Byron Bay Family Law & Mediation Specialists offers specialist intervention order advice.
For a free telephone consultation with a family law specialist:
http://interventionordermelbourne.com.au/
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.
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]
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]
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/
A CURLY CASE FOR THE COMMISSIONER OF TAXATION
CAO & TRONG AND ANOR [2018] FAMILY COURT OF AUSTRALIA
There is no escaping the Family Court and the Commissioner …
The wife filed an application for a final property settlement, including an order that:
1. The husband indemnify her against ‘against any liability present or contingent including tax … in respect of E Pty Ltd’; and
2. The husband be responsible ‘for all income tax assessed on income received or deemed to have been received by the husband’.
In the period 2005 -2012 the husband incurred a tax liability of $5,519,200 (unpaid).
The Commissioner of Taxation sought leave to intervene in the property settlement proceedings and an order that the court first make provision for the payment of taxation liabilities to the Commissioner prior to any property distribution to the parties.
Before the matter could be determined by the court, the parties effectively withdrew their respective applications for final property settlement orders.
The wife advised the Commissioner that there was therefore now no basis for it to intervene.
The Commissioner was successful in its application for an order that the court does have the jurisdiction and power to determine an claim against a creditor pursuant to section 79 property settlement proceedings – even if the parties have withdrawn their applications.
The case was run by the Commissioner of Taxation as a ‘test case’ and confirmed that even when the parties themselves no longer seek the assistance of the court to achieve a final property settlement, if the Commissioner has already intervened in those proceedings, the court has jurisdiction to make an final order in its favor – and the liabilities owed to it enforced as an order of the Family Court.
In other words – there’s no avoiding the Commissioner – no matter what agreement the parties themselves might ‘agree on’, there’s no way around their obligations to it.
I hope that the year is treating you well – even though it is flying by.
We continue to offer a free 15 minute telephone consultation to your clients in need of family law advice – they can call me on 9804 7991 or email [email protected] to book a time.
And remember, we’re always happy to help you out with your own ‘curly cases’.
Stay in touch,
Vanessa and the Team at Byron Bay Family Law & Mediation Specialists
Dear Friends
Last weekend I attended the AFCC Australian Chapter conference in Adelaide.
The conference topic was ‘Alienation? Myths, complexities and possibilities …’.
The caliber of the papers was excellent.
I was particularly interested in the workshop offered by Dr Philip Stahl, Psychologist, on domestic violence differentiation, personality disorders and unconscious bias.
Also of great interest was the current research on high conflict separations, alienation and children resisting contact with parents.
Early identification and intervention is the key to avoiding the escalation of ‘mere conflict’ into alienation and the devastating impact on children (regardless of age).
We heard from our local well-known Psychologists Dr Jenni Neoh and Ms Lisa Bottomley in particular about their respective intervention programs for complex family matters.
We often work with families facing experiencing particular difficulty with their post-separation parenting – with young and old children. We will be recommending Jenni and Lisa’s very special approaches to these clients in the hope of achieving an early and effective resolution.
The AFCC website provides a wealth of excellent resources, including conference papers http://afccnet.org.au/ . You may like to consider becoming a member.
We continue to offer a free initial telephone consultation to your clients in need of family law advice – they simply need to call us on 1300 635 529 or email [email protected] to book a time for one of our family law specialists to speak with them.
And remember, we’re always happy to help you out with any questions you may have. Stay in touch,
Vanessa and the Team at Byron Bay Family Law & Mediation Specialists
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?
Justice Power in PY v RJS & Others outlines the general legal test for capacity as follows:
- Generally, a person is not shown to be incapable of managing his or her own affairs unless it can be shown otherwise. That is, a person is presumed to have legal capacity unless the following characteristics can be observed:
- That he or she appears incapable of dealing, in a reasonable competent fashion, with the ordinary routine affairs of man and
- That, by reason of that lack of competence, there is shown to be a real risk that either:
- He or she may be disadvantaged in the conduct of such affairs or
- That such monies or property which he or she may possess may be dissipated or lost.
- It is not sufficient, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that the person does not deal with even simple routine transactions in the most efficient manner. That is, the person must understand the purpose of the transactions that they are carrying out in everyday life.
The “Client Capacity Sub-Committee” of the New South Wales Law Society has developed guidelines to assist practitioners concerned about the competency of their client to give proper instructions. By way of summary, practitioners should be wary of the following:
- Are you as the practitioner able to obtain proper instructions from your client after you have provided a brief summary / explanation of likely issues to them?
- If your client has a diagnosable illness, is it likely to be a temporary or permanent impairment? If it is temporary or medication based, think about different ways in which you might obtain instructions (i.e. taking frequent breaks in conference, drawing diagrams).
- If the issues needing clarification are minor and short term, can a friend or relative assist the client with providing instructions which are in the client’s best interests?
- Will the client consent to a formal assessment of capacity by a specialist professional?
- Should you as the practitioner cease to act? If at any time the practitioner has become the substitute decision-maker, he or she should make immediate arrangements to have a substitute instruction giver appointed.
Subject to any specialist evaluation of the client’s legal capacity, or should it be the case the matter is already in Court, it may be appropriate to appoint a “Case Guardian”. This process involves filing an Application with the Court pursuant to rule 6.08 of the Family Law Rules 2004 together with an Affidavit in support containing the relevant evidence (i.e. short report from the client’s treating specialist regarding the client’s mental health and likely duration of any diagnosable condition).
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,
in one way or another – by hearing, seeing, feeling – incidents of domestic violence and/or the aftermath of family violence.
The following article in ‘The Age’ reports the findings of a new study by the Australian Institute Family Studies which confirms what we already know – that children who are exposed to family violence are at higher risk of suffering sexual, emotional and physical abuse.
The issue is ‘What can be done to prevent children from being exposed to family violence, thereby reducing the risk of future abuse for these very same children?’
The Australian Institute of Family Studies report, which will be released on Wednesday, also shows that children exposed to domestic violence from an early age are more likely to experience difficulties at school and have lifelong problems with social and cognitive development.
The report, Children’s exposure to domestic and family violence, draws on local and international research to examine the effects on children raised in abusive households.
It found young people who grew up around domestic violence were at higher risk of other forms of abuse, and that exposure to family violence was the leading cause of homelessness in young people.
“It affects their development in such a global fashion,” AIFS director Anne Hollonds said. “The problems are extensive and they go right across physical and mental wellbeing, cognitive development, which obviously affects academic achievement and employment.”
The study found child abuse often co-existed with domestic violence and that victims of persistent maltreatment in childhood suffered similar effects to trauma, which can lead to aggression, self-hatred and a lack of awareness of danger.
Ms Hollonds said the experience of children exposed to violence at home was not well understood and that a fragmented response meant the most vulnerable children were falling through the cracks.
“What we have is a fragmented patchwork of some services in some areas often operating in quite a siloed way,” she said.
“For example, domestic violence support for women might not always be focusing on the needs of the children. Similarly, adult services for mental health or drug and alcohol issues might not have a focus on the needs of dependent children.
“Unfortunately in some families the problems are multiple, it’s not just violence towards the other parent but there is also various kinds of abuse that the children directly experience. This multi-victimization of children requires our urgent attention.”
The Australian Human Rights Commission released a report on Monday that found up to five children in every classroom had experienced or witnessed family violence.
The National Children’s Commissioner, Megan Mitchell, said children were the “invisible victims” of the domestic violence scourge and that growing up in an abusive household could have a devastating lifelong impact on a person’s mental and physical health.
She said children exposed to family violence might also feel they needed to defend the parent, or be the one to call police or an ambulance.
Crime statistics show Victoria Police were called to 65,400 family incidents in 2013-14 and that children were present in more than one-third of cases.
According to the Australian Bureau of Statistics, more than half of victims abused by their partner had dependent children in their care at the time, with that figure rising to 61 per cent in cases of abuse at the hands of former partners.
Ms Hollonds said a multidisciplinary approach to domestic violence across health, child protection and family services sectors was needed to help the most disadvantaged families, who are often dealing with complex problems but face the most barriers accessing help.
“We have a late reaction policy culture and find it difficult to co-ordinate across portfolios,” she said. “The key is acting earlier because often we don’t find out about the problems people are having until they’ve escalated to a very serious stage, and by then children will have been affected.”
Read more:
The Australian Institute of Family Studies: aifs.gov.au/publications/evaluation-2012-family-violence-amendments
Lifeline for counselling and support: www.1800respect.org.au/
If you would believe you would benefit from legal advice about family violence and/or other relationship issues, please contact Vanessa Mathews, Accredited Family Law Specialist Australian family lawyers, Byron Bay Family Law & Mediation Specialists, Level 2, 599 Malvern Road, Toorak, Victoria, phone 1300 635 529, email [email protected]
Vanessa is an expert specialist Melbourne Divorce Lawyer with many years of experience in advising clients about family violence and family law issues.
Vanessa’s clients have kindly been willing to express their satisfaction with her work by writing, and consenting to have published, their testimonials on Byron Bay Family Law & Mediation Specialists, Melbourne Divorce Lawyers, website: mathewsfamilylaw.com.au/stories/
Further testimonials as to Vanessa’s work may be found at Google Reviews: click here
Second marriages, partnerships, step-families present challenges, new opportunities after separation, divorce
Relationships Australia has prepared this informative summary about challenges and complication of re-partnering after separation, divorce.
In second partnerships, couples are often more aware of the difficulties in establishing a successful relationship and are more committed to making the marriage work.
Both second marriages and step-families have to overcome some difficult hurdles. These hurdles can present significant challenges to the couple in their relationship as partners and as parents.
Unfortunately, many second marriages and step-families, despite their commitment to making things work, fail to get over these hurdles.
This page outlines some of the challenges and complications of re-partnering and step-families.
The decision to re-marry or re-partner
Before you re-marry or re-partner, you should consider the following questions:
- When?
- Why?
- To Whom?
Listen to any doubts. If necessary, wait a little longer
When?
The simple answer is after you have fully come to terms with the end of your previous relationship. This is particularly important if you did not want the first marriage to end, and had to deal with the pain of leaving or being left by your previous partner. It takes longer than many people expect to get over the end of a long term relationship, even if you were unhappy and felt that the end was inevitable.
Some studies suggest many people take at least two years to adjust to the end of a long term relationship. There are many exceptions to this. Some people take longer, others adjust more rapidly. Ask yourself:
- Do I find myself thinking about my ex-partner and do these thoughts still arouse strong feelings such as anger and resentment?
- Have I adjusted to living alone again?
- Have I regained a sense of self-confidence?
- Can I look back on that relationship and recognise some of the things that contributed to its breakdown?
In other words, am I emotionally free to re-partner? Can I put all my emotional energy into this new relationship without allowing my feelings about my previous relationship to get in the way?
Just as you cannot re-marry until you are legally free to do so, being emotionally free to re-marry is also important.
Why?
Unfortunately this question is often overlooked. Are you thinking of re-marrying or re- partnering because you want to be with someone whom you love or do you want to re-marry or re-partner for the sake of being in a relationship, or to provide a two-parent home for your children? Being alone is not easy after being married or in a long-term relationship, especially if you have children living with you. However, moving too rapidly into a new relationship can create a new set of problems.
To whom?
Past experiences influence our choice of partners. This is especially true of a second marriage. Be realistic about what worked and what didn’t work in your first marriage when making a decision about a new partner. Learn from that experience to clarify what sort of partner you want.
Being in love is not enough to make a relationship work especially once the initial excitement has worn off.
The following organizations offer separation, divorce counselling:
Family Relationships Centre: http://www.familyrelationships.gov.au/searchpages/searchpage.aspx?KEYWORD=frc%20not%20pop&RESOURCETYPES=Service
Relationships Australia: http://www.relationships.org.au/what-we-do/services/counselling
CatholicCare: http://www.ccam.org.au/
Family Mediation Centre: https://www.fmc.org.au/marriage-counselling.php?gclid=Cj0KEQiAqK-zBRC2zaXc8MOiwfIBEiQAXPHrXsvDPeRotm4nM6DHg4zIk5QIa_fiidlbpIzCf9gbUlYaAoXl8P8HAQ
The following informative article about coping with separation and divorce at Christmas was published by Relationships Australia www.relationships.org.au
Resources
For some people, Christmas can be the most stressful time of the year. People can feel increased financial pressure from the costs of buying gifts, entertaining and holidays, and there can be increased strain from spending time with family members. For those people with complex family situations, such as separated families, Christmas time can present even greater challenges. Stress, anxiety and depression are common feelings over the holiday period.
There are some practical things you can do to prevent stress at Christmas
- If someone close to you has recently died or you are unable to be with your family and friends, acknowledge your feelings. It’s normal to feel sadness and grief and you can’t force yourself to be happy just because it’s the holiday season.
- If you feel lonely or isolated, seek out community, religious or other social events. They can offer support and companionship. Volunteering your time to help others also is a good way to lift your spirits and broaden your friendships.
- Sometimes expectations around family gatherings may make you uncomfortable or stressed. As families change and grow, traditions and rituals often change as well. Choose a few to hold on to, and be open to creating new ones.
- Try to accept family members and friends as they are. Set aside grievances until a more appropriate time for discussion and be understanding if others get upset when something goes awry. People under stress often ‘self-medicate’ with alcohol, cigarettes and other drugs. Try to remember that drugs can’t solve problems or alleviate stress in the long term.
- Stick to a budget. Before you go gift and food shopping, decide how much money you can afford to spend and then stick to your budget. If you have a large circle of extended family or friends to buy gifts for you might be able to suggest a change in the way your family and friends give presents. For example:
- Buy presents only for the children.
- Have a Kris Kringle, where everyone draws a name out of a hat and buys a present only for that person.
- Set a limit on the cost of presents for each person
- Plan ahead. Set aside specific days for shopping, baking, visiting friends and other activities. If you plan your menus and activities you may avoid the stress associated with last-minute or forgotten tasks.
- Learn to say no. Saying yes when you should say no can leave you feeling resentful and overwhelmed. Most friends and colleagues will understand if you can’t participate in every project or activity. If it’s not possible to say no when your boss asks you to work overtime, try to remove something else from your agenda to make up for the lost time.
- Don’t abandon healthy habits. Overindulgence can add to your stress and guilt. Try these suggestions:
- Have a healthy snack before holiday parties so that you don’t go overboard on sweets, cheese or drinks.
- Get plenty of sleep and regular exercise.
- Take time out for yourself. Spending just 15 minutes alone, without distractions, may refresh you enough to handle everything you need to do. Find something that reduces stress by clearing your mind, slowing your breathing and restoring inner calm. Some options may include:
- Taking a walk at night and stargazing.
- Listening to soothing music.
- Getting a massage.
- Reading a book.
Where to get help with separation and divorce at Christmas
If you need professional medical help, talk to your doctor or your local community health center
If you would like to talk to someone immediately, you can contact:
- Lifeline – a free crisis telephone counselling service www.lifeline.org.au or call 13 11 14
- Monoline Australia – a counselling service and resources for men in family crisis www.mensline.org.au or call 1300 78 99 78
- Family Relationships Online www.familyrelationships.gov.au
- Family Relationships Advice Line 1300 364 277
You can also access counselling and support services in your state and territory through the Relationships Australia website www.relationships.org.au or by calling 1300 364 277
If you feel anxious or depressed, information and resources are available at www.beyondblue.org.au
If you are a young person, or the parent or career of a young person with mental health problems, support is available at www.headspace.org.au
If you are caring for someone you may find useful information and resources at www.carersaustralia.com.au
If you, or someone you know is experiencing family violence you can contact 1800 RESPECT 24 hours a day 1800 737 732 or www.1800respect.org.au
If you need help with budgeting, you can find a financial counsellor in your local area by accessing
http://www.financialcounsellingaustralia.org.au/Corporate/Find-a-Counsellor
You can also talk to a phone financial counsellor from anywhere in Australia by ringing 1800 007 007 (minimum opening hours are 9.30 am – 4.30 pm Monday to Friday).
If you are having ongoing conflict or disagreements with your children, siblings, parents or extended family, you can seek the professional assistance of a counsellor or mediator, for example see:
There are many volunteering opportunities in Australia and the websites below can give you some ideas about the various ways you can broaden your social networks and contribute to your community:
http://www.volunteeringaustralia.org/
If you live near others who are likely to feel isolated, lonely or vulnerable around Christmas, check in with them, and perhaps include them in your own festivities. For information and ideas about what other people do for their neighbors see the Neighbor day website, Australia’s annual celebration of community:
Sources: http://www.mayoclinic.org/healthy-living/stress-management/in-depth/stress/art-20047544;
