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Family Law Library

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


Popular Articles

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 a 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 minimise 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 minimised their value.

In Anaya, the husband argued that investment funds (including an 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 to 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 on vanessam@mflaw.com.au or 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.

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).

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 Honour 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 favour 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.

Please contact Vanessa Mathews on vanessam@mflaw.com.au or 9804 7991 to arrange a free 15 minute telephone consultation to discuss your child custody matter with one of the best family lawyers in Melbourne, accredited family law specialist, Vanessa Mathews, Kuppy Nambiar and Jeremy Hogg.

Family Law and Mediation – Is Mediation Appropriate For Me?

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 a 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 utilise 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. In 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:

a. Interim issues:
i. Child custody following separation, eg shared care
ii. Single issue disputes, eg choice of school

b. Final issues:
i. Child custody when one parent wishes to relocate with the children
ii. Ongoing parenting child custody arrangements

c. Documentation of agreements
i. Parenting Plan
ii. Family Court Consent Orders

2. Negotiate property settlement and spousal maintenance issues including:

a. Interim issues:
i. The use or sale of the home following separation
ii. Child support
iii. Spousal maintenance
iv. Disclosure and valuation of assets

b. Final issues
i. Property settlement asset division
ii. Child support
iii. Spousal maintenance
iv. Superannuation splitting

c. Finalisation of the agreement:
i. Family Court Consent Orders
ii. Binding Financial Agreements

Please contact Mathews Family Law & Mediation Specialists on 03 9804 7991 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 is rated by ‘Three Best Rated’ as one of the three best divorce lawyers in Melbourne.

Vanessa Mathews is recognised 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 family law firm in the eastern suburbs of Melbourne – Level 2, 599 Malvern Road, Toorak.

Effect of Overseas Divorce on Australian Property Settlement

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

A recent verdict by the Full Court of the Family Court of Australia in Anderson & McIntosh (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 getting 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 by the Court in that country. During the same time, a divorce decree was issued. The foreign courts 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 recognised 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 recognise 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 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 firm with years of experience and a track record of delivering successful outcomes in divorce proceedings, 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 (03) 9804 7991 now.

Divorce Property Settlement

Divorce Property Settlement

At Mathews Family Law and Mediation Specialists, we specialise in all aspects of family law and offer quality and practical legal solutions. We always endeavour to resolve issues amicably and in the best interest of our clients. With years of experience in dealing with the most complex family law issues, we are a divorce law firm you can trust to deliver a favourable outcome.

Our approach is resolution focused, with the aim to get the best possible outcome for our clients. We understand the emotional trauma involved in a divorce and are committed to providing fast, cost-effective and suitable resolutions for all of our clients. We strive to be the best family lawyers in Melbourne, our lawyers are here to listen and guide you through to the outcome you are striving to achieve. If you are looking for experienced family lawyers that are experts in Australian divorce settlement, then Mathews Family Law and Mediation Specialists is the law firm for you.

Divorce, legally ending your marriage can have many different aspects associated with it. Issues related to family law, children, custody and divorce and property settlement in Australia, whatever the problem we are here to assist you through the process.

Experienced Divorce Lawyers in Melbourne:

Finalising and initiating the process of divorce is an extremely emotional and stressful thing to undertake. We empathise with our clients’ position, priding ourselves on being attentive to their needs. Our dedicated team of lawyers take the utmost care in dealing with your case efficiently, tailoring our approach to achieve your desired outcome. We aim to ensure our clients future is secured, and they receive quality family law and legal advice at every step.

If you wish to discuss any issue relating to family law, please feel free to get in touch with us and book in a free initial consultation.