What you need to know about family therapy sessions if you are separated.

Parenting matters are often very stressful for all parties involved, children included. It is also an area that is fraught with complex emotional issues and can become increasingly complicated, particularly when the children begin entering into young adulthood.

The challenge in these sort of cases is to assist parents to recognise the need to support their children, whilst at the same time ensure that the children maintain a meaningful relationship with both parents, having regard to the paramount considerations outlined in Section 60CC of the Family Law Act 1975.

In some parenting matters, it is not unusual for one or more than one child to resist contact with one of their parents. The reason for the resistance can sometimes be nuanced and challenging for the Court to respond to. Whilst the Court can make any Orders it feels is in the child(ren)’s best interest, it is futile to make such Orders without first understanding (and dealing with) the emotional issues and/or trauma the child or children may have. In those instances, it is in the parties’ interest that they and/or the children consider attending family therapy.

In the event the parties do undertake family therapy in the context of separation, the next question is whether that therapy will be reportable or non-reportable.

 

So what does reportable family therapy and non-reportable family therapy mean in the context of family breakdown?

 

As the name suggests, reportable family therapy is where the family therapist will report to the Court as to the progress of the therapy. In some cases, a Court will direct families to engage in family therapy where the parties are made aware, at the outset, that the therapist will be called on to provide evidence to the Court. They may also be required to outline the parties’ progress with family therapy.

In some other circumstances, the Court may order parties or the child(ren) to participate in non-reportable family therapy. This means that the parties and the children attend upon a therapist in a completely confidential setting, without the fear that any information disclosed at those sessions will be disclosed at some point in the Court matter.

 

When and how is family therapy accessed?

Whilst there is no set rule as to when family therapy should be considered, it is often best introduced relatively early in any famiy law matter. Insodoing it allows underlying and important issues to be therapeutically addressed and possibly resolved or narrowed as quickly as possible, and without the need for unnecessary and often blunt Court intervention.

Although, it should be noted that parties can begin family therapy at any stage in the matter, and indeed, it is often encouraged by the Court.

 

What are the advantages and disadvantages of reportable family therapy?

There are clear advantages and disadvantages with respect to engaging in family therapy which is reportable to the Court, as follows:

 

Advantages:

  1. If an Independent Children’s Lawyer is appointed, they would be able to speak with the family therapist on a regular basis to discuss ongoing issues and challenges, the progress of family therapy, and whether there are any matters or concerns the Court should be made aware of.

 

  1. Following on from the above, should the Court become aware of any issues which arise in family therapy, it is able to make Orders which deal with this issue. For example, if one party has anger management issues, then the Court could order a party to enrol and participate in an anger management course to address this challenge.

 

  1. In the event that a Court orders a Family Report to be conducted in a matter, then the expert appointed to prepare the report would be able to speak with the family therapist and better understand the complexities of the issues in dispute.

 

  1. The family therapist would likely have access to Court material, which would allow them to be better informed of both parties’ allegations. Meaning, they would not be limited to only one party’s account. This can overcome problems that can arise should a “complete picture” not be available. For example, in the case of Maher & Mills (2015), it was found that the family therapist involved was providing the child with counterproductive counselling as he was accepting unconfirmed allegations of sexual abuse from only the mother. Eventually, his evidence was found to be inadmissible as he had “lost professional impartiality” in accepting the mother’s evidence unquestioningly.

 

Disadvantages:

 

  1. Some parties may feel apprehensive or appear to be disinterested in the process, especially in circumstances where the Court may become aware of the issues addressed during family therapy. As a result, parties may be less receptive to opening up to the therapist and meaningfully engaging in the therapy. Alternatively, parties may also be deliberately selective in what they say to the therapist as they know it may contradict what was said to the Court.

 

  1. When children (who are often significantly affected by parental separation) meet with a therapist, it is often a very delicate and fragile relationship. So when a practitioner reports on matters discussed with that child, it may damage their relationship, which might prevent any real progress from developing in the future.

 

 

What are the advantages and disadvantages of non-reportable family therapy?

 

Similarly, there are advantages and disadvantages of engaging in non-reportable family therapy. They include:

 

Advantages:

 

  1. By ensuring that the family therapy is completely confidential, it allows the parties (and the children) to feel as though they are in a safe space to discuss the issues in dispute, and in some cases, to allow a party to confront and accept any damage, they may have inflicted (whether consciously or unconsciously).

 

  1. Non-reportable family therapy ensures that the important relationship between the practitioner and the party is protected as it avoids the risk that parties (and more importantly, children) may feel betrayed by a practitioner disclosing private information to the Courts. In the case of Hastings & March (2019), the trial Judge was asked to determine whether to permit into evidence the Subpoena material of a family therapist who had been treating the children for a number of years. The judge had serious concerns about the “potential damage to the therapeutic relationship” between the children and the therapist and as such upheld the objection and did not allow the material into evidence.

 

 

Disadvantages:

 

  1. The Court (and if applicable the Independent Children’s Lawyer) would be unable to discuss family therapy with the practitioner. This also includes an expert who has been appointed to prepare a family report, which means that the report could potentially not contain crucial information that would be relevant for the Judge to make a determination.

 

  1. The family therapist may not be provided with all the necessary and relevant information in order to provide an effective therapeutic service, and in turn, his or her involvement with the family may actually be more harmful than beneficial.

 

 

In conclusion, whether family therapy is reportable or non-reportable, it is evident that any additional assistance by an experienced family therapist would be a vital resource for families undergoing separation. However, parties should carefully consider at the outset, if possible, whether any family therapy that is appropriate for them (and their children) to participate in, should be reportable or non-reportable.

 

About the Authors:

Lisa Wagner is Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: Lisa Wagner

 

Anthony Saba is a Family Lawyer at Doolan Wagner Family Lawyers. Anthony has worked for the past five years exclusively in family law in two other specialist CBD family law firms before joining Doolan Wagner Family Lawyers. He has experience in many other areas of law including commercial disputes, criminal matters and care and protection work.  Anthony has acted in complex property matters and parenting matters including difficult relocation matters and in matters where domestic violence has factored heavily. Anthony is currently completing his Masters in Family Law.

 

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

What happens to my Self-Managed Superannuation Fund when I separate?

Parties should as far as practicable work towards finalising their financial relationship following separation. This is often referred to as the ‘clean break principle’, which is reflected in section 81 of the Family Law Act (1975) Cth.

The task of disentangling the interests of separating parties in a Self-managed Superannuation Fund (SMSF) is equally informed by the clean break principle. This can be a simple process, or quite convoluted, depending on matters including the underlying assets belonging to the SMSF and the parties’ conduct in running the SMSF during the relationship and upon separation.

Unfortunately, many people are unaware of the level of responsibility associated with operating a SMSF and the potential downside and risk involved. Despite the obligations associated with being a trustee of a SMSF, in the context of a relationship it is not unusual to see one member entrust the running of the SMSF to their partner. This can become quite problematic and present various issues in the context of separation and divorce.

In separations involving high-conflict, parties are more often likely to behave poorly and engage in behaviour that may result in an offence resulting in one member of the fund becoming a disqualified person for the purposes of the Superannuation Industry (Supervision) Act 1993 (SIS Act). This can leave the remaining members having to figure out what implications are associated with their former partner becoming a disqualified person, all while trying to disentangle themselves financially from their former partner. What can be done in this situation? Firstly, it is important to understand more about disqualification.

 

What grounds constitute disqualification?

 

Section 120 of the SIS Act details the grounds for disqualification with respect to individual trustees and corporate trustees:

 

Individual Trustees

In relation to an individual, a person is disqualified from being a SMSF trustee if:

  1. The person has been convicted of an offence against or arising out of a law of the Commonwealth, a State, a Territory or a foreign country, being an offence in respect of dishonest conduct;
  2. A civil penalty order was made in relation to that person;
  3. The person becomes “insolvent under administration”- undischarged bankrupt; or
  4. The Commissioner of Taxation has disqualified that individual.

 

Corporate Trustee

In relation to corporate trustees, a corporate trustee would be disqualified if:

  1. A responsible officer (such as a director) becomes a disqualified person;
  2. A receiver, administrator or provisional liquidator has been appointed; or
  3. The company has begun to be wound up.

 

The Australian Taxation Office can also disqualify an individual if it is satisfied that the individual is otherwise not a fit and proper person to be a trustee. Should that occur the Australian Taxation Office will give written notice of the disqualification and publish details of the disqualification in the Australian Government Notices Gazette.

 

The consequences of disqualification

 

A disqualified person cannot remain a trustee of a SMSF or a director of a corporate body that is a trustee of a SMSF. If a disqualified person remains a trustee, they will be committing an offence and be liable for penalties or even incarcerated as provided for by section 126K of the SIS Act. The disqualified person can even put the fund at risk with respect to becoming non-compliant, which may result in the fund facing significant tax penalties, possibly causing multiple issues for the remaining members.

 

Options available in the context of separation and disqualification of a SMSF trustee

 

Options are available to trustees in circumstances where they or their former partner becomes a disqualified person for the purposes of the SIS Act. It is important to note that a member’s underlying entitlements are not automatically impacted and in fact can be preserved in circumstances where they or their former partner become disqualified. Any action should be taken as soon as possible. Some of the options include:

 

  1. Where assets and other entitlements can be separated from the other members interests within the 6-months period, a trustee can choose to roll out their superannuation balance into an individual industry or retail superannuation fund and resign as a member and trustee of the fund;
  2. Where assets and other entitlements cannot be separated from the other member’s interests within the 6-months period, the Australian Prudential Regulatory Authority (APRA) can appoint an acting trustee of the SMSF from the time of expiration of the 6-month period, until the disqualified person can remove themselves and their superannuation balance from the SMSF. By way of example, if real property is held by the SMSF, then certain steps may need to be taken for the property to be sold, which can exceed the 6-month period.
  3. Members can also elect to wind up the SMSF. However, this can only occur after members complete all the requirements that the trust deed specifies about winding up the fund. Members will also either need to pay out (if meeting a condition of release) or rollover their superannuation and leave a sufficient amount to meet any final tax amounts and other expenses. A SMSF auditor will also need to be appointed to complete the final audit with respect to the fund. Additionally members will need to complete and lodge the final SMSF annual return.
  4. With respect to disqualified corporate trustees, the disqualified member must resign as director of the corporate trustee and roll out his or her superannuation balance. The remaining individual can then remain as the sole director and member of the fund.

 

In the context of a high-conflict separation, it is usually the case that one member refuses to cooperate or disclose certain financial information and documentation to help remedy or cure the consequences of non-compliance and disqualification. Should this occur, the remaining members can seek Court orders with respect to their former partner disclosing all financial information and documentation associated with the SMSF and with respect to engaging an accountancy firm to enable the parties to take the next steps associated with disentangling their interests in the SMSF.

 

In summary, while it is easy to understand why SMSFs remain an attractive long-term investment vehicle for intact families as they may help them to achieve greater control over their asset allocation and provide their members with speed and flexibility with respect to investments, it is clear from the above that it can become quite problematic to address in the context of separation and divorce. This is particularly so when one member becomes a disqualified person for the purposes of the SIS Act and in the context of high-conflict separations. Notwithstanding, there are options available, however, it is prudent to obtain tailored legal advice and to understand your option and the implications of taking certain actions prior to make any changes.

 

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 send us an email at enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.

 

About the Authors:

Lisa Wagner is Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: Lisa Wagner

Sara Arnold is a Family Lawyer at Doolan Wagner Family Lawyers. Sara is experienced in a wide range of property and parenting matters, including Hague Convention Applications and Relocation matters. Sara’s background in commercial legal work compliments her practising as a family lawyer and allows her to identify various issues and provide the most practical and cost-effective advice for her clients in respect of settlements involving businesses as well as other financial matters.

Connect with Sara on LinkedIn: Sara Arnold

 

Disclaimer: 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.