Doolan Wagner:
2015 in Review

11th June 2015

By Lisa Wagner

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

Are you grappling with immunisation issues?

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

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

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

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

Valuations in Family Law Matters

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

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

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

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

Mediation Trends in 2015

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

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

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

So what have we noticed in 2015?

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

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

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

Family Court Registries Going “Cashless” from 1 July 2015

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

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

What does that mean for you?

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

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

– parenting issues including immunisation issues

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

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

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

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

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

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