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

Legal Capacity and Family Law

Legal Capacity and Family Law

As the issue of mental health continues to gain more traction within the area of Family Law, at a practical level, and without holding the necessary expert qualifications required to properly identify and diagnose mental health conditions, at what point does a practitioner (legal or otherwise) determine if a client has the capacity to provide appropriate instructions? …read more

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

Separation and Divorce at Christmas

The following informative article about coping  with separation and divorce at Christmas was published by Relationships Australia www.relationships.org.au

…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

Using Credit Cards after Separation and Divorce

Using Credit Cards after Separation and Divorce

 There are a number of practical steps to take regarding your credit cards after you separate.

  1. Write down the date you actually separated. Even better, send an email to your spouse or partner stating clearly that “on May 1, 2014, we officially separated”. This date may become important later on when and if debts need to be divided.   If your spouse incurred the debt after the date of separation, the court may hold him responsible for it when dividing up property.
  2. If possible, get rid of joint credit cards. If you are the primary card holder – great!  You can lower the credit limit, which prevents your spouse from going crazy with the card and running up more debt.  The best option is to cancel the card all together, if the company allows it.  If your name is on the account, no matter who runs up the debt, you are also responsible.
  3. Make sure to print out all of your balances from your credit card account, including all purchases and payments. Even if you are held accountable, when the time comes to draw up a property settlement, you may be able to have these listed as your spouse’s debt and deducted from his share of the assets.
  4. Discuss with your lawyer signing a legal separation agreement. Written correctly, this may limit your liability for your spouses’ debts, including credit card debts.

 

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.

Inheritances and Divorce Property Settlement?

Inheritance – What Happens to Them In Divorce Property Settlement’s

An article written for accountants and financial advisors by Vanessa Mathews of Mathews Family Law.

Your client has the good fortune to receive a ‘windfall’, such as an inheritance or a lotto Your client and their partner separate.

Will the windfall be included in the property settlement asset pool?

Your client will likely answer ‘No Way’!

From the court’s perspective, windfalls are not a special category of contributions and they must be:

  1. Included in the asset pool.
  2. Considered in the same manner as, and holistically with, all of the other contributions made during the relationship– financial, non-financial, homemaker and parenting.

The timing of the windfall will however be relevant as to how the windfall is ‘shared’:

  • A windfall received early in the relationship is likely to be treated equally.
  • A windfall received shortly before separation is less likely to be treated equally.
  • A windfall received after separation is even less likely to be treated equally.

The short answer is that the windfall is unlikely to be retained in full by your client.

I’ll leave it you to break the bad news to them.

Next Steps Before a Divorce Property Settlement

You and/or your client may benefit from discussing the circumstances of the inheritance or other windfall and divorce property settlement before taking any action such as distributing or disposing of the asset in a manner that may adversely impact against your client.

Vanessa Mathews and Kuppy Nambiar are family law specialists with the expertise and experience to advise you about your family law property settlement issues.

Please call Mathews Family Law on 03 9804 7991 or email enquiries@mflaw.com.au to speak with Vanessa Mathews or Kuppy Nambiar.

Resources

Mathews Family Law – Dividing the Property: http://mathewsfamilylaw.com.au/divorce/divorce-videos/dividing-the-property-in-victoria/

Family Court of Australia: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home

Federal Circuit Court of Australia: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home

Vanessa Mathews interviewed – Gay Marriage?

Vanessa Mathews was asked by The Age what impact she thought the legalisation of gay marriage would have on family lawyers?
Click here to read the article http://www.theage.com.au/lifestyle/weddings/gay-marriage-expected-to-be-boost-for-wedding-business-20150601-ghebgd.html

Click here to read more information about same sex de facto relationships: http://mathewsfamilylaw.com.au/samesex/

Vanessa Mathews Interview with Herald-Sun. Ashley Madison – Impact on Divorce in Australia?

Vanessa Mathews was asked whether she believed the Ashley Madison scandal would result in a ‘surge’ in divorces?
Click on the link to read the article
http://www.couriermail.com.au/news/ashley-madison-hack-reveals-more-than-213000-melburnians/story-fnu4vh3q-1227492328816