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Separation

I’m thinking of separating, what do I need to know?

Separation is never easy, especially when children are involved. There are always lots of issues that need to be addressed. You may need to organize new financial arrangements, possibly arrange new accommodation and transport. Then there is the difficult job of informing friends and family, which can affect your long-standing friendships. When children are involved a great deal of care needs to be taken to ensure their lives and wellbeing get impacted as little as possible.

Even if you are not married, separation can still be complicated and involve legal paperwork. When children, child support, maintenance and property are affected by separation, legal advice and formal documents of agreements reach is likely to be of assistance.

Disputes and Resolutions

Following separation, there may be disagreement about the management of parenting and financial issues. Family Dispute Resolution mediation, supported by your own specialist family law legal advice, soon after separation may be of assistance and help to avoid disagreements becoming entrenched.

Family Violence

Family violence is a major reason for relationship breakdown. If you are experiencing family violence, please contact your local police who can provide immediate assistance and / or family violence support service who can support you to understand your situation and help you to formulate options for moving forward. Legal advice about parenting, child support, maintenance and property settlement issues from a specialist family law solicitor may be of assistance at this time.

Talk with a Mathews Family Law & Mediation Specialist

Just as no two experiences of relationship breakdown will be the same, there is no ‘one size fits all’ approach to the resolution of issues arising from the breakdown of a relationship – what works for one person may not necessarily be the right solution for you.

Mathews Family Law is one of the most experienced family law firms in Melbourne with the knowledge to guide you through the most challenging of experiences.

If you are contemplating separation or divorce, book in an obligation free 15-minute consultation with one of our accredited specialist family lawyers to understand your rights and options.

Contact us today for a free consultation with a family dispute attorney, to discuss family law property, parental rights, child support, and anything else you may need help with.

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Uncategorized

MFL Radio Podcasts

Listen to some of our recent podcasts that discuss common issues in Australian Family Law.

Vanessa Mathews discusses child support

7th May

Vanessa Mathews discusses the rights of grandparents

8th Oct

Categories
Case Studies Case Studies Case Studies De Facto Relationships Financial Agreements Property and Superannuation

Financial Loss During a Relationship – Case Note

In the recent Family Court case of Anaya & Anaya [2019] FCCA 1048, the principle in the long-established case of Kowaliw and Kowaliw was re-affirmed that:

As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

  1. Where one of the parties has embarked upon a course of conduct designed to reduce or minimize the effective value or worth of matrimonial assets; or
  2. Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimized their value.

In Anaya, the husband argued that investment funds (including inheritance of $1,000,000) ‘lost’ by the wife should be ‘added back’ to the asset pool and treated as an advance on her property settlement. The wife argued that the losses were a matter to be taken into account generally and to have them ‘added back’ to the asset pool would likely result in hardship for her.

His Honour held that at the time the wife decided to enter into the high-risk investment she was likely to have been depressed and angry at the husband about their separation but that her decision to do so was reckless and fell within the second category of Kowaliw. The wife’s awareness was exacerbated by the timing of her decisions – after Family Court proceedings had commenced and she had legal representation.

I often have clients ask me to seek redress for losses ‘caused’ by their former partner, for example, the reduced value of their share portfolio or investment in a now worthless time-share resort. For the majority, my answer is no, that these losses were incurred in the course of the marriage but for some, however, the answer is ‘yes’, for example, money lost due to gambling.

It is important that each significant financial ‘win’ and ‘loss’ experienced during the marriage is objectively assessed in the context of its surrounding circumstances. An emotional assessment may be misguided and result in unrealistic expectations by the aggrieved client.

I am available to assist with this task – by offering an objective and realistic assessment of your client’s complex property settlements.

Please contact me at [email protected] or at 9804 7991 if you would like to discuss your client’s situation.

Or have your client contact me to arrange a free initial 15-minute telephone consultation.

Categories
Case Studies child arrangements Parenting Proceedings

The Role Of The Single Expert Witness In Child Custody Matters – Case Note

The role of the Single Expert Witness / Family Report Writer was considered in a recent child custody decision by the Family Court of Western Australia (Worrall and Bartley [2018] FCWA 132).

child support applications

In accordance with an earlier order that the interim parenting arrangements (child custody) for the nine-year-old child (who had been the subject of litigation for eight years) be reviewed after 12 months, the Single Expert Witness / Family Report Writer conducted his review and published a report.

The father sought that final parenting orders (child custody orders) be made in terms of the existing interim parenting orders or otherwise in accordance with the recommendations of the Single Expert Witness / Family Report Writer ‘on the papers’, that is without cross-examination of the parties and/or witnesses.

The mother objected on the grounds that:

  1. She did not consent to the making of final parenting orders as proposed by the father; and
  2. She did not accept the opinion evidence submitted by the Single Expert Witness / Family Report Writer and the child’s psychologist.

His Honor held that:

  1. It would be procedurally unfair to make final orders in reliance on the Single Expert Witness / Family Report Writer report without affording the mother the opportunity to challenge it in cross-examination;
  2. The simple acceptance of the recommendations of the Single Expert Witness / Family Report Writer, without affording the opportunity for cross-examination, might reasonably be perceived as an abrogation by the Court of its decision-making responsibility in favor of the Expert;
  3. A Single Expert Witness / Family Report Writer, no matter how experienced or qualified, is still simply that: a witness;
  4. The expertise of the Single Expert Witness / Family Report Writer renders his or her opinion evidence admissible, but the opinion remains subject to an assessment by the Court as to the weight to be given by it;
  5. While expert evidence is of great assistance to the Court and informs many of the decisions which must be made, the responsibility for making those decisions is the Court’s alone;
  6. A Court hearing will afford the Court the opportunity to ask questions directly of the Single Expert Witness / Family Report Writer and child’s psychologist, if appropriate.

For these reasons, His Honour declined to determine the matter ‘on the papers’ and the matter was listed for final hearing in the Family Court with cross-examination of the experts.

The Family Court child custody case upholds the principle of ‘procedural fairness and the importance of parties having the right to put all witnesses, including expert witnesses, ‘to the test’.

Mathews Family Law & Mediation Specialists is an award-winning best family law firm in Melbourne’s eastern suburbs recognised for its expertise in complex Family Court child custody matters, with child support lawyers ready to discuss your parental rights and family law property matters.

Please contact Vanessa Mathews on [email protected] or  1300 635 529 to arrange a free telephone consultation to discuss your child custody matter with one of the best family lawyers in Melbourne, accredited family law specialist, Vanessa Mathews.

Categories
Mediation Mediation and Family Dispute Resolution (FDR)

Family Law and Mediation – Is Mediation Appropriate For Me?

dispute resolution lawyer

Mediation (also known as ‘Family Dispute Resolution) is a powerful tool for resolving parenting child custody and property settlement asset division disputes following separation and divorce, with a greater sense of satisfaction and ownership by the parties of the resulting agreement.

You may be feeling uncertain about whether or not FDR / mediation is ‘appropriate’ for you.

The answer to this question may or may not be obvious, for example:

  1. FDR / mediation will be obviously not appropriate if a party refuses an invitation to attend an initial intake meeting with an FDRP / mediator –all FDR / mediations commence with an initial intake session, including risk assessment. The decision to participate in FDR / mediation must be voluntary and cannot be ‘imposed’.
  2.  FDR / mediation may be appropriate even if a party expresses concern about a power imbalance and their capacity to participate – alternative modes of FDR / mediation will be considered at the initial intake meeting, including the options of joint sessions, shuttle mediation, remote attendance via skype/telephone/email. The availability of alternative modes enhances access to FDR / mediation.
  3. FDR / mediation will be appropriate if both parties consent to attend – a choice of mode of attendance ensures that parties wishing for a non-litigious approach have the opportunity to utilize FDR / mediation notwithstanding concern about doing so.

For more than a decade Vanessa Mathews, accredited family law specialist and accredited FDRP and Mediator, has been providing FDR / mediation services in conjunction with her work as a family lawyer in Melbourne’s eastern suburbs. During this time Vanessa has provided FDR / mediation to hundreds of clients. Whilst there will always be the need for the Family Court to resolve the most complex parenting child custody and property settlement asset division matters, Vanessa continues to be in awe of, and humbled by, clients who choose to take responsibility for their parenting child custody and property settlement asset division and spousal maintenance issues via FDR / mediation – rather than have a Family Court Judge do this for them.

Vanessa is available to assist you to achieve a mediated agreement to:

1. Resolve your parenting issues including:

  1. Interim issues:
    i. Child custody following separation, eg shared care
    ii. Single issue disputes, eg choice of school
  2. Final issues:
    i. Child custody when one parent wishes to relocate with the children
    ii. Ongoing parenting child custody arrangements
  3. Documentation of agreements
    i. Parenting Plan
    ii. Family Court Consent Orders

2. Negotiate property settlement and spousal maintenance issues including:

  1. Interim issues:
    i. The use or sale of the home following separation
    ii. Child support
    iii. Spousal maintenance
    iv. Disclosure and valuation of assets
  2. Final issues
    i. Property settlement asset division
    ii. Child support
    iii. Spousal maintenance
    iv. Superannuation splitting
  3. Finalization of the agreement:
    i. Family Court Consent Orders
    ii. Binding Financial Agreements

Please contact Mathews Family Law & Mediation Specialists on 1300 635 529 to discuss your FDR / mediation needs.

Mathews Family Law & Mediation Specialists offer fixed fees for FDR / Mediation.

In 2019:

  • Vanessa Mathews and Mathews Family Law & Mediation Specialists are rated by ‘Three Best Rated’ as one of the three best divorce lawyers in Melbourne.
  • Vanessa Mathews is recognized by Doyle’s Guide to the Legal Professional as a ‘Recommended Family Lawyer’ and ‘Recommended Family Law Mediator’ in Melbourne.
  • Mathews Family Law & Mediation Specialists won the Global Law Experts Awards for ‘Best Family Law Firm Australia’ and ‘Best Family Law Mediator Australia’ awards.
  • Mathews Family Law & Mediation Specialists is a family law firm in the eastern suburbs of Melbourne – Level 2, 599 Malvern Road, Toorak.
Categories
Property Overseas Property Settlements

Effect of Overseas Divorce on Australian Property Settlement

Many married Australians own properties in the country and or overseas. What happens to these properties in the unfortunate event of a divorce?

A recent verdict by the Full Court of the Family Court of Australia in Anderson & McIntosh’s (2013) FLC 93-568 case showed.

The Anderson & McIntosh Case

The couple involved in the case, married in Australia in 1988. They shifted base to another country in 2006 and then separated in 2009. Finally got divorced overseas in December 2010. A decree from a foreign country relating to the properties was issued. There were no Orders sought for the couple’s properties in Australia.

The parties reached an agreement on the settlement of the properties in the foreign land, which received approval from the Court in that country. During the same time, a divorce decree was issued. The foreign court’s ruling did not deal with the couple’s properties in Australia.

The wife made an application to an Australian court in relation to the property settlement 12 months after the divorce. The Husband sought to have her application dismissed citing the reason that it had been more than 12 months since the divorce and that the S 44(3) of the Act necessitated a Leave of Court for instituting court proceedings, with respect to the settlement of properties in Australia.

The Husband’s plea was dismissed and so he made an appeal to the Full Court, which was also dismissed.

Overseas Divorce not a “Divorce Order”

The following are the key points from the Full Court verdict in the Anderson & McIntosh case:

  • A divorce obtained overseas is recognized under Section 109 of the Family Law Act 1975. But, under the Act, the rights that the parties are entitled to in an overseas divorce are not the same as in the case of a divorce obtained in Australia.
  • Section 44(3) of the Act does not recognize an overseas divorce as a “divorce order”. So, a Leave of Court – permission from the Court to take an action – is not needed to begin legal proceedings in Australia even if it has been 12 months or more since the divorce

Options to Reduce Overseas Divorce Impact

The following options could have been explored by the Husband in the above case to reduce the impact of the overseas divorce:

  • The Husband could have appealed for property settlement of the Australian properties in the foreign country provided such a plea is acceptable in that country.
  • The Husband could have sought orders in relation to property settlement for the properties in Australia at the same time as orders were being sought by the Wife in the foreign country. The Husband could also have entered into a financial agreement as specified by the Act for a property settlement with respect to the Australian properties.
  • The Husband could have sought a divorce in Australia.

If you are to undertake getting divorced overseas, it is critical to understand the legalities surrounding property settlement in that country and any country you own properties.

A mutually agreeable decision can be reached only when all facts are available. The assistance of legal experts in such cases becomes invaluable.

Get in touch with the legal experts at Mathews Family Law & Mediation. We are one of Melbourne’s leading law firms with years of experience and a track record of delivering successful outcomes in divorce proceedings, family law property settlement, child support, spousal maintenance, mediation and a range of other family law issues.

Click here to request a free initial consultation or call 1300 635 529 now.

Categories
Best Interests & Parenting Best Interests & Parenting child arrangements Divorce Divorce & Parenting Parenting Plans

Ten Tips For The Holidays

by Dr. Robin Deutsch, Psychologist

1. Have a very specific plan for the holidays so there is no opportunity for confusion or conflict. Parents may alternate or split holidays, but when there is disagreement about this plan, consider the longer view of alternating holidays by even and odd years. Holidays are often a time of heightened emotions, and the reality of the loss associated with separation or divorce is no more apparent than when parents must spend a holiday without their children or without old traditions.

2. Try to continue traditions of the past for the children. If they are accustomed to spending Christmas Eve with one extended family, try to continue that tradition, if not every year then in alternate years. Parents should consider maintaining some of the family traditions the first year after the separation, and alternating beginning the following year.

3. If you can continue some traditions together, make them clear, attending to details of who, what, where, when, and how. Some families are able to be together without conflict arising, but parents often have different expectations about the experience itself, as well as the amount of time they will be together. The most important thing for the children is that they do not experience conflict between their parents.

4. Create new traditions that feel special to the children and family. This is an opportunity for the new family configuration to establish new traditions for the holidays including creation of a special holiday celebration or experience on a day other than the actual holiday. It is also an opportunity for the adult who does not have the children, to establish new practices such as time with friends, volunteering, movie days, and travel.

5. Think long-term-what do you want your children to remember about holidays when they have their own children? For children, holidays are magical. It is often the little rituals and practices that are most memorable, such as baking a pie, playing a game or lighting the fire.

6. Remember, children’s memories include all senses what they saw, heard, smelled, tasted and touched. To the extent possible, create a memory that involves each of these senses and describe it, e.g. we always listen to this music, eat cranberry sauce, watch this movie, read this book, take this walk, and cut these branches. Do not allow conflict to enter into these memories.

7. Self-care is very important. Life for the adults has significantly changed. Find new ways to care for yourself, e.g. exercise, friends, books, movies, clubs, martial arts, dance, classes, activities that bring new energy and attention. You want to rejuvenate yourself and refocus on something to help you reconstitute yourself in your new life.

8. Keep your expectations small and be flexible. Focus on one thing that matters most to you during the holidays, e.g. some sense of connection to your family, having sometime with extended family or close friends, creating a new tradition, continuing a tradition. Your holiday time will not be the same, but you can decide that you will have one small goal that you will work toward creating or preserving. Holidays may be accompanied by unmet needs and dashed hopes. By thinking small you can manage disappointment and decrease stress.

9. Though you, the parent, may feel disoriented and lost in the changed family, keep your focus on the children and the new family constellations. Make the holidays about your children, which means helping them to feel good about spending holiday time with the other parent.

10. In ten years or twenty years, what do you want to see when you look back on these years of change? From that long view you can highlight the tone and experience of these transformed holidays. Remember, children who find holidays stressful because of the conflict between their parents, have terrible memories as adults of holidays and of special family moments. It is in your hands to create fond, pleasant memories for your children. They can be traditional or not, but the message is that you and our family are important and we find ways to celebrate and enjoy holidays.

Full attribution to Dr. Robin Deutsch provides consultation, mediation, parenting coordination and expert witness services in Wellesley, MA. She developed and was the director of the Center of Excellence for Children, Families and the Law at the William James College. Previously she was an Associate Clinical Professor of Psychology at Harvard Medical School. Dr. Deutsch was the co-chair of the AFCC Child Consultant Task Force. She served on both the AFCC and APA task forces that developed Guidelines for Parenting Coordination, the AFCC task force for Guidelines for Examining Intimate Partner Violence and the AFCC task force for Court-Involved Therapists. She is the past president of the Massachusetts chapter of AFCC, past president of the AFCC, and former Chair of the APA Ethics Committee.

Categories
Best Interests & Parenting Best Interests & Parenting child arrangements Parenting Plans

Children Want to Be Heard and Kept Informed – and Feel Safe!

In June 2018 the Australian Institute of Family Studies (AIFS) released a study ‘Children and Young People in Separated Families: Family Law System Experiences and Needs’ https://aifs.gov.au/publications/children-and-young-people-separated-families-family-law-system-experiences

The study included interviews with children and young people (10 – 17 years of age) who, as a result of family separation, had experienced the family law system.

Of particular importance to those who were interviewed was:
• For their parents to listen to them and take their views into consideration
• For the family law system to listen to them, particularly about safety concerns
• For the family law system to take them seriously
• To be better informed about the family law system
• Speaking to psychologists and counsellors during the family separation process was helpful.

The information provided contributed to the following recommendations:
• Give children and young people the choice to be involved in decision making
• Keep children and young people informed about the decision making process for example important decisions and dates
• Provide children and young children with a clear explanation of the new parenting arrangements
• Ensure children and young people have access to psychologists and counsellors during the decision making process
• Make sure that children and young children are safe and that there is scope to change the parenting arrangements.

The following video provides direct access to the voices of the children and young people: Quotes from the ‘Children and Young People in Separated Families Study’ – https://www.youtube.com/watch?v=9Vaw_hVOoO8&feature=youtu.be

The process of family separation and rebuilding is undoubtedly difficult. The work of organizations like AIFS provide the ‘science’ that is needed to support developments in the complex space that we work within. Our hats go off to AIFS for their hard work, and to the children and young people who allowed us into their world.

For the best advice about your family law parenting matter or family dispute resolution, contact Vanessa Mathews on 1300 635 529or [email protected]

Categories
Articles Property Disputes Property Settlements

Property Disputes – Negotiate and Settle ASAP

The importance of family law settlement negotiations cannot be overstated.

In a recent Family Court decision, the judge made a costs order against the wife – that she pay the husband $30,000!

Why?

Because, in the judge’s opinion, the wife had let her anger and distress ‘drive the litigation’ and she had failed to make a ‘meaningful attempt’ to negotiate a settlement, including aggressively rejecting the husband’s settlement offer which ended up being more than the judge awarded her.

So, the wife’s poor attitude to settlement resulted in:

1. A lesser share of the asset pool

2. A costs order.

I wonder how she’s feeling now – even more, angry and distressed?

The moral of the story – negotiate, negotiate, negotiate and settle, settle, settle.

Vanessa Mathews is an accredited family lawyer and mediator.

If you want to reach a negotiated settlement ASAP,

contact Vanessa on 1300 635 529 or [email protected]

Categories
Divorce divorce

Why is the divorce rate declining?

divorce process australia

By 2016 the marriage rate in Australia had declined from 9.3 marriages per 1,000 residents to 4.9 in 2016.

The divorce rate has also been in steady decline since its height in 1976 (for obvious reasons) to 1.9 in 2016.

I wonder if the reasons for the declines set out in this American study – that who gets divorced is a function of who gets married – are applicable to the Australian social context?

https://www.theatlantic.com/family/archive/2018/09/millennials-divorce-baby-boomers/571282/