Family & Divorce Lawyers Lindfield

With 30 years of experience, Doolan Wagner Family Lawyers are local to Lindfield, and can efficiently guide you through this challenging time.

It’s no secret that separation and divorce can become complicated. To ride this wave and arrive at the next chapter of your life with ease – take a moment to shift your focus on these three things.

  • Keep calm and take care of yourself. It will minimise angst and foster good decisions.
  • Be prepared and get your paperwork organised. It will avoid delays later.
  • Get help from a family law specialist in Lindfield. They will navigate this process with you.

This summary will walk you through exactly how to focus on these things.

If you have any immediate questions, Doolan Wagner Family Lawyers Lindfield can help you answer them over the phone. We have helped many clients on Sydney’s North Shore & Lindfield find peace of mind during their separation.

Keep calm and look after yourself

When you have a clear head, you will make good decisions.
Simply acknowledging that it will be a turbulent time is the first step to looking after yourself.

Keep calm with easy exercise. Daily walking to unwind and 10 min meditation is achievable. Exercise is usually the first thing to stop when you’re in a difficult situation. But there are so many benefits, so stay active. It will ease anxiety, create some thinking space, and guarantee you a good night’s sleep. By shifting your focus to being physically well, you will naturally improve your emotional health.

Keep communication calm with your ex-partner. It’s easy to fall into destructive patterns with your partner during a separation. Try to sidestep this, by keeping the conversations clear and specific. If the situation does become unworkable, it is time to find professional help.

Also read: Family Violence Lawyers Sydney

A positive mindset is a goal. There will be certain issues that cause you pain and sadness, try to identify these in advance and have a plan to handle it. Write in a diary, communicate via email.
Instead of conversations with your ex, vent to a friend about your worries, seek counselling, take a boxing class! Whatever it takes. When you work through it, you will handle it, and this is positive.

It’s wise to keep your separation private for a while. Be aware of the potential need for sympathy
and avoid posting anything on social media. Social media can be misunderstood and you can’t control other people’s comments. Anything you post electronically about a family law matter that identifies individuals, including children is an offence. It may be unfavourable to your case down the track. Disable your account today.

Be prepared and get your admin organised.

I know it sounds boring! Stay with me…it’s worth it.

It may get tricky down the track. When emotions run high, sometimes there is an attempt by one partner to de-rail or delay proceedings. If you’re prepared in advance you can avoid delays.

The first step is easy – gather key documents.

Start collecting relevant documentation into a folder. This way they can be referenced quickly, allowing formalities to proceed without any drama. Original certificates are best, but copies will be ok too. A family lawyer will request a list of documents for your circumstances. Here is a list to get you started.

  • Passports, marriage certificates, latest bank statements, superannuation records,
    certificates of title for property, real estate agreements and of course, pre-nuptial
    agreements if you have them.

You may already be asking – Can I keep the house?

Also read: Property Settlement Lawyers Sydney

Before this can be answered, the household finances need to be assessed. It’s time to take the second step, make a list of jointly owned assets.

Money can bring out the best and worst in people. It can be the most contentious aspect of a legal separation or divorce. And while a family lawyer can negotiate the terms for you, some planning now will allow for more pragmatic conversations later.

  • Major assets include the family home, investment properties, share portfolio,
    superannuation, businesses, cars, boats, holiday homes. And minor assets,
    include household items, like jewellery, art and electricals. Try to include an estimated value
    for each item, and note any debt associated with the item too.

The main aspect of splitting financials during a separation is considering the household budget. This can be complicated with responsibilities like school fees, mortgage and insurance to consider.

Ask Doolan Wagner Family Lawyers what’s relevant for your circumstances. A little planning will help you stay focused but know when to ask the experts.

Get help from a professional Lindfield divorce lawyer

To survive a separation or divorce you will most certainly need guidance from an experienced and dependable family law team.

Doolan Wagner Family Lawyers will walk you through the intricate legal process and will support you to achieve a hassle-free settlement for you.

When you meet with them, we will,

  • Methodically review your case,
  • Present an assessment of all relevant scenarios for you,
  • Discuss the options available and
  • Provide you with practical advice at every stage.

The Principal of Doolan Wagner Family Lawyers, Lisa Wagner is a Registered Family Dispute Resolution Practitioner and an Accredited Family Law Specialist with almost 30 years experience. Her team all hold additional qualifications. We are highly experienced to negotiate, mediate and / or litigate financial settlements and co-parenting agreements for you.

Doolan Wagner Family Lawyers are well known on Sydney’s North Shore, being only 10 mins from Lindfield. Our professionalism and sensitivity will keep you on track to finalising your legal separation or divorce.

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 Lindfield FAQ’s

COVID-19 and Family Law – FAQ’s

This has certainly been a difficult time for many of us, and there has not been a person who is not affected in some way by COVID-19. This is also true for families who are separating.

At the best of times, the family law system can be tricky and confusing. Do you need help signing Court documents? Are you facing issues regarding contact with your former partner? Do you want to resolve your family law dispute but do not know how to go about it?

To assist you, Doolan Wagner Family Lawyers have prepared a few ‘Frequently Asked Questions’ about family law processes during the COVID-19 pandemic.

  1. What if I don’t want to go to Court? Is there anything else that I can do?

In some cases, parties are required to seek Court intervention. However, for most separating couples, the Court system feels intrusive, deliberately litigious, and likely to damage any goodwill that parties have enjoyed with one another.

As such, the Courts have urged parties who have encountered issues with respect to their parenting arrangements to try, in the first instance, to reach a fair and reasonable compromise which still ensures that any Orders are complied with but also ensures that (as far as it is reasonably possible) they stay healthy and comply with social distancing requirements.

At this time, more than ever, it is critical for parents to come together and find a suitable compromise for any parenting arrangements for their children. Delays in the Court system are inevitable, and while they are attempting to mitigate those delays with the implementation of strategies mentioned above, it is up to the parties to resolve and reach a fair compromise where possible.

  1. How can my former partner and I attend mediation or resolve our matter without having to attend Court?

The best way a family law matter can resolve is by negotiation and consent. This not only promotes a better relationship between you both but means that you and your former partner can resolve your matter on your terms, and not be dictated to by the Court.

To assist many people who wish to undertake mediation, many mediation services, such as Relationships Australia, are offering mediations by telephone, zoom and other electronic means.

3. Do I have to sign in person? Can’t I just sign electronically?

With the exception of a few legal documents, the Court has released a Practice Direction (Practice Direction 2 of 2020 – Special Measures in Response to COVID-19) which provides that Court documents such as Affidavits, Financial Statements and Applications can all be executed electronically. In order to execute a document electronically, a party simply has to ‘type’ their name in the relevant space provided – often times where it states “signed by the deponent”.

This means that if you and your former partner have agreed to a family law settlement by consent, you are both able to electronically execute the settlement documents known as an Application for Consent Orders and Consent Orders.

Further, sworn evidence such as Affidavits and Financial Statements have traditionally been required to be executed in the presence of a Qualified Witness (such as a Justice of the Peace or Solicitor). However, the Court has also waived this requirement, thereby allowing these documents to be filed without a qualified witness also signing the documents. Given the significance of sworn evidence, the judicial officer may require the deponent to be made available by telephone or videoconference, to swear or affirm that the contents of the documents are true and correct and the best of their knowledge, information and belief at the appropriate Court event.

  1. Does this include ALL Court documents

Unfortunately, the executing exception does not include Divorce Applications. Meaning, the Affidavit of eFiling and all other subsequent documents relating to an Application for Divorce are required to be signed physically.

  1. Okay, so I can electronically execute family law documents. That’s great, but what about private agreements like a Binding Child Support Agreement. Does that still need to be executed in person?

As advised previously, the COVID-19 pandemic has had a tremendous impact on many long-standing institutions, including Services Australia. Fortunately, private Agreements with respect to Child Support Agreements can also be electronically executed by parties. However, there are a few minor requirements which will need to be included on the bottom of each page, namely:

  1. The parties’ full name;
  2. Date the document was executed; and
  3. The following statement – “please accept this as my electronic signature”.

If you do not comply with the above requirements, then Services Australia may not accept your Binding Child Support Agreement.

  1. Okay, I have filed an Application with the Court. What happens to my Court mention? I was supposed to attend the Court in person but now I am not so sure?

In an effort to ensure the safety and wellbeing of everyone, the Court has transitioned to a digital platform to conduct Court mentions and hearings. All Duty Lists are being conducted by Microsoft Teams or by telephone. The hearing times are likely to be staggered to alleviate congestion. Usually, you or your lawyer will be provided with updated hearing times prior to the Court event.

There may be a very small number of exceptional matters that will be dealt with face-to-face; however, these hearings will only be conducted with the leave of the Court. Of course, this process is not without its problems, and unfortunately, some non-urgent matters have had to be vacated due to technical issues. In the event this occurs, the Court will try and re-mention those matters in the next twelve (12) weeks to ensure that the case is managed appropriately.

  1. What about my final hearing – will that still be face-to-face? And realistically, how will my hearing be conducted by telephone?

In short, it is very unlikely that your matter will be face-to-face. Again, it is only with exceptional cases that a face-to-face hearing is conducted. Since the pandemic, the Court (which is famously stubborn to change) has conducted many interim and final hearings using Microsoft teams across the nation, whilst there may be some issues – they are largely dealt with as the hearing unfolds and generally speaking, the hearings are progressing reasonably.

To assist the Court in conducting these hearings in the future, the Courts have also transitioned to a Digital Court File (as from 14 April 2020). This means that Judges will have access to the Court file to ensure that the hearings can be conducted remotely. This is not only beneficial in the short term to ensure continuity and afford procedural fairness to all parties but it will also assist the Court in conducting these types of hearing long term.

Any matter that is currently listed for hearing with the Court will proceed electronically. If your case does require a face-to-face hearing, then it will be placed in a national pool and will be listed as soon as the Court permits ‘in-person’ hearings.

  1. What about other Court services – like the Child Dispute Service and a Conciliation Conference

In many cases, parties are ordered by the Court to meet with a family consultant to conduct a Child Dispute Conference or a Child Inclusive Conference. Just like the Courts, this service is also transitioning to a digital platform.

Interviews with adults are now being conducted by telephone and/or video link. For assessments that have a child inclusive element, the Family Consultant will consider whether this can be done remotely or ‘in person’.

An ‘in-person’ conference is only to be considered if the case is considered urgent and critical and only where a remote interview is not possible nor appropriate. This decision will be left to the Family Consultant to determine.

Other services, like mediation or a Conciliation Conference, are also to be conducted by telephone or by visual link. It is important to remember that even though these services are conducted by telephone, the Court rules and procedures must be followed.

  1. What happens if my case is urgent?

The Family Court of Australia and Federal Circuit Court of Australia have established a Court list dedicated to deal exclusively with urgent parenting-related disputes that have arisen due to the COVID-19 pandemic. This commenced on 29 April 2020.

The list is designed to quickly identify and deal with cases that require urgent attention due to the COVID-19 crisis. Usually, applications which deal with issues of risk and family violence will receive immediate attention and will be triaged by a Registrar who will assess the needs of the case and list the matter before a judge within seventy-two (72) hours of being assessed.

Initially, the COVID-19 list will operate for a period of three (3) months but will be assessed, as and when required.

  1. What is the criteria of the COVID-19 List and what sort of cases does it relate to?

The criteria of the COVID-19 list is quite simple. The Application must demonstrate that it has been filed as a direct result of the COVID-19 pandemic and that the matter is urgent. Parties are also required to make all reasonable attempts (if it is safe to do so) to resolve the matter without Court intervention.

Some of the matters which fall into the category of ‘urgency’ will be:

  1. Family violence – where there has been an increase in risk due to family violence resulting from restrictions imposed on families during the COVID-19 pandemic.
  1. Supervised contact – if the current parenting arrangements involve supervised contact and the contact centre is closed or the supervisor is unable to perform their role and the parties cannot agree on an alternative arrangement.
  1. Border restrictions – if the parties live in different states or territories and the child cannot travel between the parties’ residences due to border restrictions.
  1. Medical – the parties and/or the children have tested positive for COVID-19 and cannot fulfil the parenting obligations due to sickness or concerns of infection.

 

  1. I filed a Subpoena and now I want to view and/or photocopy the materials. What do I do?

To control the spread of COVID-19 – Subpoena viewing at all registries of the Court is by appointment only. Requests for appointments can be made by emailing the relevant registry.

Parties and/or legal representatives will be required to adhere to social distancing rules, including sitting 1.5 metres apart from one another. As such, only a limited number of people are provided with appointments to inspect Subpoena material.

It is also important to note that appointments to inspect subpoena materials should only be done if the matter is critically urgent. This means that if you are seeking to inspect documents at Court and your matter is not listed until December 2020, it is unlikely that you will receive an appointment on an urgent basis.

If you or someone you know is facing difficulties with their family law matter, please do not hesitate to contact us on (02) 9437 0010 or send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.

Doolan Wagner Family Lawyers offer specialist family law advice, conveniently located in St Leonards on Sydney’s North Shore.  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.

Parenting Matters Involving Domestic and Family Violence

Navigating parenting matters post-separation which involve domestic and family violence can be an extremely stressful time for parents and their children.

What impact does domestic and family violence have on my child?

Our experience and a wealth of social science literature assessing the behaviour of children tells us that children who are exposed to domestic and family violence can experience:

  1. Delayed development and behavioural problems; and
  2. Regressive symptoms, such as anxiety, bedwetting and delayed speech development.

In some instances, children who may have been exposed to domestic and family violence may also attempt to copy the behaviour they have witnessed.

We understand that this can be extremely stressful for parents and caregivers to navigate. Taking sensible steps immediately to mitigate risk and ensure that your child stays safe is critically important.

Also read: Family Violence – Your Legal Rights

Has my child been exposed to family violence?

Family violence includes many forms of behaviour such as assault, sexual assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property and intentionally causing death or injury to animals.

Your child may also have been exposed to family violence by:-

  1. Overhearing threats of a member of their family, by another member of their family;
  2. Seeing or hearing an assault of a member of their family, by another member of their family;
  3. Comforting or providing assistance to a member of their family, who has been assaulted by another member of their family;
  4. Cleaning up a room or site which was intentionally damaged by a member of their family; or
  5. Being present when police or ambulance officers attend an incident involving an assault of a member of their family, by another member of their family.

I can’t afford to move, what can I do?

We understand that domestic and family violence can be extremely stressful and in certain circumstances a person experiencing domestic and family violence is unable to relocate or move from the environment which they find themselves in due to the cost which is involved.

Should this be an issue for you, we can assist you with preparing exclusionary or ‘sole occupation’ orders, which can restrain your former partner from continuing to live at the matrimonial home until a final settlement is achieved.

We can also seek orders for your personal protection and the protection of your child (if required) restraining by way of injunction your former partner from entering or approaching within a certain distance of your home, place of employment or any other relevant venue or premises, until further order.

Can a child spend time with a parent who is facing allegations of family violence?

We understand that in some circumstances, the violence or dispute is only between the parents and does not involve the children and that pending the resolution of a matter, it may be appropriate for arrangements to be made for your child to spend some time with the other parent.

Should this apply to your situation and where appropriate, children can still spend supervised time with the parent who is facing allegations of family violence. It is important that children continue their relationship with their parents where it is safe to do so. Supervised time arrangements can take many forms. Supervision may be provided by a family member or by a more formal arrangement such as supervision by a contact centre. See our “Children” page for more detailed information.

I am concerned about my former partner’s consumption of illicit drugs and alcohol

If you are concerned about your former partner consuming illicit drugs and/or abusing alcohol, we can assist you by seeking orders:

  1. Restraining your former partner from consuming any illicit drug and/or consuming alcohol within a certain time of coming into contact with your child; and
  2. Requiring that your former partner comply with periodic drug and alcohol testing to ensure the safety of your child with respect to any parenting arrangements for your child to spend time with your former partner.

I am concerned about my former partner’s mental health

Mental health issues are prevalent in our community and particularly so in family law matters involving allegations of family violence. If you are concerned about your former partner’s mental health, we can help you seek orders requiring that your former partner obtain a mental health assessment and comply with any mental health treatment a therapist may deem appropriate.

Can I avoid Court?

We understand that navigating parenting matters which involve allegations of drug and alcohol abuse can be a particularly challenging. As always, we favour and encourage parties to attempt to resolve their matters as quickly and efficiently as possible while ensuring the safety of everyone. We can initially help parties attempt to solve their matters outside of Court and by way of mediation. However, we understand that in certain circumstances urgent Court orders are required or Court proceedings cannot be avoided. If we assess that those circumstances apply to you, our experienced, specialist family lawyers can provide you with the best representation to help you obtain a quick and favourable outcome.

Lisa Wagner is an Accredited Family Law Specialist on Sydney’s North Shore specialising in complex property matters and children’s work.  If you 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 Violence – Your Legal Rights

We can all work on ensuring that the spread of family violence does not provide a sage sequel to the spread of Coronavirus.

The Government has recently announced initiatives to increase supports to victims and perpetrators alike.

What are your legal rights if you are the victim of family and domestic violence?

What might be possible for you as a perpetrator of family and domestic violence?

Firstly you must understand what family violence is and recognise the many forms it takes which include:

  • Intentionally damaging or destroying property;
  • Intentionally causing injury to an animal;
  • Unreasonably denying a family member financial autonomy;
  • Unreasonably withholding financial support;
  • Preventing a family member from making or keeping connections with his or her family or friends;
  • Unlawfully depriving a family member of his freedom;
  • Stalking;
  • Repeated derogative taunts;
  • An assault;
  • Sexually abusive behaviour.

Each state has its own laws providing for the obtaining and extension of orders made for the personal protection of victims of violence, including children.  Courts exercising jurisdiction under the Family Law Act also have powers to make orders for the personal protection of victims and their children.

The powers vested in the Commonwealth and the states can enable orders to be made which:

  • Remove a person from a place of residence;
  • Restrict a person’s movement (ie, from entering in or near a designated address or area);
  • Prevent a person from communicating with a named victim.

These orders can be made:

  • Ex-parte (ie, in the absence of a party);
  • By consent, including without admissions being made;
  • After a defended hearing.

The facts and circumstances that are required to be established to secure the making of an order are not nebulous.  Cogent evidence, even on an ex-parte basis, is required.

Whilst our justice system heaves into a new “normal” access to that justice system for victims of family violence becomes more vexed than ever.  This will equally be true for alleged perpetrators of family violence.

Five practical tips that can help you include:

  1. Call the police if you are fearful for your safety;
  2. Engage with all the online and telephone supports currently available including MensLine Australia mensline.org.au and 1800RESPECT www.1800respect.org.au ;
  3. Do what you can to stay visible and connected – even if it is online;
  4. Devise a safety plan that is able to be put into action swiftly; and
  5. Take the time now to research available legal assistance that you may need.

Unprecedented times call for unprecedented measures.  There is help available if you are the victim of domestic violence and equally assistance for those that are perpetrators of family and domestic violence.

Stay safe and share this if you think it may help another.

Also read: family violence lawyers sydney

Lisa Wagner is an Accredited Family Law Specialist on Sydney’s North Shore specialising in complex property matters and children’s work.  If you 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.

Domestic and Family Violence – Part 2

Never before have we been on the precipice of such a likely exponential rise in the incidence of domestic violence.

Frightening as that may be, in the context of an already unacceptable and widespread incidence of family violence in our community, it presents unimaginable risks and consequences to families and children.

To address this critical challenge, it is firstly important to really understand what domestic and family violence is.  Being able to detect the many forms that family violence takes will help in the battle to quell this similarly disastrous spread.

In Australia, examples of family violence include:

  • Unlawfully depriving a family member of their freedom;
  • Preventing a family member from making or keeping connections;
  • Withholding financial support to a family member particularly from those that are dependents;
  • Denying a family member financial autonomy; and
  • Repeated derogatory taunts.

The current rules under which we are now required to live (and possibly for some time to come) enables and potentially fuels many forms of family violence.  As social connectedness is a fertile ground for Coronavirus, physical distancing and “stay at home” measures are an equally fertile ground for family violence.

In addition to the many recently announced initiatives by the Government to provide greater access to the usual domestic and family violence supports, the police and the legal system remain available to act and protect those requiring help and assistance.

Family violence is difficult to mediate however alternate dispute resolution processes including mediation and arbitration have quickly “flexed up” to be available to community members in this time of real need.

Be assured that no matter what any one of you may be facing in your own home whilst observing the social distancing and “stay at home if you can” rules, there are resources available to swiftly protect your safety.

Domestic violence is not restricted to a raised hand or a raised voice.  The current tv footage used in communicating issues pertaining to domestic violence is a blunt and incomplete message.  True it may get your attention but much more work will be required over a very long time to keep us all safe.

Court orders can be made:

  • Removing perpetrators of family violence from their homes;
  • Requiring parties to pay spousal support to the other; and
  • Ensuring that risks to children in “spend time with” arrangements are sufficiently mitigated.

For those of you acutely navigating this awful path, use every opportunity you can to stay visible and connected.  Service providers of extra-curricular activities are quickly getting on board and running online classes.

Most schools will, at least for the start of Term 2, be online.  Tap into those “public domains”.  If you are employed, ask your boss to quickly connect you by Zoom, Skype or other e-meeting platforms.

For others – remember families and children not so lucky and take the time to reach out.  It is not as intrusive nor as inconvenient as “popping in” and may make a profound different to others.

Stay safe.  If you feel this may help another, please share this.  We will continue to share any helpful advice that we feel may assist you at this time.

Lisa Wagner is an Accredited Family Law Specialist on Sydney’s North Shore specialising in complex property matters and children’s work.  If you 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.

Also read: Domestic and Family Violence – Slowing the Spread (Part 1)

Domestic and Family Violence – Slowing the Spread (Part 1)

As a child I used to look forward to every up and coming school holidays with great delight.  Few of us today, including many children, would be describing the Easter 2020 holidays in this way.  For some people in our community, the start of these school holidays would engender a huge amount of trepidation and dread.

I grew up in the early 70s.  Not a lot happened for kids in those days.  One of the biggest treats for my brother and I was watching our “mushroom farm in a box” grow.  At the start of some school holidays, my brother and I would accompany my mum to our local Nock and Kirby’s to buy the new “mushroom farm box”.  It was placed in a dark corner in our pantry and we were allowed to look at it very briefly each day.  How times change!

Technology enables us to stay connected whilst physically apart and adhering to necessary social distancing measures.  But for the internet, apps and clever people designing terrific E-platforms, I would not feel very different to one of those mushrooms in that box that was ballooning in my pantry when I was growing up.

Family and domestic violence is also to my mind a bit like a mushroom in a mushroom farm box.  Contain it in a dark place, where no one regularly visits, and it will flourish.

In the middle of reflecting on these times and what it means for families in our community, I am interrupted by someone sharing with me a picture of a number of beer glasses situated in different rooms in a house.  The picture is captioned “I’m going on a pub crawl this afternoon”.

The shared visual of a pub crawl in this time of physical distancing and “stay at home” rules is a salient warning to all.  It no doubt informs the government and has resulted in the recently announced new domestic violence initiatives.

As our connectedness enables coronavirus to thrive, social distancing and “stay at home” measures enable domestic and family violence to spread.

New South Wales police are working hard to enforce the social distancing and new social quarantine laws.  Police in other states are doing similarly.  They will inevitably be quickly required to work just as hard (and likely concurrently) protecting the safety of those vulnerable members in our community, particularly children, from family and domestic violence.

The courts remain “open for business”.  All of us in the justice system are doing everything we can to “flex up” and ensure safe access to justice for all.

The remedies for victims of family and domestic violence remain available.  Presently those remedies, like coronavirus itself, may be invisible to some but they are very real.

It is hardly “business as usual” at the moment but victims and perpetrators of family and domestic violence need to know that there is help out there.  It is only a phone call, a tap or a swipe away.

We will continue to share any helpful advice that we feel may assist you at this time.   Stay safe.  If you feel this may help another, please share this.

Lisa Wagner is an Accredited Family Law Specialist on Sydney’s North Shore specialising in complex property matters and children’s work.  If you 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.

International Child Abduction

Has your child been wrongfully removed from Australia without your knowledge and/or consent?

Read on to find out more about the processes available to you to assist you in securing the return of your child.

Removing a child from Australia without the consent of a parent may constitute a criminal offence under the Family Law Act 1975 (Cth). In the event that your child has been wrongfully removed from Australia, there are remedies available to you to secure the return of your child.

The Convention on the Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction (Concluded 25 October 1980) is the main international agreement that deals with international parental child abduction and provides a process through which a parent can seek to secure the return of their child.

Cases to which the Hague Convention applies

It is important to note that the Hague Convention does not apply to all cases. In Australia, an application under the Hague Convention can be made in circumstances where:

  1. The child was taken to a country which is a contracting party to the Hague Convention and which Australia has recognised;
  2. Australia can be established as the “habitual residence” of the child, prior to the child’s removal from the jurisdiction;
  3. The child is under 16 years of age, as regulation 2(1C) of the Family Law (Child Abduction Convention) Regulation 1986 (Cth) defines a “child” as “a person who has not attained the age of 16 years”;
  4. It can be established that the removal or retention of the child was wrongful, such as; if the child was taken without the consent of the other parent or without a Court order authorising the child’s removal from the jurisdiction; and
  5. It can be established that the parent making the application has custody rights and was exercising those custody rights at the time of the child’s wrongful removal.

 

Habitual residence under the Hague Convention

If a return order is successfully made pursuant to the Hague Convention, it would be to the child’s place of habitual residence. Accordingly, in Hague Convention cases, one of the first and most crucial steps is to effectively establish the child’s place of habitual residence.

Establishing a child’s place of habitual residence can at times be problematic, given that currently the term remains undefined under the Hague Convention. Legal practitioners currently rely on case law to help establish a child’s place of habitual residence. In Australia, the Full Court of the Family Court, in De Lewinski v Director-General, New South Wales Department of Community Services following the English decision in Re B (Minors) (Abduction) (No2), held that the habitual residence of a young child is the place of residence adopted by a person with parental responsibility for the child, for an appreciable time and for settled purposes.

Should a child’s habitual residence not be established sufficiently, the return order can fail. In the Marriage of Gollogly and Owen, one parent consented to an order being made in a foreign jurisdiction granting custody of the children of the marriage to the other parent. Subsequently, the custodial-parent removed four of the children to Australia. The non-custodial parent sought an order for the return of the children. However, it was held that the removal of the children was wrongful only if the non-custodial parent was able to establish that the children were habitually residents of that foreign country, which the non-custodial parent failed to establish sufficiently.

It is worth noting that establishing a child’s habitual residence can vary drastically from case to case and will heavily depend on the circumstances and background of each individual case. Accordingly, it is prudent that an experienced Family Lawyer is retained to assist in effectively establishing the Child’s Habitual Residence.

Wrongful removal or retention under the Hague Convention

For the purposes of the Hague Convention, wrongful removal or retention of a child must be established to invoke the Hague Convention.

The removal or retention of a child is wrongful if the action breaches the rights of custody vested in a person, an institution or any other body. Overall, wrongful removal or retention is usually satisfied if it can be established that the child was removed from his or her habitual residence and wrongfully retained in another jurisdiction. Further, the removal or retention will be considered wrongful where, at the time of the event, the rights of custody were actually being exercised by the other parent, or would have been except for the wrongful removal or retention.

Wrongful removal and retention for the purposes of the Hague Convention was reviewed in Director-General of Department of Child Safety v Stratford where it was concluded that, for the purposes of presenting a competent Hague Convention application, it would simply need to be declared that at the time of the child’s removal or retention, there was actual exercise of the rights of custody by the or that they would have been exercised if the child had not been removed or retained from the child’s place of habitual residence.

Wrongful removal and retention may also at times be established in cases where a child is taken from a contracting state to the Hague Convention, to a non-contracting state to the Hague Convention (where the abducting parent intends on remaining with the child) and then on to a third jurisdiction (such as on holiday).

In the case of State Central Authority v Ayoub, a child whose habitual residence was found to be the US, was removed by his Malaysian mother and taken to Malaysia (which was not a contracting state to the convention). Subsequently, the mother brought the child to Australia (a contracting state to the Convention). The father successfully brought proceedings under the Hague Convention. The mother and child were apprehended as they entered Australia and the Court ordered the child’s immediate return to the US.

Establishing rights of custody under the Hague Convention

Article 5(a) of the Convention defines “rights of custody” to include the right to determine the child’s’ place of residence. In Australia, section 111B (4) of the Family Law Act 1975 provides that each of the parents of a child should be regarded as having custody of a child (subject to any Court order). It is vital to accurately ascertain how the right of custody is created in each individual case and applied within the meaning of the Hague Convention.

In the case of Jiang v Director-General, Department of Community Services, although the father had ‘joint legal custody’, the mother had an order which gave her ‘sole physical custody’ and it was found that the father had no more than a right to be consulted as to the residence of the child and was therefore not able to determine where the child could live.

Accordingly, under the Hague Convention, it is worth noting that establishing a parent’s right of custody will vary from case to case and will depend on each individual matter’s background and circumstances. It is prudent that an experience Family Lawyer be retained to assist you with establishing your rights of custody under the Hague Convention.

Steps you should take

Prompt action is critical given that a Hague Convention application should be prepared and filed as soon as possible, especially in circumstances where the Hague Convention requires that hearings be conducted expeditiously.

Each case also varies based on its factual background and circumstances. Accordingly, given that swift action is required, it is prudent that an experienced Family Lawyer in Hague Convention matters is engaged to advise you on how you may commence the process as soon as possible.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you 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.

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.

Encouraging Early, Cost-Effective and Amicable Family Law Settlements

Earlier this year the Australian Law Reform Commission published its findings after an extensive review of the operation of the current Family Law system.

One of the main reasons for this inquiry was to consider what reforms are necessary to achieve appropriate, early and cost-effective resolutions of all family law disputes.  The five (5) recommendations dealing with this goal are looked at here:-

  1. Compulsory requirement for alternate dispute resolution before commencing financial and/or property settlement matters

Importantly the Report recommends that the legislation be amended to:

  1. Require parties to take genuine steps to resolve their property and financial matters prior to filing an Application for Court Orders; and
  2. Mandate that the Court must not hear an Application unless the parties have lodged a genuine steps statement.

Further, in the event that a party has not made genuine efforts to resolve the matter, the report recommended that costs consequences should follow.

This new approach would bring matters relating to financial and property settlement in line with what is the current requirement for parenting matters ie. to try alternate dispute resolution first.  It would be a positive step for separating families. All too often, people rush off to Court without thinking about what they can do to help resolve a family law dispute. Adding costs consequences into the mix may be particularly effective, as it would remind parties of the seriousness and importance of complying with pre-action obligations.

  1. Acknowledging power imbalances in family law financial matters

It is commonly the case that one party in a relationship may be the “brains” behind the acquisition of the parties’ matrimonial property pool and possesses a high degree of financial literacy and commercial sense.  The other party who is often lacking this financial sense is left at a significant disadvantage in terms of the knowledge he or she possesses about the parties’ financial circumstances.

It is therefore proposed that the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) be amended to address this imbalance, referring to the ‘equality of bargaining power between the parties, including an imbalance in knowledge of relevant financial arrangements’ (own emphasis added) rather than just ‘equality of bargaining power between the parties’ which is what the Regulation presently states.

By identifying – and actually acknowledging – that the equality of bargaining power will be affected by power imbalances (such as a difference in financial literacy) in the Regulations, would leave dispute resolution practitioners in little doubt to ensure that such imbalances are mitigated to the fullest extent, where possible.

  1. Requirement for certificates to be provided by Dispute Resolution Practitioners

Similar to parenting matters, the Report proposes to amend the legislation to require practitioners to provide certificates to parties following their attendance at Dispute Resolution evidencing their attempts to resolve the matters between themselves.

This amendment would encourage parties to engage in dispute resolution prior to commencing proceedings. A further advantage that may arise from the implementation of this recommendation is the possibility of the Court’s current workload easing and the time delays associated with litigation reducing, thereby allowing the most intractable matters to be dealt with in a more timely manner.

  1. Extending the Protection of Confidentiality and inadmissibility of discussions and material in Dispute Resolution to property and financial matters

Confidentiality is an integral component of the Dispute Resolution process. There are various reasons why matters raised at mediation remain confidential and inadmissible, though perhaps the most obvious is the greater chance that people will be forthcoming and willing to participate frankly in the process without holding information back.

The Report proposes to extend the confidentiality and inadmissibility provisions already contained in the legislation to mediations of property and financial matters, with the exception of a sworn statement similar to a hybrid between a Financial Statement and Balance Sheet, which should be admissible.

The Report provides that this recommendation is based on the notion that it will support the implementation of dispute resolution “supporting disclosure, including through ensuring that parties provide disclosure and are aware of their obligations and the consequences of non-compliance in this regard”.

The difficulty with this proposal lies with matters where disclosure has not been forthcoming and the accurate financial circumstances of one party is unlikely to be discovered. There is a risk that malicious parties flagrantly breaching their obligations may draft a sworn statement that is not entirely accurate, while orally discussing financial matters more candidly and then having those discussions protected by the confidentiality provisions. However, in any event, is it understood that matters of this nature are more likely to proceed through the court process to final hearing.

  1. Clarifying disclosure obligations

The obligation on each party to provide full and frank financial disclosure is important when dealing with a property and/or financial settlement. Logically, it is difficult to ensure a just and equitable settlement when parties are not forthcoming with their financial positions.

Whilst the Family Law Rules 2004 (Cth) and Federal Circuit Court Rules 2001 (Cth) already outline obligations in relation to the duty of disclosure, the Report suggests amending the legislation to further clarify those disclosure obligations, together with the consequences for breaching those obligations.

It is hoped that by clarifying the duty of disclosure, it will especially benefit self-represented parties, as it will bring their attention in the first instance to the legislative requirements and the rules of the respective Courts requiring same.

Key Takeaways

  1. In most cases, Alternative Dispute Resolution options such as engaging lawyers to assist in negotiations, participating in a Collaborative Law process, or attempting mediation should be the first course of action if you are having difficulties with your ex-partner.
  1. Should the proposed amendments be incorporated into the current legislation and you are experiencing a financial and/or property settlement matter, you may be required to attend mediation and obtain a certificate before you can file an Application in the Court.
  1. Again, if the proposed amendments are taken up, beware of potential cost consequences that may befall those who do not properly satisfy the pre-action procedures.
  1. The obligations in relation to full and frank financial disclosure continue to be stressed to potential litigants, with the hope that clarifying the Rules in this regard will assist people to better understand how to discharge this continuing duty.

As 2019 draws to a close it is worthwhile reflecting on these recommendations which at the very least encourage best practice among family lawyers and other professionals assisting people who are separating to achieve early, cost-effective and amicable settlements.

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.

November 2018 Family Law Case Watch

When parents disagree on a decision relating to their child, is it the mother or the father who has the ultimate say?

The answer is neither. The recent case of Cameron & Brook [2018] FamCAFC 175 provides that the Family Court has both jurisdiction and power to determine a question if the parents cannot reach an agreement themselves. Divorced parents with “equal shared parental responsibility” who disagree on a matter in relation to their child may apply to the Court to determine what is in the best interests of the child and make a decision accordingly. As such, one parent need not succumb to the wishes of the other without a Court order.

It is important to note that parents who share parental responsibility are obligated to consult with one another about “major long term issues” and to make a genuine effort to come to a joint decision about the relevant issue (s60B(2)(d) and s65DAC(1)(b) Family Law Act 1975 (Cth) (“The Act”).

Facts

The case of Cameron & Brook concerned a 14 year old child who attended a local school that participated in an overseas student exchange programme. If the child was selected, she would live and attend school overseas for a period between four and eight weeks. The child wanted to apply for selection in the programme. The mother wished to authorise the child’s application and participation in the programme whereas the father did not, asserting that the child was not mature enough to do so.

Background

Three years prior to the current Application, the parents agreed on final Orders that provided for inter alia, the parents to have equal shared parental responsibility for their children. The Consent Orders contemplated future disputes regarding parental arrangements and required the parties to attend Family Dispute Resolution in order to resolve parenting disputes before commencing proceedings in Court. The mother attempted to engage the father in Family Dispute Resolution however he did not wish to participate. The mother obtained a section 60I Certificate pursuant to the Family Law Act 1975 (Cth) and proceeded to seek Orders from the Court.

First Instance

At first instance, the primary judge ordered that the mother’s Application be dismissed as it was considered that the Court did not have the power to ultimately make a decision simply where the parents disagree and there is no significant change in circumstances following the making of final orders. This consideration stems from the rule produced in Rice & Asplund (1979) where it was found that the Court should only review Final Orders if there has been a “significant change in circumstances” since making the Final Orders. The Court noted in that matter that a child growing and the associated change is not sufficient to review existing Orders.

The primary judge adopted the father’s argument that the circumstances did not render it appropriate for the judge to make an order simply where the parents disagree. Counsel for the father argued that the intervention of the Court where there is “complete deadlock about the education of a child or the child’s need for surgery or the religion of the child then the court could and should intervene. This is not such a case”. The father’s position was that parents will often disagree, whether together or not, and one will simply prevail.

On Appeal

On appeal, the Court first considered whether the primary judge had the power to make an Order such as the one sought by the mother or more generally, whether it has the power to make a decision simply because of a failure of parents to agree.

The Court stated that The Act, particularly s60B and s65DAC does not seek to limit the kinds of Orders the Court has power to make. In fact, s61B of The Act grants the Court jurisdiction and power to make orders on parental responsibility, that is, any aspect of the “duties, powers, responsibilities and authority” which parents have in relation to their children.

The Court subsequently determined the specific question pertaining to this case so as to permit or not permit the child to apply for the exchange programme.

Conclusion

The Court took into account the primary judge’s application of the rule in Rice & Asplund and found that in comparison, in this case there was no attempt to reconsider issues previously brought to the Court’s attention and the rule in Rice & Asplund was not applicable. Rather, the current application relates to a new question of parental responsibility that was not contemplated at the time of the original Orders being made.

On appeal it was ultimately found that the primary judge erred in his decision to dismiss the Application made by the mother and proceeded to make a decision. It was found that pursuant to s61B the Court has power to hear the mother’s Application and make a decision accordingly.

In the present case the Court found that it was in the best interests of the child to apply for the programme and Orders were made accordingly. This was based on the following considerations:

  1. This decision would promote the child having a meaningful relationship with both parents where her maturity may be explored and discussed;
  2. There is no harm to the child;
  3. The experienced educators will have the opportunity to make their own assessment of the child’s suitability and level of maturity necessary for participation in the programme; and
  4. Potential emotional harm to the child not participating in the programme has been alleviated.

As it was not certain that the child would be chosen to participate in the programme, participation should be subject to future deliberations if the child is selected. In response to the father’s concern regarding the child’s maturity, steps may be undertaken such as undergoing an assessment by an independent psychologist to determine whether the child has the requisite level of maturity to participate in the programme if she is successful in her Application, and a decision can be made in light of such evidence becoming available.

In Family Law, the Court has broad discretionary power to make and review Parenting Orders. Although all Orders are made on the basis of reaching finality, Final Orders made regarding the parenting of children are not final in the same sense as Orders made in relation to a property settlement and may require Court intervention where circumstances arise that were not foreseen.

We hope that our November 2018 Case Watch has provided you with some clarity about the role of the Court where parents cannot reach agreement in relation to their children.

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 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.