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Christmas 2021

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.

In my experience having dealt with thousands of Family Law clients, it is best to attempt to take a cooperative and conciliatory approach during this time, particularly when children are involved. For children, Christmas should of course be a warm, festive and memorable time and not be marred by being involved in, or aware or arguments between their parents. It is the quality of the time children spend with each parent that is sometimes overlooked, as opposed to the length of time they spend with each parent.

1 January 2022 marks the beginning of a new year. It may be the year you wish to make changes in your relationship. It may be the time that you decide what occurred this Christmas is not what you want to occur next year. If that is the case, our team of Family Law specialists on the Northern Beaches (also with offices in the Sydney CBD) can assist you in achieving your goal. Our family lawyers are experts in Family Law and can offer you advice and assistance in the following areas:

  1. Property and financial settlements
    2. Parenting arrangements
    3. Issuing involving child support
    4. Issuing involving spouse maintenance
    5. De facto relationships
    6. Mediation
    7. Collaborative Law
    8. Court representation if necessary

We offer a range of alternative pathways that parties may wish to take in order to resolve their Family Law matter. We offer a no obligation, discounted initial consultation and are available to meet new clients from 10 January 2016.

If we can be of assistance, please do not hesitate in contacting us on 9984 7411 or by email deborah@doolancallaghan.com.au

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last will and testament

But He’s Going to Inherit Millions from his Mum’s Estate! – Inheritances Received Post Separation. Are they in or out?

A question that often arises in the context of a Family Law property settlement is “My ex is going to inherit thousands from X, will that be considered?”, and in a similar vein “Will my ex be able to make a claim on any inheritance I receive from X in the future?”

The short answer is no, not unless the inheritance has crystallised prior to entering into a legally binding agreement with respect to how the matrimonial asset pool is to be divided.

In this context ‘crystallised’ means the Testator has died and therefore is unable to alter their Will.  An expectation of an inheritance will generally not be considered an asset by the Family Law Courts in determining the just and equitable division of the asset pool.

The exception to this general principle is if the Testator is still alive prior to the parties entering into a legally binding agreement with respect to how the matrimonial asset pool is to be divided, but has lost capacity to alter their Will and the death of the Testator is fairly imminent.  The Court may then include the value of the anticipated inheritance in the asset pool available for distribution.

Outside of the above exception, whilst an expectation to receive an inheritance will not usually be classified as an asset and included in the pool available for distribution, under 75(2)(b) and 90SF(3)(b) of the Family Law Act (Cth) 1975 (“FLA”), it may be considered a financial resource.  A financial resource doesn’t impact the net value of the asset pool but it may impact the percentage of the pool a party is entitled to.

Other grounds on which an expectation of an inheritance are arguably relevant are:

  • Sections 75(2)(o) and 90SF(3)(r) of the FLA require the Court to consider “any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account”
  • Sections 79(5) and 90SM(6) of the FLA enable the Court to adjourn Family Law property settlement proceedings if “there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them” (s 79(5)(a) wording)
  • Sections 79(2) and 90SM(3) require the Court to only make an order if “it is satisfied that, in all the circumstances, it is just and equitable to make the order”.

As is the nature of Family Law matters, how an expectation of an inheritance is treated will depend on the particular facts of the case.

Please contact Doolan Callaghan Family Lawyers so we may provide you with advice specific to you and your circumstances.

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Relocation following divorce: Can I move away with my child?

The Family Law Act 1975 requires parents to attempt to reach agreement on all major issues affecting a child including changes to living arrangements such as moving with your child to another city, state or country.   If your child primarily lives with you and you wish to relocate you may be able to reach agreement with the other parent to allow you to move with the child and agree on arrangements for the child to spend time with the other parent as a consequence of the move, say for longer periods of time during school holidays.  Reaching agreement is always preferable and consideration should be given to documenting an agreement in Consent Orders filed in the Family Court.  But if you can’t agree you may need to apply to the Court for Orders to allow you to move.  Whether a Court will make the Order allowing you to move will depend upon your specific circumstances, however, in reaching a decision the best interests of the child is the paramount consideration of the Court, not the reason for your move.

In determining the best interests of the child in a relocation case, as with any parenting matter the Court will consider factors including:

  • The benefit to the child of having a meaningful relationship with both parents – this requires consideration as to the child’s relationship with each of the parents, the parents communication, the current parenting arrangements in place and the impact that the proposed move will have on the relationships including the time that the non-moving parent would be able to spend with the child having regard to the practical difficulty and expense in doing so;
  • The need to protect the child from physical or psychological harm or from being exposed to family violence or neglect;
  • The capacity of each of the parents to provide for the child;
  • The child’s wishes – particularly if the child is older;
  • Each parent’s circumstances including their current situation such as the support provided by the other parent or available to the parent from others, the reason for the proposed move including financial circumstances or re-partnering and how their relationship with the child may be affected should they not be permitted to move.

(A v A: Relocation Approach (2000) FLC 93 and U v U (2002) FLC 93)

In the matter of Wright v Watson [2016] FCCA 127 the Court made Orders in a matter where one of the children had special needs allowing a mother to relocate from North Queensland to Brisbane where family support was available to the Mother.  In Quigley v Quigley [2016] FCCA 463 the Court undertook a detailed analysis of the various considerations to determine the child’s best interests and allowed the relocation primarily because it would allow the Mother, who had been the primary carer, to improve her financial circumstances which in turn would benefit the child.   In the decision of Morrall & Olmos [2017] FamCAFC 2 the Court considered whether, if the relocation was not permitted, the Mother’s likely decline in mental state would affect the quality of her parenting and therefore undermine the child’s best interest and allowed the proposed move.  However, in Alton & Janos [2017] FCCA 3222 the Court noted the parents acrimonious relationship and consequent lack of communication and did not allow the Mother’s proposed relocation primarily because it could not be satisfied that the Mother would facilitate the Father’s time with the child should she be permitted to move.

If you are considering relocation you should obtain legal advice from our experienced team of Family Lawyers before taking any further steps.  We can assist you in preparing an Application for Consent Orders if an agreement is able to be reached with the other parent or to prepare an Application to the Court if the other parent does not consent.  A well-prepared presentation of the facts of your case can impact upon the outcome.

If you are the parent who is not relocating and you are concerned that the other parent may move with your child without your consent (or if they have already done so) you should obtain legal advice as quickly as possible as it may be necessary to file an urgent Application with the Court.

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Family Court Shake-Up – A New Court System

On 1 September 2021 the Federal Circuit and Family Court of Australia (“the new Court”) commenced, merging the Family Court of Australia and the Federal Circuit Court of Australia.

The Commonwealth Government facilitated the introduction of the new Court with over $100 million in funding.

 

Why has the new Court been introduced?

For many years proposed reform of the Family Court system has been the subject of controversy and dispute but all parties agreed that the system could benefit from an overhaul given the long delays and often high costs of the old Court system.

The new court has introduced structural reform of the Family Court system with an “overarching purpose” to:

“facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.”

There are 3 primary objectives of the legislation:

  1. To ensure that justice is delivered effectively and efficiently – reducing unnecessary costs and delay;
  2. To provide for just outcomes whilst ensuring the safety of families; and
  3. To provide a framework for the new Court system, simplifying procedures via common court rules and forms, common practices and procedures and common approaches to case management.

The new Court aims to achieve these objectives by providing ongoing opportunities for dispute resolution where it is safe to do so and where litigation is unavoidable providing a “modern, transparent and more efficient system of justice”. 

 

What is the new Court system?

The new Court system incorporates a host of reforms designed to achieve these objectives, most importantly:

  • A single point of entry for all family law matters;
  • Harmonised family law rules and practice directions;
  • A new streamlined case management pathway which aims to list matters for final hearing within 12 months of filing and to resolve 90% of cases within 12 months;
  • Improved risk identification for the safety of children and vulnerable parties seen through the enhanced and effective child expert reporting processes;
  • Greater focus on dispute resolution where it is safe to do so;
  • A greater focus on compliance with Court orders and Rules with costs implications for non-compliance;
  • Specialist Court lists for example the current COVID19 List and the new National Contravention List; and
  • A new Appeals process.

The new Court comprises of 2 divisions, Division 1 is a continuation of the Family Court of Australia and Division 2 a continuation of the Federal Circuit Court of Australia.  Both will operate under the one Chief Justice.  Specialist judges will continue to be appointed to both divisions and there will be a greater reliance on Registrars early in proceedings to undertake case management, procedural matters and dispute resolution matters as well as interim hearings.

 

What does this mean for me?

For existing Family Law Court matters the reforms will not have an immediate effect on your case, the harmonised rules will now apply but there is a 90 day grace period before the new forms need to be used and the Court has a discretion in the application of the Rules.

For new matters parties should not file proceedings until they have attended to and exhausted all the pre-action requirements including:

  • Family Dispute Resolution for parenting matters;
  • Exchanging a notice of intention to commence property proceedings and exploring options for settlement;
  • Complying with the duty of disclosure; and
  • Preparing a Genuine Steps Certificate outlining all the attempts made to settle the dispute.

If proceedings are required to be filed it is hoped that the new Court system will facilitate the more efficient, timely and cost-effective resolution of Family Law matters.

If you need assistance with an existing or new Family Law matter please do not hesitate to contact our team of specialist family lawyers.

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Failure to disclosure in consent financial settlements may mean your settlement is not binding after all

The Family Law Act 1975 requires parties to a property settlement to provide “full and frank” financial disclosure including all information and documents relevant to an issue in the case and relevant to their financial circumstances. If full disclosure is not provided what you believed to be a final settlement may not be “final” after all even if both parties to the relationship agreed to it.

In the recent decision of the Full Court of the Family Court of Australia, Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC ¶94-006 the Court considered a matter where the husband and wife entered into consent property orders in 2011. Neither of the parties disclosed a substantial liability of the Husband to a third party in their application to the Court. The Husband became bankrupt the following year and the Trustee in bankruptcy (on appeal) successfully obtained orders from the court to set aside the parties settlement under section 79A of the Family Law Act on the basis that there had been a miscarriage of justice given the debt had not been disclosed. Fresh orders were made providing for a payment to the bankruptcy Trustee of about $650,000.

The Wife appealed on the basis that there was insufficient evidence to justify the order requiring payment to the Trustee and arguing that the Orders effectively required her to pay the Husband’s debt. The Wife was unsuccessful as the Court found that the orders were open to the primary Judge even in the circumstances where there was a lack of evidence acknowledging the principle that a party should not be able to take advantage of their own non-disclosure. The Full Court found that the effect of the order requiring payment to the Trustee was that the Husband was solely responsibility for his own debts met from his entitlements and the Wife entitled to the remaining assets.

This decision is a reminder of the importance of disclosure in property settlement matters. Failure to disclose may result in your orders being set aside by the Court.

At Doolan Callaghan Family Lawyers our experienced Family Lawyers can provide you with advice to ensure that you meet your obligations as to disclosure so that your settlement agreement is resolved on a final basis.

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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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Family Law Courts’ Response to Surge in Urgent Cases due to COVID-19

The Family Court of Australia and Federal Circuit Court of Australia have released a media statement advising that on 29 April 2020 they will be launching a ‘COVID-19 List’ to deal with urgent parenting disputes.

This list will be devoted to deal exclusively with urgent parenting-related disputes that have arisen due to the COVID-19 pandemic.

This announcement comes following the increase in the number of urgent applications filed in the Courts over a four week period in March and April 2020, with a 39 per cent increase in the Family Court of Australia and a 23 per cent increase in the Federal Circuit Court.

Doolan Callaghan Family Lawyers have noticed an increase in enquiries from parents about difficulties that have arisen or become more exacerbated as a result of COVID-19.  In nearly all cases, trying to reach an agreement to resolve any difficulties should be the first step.  We can help you do this.  If the Court’s involvement is necessary however, our experience in the Court system will help you achieve the best possible outcome.

The Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, the Honourable Will Alstergren, said the COVID-19 List is designed to quickly recognise and handle the cases that need urgent attention due to the COVID-19 crisis. The new list will also support the work already being conducted by the judges.

Chief Justice Alstergren said:

Applications that are eligible to be dealt with through the COVID-19 List, especially those involving issues of risk and family violence, will receive immediate attention and will be triaged by a dedicated Registrar who will assess the needs of the case and allocate it to be heard by a judge within 72 hours of being assessed.

It is important that these urgent COVID-19 applications are closely managed on a national basis so that they can be heard as swiftly as possible given the unprecedented circumstances we are facing.

I would also like the public to know that if they need to file an urgent application because they have been directly impacted by COVID-19, it will be heard electronically as quickly as possible by a Judge from any Registry of the Courts.

Court staff and judges are working tirelessly to ensure that work can continue and Australian families are supported. The COVID-19 List is another example of the Courts responding to the needs of the community during these difficult and stressful times.

The Courts have provided the following examples of applications that may be suitable for filing in the COVID-19 List:

  • Family violence – there has been an increase in risk due to family violence resulting from the restrictions imposed on families during the COVID-19 pandemic.
  • Supervised contact – 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.
  • Border restrictions – the parties live in different States or Territories and the child cannot travel between the parties’ residences due to border restrictions.
  • Medical – the parties and/or child have tested positive for COVID-19 and cannot fulfil the parenting obligations due to sickness or concerns of infection.

To expedite urgent application and provide convenience to the parties, electronic means can be used. The COVID-19 list is initially for three months but will be assessed.

Doolan Callaghan Family Lawyers will be able to assist you with filing an urgent application in the COVID-19 List from 29 April 2020.  Being a specialist family law firm, our family lawyers have expertise in dealing with parenting matters and the court system. We are well aware of the challenges being faced, particularly due to COVID-19, by many families.

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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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