Author: Vanessa Mathews

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

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

• ‘ … 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 a single expert witness of his or her position.
• 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 or their report.
• 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 who specialized in child medicine and moreover someone experienced in such an area of practice and knowledge.
• 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.
• 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.
• 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 a single expert witness …’.

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

Your client who is going through a matrimonial/de facto property settlement may say to you that their particular contribution to the accumulation of the asset pool was ‘special’, by which they mean that:

• They made a greater contribution than their partner;
• They should receive a greater share of the asset pool.

In this article, we review the current law on ‘special contributions’ and how you might respond to your client’s claim.

The second step of the ‘4 Step Process’ for determining how the assets of the marriage ought to be divided between the parties includes consideration of the contributions of the parties.

Contributions may be:

• Financial, to the acquisition, conservation or improvement of property
• Non-financial, to the acquisition, conservation or improvement of property
• Welfare and homemaking, to the relationship and the children of the relationship.

A party may claim that they made a ‘special’ direct financial contribution which warrants them receiving a greater share of the asset pool.

Examples of ‘special contributions’ include contributions made by:

• An inheritance
• A ‘good’ business person
• An entrepreneur
• A successful artist
• A specialist surgeon.

The existence of a ‘Doctrine of Special Contribution’ was recently reviewed, and rejected, in the decision in Kane v Kane by the Full Court of the Family Court [2013].

The parties had been married for 30 years. The issue in dispute was the weight to be given to their respective contributions to their self-managed superannuation fund. The husband sought a greater share of the fund based on his ‘special contributions’, being ‘the application of his acumen to investment decisions which caused the fund to prosper’ (from $540,000 in 2008 to $1,850,000 in 2012). The husband, with the wife’s consent, purchased shares using matrimonial savings. The shares were registered separately in the name of the husband or the wife, with different rates of growth in their respective portfolios. The husband asserted that this separation evidenced the parties’ shared intention to benefit individually and not collectively, from their respective portfolios only. The wife asserted that the husband had merely invested their savings and they should benefit equally in the overall growth. The husband took principal responsibility for the investments and the wife was content with this (not unusual) arrangement although in evidence she conceded that she was unenthusiastic about the husband’s wish to invest in a particular share purchase. The husband asserted that he carefully researched each investment before deciding to purchase and that the success of the investment was due to his judgment and not mere chance or a random lottery win.

The trial judge held that ‘the evidence in the present proceedings permits a rational conclusion that the acquisition of those shares was no fluke. The husband’s diligent research of that corporation and his decision to invest the parties’ funds in it was an inspired investment decision, manifesting considerable expertise. His decision is all the more remarkable given that he knew he was making that investment decision without the support of his wife. I am satisfied that, without the husband’s skill in selecting and pursuing the investment in Company 1 shares, the parties’ superannuation interests within R Investments would currently be worth substantially less. It follows that the husband’s contributions to those superannuation interests were substantially greater than those of the wife. I reject the wife’s submission that her contributions were equal to those of the husband. The real difficulty is evaluating the parties’ contributions in mathematical terms.

The trial judge split the funds’ two-thirds to the husband and one-third to the wife.

On appeal by the wife to the Full Court of the Family Court, it was held that the trial judges’ disproportionate division of the Fund could not be justified.

On the claim of ‘special contribution’ by the husband, His Honor Deputy Chief Justice Faulks stated:

• The Family Law Act does not refer to ‘special’ or ‘extraordinary’ contributions
• `Special skills … will not always produce significant financial results. An academic may be brilliant and possess exceptional or special skills which require much work and effort to apply, but which may nevertheless not reflect in the … property of the parties’
• `A range of highly specialized practical skills may not produce an economic return equivalent to the return produced by the entrepreneurial skills or a newspaper magnate’
• It is difficult to correlate effort or skill (even if special) with results. Frequently, the financial result of a contribution (whether by physical or intellectual labor or imagination foresight and perspicacity) will be influenced by external factors beyond the control of the party contributing’.

Family lawyers now have the benefit of a very clear message from the Full Court of the Family Court:

• There is no such thing as a ‘Doctrine of Special Contribution’
• The totality of the contributions to the asset pool must be considered
• An asset pool ought not to be divided merely on the basis of a ‘special contribution’ having been made by one of the parties
• No one contribution to an asset pool should be given greater weight than other contributions.

The rejection of the existence of a ‘Doctrine of Special Contribution’ will be most keenly felt by parties with a high-value asset pool which they believe is the result of their ‘special contribution’ over and above the other parties’ contributions.

Family law property matters are complex, and can always benefit from expert advice from a specialist solicitor. Get in touch with Mathews Family Law, and speak with a divorce law and property lawyer to assist you with your separation or divorce.

When the Australian states referred their powers to legislate about the property of de facto couples (same sex and opposite sex) to the Commonwealth at the turn of the decade, the question of what constituted a de facto relationship under the new legislation became the subject of much debate and, consequently, litigation.

The lay understanding of the term “de facto” tends to assume that there is a single identifying factor or test: for example, you have to live together and both be on the lease, you have to be in a relationship for more than two years, or you have to declare your relationship to Centrelink or the ATO.

As is often the case, however, the legal reality of the situation is not so clear cut.

The definition of a “de facto relationship” can be found in section 4AA of the Family Law Act 1975 and in brief requires that:

1. parties to a relationship are not legally married to each other;
2. parties to a relationship are not related by family; and
3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

It is the word “circumstances” in this third point upon which the discussion turns. The legislation goes on to list a number of circumstances that may (but not necessarily) be of relevance:

1. the duration of the relationship;
2. the nature and extent of the parties’ common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
5. the ownership, use and acquisition of the parties’ property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
8. the care and support of children;
9. the reputation and public aspects of the relationship.

Having listed the above factors, however, the legislation goes on to specify that not one of them is a prerequisite for the Court finding that a de facto relationship exists: instead, the importance of each factor should be determined by the Court in the particular “circumstances” of the case.

The effect of these sections is to give the Court a wide ranging discretion to determine each situation as the judicial officer deems appropriate. Understandably, this causes consternation in our mutual clients who often struggle to determine whether or not their relationship should be considered a “de facto”, along with the legal, taxation and other ramifications that such a status brings.

It may seem to go against “common sense”, but recent de facto litigation has shown us that a de facto relationship can, based on the above, be found to exist where one (or both) parties to the relationship is already married to another person, where the parties do not and have not lived together, or even where there has not been any sexual intimacy between them.

While it continues to be an area of law that finds its basis in judicial discretion, the issue of classifying de facto relationships will present a potential minefield for parties and their legal and financial advisors. Armed with knowledge of these pitfalls, however, prudent practitioners will be in a position to ensure that these issues are addressed at a time when asset protection and planning remain an option, and certainly before the horse has bolted and the intimate details of the parties’ personal lives are aired before the Family Law Courts. Mathews Family Law is ready to provide expert family law advice, with specialist solicitors, parental rights lawyers, divorce and family law attorneys available to assist.

When attending family dispute resolution (FDR) to resolve custody issues, you may think you need to bring another person for support. Or you may be wondering if your child is part of the process. There are certain rules regarding who may attend FDR that you should be aware of.

First, lets start with who must be there. Both parents must attend, as well as the professional conducting the FDR. If either parent fails to attend, FDR cannot take place.

So who else can go? Well, as long as neither party objects, a support person or family member may also attend. Your lawyer might be permitted to attend as well, although this must be discussed with the Family Relationship Centre Staff in advance. Each Family Relationship Centre is independently operated, so the rules and feelings towards having your lawyer present may vary from centre to centre.

What about your children? Your children will not actually attend the FDR, although they may still be involved in the process. If the parents consent, a family counsellor may talk to the child while the parties are attending FDR.

Speak with a family dispute attorney from Mathews Family Law today to get the advice you need for Family Dispute Resolution. Our team of specialist solicitors and parental rights lawyers can help you with your family dispute matter.

For many people, meeting with a family lawyer is terrifying. Some may feel that it signifies that the marriage is truly over, others are just scared of the process, and others may still be holding out hope for reconciliation. There are many reasons why being proactive about seeking advice might be hard. The good news is, there is a great resource available to Australians who are looking for information or advice about family issues: The Family Relationship Advice Line.

While you should not depend on the Advice Line to give you legal advice, it can be a great resource for general inquiries. Advice Line staff are equipped to provide information about:

• services to help maintain relationships
• the family law system and family separation
• how to develop workable post-separation parenting agreements
• the impact of conflict on children
• Family Relationship Centres and other dispute resolution services, including telephone services
• other services which will help with family relationship and separation issues

Another advantage to using the Advice Line for general or initial inquiries is that your call will remain anonymous. You can feel free to pick up the phone and ask your question without having to provide any personal information.

The phone number is 1800 050 321 and is open for calls from 8 am and 8 pm Monday through Friday and from 10 am until 4 pm on Saturday.

While this is not an appropriate resource to have your legal questions, such as “will I have to pay spousal support?” answered, it is a great resource to ask general questions about the divorce process and other family issues.

There are many methods to solve family law issues; couples can chose to have their disputes litigated in the court room, they can reach an agreement through mediation, or they can use other dispute resolution methods. In Australia, before you can apply to the court seeking any child related order, you must first attempt family dispute resolution. If you are able to agree on a parenting plan without involvement from the courts, such as through mediation, or you can otherwise reach a settlement, then you will not have to attend this mandatory dispute resolution. However, if you plan on using the courts to help you determine any child related issue, you must first attend family dispute resolution.

Australian law requires couples seeking the court’s help with regard to child related issues to use family dispute resolution because often through this process couples are able to reach an agreement. There is a strong preference in our country for couples to solve their family law issues without resorting to litigation.

A registered family dispute resolution practitioner who has received the necessary training will conduct the dispute resolution. She will provide information regarding the dispute resolution procedure and can also give you information about Legal Aid and contact information for local lawyers. This individual cannot, however, administer legal advice. Her role is merely to act as a neutral third party in helping the couples solve the dispute.

Once the parties have attended the dispute resolution, the dispute resolution practitioner will issue a certificate which can be filed with the court. The certificate will state if the parties attended the resolution, or why it was not appropriate to attempt dispute resolution, and must be signed by the dispute resolution practitioner. Generally, parties must provide this certificate to the court, the only exceptions are cases where there is a history of family violence, the application to the court is urgent, or there are other extreme circumstances.

After the court has received the certificate acknowledging your attempt at family dispute resolution, it will consider your application for any child related matters.

Our team of parental rights lawyers and specialist solicitors can help you navigate the Family Dispute Resolution process. Speak with a family dispute attorney at Mathews Family Law, call our office on 1300 635 529.

Australia now requires anyone seeking a court order concerning children to first file a dispute resolution certificate with the court acknowledging that they have engaged in some type of dispute resolution. This is only necessary if the parties plan to invite the courts to make parenting determinations and other child related issues. Should you and your former partner be able to reach a settlement without seeking the court’s help, there is no requirement to attend dispute resolution.

The reason for this requirement is that Australia has a strong preference for families to reach amicable agreements without resorting to litigation. Generally, the outcome is better when parties are able to reach an agreement independent of the court’s involvement. Dispute resolution encourages early and full disclosure of relevant information, and allows parties to engage in a process that not only avoids legal action but also minimises cost.

What is a Dispute Resolution Certificate? And do I need one?

The certificate is simply a piece of paper that confirms that you and your former partner have attempted some type of family mediation with a registered family dispute resolution practitioner. It will state one of the following:

• The other party did not attend family dispute resolution;
• The parties attended and made a genuine effort to resolve the dispute;
• The parties attended but one or both of them did not make a genuine effort to resolve the dispute; or
• The practitioner decided that the case was not appropriate for family dispute resolution

You will need a certificate before you can apply to the court to litigate any child related procedures unless:

• The application is for consent orders
• There is a history of risk or family violence and/or child abuse;
• The application is urgent;
• It is impractical to attend family dispute resolution;
• The application alleges a contravention of a court order made within  the past 12 months;
• An application for a parenting order has been previously filed with the court; or
• Agreement has been reached.

If the above scenarios do not apply to your case, and you fail to file a certificate prior to seeking the court’s help in a child related proceeding, you could be forced to pay additional costs and/or be ordered to attend the required family dispute resolution.

Once provide to the court, the certificate becomes part of the file and is considered an official court document.

What is a Registered Family Dispute Practitioner?

Your dispute resolution certificate must be signed by a registered family dispute resolution provider in order to be valid. This person may also been known as a “family counsellor” or “dispute resolution practitioner.” An individual or organisation must be qualified through meeting certain standards of training, experience and suitability for inclusion on the Family Dispute Resolution Register.

A “family consultant” does not meet the necessary qualifications, however can still assist you through the process. These individuals are licensed psychologists and social workers who are contracted by the Family Court and assist and advise people involved in the proceedings, assist and advise the court, and also help the parties resolve disputes.

If you are looking for a registered family dispute practitioner you may access the register online at: fdregister.familyrelationships.gov.au/Search.aspx.

Bear in mind that not every legal practitioner or counsellor is qualified to act as a registered family dispute resolution practitioner. You may consult the above website or simply as your lawyer for a recommended family counsellor should you need dispute resolution services.

Prior to commencing the dispute resolution, the registered practitioner or counsellor must assess whether dispute resolution is appropriate in your particular case. The assessment will consider many factors, such as the history of family violence, safety of the parties, equality of bargaining power amongst the parties, emotional/psychological/physical health of the parties, and other relevant factors. Should the practitioner decide that dispute resolution is no appropriate in your situation, they will issue a certificate that says as much.

Do I need a lawyer?

It is very important to note that registered family dispute practitioners are not permitted to give any type of legal advice to the parties. These individuals are to be neutral and should only act to help the parties resolve their issues. Even if you chose a private practitioner who is in fact an lawyer, she may not administer legal advice to either party. These dispute resolution practitioners may discuss the legal process and the logistics of subsequent legal action, and they may provide you with contact information for Legal Aid or other lawyers, however they may not administer legal advice, which begs the question: Do I need an lawyer?

There is no “right” answer to this question. Each family’s circumstances are unique to their situation, so there is no universal answer to the question of whether you should employ an lawyer prior to attending dispute resolution. However, we recommend to most people that they obtain legal advice prior to the dispute resolution session. An lawyer can explain the process, the implications of the parenting decisions you make, and advise you with regard to your particular situation.

Additionally, the law allows parties to seek legal advice and attempt negotiations through lawyers before you dispute resolution session. You may address and settle all child related issues without having to attend dispute resolution – this is only a requirement if you plan to involve the courts.

What can I expect at dispute resolution? 

Dispute resolution can take several forms. If you hire a private practitioner to conduct your family dispute resolution, it may take place at a law firm, or other corporate location. However, if hiring an individual who is a private practitioner is beyond your financial reach, you can get access to dispute resolution services at Family Resource Centres or other community based organisations.

Family Relationship Centres (FRCs) are government sanctioned dispute resolution forums that encourage parents to focus on the needs of the children and reach a workable parenting arrangement. The ultimate goal of the FRC is the same as with other forms of dispute resolution – to reach an agreement without having to go to court. While FRC staff can’t provide legal advice they are trained to deal with relevant issues such as family violence and child abuse, and they can provide you with information about private practice lawyers as well as Legal Aid as well and other community legal centres.

Should you choose the FRC route, your experience may vary depending on the location you select. Each FRC is independently owned and operated and thus the intake process as well as the dispute resolution model can be different at each centre. However, the one aspect of all FRCs that is consistent at all locations is that your first three hours of services are free.

Once you have selected your family dispute resolution forum, you will be asked to sign an agreement confirming your understanding of the process. There will be a joint session, with opportunities to take a “time-out” and have one on one time with the practitioner. If your issues are not able to be resolved in your initial meeting, then you will have to schedule a subsequent session to make another attempt to resolve the issues.

Everything said during the dispute resolution process is strictly confidential, and is not admissible in open court or other proceedings, unless it relates to child abuse or the parties have consented.

Other Avenues of Dispute Resolution

Arbitration is a type of dispute resolution in which a trained professional evaluates the evidence and makes an independent determination regarding the dispute. This process is appealing to some because the parties are able to control the process by selecting the arbitrator as well as the method and timing of arbitration. More often than not, an arbitration hearing can occur significantly sooner than the courts would reach your case, and the process tends to be more private. A list of qualified arbitrators may be found at www. familylawsection.org.au.

Collaborative law is another option for dispute resolution, and allows for parties and lawyers to meet in four-way meetings. This process permits the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Legal advice around Family Dispute Resolution can help you make sense of a complicated process. Mathews Family Law can guide you through with specialist solicitors, advice from family dispute attorneys, and family law parenting matters explained to you in detail.

In 2006 it became mandatory for all couples to attend family dispute resolution prior to filing an application with the court to determine custody. One of the aims of this legislation was to encourage parents to reach an agreement about parenting on their own terms, without the interference of the courts. After family dispute resolution is attempted, the practitioner involved in the process issues one of four types of certificates:

1. A person did not attend family dispute resolution with another party because of the other party’s refusal or failure to do so;
2. A person did not attend family dispute resolution because the practitioner considered that it would not be appropriate to conduct such resolution (having regard to matters prescribed by the regulations);
3. A person did attend family dispute resolution and all attendees made a genuine effort to resolve the issue or issues;
4. A person did attend family dispute resolution but the person or another party did not make a genuine effort to resolve the issue or issues

The court will consider these certificates prior to making a ruling in the case, and can also consider the certificates when assessing whether to order costs to be paid by a party.

Does that mean that you absolutely have to attend family dispute resolution and get one of these certificates before you can file a custody action?

Not exactly.

While the legislators voiced a clear preference for settling child-related matters through family dispute resolution, they also recognized six classes of cases in which family dispute resolution should not be required.

1. Application for Consent Order Pending

If parties are applying for a consent order, then they have already reached an agreement on how to handle child-related issues. Therefore, ordering the parties to attend family dispute resolution prior to filing an application for the consent order would be futile.

2. Violence and Abuse

Where the court finds reasonable grounds exist that demonstrate that there has been abuse or family violence, or that a risk of such exists, no compulsory family dispute resolution is required. The court will not force parties to attempt to achieve a resolution to their child-related issues if there is any history or threat of violence.

3. Contravention of Previous Order

A party can make an application to the court regarding a “particular” child-related issue, without attending dispute resolution, if there is already an order in place addressing said issue. For instance, if there is already an order in place setting forth a custodial schedule for the child, and one party is not abiding by the order, the complying party may apply directly to the court to seek enforcement of the order. If there is already an order in place, there is no need to utilize dispute resolution services to try and reach an agreement.

4. Application is Urgent

Sometimes a parent will have to make an urgent application to the court about a child-related issue. An example of this would be if a parent intended to relocate and take the child with them, in a situation like that the parties would need to have the issue addressed by the judge as soon as possible, spending time at family dispute resolution would simply slow the process down.

5. Incapacity

If a party lacks the capacity, physically or otherwise to attend family dispute resolution, the court will not enforce their attendance. For instance, if a party is unable to participate effectively because they live in another country, an application regarding a child-related issue could be made directly to the court even if no family dispute resolution has taken place. The rationale for this exception is that compelling attendance would be largely inconvenient; a party could make sacrifices to travel and attend dispute resolution only to not reach an agreement and have to subsequently travel again for litigation.

6. Other Circumstances

The final exception category is a catchall. If there is another reason set forth in the regulations that would allow parties to bypass family dispute resolution, that reason will suffice and allow parties to bypass compulsory dispute resolution.

The bottom line is unless your situation qualifies for one of these enumerated exceptions, you should be prepared to attend family dispute resolution prior to making an application to the court to determine custody or other child-related issues.

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.

Arbitration is a form of dispute resolution where parties (or their lawyers) will present arguments to a chosen arbitrator who will make a determination to resolve the dispute. This type of dispute resolution is available to parties who are disputing financial matters, such as spousal support, property settlement, and financial agreements. Arbitration is not, however, an appropriate venue to settle disputes related to children.

Arbitration is almost like a hybrid of court proceedings and mediation. It is similar to mediation in that it is an out of court settlement method, however it differs from mediation in that in mediation the parties work to reach their own agreement. There are some advantages to choosing arbitration as a means to settle a financial dispute. For instance, this process allows the parties to retain much more control and it is more flexible than going to court. You get to choose the arbitrator, who is the ultimate decision maker, and it is also quicker and less expensive than the court process.

Arbitration can be especially appealing to those who have disputes about both children and financial matters. For these parties, they can address parenting issues through mandatory family dispute resolution and subsequently arbitrate their financial dispute without delay.

Yes. We encourage you to always seek legal advice prior to agreeing to dispute resolution. While dispute resolution is all about reaching an out-of-court agreement, you will still want someone to explain to you the dispute resolution process as well as what to expect if you have to litigate your issues.

A lawyer can explain your rights, review the facts of you case, and help you determine if dispute resolution is appropriate for your case. While dispute resolution is mandatory in some cases, in others it may not be the best course of action and an lawyer can advise you on such.

Finally, you will want to have an lawyer present at your dispute resolution. Having representation at a mediation or arbitration helps tremendously as your lawyer can advocate for you and advise you on the best way to proceed and whether you should agree to a proposed settlement.

Mathews Family Law can assist with the advice you need. Contact us now to speak with a specialist solicitor. Discuss your family law property matter with our team of family dispute attorneys. We are able to assist with parental rights, child support, and all family law matters.