How share options are characterised by the Family Court remains unsettled. Presently each matter is determined by the facts of the particular case. It is arguable that options that, at the time of hearing, are free to be exercised and are ‘in the money’ (that is the share price exceeds the exercise price) ought to be treated as property because they have a net value that can be realised (once various adjustments have been made by a valuer).  On the other hand, some factors pointing towards the Court treating share options as a financial resource (assuming they cannot be exercised at the date of the Hearing) include:

  • their value is contingent on the share price exceeding the exercise price at some future time but prior to expiration date and they are inherently uncertain and unpredictable;
  • they are often contingent on the continuation of employment and/or employee performance targets (that may be affected by forces outside of the employee’s control);
  • there may be restrictions on the transfer of the options;
  • there may be restrictions placed on the sale of the shares once the option is exercised.

Ultimately a careful analysis of the employee share option agreement is required to assist in determining whether they are likely to constitute property or a financial resource for family law purposes.

HOW ARE SHARE OPTIONS VALUED

The intrinsic value of an option is broadly the difference between the exercise price of the option and the value of the share. For example, the intrinsic value of an option to buy a share for $10 in XYZ Pty Ltd that currently has a share price of $100 is $90. The value of the option lies in the opportunity to take advantage of increases in the share price, hopefully as a result of employee performance, over the period of time before the expiration date.

The longer the period of time until the expiration date the greater the opportunity for the share price to increase and as such the greater the value of the option. As the time period before expiration draws to a close the less prospect there is of an increase in the share price and as such the total value of the option converges with the intrinsic value. This is known as the time value of an option and will impact any valuation that is undertaken in a determination of the value of a share option in a Family Law matter.

Valuing share options will often require an expert valuation by an accountant and can involve a number of methodologies. Each share option will be different and subject to its own agreement which will need to be examined to determine a valuation.

There are a number of factors that affect the value of the share option including:

  • the underlying value of the share;
  • the exercise price;
  • the time to expiration;
  • the stability and predictability of the share;
  • the risk-free rate;
  • the dividends expected during the life of the option (if any).

In valuing share options a number of discounts are typically applied to account for a range of factors, most fundamentally that they are an uncertain asset that may or may not provide value to the holder at some time in the future. Discounts are also applied for:-

  1. Lack of marketability, that is, the liquidity of the option is low (relevant to unvested options only);
  2. Tax liabilities;
  3. Risk of the holder ceasing to be employed before vesting date (usually only if there is some evidence of likelihood of the employee not remaining employed);
  4. Accounting for inflation and the opportunity cost of interest earning;
  5. Restrictions on transfer;
  6. Performance hurdles that are outside of the option holder’s control;

WHAT ALTERNATIVES ARE THERE IF PARTIES CANNOT AGREE ON HOW TO CHARACTERISE SHARE OPTIONS OR THEIR VALUE

Unfortunately, due to the uncertain nature of how to characterise and value share options, parties in a Family Law property dispute may disagree considerably as to these two (2) issues. The parties can obviously allow the Court to reach a determination, however, in circumstances where they cannot agree and do not want the expense of litigation there are some other alternatives that should be considered.

Parties may consider a deferred settlement arrangement for unexercised options based on an agreed distribution once the options are exercised and a determinable value is realised. Alternatively parties can enter into an ongoing maintenance Order, may allow for reimbursements or cash adjustments to be made in the future once the options have been exercised.

In any event it is clear that the law surrounding share options is not clear and legal advice, as well as the advice of an accountant or forensic valuer, should be obtained.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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

Moving out of Sydney after Separation

Are you seeking to relocate with your child?

Or are you facing a relocation application by your former spouse?

Read on to find out more about family law relocation applications.

In making a decision in respect of parenting arrangements, including the determination of relocation applications, the Court takes into account the primary considerations as set out in Section 60CC of the Family Law Act 1975 as to what is in the best interests of the child.

In determining what is in the child’s best interest the Court must take into account the following primary considerations in accordance with Section 60CC of the Family Law Act 1975:

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

When making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. We note, however, that the presumption of equal shared parental responsibility is rebutted in circumstances where family violence has occurred.

Further, pursuant to section 65DAA of the Family Law Act 1975, if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

  1. Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
  2. Consider whether the child spending equal time with each of the parents is reasonably practicable; and
  3. If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

So, how does the above relate to a relocation application?

Firstly, no particular section of the Family Law Act 1975, specifically sets out the law in respect of the issue of relocation. Rather, each relocation case is considered in the context of the best interests of the children and particularly Part VII of the Family Law Act 1975.

In the case of A v A: Relocation Approach (2000) FLC the Full Court of the Family Court set out an approach to be used as a guide in determining parenting cases involving relocation. When considering parenting orders in the context of a relocation application by one parent, the case of A v A stands as authority for the following:

  1. That the issues of relocation and the best interests of the child must be considered as interdependent matters;
  2. A persuasive argument in support of or against, the proposed relocation does not need to be set out;
  3. The interests of both the relocating parent and the non-relocating parent must be evaluated in the context of the best interests of the child;
  4. The Court is not obliged to disregard the legitimate interests of the parents. However, where there is a conflict between the legitimate interest of the child’s parents, the paramount consideration of the child’s best interest interests must be given priority.
  5. The parent seeking to vary the present arrangements and ultimately change the child’s place of residence bears the onus of satisfying the Court that the relocation is in the child’s best interests.

Other considerations that the Court will take into account when determining a relocation application account include:

  1. Whether a meaningful relationship between the child and the non-relocating parent could be maintained despite the reduced time with the non-relocating parent. Also relevant to this consideration are the child’s age and the relocating parent’s willingness to facilitate a relationship.
  2. The benefit to the child having a meaningful relationship with both parents.
  3. The need to protect the child from physical or psychological harm and from being subject or exposed to abuse, neglect or family violence.
  4. Any views expressed by the child.
  5. The nature of the relationship the child has with each parent and others.
  6. The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long term issues, spending time, communicating with and maintaining the child.
  7. The likely effect of the proposed move on the child.
  8. Whether the practical difficulty and expense of the child spending time with the other parent will substantially affect the child’s right to maintain personal relations and contact with both parents on a regular basis. For example, if the child is an infant, telephone contact is difficult meaning that communication with the other parent is limited.
  9. Whether an order which is sought would be least likely to lead to further court proceedings being initiated by the other party.

FAQS – here are some of the questions that we are asked frequently:

  1. Can I move overseas or interstate with my child without the permission of their father/mother?
  2. What if I can’t afford to stay in Sydney but my partner is refusing to agree to me relocating?
  3. Will my partner be successful in relocating with my child?

If you are considering relocating or your partner is attempting to relocate with your child or you have pondered any of the above questions, we are available to talk about how best to approach this particular situation and look forward to hearing from you.  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 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.

Separation and Tax Debts

Can the Family Court direct that my ex take my tax debt?

 The High Court of Australia was recently asked a question as to whether a party to a marriage could be substituted for the other in relation to a Tax Debt under section 90AE of the Family Law Act (“The Act”). The Commissioner of Taxation (“The Commissioner”) intervened in the matter to suggest that the Family Courts did not have power under the relevant section.

In accordance with procedural requirements the question was reverted from the Federal Circuit Court to the Full Court of the Family Court of Australia (“The Full Court”). The Commissioner was not satisfied with the answer provided by the Full Court and appealed to the High Court of Australia (“The High Court”).

The specific question posed to the High Court was, “Does section 90AE(1)-(2) of the Family Law Act 1975 (Cth) grant the court power to make Order 8 of the final orders sought in the amended initiating application of the wife?”

The order sought by the wife was in the following terms:

“Pursuant to section 90AE(1)(b) of the Family Law Act 1975 (Cth) in respect of the [Wife’s] indebtedness to the Commissioner of Taxation for the Commonwealth of Australia [for] taxation related liabilities in the amount of $256,078.32 as at 9 August 2016 plus General Interest Charge (GIC), the [husband] be substituted for the [wife] as the debtor and the [husband] be solely liable to the Commissioner of Taxation for the said debt”.

 Section 90AE(1)(b) of the Act allows the Court to direct a creditor of the parties to substitute one party of the marriage for the other in relation to a debt owed to that creditor. The Commissioner submitted that as a Commonwealth body they should not be bound in the same way as other third-party creditors. That submission was rejected by both the Full Court and by the High Court, although it was conceded by the High Court that the circumstances under which a party should be substituted for another pursuant to section 90AE of the Act in relation to a tax debt would be rare when considering the criteria set out under section 90AE(3)(b) and (d).

By way of background, the husband and wife were married in 1992 and separated in July 2009. On 5 November 2009 the husband was declared bankrupt. On 12 November 2009 the wife had a default judgment made against her for $127,669.36 with General Interest Charges (GIC) continuing to accrue such that by August 2016 the total amount owing to the Commissioner was $256,078.32.

There is a general principal when interpreting legislation that the Crown should not be bound. Although this is the starting point for interpreting legislation, the ultimate question is whether that presumption is rebutted and, if so, the extent to which the legislation intends to bind the Crown. Holding to this principle, the Commissioner submitted that section 90AE of the Act should not bind the Crown, and accordingly the Family Courts did not have the necessary jurisdiction to make the orders sought by the Wife.

In reviewing the statutory framework of the Act, The High Court noted that the Act had been expanded over the years to specify that a debt owed by a party was to be included as ‘property’ of the marriage for the purposes of the Act. The Act makes provision for a debt to be transferred and describes a creditor as a relevant third party to proceedings under the Act.

The Commissioner accepted that they were a creditor for the purposes of some sections of the Act but not for the purpose of section 90AE. This submission was rejected by the Court.

The High Court said that the operation of section 90AE could leave the Commissioner ‘no worse off’ and noted that the operation of section 90AE of the Act should protect Commonwealth Revenue and would not ‘disrupt’ the operation of taxation law.

When considering the facts of this case, in particular the husband’s bankrupt status, it is helpful to understand the criteria that a court must look to when making an order under section 90AE as sought by the wife.

Section 90AE(3) of the Act relevantly states:

                “(3) The court may only make an order under subsection (1) or (2) if:

  • the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and,
  • if the order concerns a debt of a party to the marriage – it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and
  • the third party has been accorded procedural fairness in relation to the making of the order; and

 (d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order…” (emphasis mine)

 When considering subsections (3)(b) and (d) it is clear that in this case the Court could not be satisfied that the tax debt would be repaid by the husband and so the Court would not be empowered to make the order for substitution sought by the Wife under section 90AE of the Act.

An alternative power for the Court to substitute a party for a tax debt is set out in section 80(1)(f) which allows a court to make an order that “payments be made directly to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage (emphasis mine).

An order directing payment under section 80(1)(f) requires that some form of liquid asset exists to meet this payment, or that assets are readily saleable for the purpose of satisfying the payment. If the funds or assets are not available for an order directing payment pursuant to section 80(1)(f) the High Court notes that it is unlikely, even requires the conclusion, that the criteria in section 90AE(3)(b) could not be met and therefore an order under that section would be precluded.

The High Court concluded that although section 90AE of the Act confers the necessary power to make an order directing the Commissioner to substitute one party for another in respect of a tax debt the Court cannot answer that question in any specific case without directly addressing the factors set out in section 90AE(3) which require, amongst other things, a consideration of whether that debt can be paid in full and that it is otherwise just and equitable to make the order.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you have recently separated or have a family law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.  We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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

Family Lawyers Mosman

Divorce Lawyer servicing couples and families in the Mosman area.

Divorce Lawyers helping separating couples for over 20 years.

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

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

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

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

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

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

By engaging us:

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

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

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

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

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

Call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We offer Accredited Family Law Specialists and are experts in all family law matters.

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

How Much Does A Divorce Cost?

Wanting to know what a divorce will cost?

Concerned about the fees a family lawyers will charge?

Interested in understanding how the costs of family lawyers can be minimised?

If so then read on…

Unless you qualify for a waiver or reduction in the court’s filing fee you’re going to spend a minimum of $900 on the filing fee charged by the court – go onto the court’s portal and take a look.

Your costs to get a divorce can end there – you can complete the application yourself, even get your ex to join in if you were to do it jointly – no more costs for you and hey presto… it’s done.

“D-day” arrives and it’s ended up hugely cheaper than the wedding and contrary to recent bad press about the exorbitant costs of divorce lawyers, quite possibly cheaper than the costs of the last birthday party you hosted for one of your children!

You may end up paying a much greater price though down the track if along the way you don’t get expert family law advice.

BEWARE – Getting a Divorce triggers consequences that you may not be aware of… it also does not necessarily achieve some of the things that you thought it would –

Some simple facts :-

  1. Once a divorce order is made, you only have twelve (12) months from the date it becomes absolute to make an application for the court to deal with your property and financial affairs. This matters.  If you cannot persuade the court that it should exercise its power after 1 year has passed you may be left in a financial position that is not ideal.
  1. A divorce does not equate to a financial settlement. The informal deal you jotted down “on the back of the envelope” is not binding.  You still must get your financial arrangements sorted and settled.
  1. Getting a divorce does not protect your estate from a claim by your ex. Your ex-spouse is still eligible to make a claim against your estate once you die.  Do you really want to leave your executors, possibly your adult children, having to deal with such a situation?  Probably not and time and again couples that separate simply overlook this fact.  So again, beware because when it rains, it pours.  On the flip side it can be resolved, relatively easily, you just need to ask.

Professional services are not cheap – if they were you should be concerned.  A family lawyer making promises that are too good to be true – most likely are – “Pay Peanuts, Get Monkeys” as the saying goes.

But, you are entitled to feel and in fact should receive value for your investment.  You need to ask “Are the fees that are being contemplated worth it?”; what “value added?” is being offered.

Nothing is a substitute for expertise and experience…

You must however ensure that your relationship with your family lawyers is strong – if you don’t get what they are saying or you get a sense that they’re not really listening, pushing their own agenda or simply going through the motions, then any experience or expertise that they have is unlikely to be able to be applied to benefit you in your family law matter.

The relationship between a separated person and their family lawyer is a sophisticated and very important one, so –

  1. Don’t be shy to ask the hard questions
  2. Trust your gut
  3. Shop around

Bizarrely it’s a bit like tinder (or at least my understanding of what tinder is from the accounts of third parties!!).

Your family lawyer must be :-

  1. Smart
  2. Brave
  3. Committed – they work for you

Your family lawyer must not be :-

  1. Your friend
  2. A salesperson, or
  3. Too busy

Your family law matter counts and if you start thinking in this way the costs that you actually pay for the work your family lawyer does for you following your separation will be appreciated for a very long time.  In short you will no longer be googling “how much does a divorce cost?” because you will just be thankful that you engaged the right family lawyers.

Engaging the right family lawyer is also important if you hit a roadblock obtaining a Divorce Order.

Whilst an Application for Divorce is often a straightforward process, extra work is sometimes required to satisfy the court that it is proper for the Divorce Order to be made.

When can this happen?

3 common roadblocks that arise when making an application for divorce include:-

  1. Providing the court with sufficient evidence to satisfy itself that it has jurisdiction to make the order because you have legal standing or are entitled to be an applicant. Proof of citizenship or evidence of your domicile may be necessary.
  2. Satisfying the court that you are really separated in circumstances where you continue to live with your ex under the same roof. If this applies to you then you must file an additional affidavit setting out the circumstance of your living arrangements with your ex.  An extra affidavit from a 3rd party is also required to corroborate your version of the facts.
  3. Asking the court to make an order to substitute the service of the application on your ex if he or she is being evasive or uncooperative or cannot be found. In these cases extra evidence must be given to the court to satisfy itself that you have exhausted all realistic possibilities and it is probable that the application has come to the attention of your ex even if he/she is avoiding service.

Our family lawyers help each day with these matters.  We are trained to overcome these roadblocks in your Divorce Application and assist you finalise financial and parenting matters following your separation.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquires@familylawyersdw.com.au to discuss your matter in complete confidence.  We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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

Enjoying Christmas and Other Family Celebrations After Separation

Australian’s love a celebration.

If you’re not convinced, scroll back to recent photos of kids in their Halloween regalia or think about your walk down the aisle of your local supermarket in the first week in October seeing the shelves already stocked with tinsel and stockings.

Making decisions about how your family celebrates these special occasions can be difficult. With all the wonderful events and facilities available to us on Sydney’s North Shore we are really spoilt for choice. Willoughby Carols in the Park, Mosman Carols by Candlelight at Balmoral Rotunda, and Pymble Carols in the Park, just to name a few Christmas events in this area.

It doesn’t change when you separate. In fact managing celebrations for your family after separation can present even greater challenges.

Trying to cram two celebrations into one day, even when you live in close proximity to your former spouse, can lead to mounting tensions and frayed nerves.

It can be particularly tough trying to reach agreement with your ex-spouse about how your children will spend special occasions each year.

There are really sound options available to separating families to resolve these differences and avoid extraordinary delays and costs that are incurred when the Court gets involved.

First and foremost it is important to be open minded and embrace marking these celebrations in different ways. In all separations where children are involved the paramount principle is determining what is in their best interests. When deciding how to provide for special occasions in family law matters it is important to really place the children’s interests first.

As children get older their wishes become more important. If your children love spending time with their cousins on Christmas night then, even after separation, it is important that you do all things possible so as to make that happen. If there is a history of an Easter egg hunt at Nanny’s home then try not to make arrangements so that they will miss out on that fun. Make plans that will work for them.

Not only do plans for special occasions need to be very child focussed, they also need to be flexible. Not all family celebrations are set in stone from year to year. It usually works best if you try to accommodate these arrangements to ensure that your children enjoy the best that each of you and your respective extended families can offer.

After separation some families choose to alternate occasions each year. In even numbered years Christmas might be spent with Mum and Easter with Dad and then in odd numbered years the children will spend Christmas with Dad and Easter with Mum. Other families decide to “split” these special occasions so that the children can spend some time with both Mum and Dad each year. This can work well for families who live in very close proximity of each other. Otherwise it can be disastrous, especially for the children…sitting in a car for two or more hours on Christmas Day is simply not their idea of fun and remember it’s really about them.

Also, remember that special occasions are special because you make them special…when couples separate it may be time to think about creating new traditions. If your children will be with the other parent on Christmas Day consider creating a Christmas Eve celebration. If your children are with the other parent at Easter time invent a new Anzac Day tradition of trips to Balmoral Beach, Clifton Gardens or Naremburn Park. You can even see fireworks on Darling Harbour on a Saturday night if you want to organise your own child-friendly mid-year New Year’s Eve celebration!

There is a good chance that you will find everything you need in your local shopping centre to quickly make that party happen. Because Australians love a celebration, you can almost guarantee that you will be able to find party gear for almost any public holiday which certainly makes it easier to “get into the spirit” and really celebrate with your children. And just like you would at Easter or Christmas, make sure to get photos or keepsakes of your celebration so you can remember and have real records of the happy times spent with your children in years to come.

Reaching agreement with your ex-spouse about any matter can be difficult. Special occasions can bring even greater angst.

I am sure that if most of you were asked what Christmas means to you then typical answers would be “stockings” or “Christmas dinner” and “presents under the tree”.

Don’t forget that Christmas also symbolises new birth and new beginnings. Coming just on the tail end of Christmas is a brand new year and all that represents.

In family law matters, especially when considering special occasions, reminding yourself about the message of “new beginnings” can help you adjust to the necessary changes that separation brings and ensure that you and your family continue to celebrate and enjoy special occasions for many years to come.

Finally, none of these tips on their own are likely to achieve success. It is critical that you learn to communicate with your ex-spouse (even if that is just by way of email or text) so that everybody understands what arrangements are in place and what is expected of them, and nobody, most importantly the children, are disappointed.

So to recap, some helpful suggestions to ensure you reignite the “celebration” in your celebrations after separation:

  1.  Remain child focussed.
  1.  Be flexible in your thinking.
  1.  Create new traditions.
  1.  Be clear and certain about arrangements.
  1.  Keep the channels of communication open.

These tips will all ensure that you and your family continue to enjoy and celebrate special occasions even in the event that your family have separated.

If you are experiencing a separation, haven’t made plans for an upcoming celebration or special occasion, and really don’t know what step to take next or how to handle the situation and do what is best for your kids then please get in touch with us at Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We are conveniently located in St Leonards on Sydney’s Lower North Shore. 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.

“You get the house, I’m taking the dog” – Pet Custody in Family Law Disputes

Ever wonder who would get the dog in circumstances of separation or divorce? Worried that if you break-up with your spouse you might never see your dog again? You are not alone.

Some people cannot imagine spending money on legal fees to argue in the Family Court the issue of who keeps a family dog, to others a dog is priceless.

The Full Court of the Family Court has determined several cases on this specific issue insodoing determining who retains the family dog in the process of settlement. While many people would say, like parenting matters relating to biological children, that the determination should be made with reference to the “best interests” of the dog, the Court has determined that animals are to be treated as property for the purposes of family law disputes.

So what does this mean for you? Were all those walks, vet visits, and dog brushing in vain?

Here are some examples of how the Court determined who would retain the dog:

  •  Where the Husband kept the dog  – Langley & Bramble [2008] FamCA 437
    The Husband secured Orders that he retain the dog despite the Wife arguing that the dog belonged to the child and that she believed that the dog was not residing with the husband but instead on a farm. The Wife supported her application by asserting that “the child does not return to her with dog hairs on her”. Watts J, the presiding Judge was not persuaded by the Wife’s assertions and ultimately accepted the Husband’s evidence that the dog was owned by him prior to the relationship and that the dog continued to reside with him and not on some undisclosed farm.
  • Where the Wife kept the dogs – Benford [2012] FMCAfam 8
    In this case the Wife sought to retain both of the parties’ dogs. By contrast, the Husband sought that the dogs be divided amongst them by each of them choosing one to retain. The Husband stated in his evidence, ‘Yes, well, we can’t come to an agreement on the valuation, so my counsel and I decided – or I decided – that the only real way out of it … is to divide them.’
    The presiding Federal Magistrate, Federal Magistrate Roberts formed the view that the Husband had not strongly adhered to one position and as such, that the wife would keep the dogs.

  •  Where the child kept the dog – In Jarvis & Weston [2007] FamCA 1339
    In this case the Father resisted the dog being moved from his home to the home of the Mother and child arguing that the Court had no jurisdiction and that he otherwise wanted more time to consider his position.
    Justice Moore indicated that should the father wish to argue the Court’s jurisdiction that jurisdiction would be found, stating “[W]hether the issue falls to be considered under the accrued, associated, inherent, or parens patriae jurisdiction of the Court, it can be found should the need arise.”
    Ultimately Her Honour concluded “The boy is attached to the dog. The dog is to go with the boy.”

Who will keep the family pet will turn upon the individual facts of your particular matter and it is clear from these decision that there is always be an element of Court discretion.

If you are looking for family law advice in relation to retaining a pet, or family law advice in general, Doolan Wagner Family Lawyers dedicated team works with their client’s and undertakes a genuine cost benefit analysis of each possible approach to their matter when providing their 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. If you need assistance with a family law matter please don’t hesitate to call us on (02) 9437 0010 or email us on 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.