Welcome to Doolan Callaghan Family Lawyers

All posts by Deborah Callaghan

Social Media and Family Law Proceedings

Most people and households today have access to the internet and many use Facebook, Twitter, You Tube, Instagram and other social media platforms.

Individuals will often use social platforms to express their feelings and sometimes their dislike of others. These posts or comments are often available to friends, friends of friends, children of friends, work colleagues or even the general public. Such posts or comments may either deliberately or inadvertently cause harm or offence to others. Once such comments are on the internet they can remain in this form forever. Deleted comments can be retrieved or even copied by someone before they are deleted.

In terms of Family Law matters and Family Law proceedings, great caution should be taken before you post comments or messages about previous partners or their family members (including children) as not only may they cause emotional harm they may also be used against you in Family Law proceedings. The bottom line is, once you type or post anything on the internet, you lose control over it and what might seem like a good idea at the time may be something you later regret.

In the matter Lackey and Mae [2013] FAM CA 284 (4 April 2013) it was found that the father and his family had denigrated the Court, the lawyer acting on behalf of the children, the Judge, and experts who had provided reports in the proceedings, and the mother by making comments on Facebook. The Court deemed it necessary that the mother and children “be protected as much as possible from further and insidious and corrosive attacks”. Orders were made that the father and father’s family remove all references to the proceedings from Facebook.

Section 121 of the Family Law Act 1975 restricts the publication of Court proceedings. This means that a person who publishes by any means or discloses to the public any account of proceedings which identifies a party to the proceedings may be guilty of an offense.

Parties who publish inappropriate comments about their Family Law matter on social media platforms may inflict irreparable damage to their own case. Litigants in the Family Court process must exercise a great deal of restraint. In the midst of a dispute or litigation it may be tempting to post a comment on matters before the Court. The best advice is – don’t do it.

It is understandable that sometimes when emotions are running high and a person feels unhappy with a former partner or the Courts, or both, they wish to be heard. In addition to social media, text messages are often used in Family Law matters as evidence. Text messages and social media posts can provide evidence which may be used against you or if made by the other party, may be used to support your case.

At Doolan Callaghan Family Lawyers we can assist you with any issues that may arise as a result of the use of social media in your Family Law matter.

Doolan Callaghan Family Law Team

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Equal Shared Parental Responsibility

Both parents have parental responsibility for a child until that child turns 18.  Parental responsibility is defined in the Family Law Act 1975 (“The Act”) to mean “all the duties, powers, responsibilities and authority that, by law, parents have in relation to children”.

Under Section 61DA of The Act there is presumption that it is in the best interests of the child to make an Order that provides for the parents to have equal shared parental responsibility.  This Order places an obligation on the parents to consult with each other and make a genuine effort to agree on major long-term decisions about the child or children including:

  • Education
  • Religious and cultural upbringing
  • Health
  • Name change
  • Changes to the child’s or children’s living arrangements which make it significantly more difficult for the child to spend time with one parent (such as moving to a new area or relocating the child’s or children’s principal place of residence).

Equal shared parental responsibility does not correlate to a child or children spending equal time with each parent.  The decision about equal shared parental responsibility is made separately to any consideration of how much time a child spends with each parent.  However, once an Order for equal shared parental responsibility has been made, the Court must consider whether an Order should be made for a child to spend equal time with a parent and if not, whether an Order for substantial and significant time should be made, or what other arrangements are in the best interests of the child.

 

Primary Considerations

Section 60CA of The Act provides that the bests interests of the child are the paramount consideration in deciding whether to make a particular parenting Order.

Section 60CC sets out how a Court will determine what is in a child’s best interests.  The best interests of the child are made up of primary and additional considerations.  The primary considerations are:

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

The need to protect children from harm is given great weight in cases where there is family violence, child abuse or risk of exposure to either.

The additional considerations that the Court must take into account include:

  • Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
  • The nature of the relationship of the child with:
    • each of the child’s parents; and
    • other persons (including grandparents or other relative to the child);
  • The extent to which each of the child’s parents have taken, or failed to take, the opportunity:
    • to participate in making decisions about major long-term issues in relation to the child; and
    • to spend time with the child; and
    • to communicate with the child.
  • To participate in making decisions about major and long term issues in relation to the child;
  • To spend time with the child;
  • To communicate with the child
  • The extent to which each parent has fulfilled his or her obligations to maintain the child;
  • The effect on the child of any changes and the child’s circumstances;
  • The practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on the child of maintaining personal relationships and direct contact regularly with both parents;
  • The capacity of each parent and others to provide for the child’s needs;
  • The maturity, sex, lifestyle and background of the child and parents;
  • The child’s right to enjoy Aboriginal or Torres Strait Islander cultural, where relevant;
  • Each parent’s attitude to the child and to parenting;
  • Any family violence involving the child or a member of the child’s family;
  • The desirability of making the Order that is least likely to lead to further proceedings; and
  • Any other fact or circumstance the Court thinks relevant.

Whilst there is a presumption for equal shared parental responsibility, that presumption is rebuttable where there is evidence to show it is not in the best interests of the child for the parents to have equal shared parental responsibility.

 

Sole Parental Responsibility

Sole parental responsibility may need to be considered in some matters.

When looking at appropriate parenting Orders to be made, it is important to understand that each case is unique.  That is, it is not a “one size fits all”.  What may be appropriate for another family may not be at all appropriate for your family and it is important that you obtain advice from professionals.  Doolan Callaghan Family Lawyers can assist you in finding the right parenting solution for your family following separation.

Doolan Callaghan Family Law Team

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We Are Moving

We are excited to announce that Doolan Callaghan Family Lawyers are moving to new premises on 11 January 2021.

Conveniently located behind Westfield Warringah Mall Brookvale, our new address is:

Suite 19 (Ground Floor)
Lifestyle Working Building
117 Old Pittwater Road
Brookvale NSW 2100

Our telephone number and email addresses and our wonderful committed team of lawyers and staff remain unchanged

There is free visitor parking available underneath the building. Simply drive down the ramp to basement level.

Our new premises are modern, comfortable and offer the latest technology with high tech meeting rooms available for settlement conferences and other meetings.

We look forward to helping you in your Family Law matter and welcome you to our new offices in 2021.

Deborah and the team at Doolan Callaghan Family Lawyers

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Trust Assets: In or Out?

The first step in implementing a Family Law property settlement following separation is to identify the asset pool available for distribution. Sometimes this is straight forward, sometimes it is not.

One common point of contention in this regard is whether a spouse’s beneficial interest in a discretionary trust should be treated as an asset, and therefore included in the matrimonial asset pool available for division, or whether the beneficial interest should be treated as a financial resource. If treated as a financial resource, the value of such interest does not hit the bottom line of the asset pool. This is not to say that it becomes irrelevant, rather it will be a factor which impacts on the just and equitable division of the (smaller) asset pool.

For example, the Husband may have a beneficial interest in a discretionary trust worth $500,000. The Husband and Wife own a home worth $1.5M, with a mortgage of $500,000. It the interest in the discretionary trust was treated as an asset, the net value of the asset pool would be $1.5M, whereas if it were treated as a financial resource, the net value of the asset pool would be $1M. In the first scenario, the Wife may be entitled to 40% of the larger asset pool, whereas in the second scenario she may be entitled to 50% of the smaller pool.

A key deciding factor as to whether an interest in a discretionary trust is an asset or financial resource is control. If the beneficiary has control over how and when the trust assets are distributed because they are also the trustee of the trust, chances are the interest in the trust will be treated as an asset. If the trustee of the discretionary trust is different and autonomous to the beneficiaries, a spouses interest in a discretionary trust will most likely be treated as a financial resource.

What constitutes a just and equitable division of the matrimonial asset pool will vary from case to case. Our team of lawyers are experienced and ready to assist you in what can be a foreign and challenging process.

Rebecca Harper

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christmas girl with present

Christmas 2015

Whilst Christmas time and the summer holidays is usually a time of celebration and time to spend with loved ones, unfortunately for some people it can be a time of sadness, reflection and dispute. For those people in an unhappy marriage or de facto relationship who are contemplating separation, or for those people who are separated and are unable to spend the time they wish with their children on Christmas Day and over the summer holiday period, Christmas can be a very trying time.

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FAMILY COURT DELAYS – WHAT ARE THE ALTERNATIVES

FAMILY COURT DELAYS – WHAT ARE THE ALTERNATIVES?

For those seeking to have their family law matter dealt with by the Family Court at Sydney or the Federal Circuit Court at Sydney, there are currently huge delays.  There is simply an insufficient number of Judges to hear and properly deal with all of the matters in a timely manner.   Therefore, wherever possible, alternatives to litigation need to be sought in order to offer couples a quicker, less expensive and less stressful resolution to their family law matter.

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doolan callaghan relationships de facto

De Facto Relationships

Statistics show more and more people are living in de facto relationships. If such a relationship breaks down, the separating couple often wonder what laws apply to them in relation to dividing property and, if they have children, what laws apply with respect to the future arrangements for their children. Are the laws the same or different to those that apply to a married couple?

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