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 is an accredited specialist in family law, and has the expertise and experience to provide you with the separation and divorce legal advice you are looking for.

Contact Mathews Family Law & Mediation Specialists, Accredited Family Law Specialist, Level 2, 599 Malvern Road, Toorak, Victoria, phone

1300 635 529, enquiries@mflaw.com.au

Mathews Family Law: mathewsfamilylaw-dev.10web.cloud

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

Federal Circuit Court of Australia: federalcircuitcourt.gov.au

 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.

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 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.

Please contact Vanessa Mathews on vanessam@mflaw.com.au 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.

A court can make orders about:

• which parent a child lives with;
• how much time a child spends with the other parent;
• how a child communicates with a parent;
• parental responsibility.

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

A special medical procedure is one that 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 regarding 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 the evidence as to the child’s best interests from:

• The child’s parents.
• Expert witnesses such as medical specialists, mental health professionals, counselors, 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 & Mediation Specialists, can assist with your questions about special medical procedures.

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.