Family Law Library

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Mathews Family Law have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


Popular Articles

Family Violence and Children at Risk

Every day in my practice as a family lawyer, family dispute resolution practitioner and mediator, I hear stories of family violence and children at risk.

Whilst family violence is a tragedy in and of itself, more tragic is the suffering caused to the children who are exposed, …read more

Re-partnering After Separation, Divorce

Second marriages, partnerships, step-families present challenges, new opportunities after separation, divorce …read more

You’ve Tried Everything – Time for Family Court?

You’ve Tried Everything – Is it Time for Family Court?

While many married or de facto couples terminating their relationship try to work things out amicably, it can be tough.  Here’s this person you thought you’d spend the rest of your life with, and now you don’t even want to sit next to them at the same table.  But it’s almost always best to avoid court, at least in the beginning.  We recommend trying a number of alternatives, before going to Family Court:

Work it out on your own

Sit down and talk to each other.  This can save both of you time and money.   And being able to work things out at such a difficult time in your relationship bodes well for the future, demonstrating that despite the breakdown, you can work together for what’s best for everyone.

Family Dispute Resolution 

Many couples start with family dispute resolution.   Trained practitioners in the field of family disputes, with additional training in law, social work and psychology work with a separating couple to help them through the process.   This is generally used when children are involved.

Mediation 

Mediation is led by a trained, objective person whose role is to help each of you define the issues at hand, manage the discussion and come up with solutions.  The mediator is interested in resolving the problem in the best way possible for everyone involved.  The mediator does not judge or make a final decision but will help you come to your own resolution.

Collaborative Divorce 

Collaborative divorce is similar to mediation but each side also has a lawyer and often a social worker or counsellor and a financial advisor are involved.  Together all sides work together to help both of you come up with a solution that works for everyone.  Among the incentives to make this approach work: if negotiations fail, neither sides’ lawyer can represent them in court.

When is it time to throw in the towel and go to Family Court?

Sometimes though, Family Court may really be the right way to go.  Here are some factors to consider when making the choice whether to continue (or start) alternative approaches or go to Family Court.

Imbalance of Power

If your partner is abusive or domineering or makes more money or controls the finances in the family, this may put you in a much weaker position if you are trying to work it out by yourselves.  While some neutral third parties like a mediator have experience handling these types of people, you still might find yourself stuck and unable to move forward.

Your Partner has an Aggressive Lawyer

Even the most well-meaning of people can fall under the spell of a tough lawyer.   If they are working towards “getting even” rather than being fair, it’s probably time to go to Family Court and let a judge decide.

Your Partner does not Communicate

Each side has to be willing to talk about the issues at hand, express their needs and wants and listen to the other side.  You can’t really work out a problem with someone who refuses to show up to meetings or won’t express what they want  or won’t agree to anything,  If this describes your partner – repeatedly – it may be necessary to find a good lawyer and turn to the Family Court.

Vanessa Mathews and Kuppy Nambiar are accredited specialists Melbourne family lawyers Melbourne divorce lawyers who have the expertise and experience to provide you with the separation and divorce legal advice you are looking for.

Contact Mathews Family Law, Accredited Family Law Specialist, Level 2, 599 Malvern Road, Toorak, Victoria, phone 9804 7991, enquiries@mflaw.com.au

Mathews Family Law: http://www.mathewsfamilylaw.com.au

Family Court of Australia: http://www.familycourt.gov.au

Federal Circuit Court of Australia: http://federalcircuitcourt.gov.au

Special Medical Procedures, Gillick Competence and the Family Court

Where a ‘special medical procedure’ for a child is proposed, parental consent to the procedure will be insufficient and an order of the Family Court will be required.

A special medical procedure is one which is invasive, irreversible, requires major surgery and where the consequences of the procedure give rise to a significant risk of making a wrong decision and a wrong decision carries with it grave consequences.

Examples of special medical procedures include:

  • Gender identity dysphoria (GID).
  • Surgical gender reassignment.
  • Heart surgery.

In June 2015 the Family Court was asked to determine whether a 16 year old child, known as ‘Dale’, who was transitioning from female to male, was competent to consent to stage 2  of GID treatment (also known as ‘testosterone hormone treatment’).

Dale had already commenced stage 1 treatment (puberty suppression hormone treatment), for which a court order is not required.

As it was likely that stage 2 treatment would result in physical changes that would be difficult to reverse, stage 2 treatment is considered a ‘special medical procedure’ for which a court order is required.

Dale’s parents and his treating medical practitioners believed that Dale was, and should be, able to make his own decision about stage 2 treatment, without a court order being required.

His parents therefore sought a declaration that he be found to be ‘Gillick competent’ and therefore able to make his own decisions in relation to treatment.

In the English case of Gillick, it was held that ‘… parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind …’

Gillick has been approved and applied by the Family Court of Australia since 1992 (Marion’s Case).

If a child is found to be Gillick competent:

  • The child may consent to the special medical procedure.
  • The consent of the child’s parents is not required.
  • A court order is not required.

So how does the court determine if a child is Gillick competent?

The court must have regard to the child’s best interests as the paramount consideration.

The child’s ‘best interests’ will be determined by a consideration of:

  • The age and maturity of the child
  • The views/wishes of the child
  • The urgency of the application

The court will consider evidence as to the child’s best interests from:

  • The child’s parents.
  • Expert witnesses such as medical specialists, mental health professionals, counsellors, etc.

Having regard to all of the evidence, and making a positive finding as to Dale’s ‘ … intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences, some of which may be irreversible … his views are clear and have not changed … ’, the court determined that Dale was Gillick competent and therefore competent to consent to the stage 2 treatment.

The special medical procedures jurisdiction of the Family Court  is intended to protect against wrong decisions by parents that may result in irreversible wrong outcomes for children. The court has demonstrated a willingness to apply the provisions of the Family Law Act to these particularly difficult family circumstances with sensitivity, empathy and compassion.

Vanessa Mathews, accredited family law specialist at Mathews Family Law, can assist with your questions about special medical procedures.

The Task of the Single Expert Witness: A Recent Decision of the Family Court

To follow is a summary of the ‘pathway’ to be taken by the single expert witness in parenting proceedings.

It provides a useful reminder of the Family Court’s expectations of the single expert witness.

  1. ‘ … The task of a single expert witness is never easy. The opportunities for observation and consultation are rarely if ever entirely satisfactory, because of constraints of time and money. Usually, each party is seeking some corroboration from the single expert witness of his or her position.
  2. Although the expert may give evidence about the “ultimate issue”[67], more frequently the determination of that matter will fall to the Trial Judge. Each party and the Judge may confront the single expert witness with hypothetical sets of facts to see if the expert will or could modify or qualify his or her opinion. Frequently, with a necessarily limited database a single expert witness faces challenges to his or her opinion.
    It is important therefore that single expert witnesses follow the pathway prescribed by authority[68] to prepare and present his or her report.
  3. The pathway accords with common sense. First, the expert must have primary and particular qualifications and experience. For example, expert evidence on the health of children should come not only from a medical doctor but desirably from one specialised in child medicine and moreover someone experienced in such an area of practice and knowledge.
  4. Second, the expert should clearly indicate the information and facts upon which he or she has relied and identify the assumptions upon which he or she proceeded.
  5. To the extent that the expert relies on research to form his or her opinion, it may be wise to identify that research, particularly if it is likely to be controversial and invite cross-examination. An expert becomes an expert through knowledge of and reliance upon, research other than his or her own and the expert’s opinion must necessarily be a synthesis of knowledge in the field of expertise. However, comments such as “research shows” may indicate a lack of specialist acuity.
  6. Third, the pathway of reasoning to the opinion must be discernible. This would seem to be a statement of the obvious but surprisingly from time to time it is overlooked by the single expert witness …’.

As reported in Hoffman & Barone [2014] FamCA 52 (4 February 2014), Deputy Chief Justice Faulks, paragraphs 93-100 (inclusive).

Can what I say during family dispute resolution be used against me in court?

The short answer is no – what is discussed in family dispute resolution may not be used against you in court.

First, what is said during this process is protected by rules regarding confidentiality. Statements that you offer to a family dispute resolution practitioner, or to your lawyer in front of a family dispute resolution practitioner are protected. Such a practitioner can only disclose statements made during a previous family dispute resolution session in a limited number of circumstances. For instance, if the practitioner reasonably believes disclosure is necessary to protect a child from harm, or to report or prevent damage to property they may disclose statements indicating such.

While rules of confidentiality are implicated, you should also know statements made in a family dispute resolution are also inadmissible in court proceedings. While there are a few narrow exceptions to this rule, you should be aware that statements made during a dispute resolution session are generally not admissible in court.

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Australia Divorce Overview

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Do I Need an Independent Children’s Lawyer?

 When there is a dispute over custody sometimes it is appropriate to have an independent children’s lawyer appointed. An independent child’s lawyer takes a proactive role and acts as an “honest broker” during custody proceedings as the child’s legal representative.

This person does not take instruction from the child, but rather they are to form an opinion after viewing the evidence and act in the best interest of the child. They are impartial, and are to ensure the child’s views are expressed in the proceedings, and make sure that all relevant matters are drawn to the court’s attention.

An independent children’s lawyer will not automatically disclose conversations with the child to the court. Rather, he or she will only disclose this communication if it is in the best interest of the child. However, if the lawyer determines that is in fact in the best interest of the child to share contents of the conversation with the court, it may do so even without the child’s permission.

When deciding whether the appointment of an independent children’s lawyer is proper, the court will consider a list of factors, that hail from a 1994 case.  Some of these factors include:

  • allegations of child abuse
  • intractable conflict between the parties
  • issues of cultural or religious difference
  • where the sexual preferences of one or both parents impinge on the child’s welfare
  • issues of significant medical, psychiatric or psychological illness or personality disorder relating to the child or the parties
  • where it is not appropriate for the child to live with either parent
  • the proposed separation of siblings
  • where one party wishes to relocate the child which would exclude the child from spending time with the other parent

An independent children’s lawyer is not necessary in most custody proceedings. Typically, they are only appropriate where the custody dispute is highly contentious, there are allegations of violence, or other extreme circumstances exist.

If you think your case is one in which your child would benefit from representation by an independent children’s lawyer, you simply need to make an application to the court. Occasionally, the court will take action on it’s own initiative if it determines that doing so is in the best interest of the child.