The Federal government has enacted changes to the Family Law Act 1975 (FLA) that will prohibit the cross examination by self-represented parties in proceedings where there are family violence issues.

Family violence in the FLA means violent, threatening or other behaviours that coerces or controls a family member or causes them to be fearful.

The changes will apply when family violence is alleged in child custody, property settlement or spousal maintenance proceedings, and any one of the following situations also occur:

  • One of the party’s has been convicted or charged with an offence involving violence, or threatening violence to the other party. Typically, this would be a situation when a party has breached a domestic or family violence order or committed assault and has been charged or convicted.
  • A domestic or family violence order has been made under State legislation (such as a DVO, AVO or Protection Order – the terminology differs between States) and applies to both of the parties i.e. they are the aggrieved and respondent. While the new rules apply to family law matters which are under Commonwealth jurisdiction, domestic or family violence orders come under the powers of the States. Temporary orders aren’t relevant here, only a final order.
  • An injunction under Section 68B or 114 of the Family Law Act 1975 for the personal protection of either party has been made. This is effectively the Commonwealth version of a State domestic or family violence order.
  • The Court determines that cross examination by self-represented parties should not occur in the particular facts of the case. Thus, the Judge can decide the parties shouldn’t be permitted to cross examine each other.

Therefore, in family violence matters as set out above, the parties will need their own family law advice and divorce lawyer to conduct the cross examination for them.

We specialise in family law matters and can assist parties from Lismore to the Sunshine Coast, throughout Greater Brisbane, Northern NSW, Tweed and the Gold Coast with court representation and advice. Get in contact today and in an initial consultation we can give you guidance as to your options, likely outcomes and costs.

What if a party can’t afford legal advice or legal representation?

In these circumstances a party may apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme, to have a family lawyer and barrister appointed for them to conduct the cross examination.

Applying for a lawyer will be done via the state Legal Aid offices, is not merit or means tested and the application must be made at least 12 weeks before the final hearing.

This means that regardless of your financial circumstances you will be able to have the lawyer represent you for the cross examination.

We are Legal Aid Queensland panel solicitors and can assist you with applying for Legal Aid as well as Legally Aided court representation.

When is cross examination necessary?

Cross examination of a witness in family law cases usually only occurs at a final hearing.

Therefore, if you have reached an agreement via mediation or through consent orders or parenting plan, then cross examination won’t be necessary.

If your matter is going to court and you need assistance, contact Hooper Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Family Lawyers Coolangatta on (07) 5599 3026.

 

 

Working with accountants – Family trusts and separation

“Family trusts” are a common structure through which people may operate a business or hold assets.

There are various reasons why people may choose to place assets within a trust structure, but how are these structures (and other trust structures) regarded in the event of separation, divorce and family law proceedings? Do they offer any protection from a claim by an ex-spouse with respect to assets held by the trust?  And what issues arise in the family law context?

What is a family trust?                          

A family trust is typically a discretionary trust generally set up by a family member with other family members being the beneficiaries of the trust.

Primarily family trusts are established to achieve tax minimisation in the manner by which trust income and capital is distributed to the beneficiaries; and to provide protection to the assets of the trust. Protection of assets occurs because the legal interest in the assets is held by the trustee for the benefit of the beneficiaries.

Thus, trust asset protection can be achieved as assets are kept separate from the claims of the creditors of any individual beneficiary.

But do trusts protect trust property from a spouse of a person who may be a beneficiary or trustee of a trust?

What is property in the family law context?                                 

For the purposes of the Family Law Act 1975 the term “property” has a very broad definition. The Full Court has said:

“The word “property” is the most comprehensive of all the terms which can be used, in as much as it is indicative and descriptive of every possible interest a party can have.”[i]

Property can be real or personal and has been held to encompass interests including shares in Pty Ltd companies, partnership interests, contractual rights, rights under trade licences, beneficial interests in administered estates and rights with respect to property held in trusts.

Therefore, in being called upon to determine whether trust assets ought to be regarded as property for family law purposes, Judges will take a broad approach to answering that question.

In determining whether the assets of a trust ought to be included as property of the parties available for distribution between them, Courts exercising jurisdiction pursuant to the Family Law Act 1975 will examine what “influence and control” a party may exert over the trust.

The types of factors that the Court will look for include:

  • What position or role within the trust do the parties have within the trust structure? (i.e. settlor, appointer, trustee and beneficiary)
  • What distributions have occurred in the past?
  • Are there debit or credit loans/accounts?
  • What benefits have the parties received in terms of payment of expenses or salaries etc?

The High Court has held that in a situation where neither the husband or wife is a beneficiary of the Trust, the assets of the trust can be available for the “matrimonial property pool” based on factors such as the assets having been built up by the contributions of the parties over a long period.[ii]

In Kelly and Kelly (No2) the husband had no interest in the trust however the Court determined control based on his relationship with those who had an interest and that he received indirect financial advances. In this case the directors of the corporate trustee were the husband’s accountant, brother and wife. The husband was not a settlor, appointer or beneficiary.

Where the Court does not consider that the assets of the trust ought to be treated as property of the parties (such as where a party has a beneficial interest in a discretionary trust), it may be still be relevant to consider whether the interest is a mere expectancy (and irrelevant) or a financial resource of a party leading to an adjustment of the percentages of the overall matrimonial property pool each party receives.[iii] This is a situation where the history of distributions will be important evidence in firstly determining whether there is a financial resource, and secondly the weight to be applied (i.e. the level of percentage adjustment).

Other issues for Gold Coast family law solicitors and accountants?

There are a number of practical issues that arise in terms of proving a party’s case with respect to the trust and its assets, and with respect to how property may be distributed from a trust to a party to the marriage.

 

Family Law Disclosure

To determine the question of control, determine what interests the parties hold, and/or gain an understanding of what assets the trust holds, documents and information will be required. Often these documents will be held by a party’s accountant, and it is not uncommon for a spouse to lack access to documents, information or an understanding as to how the family financial affairs are structured.

The Family Court and Federal Circuit Court Rules require parties make “full and frank” disclosure.[iv]

The types of documents family law solicitors will typically request from a party or their accountant are:

  • Tax returns with attached financials to determine what is the financial position of the trust;
  • Trust deeds (including deeds of variation) to determine the structure and issues of control;
  • For any corporate trustee a copy of the corporate constitution;
  • Bank statements and any credit card statements for trust accounts evidencing transactions;
  • Minutes of trustee meetings relevant to control and history of dealings;
  • Register of assets and/or register of distributions;
  • Loan agreements with respect to loan accounts;
  • If the trust is operating a business (as is commonly the case), disclosure of relevant business records to determine value, assets and financial dealings.

The above is not exhaustive, and disclosure will be required depending on the circumstances and relevance.

If a party refuses to disclose, it can impact negatively upon their case and cause the Court to draw adverse inferences in some situations.

Further, trustees have obligations under State and Territory legislation to maintain certain records which beneficiary have a right to inspect. Subpoenas are also an available remedy to compel a recalcitrant party (or a third party such as an accountant) to provide documents or give evidence.

Issues for family law settlements involving trusts and transfer of property from trusts to a spouse or former spouse

There are a number of issues that can arise in relation to transfer of trust assets and income at separation.

These types of issues include:

  • Capital Gains Tax (“CGT”) – where an asset pregnant with CGT is transferred from the trust to a spouse (or de facto spouse). In this situation the spouse takes the asset pregnant with the CGT however the transfer from trust to spouse attracts CGT rollover relief.[v]
  • Tax issues from settlement distributions – If as part of a family law settlement a distribution from a trust is contemplated, it will be important to determine whether the intended recipient is still a beneficiary. A spouse who was a beneficiary may no longer be a beneficiary as at the date of settlement. For example, if the parties are divorced and the former spouse doesn’t fit the definition of a class of beneficiary pursuant to the deed after the marriage is dissolved. This can create issues as to how the ATO will regard and tax the payment.
  • Tax issues from past distributions – If tax hasn’t been assessed on past financial years distributions, the tax needs to be considered in determining the overall pool available for distribution and whether the liable party will pay, or if the other party will be responsible for the tax. Sometimes it is an issue that tax on prior years distributions is payable, but that spouse party hasn’t received the distribution (income splitting between spouses). In this situation however, the beneficiary can enforce the actual payment of the distribution.
  • Division 7A Income Tax Assessment Act 1936 – In some circumstances where distributions have been made to a private company, but not paid (present unpaid entitlements or UPE), Div 7A tax may be payable.

It is important for family lawyers drafting orders to consider all the potential issues arising from the proposed transfers, and where applicable, ensure that clients obtain accounting advice before finalising property settlement orders.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice.

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

[i] In the Marriage of Duff (1977) 29 FLR 46 – approving the statement by Lord Langdale MR in Jones v Skinner 5 LJ Ch. 87.
[ii] Kennon v Spry (2008) FLC 93-388 – in this case the trust was set up by an expert on the law of trusts likely for the purposes of placing assets beyond the reach of the wife.
[iii] Kelly and Kelly (No2) FLC 91-108.
[iv] Family Court Rules 2004 R13.04 and Federal Circuit Court Rules 2001 R20.04.
[v] S 126-5 Income Tax Assessment Act 1997.

It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.

Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.

The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.

This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.

The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.

However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:

  1. Children have rights; while parents have responsibilities;
  2. Parenting arrangements ought to be in the best interests of the children.

From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.

In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:

  • Making Christmas time a happy childhood memory. One of the most important issues for children’s mental health is to not be exposed to disputes between their parents. Studies have shown witnessing family violence generates similar response in children as having violence directed towards them; and some writers argue “exposing a child to domestic violence is a form of abuse in itself, regardless of whether the child is the target of such violence or not.”
  • Would the children be excited to see both of their parents, grandparents and other people who are important to them on Christmas Day? Is splitting Christmas Day in half what the children would likely prefer? Or would they be happier not to travel on Christmas Day; instead spending Christmas with one parent one year, and with the other the next;
  • If one parent has issues affecting the children’s safety, such as drug or alcohol problems, is there someone trusted who might supervise the time?
  • Will you let them take some of the gifts to the other parents home? Sometimes an item can represent a connection to the home they are not in;
  • Can they give a gift to the other parent?
  • Have you made planned holiday activities and outings, and taken time off work etc.

These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.

One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.

If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.

Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.

If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.

Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.

 

Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.

In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.

Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:

1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.

Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.

As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.

Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:

2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:

a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.

Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.

The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.

Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).

An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households. Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  •  Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  •  Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.

In the period leading up to Christmas our office routinely receives enquiries from people about “child custody”, “custody rights”, “family law custody” or “child custody laws”.

While these terms haven’t been used in the family law context since 1995[i], and given we are almost 20 years down the track; they’ve remained in the minds of some people presented with parenting issues.

There’s been a change in terminology in family law due to a shift in the context in which the court examines a parenting dispute.-In approaching the exercise of making a parenting order, the court comes from a perspective that while children have rights; parents have responsibilities.

Terms that suggest ownership or right such as “child custody rights” i.e. my right to child custody, are not relevant to the modern Family Court. Further, parents who think in these terms may be inadvertently doing a disservice to the presentation of their case.

So how should I approach Family Law child custody? And what if I don’t want to go to Court?

Whether or not you want, or need, to go to Court the best outcomes for your children (and most likely for you) will be achieved by “child-focused thinking”.

This means framing your proposal for the separated co-parenting arrangements according to the following types of considerations:

  • Is the proposal “businesslike”? Have you been able to put aside your animosity towards the ex partner when considering the proposal?
  • Has the proposal been considered in terms of what is practical for the children?
  • Is the proposal likely to be enjoyable for them?
  • Does the proposal make concessions as to what benefits they receive in the other household?
  • What are your motivations in making the proposal? i.e. are you looking to advance the children best interests?

Some of the rights children have are to enjoy spending time regularly with both parents, (consistent with what is necessary to keep them safe from harm), have meaningful relationships with both parents and extended family, receive adequate and proper parenting etc.

In my experience not many parents consulting a Brisbane family lawyer would disagree children should not have these rights or that children are “property” such as is suggested by thinking in terms of custody laws.

What about this Christmas – I don’t have parenting orders or a parenting agreement in place?

Some ex partners are difficult (believe me I know).

The best you can do is control what you’re doing. This is an area of law where two wrongs don’t make a right.

Remember you need to be child focused; and you should act “responsibly” for your children. Here are some tips for Christmas holidays negotiations:

  • Try and use email for your communications. While face to face may be best to repair a relationship, not so here. Remember your email may end up annexed to an affidavit so behave in a businesslike and child focused manner when communicating your proposal;
  • As part of being child focused think about your proposal. Cover the above points.
  • Avoid being reactive. He or she may say something stupid, insulting, threatening or abusive. Don’t react – you have it in writing;
  • During the festive season don’t drink text or email. At Christmas many people have a few drinks and emotions are running high with separation and absent children at a family time of year. Again, the focus needs to be the children and not your own pain. Things will work out long terms if you stay calm;
  • Look after yourself. Don’t overdo it and set those resolutions in place for the New Year. I often say to my clients “it’s a marathon not a sprint” which is particularly relevant when dealing with a difficult ex partner.

I hope anyone taking the time to read this has found it helpful and informative. Have a merry Christmas in 2014; and a Happy New Year in 2015.

Peter Hooper – Hooper Family Lawyers


 

[i] The Family Law Reform Act 1995 (Cth) replaced part VII of the Family Law Act 1975 (Cth) (“FLA”) and changed the terminology when dealing with children’s matters from “guardianship”, “custody” and “access” to “specific issues”, “residence” and “contact”.

The Family Law Act 1975 has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) which commenced operation on 1 July 2006. This amending Act changes the terms “residence” and “contact” to become “living with”, “spending time” and “communicating with”.

By Peter Hooper, Brisbane Family Lawyer

Most people are familiar with the idea that when parents separate “non-residential” parents may have to pay child support.

What most people don’t know however is how much child support they may be eligible to receive or liable to pay?

Well…keep reading because I can show you exactly how to work this out for yourself, quickly and easily…

The Child Support system

Child support in Australia is determined by an administrative assessment. For those of you young enough to remember, it started with Bob Hawke announcing in the late 1980’s that “By 1990 no Australian child will live in poverty”.

Effectively the legislation took the responsibility for determining how much child support should be paid away from the courts; and created a formula to be administered by the Child Support Agency (now Department of Human Resources).

Child support calculator – the child support formula

What makes up the child support formula then?

The following sets out how child support is calculated using the basic formula in the legislation:

  1. Each parents taxable income minus a “self-support” amount;
  2. Add both parents incomes together (minus self-support) to arrive at the “combined child support income”;
  3. Divide each parent’s individual child support income by the combined child support income to get an income percentage for each parent
  4. We work out each parent’s care percentage of the child using the care and cost table. The care costs table is set out below.
  5. Then work out each parents cost percentage using the same table, and subtract the cost percentage from the income percentage for each parent to arrive at the child support percentage.
  6. If the result is a positive percentage, child support is payable.
  7. If there is a positive percentage then the Department will work out the costs for each child based on the parents’ combined child support income using the cost of children The costs depend on the age and number of the children and are set out below.
  8. The final amount payable is then calculated by multiplying the positive child support percentage by the costs of the child. This final figure is the child support amount the paying parent needs to transfer to the other parent.

Do you need to be a family law lawyer to work this out?

No you don’t.

All you need to do to estimate the child support you are eligible or liable for is CLICK HERE

The link is to the Department of Human resources child support estimator. The estimator will work out the basic formula for you however there can be circumstances where the basic formula won’t apply and a change of assessment is necessary.

 

Peter Hooper is an accredited specialist family lawyer in Brisbane.

Peter Hooper accredited family law specialist is a Brisbane Family Lawyer and Director of Hooper Family Lawyers, a family law firm in Brisbane practicing exclusively in Family and Relationship Law.

Most family lawyers in Brisbane, and across the country, time cost. Therefore it stands to reason that if you’re able to assist your lawyer to reduce their time, you will save money on fees.

One of the areas where a lot can be done to assist your lawyer in reducing time is with affidavits required to be filed in family law matters in the Federal Circuit Court of Australia and Family Court of Australia.

What is an affidavit? It is a sworn statement of the evidence you will rely upon at a hearing in family law cases. In most family law matters your evidence in chief, that is the facts supporting your case, is communicated in a affidavit format.

The affidavit is your story told by you and therefore if you know some of the rules about producing an affidavit, and produce a good draft yourself in a Word format, you can help reduce your costs. Here are some tips:

What are the requirements? – The rules for each jurisdiction set out the requirements and are summarised below. You can find the Rules by clicking the links below or by visiting the relevant Court websites:

  • Rule 15.08 Family Law Rules 2004 “FLR” and rule 15.25 Federal Circuit Court Rules 2001 “FCCR” (Div 15.4 FCCR) provide for the use of the printed forms. Again the forms are available in a Word format on the Court Website or on our website via the following link: Hooper Family Lawyers forms.
  • The forms have places for the names of the parties, official court section to be completed and the statement at the end to be completed by the qualified witness i.e. JP/Commissioner for Declarations or solicitor;
  • Rule 15.09 FLR – the affidavit should be:

o      Confined to the facts in dispute relevant to the issues in the case;

o      Confined to admissible evidence;

o      Consecutively numbered paragraphs;

o      Sworn in the presence of the qualified witness;

o      Signed on each page;

o      Filed in court;

o      Any alterations should be initially by person swearing and witness;

o—Use words for the month in a date i.e. 30 May 2014 and figures for

number i.e. $20 for twenty dollars.

o      Annexures – need to be attached and referenced etc.

  • Rule 24.01 FLR the affidavit should:

o      Written legibly – preferably types in a 12 point font;

o      Be on A4 sized paper;

o      Have left and right margins so it can be read when bound but no more than a 2.5cm margin;

o      Be at 1.5cm line spacing.

The affidavit is your story but tell your story in chronological order i.e. start at the beginning and work towards the most recent relevant circumstances.

Don’t be afraid to use headings. Sometimes if the story needs to be broken up over several different topics, heading will allow you to group your topics into relevant areas. Headings can also assist you to organise your thoughts to cover everything you need to, and most importantly make your affidavit easier to read.

Make sure the affidavit is simple, clear and brief. Don’t use 40 words to say what you can in 4.

Affidavits are sworn documents that must be truthful. You may have to include something you think is bad for your case, make an apology, or make a positive acknowledgement of the other party. Being truthful is more important to your case than any other aspect and often more “points” can be scored with the judge by being truthful than contradicting what you perceive to be a fact in favour of the other party.

Complying with the rules will make your affidavit easier for the Judge to read; which means the facts you want the Judge to be aware of will be more easily understood.

Please remember it is not your job to form conclusion that is the Judge’s job. A good affidavit only sets out the “relevant factual matters”. Judges have a lot to consider and generally do not look favourably upon reading large volumes of unnecessary material.

Try and avoid emotive language and adverbs. This type of language tends to try and lead the Judge towards a conclusion. Adverbs are words that tell as more about a verb. For example John “simply” turned and walked away; or John “literally” slammed the door. Statements containing adverbs may lead the Judge to conclude a lack of credit or tendency to exaggerate.

Hopefully you have found this helpful but please note there are many other considerations to putting together a persuasive and effective affidavit. This blog is not intended to cover every circumstance and before filing your material; I recommend that you attend upon an accredited specialist family lawyer in Brisbane for advice.

Separation almost never places anyone in a more favourable economic position.

The effect of separation is usually results in assets needing to be divided or sold, the family is living in and maintaining two households, incomes are now kept separate and so on.

On top of this most people understand that they will need a family lawyer; and that family law services are by their nature expensive.

So what is the answer?

The good news is if you can control your emotions and manage to keep the brakes on your amygdala (the stress and anxiety emotions part of your brain), a lot can be done to reduce the cost of separating.

Here are five tips:

  1. Reconciliation Counselling – To use some clichés, perhaps you don’t need to throw the baby out with the bath water. And prevention is better than cure. There are plenty of good counsellors out there who can assist. If the relationship can be saved that is arguably the best outcome for everyone;
  2. Stay calm – Easier said than done. Separation is an emotional process and people handle things differently. If you are struggling get help from your GP and/or a counsellor ASAP. A lot of people who don’t handle separation well can engage in destructive and self-destructive behaviours which cause breakdowns in communication and can cause the settlement process, or resolution process, to be drawn out and much more expensive;
  3. Get Good Advice – I’ve spent a lot of years working as a family lawyer in Brisbane, doing my law degree, specialist accreditation in family law and my Masters degree in family law. Family Law is not something you can Google and figure out in an afternoon. Before you and your spouse/partner start to negotiate with each other, find out from an expert in family law what the range of outcomes are. That way you have some idea what the parameters of your negotiation should be;
  4. Negotiate with each other in a business-like manner, in writing – You’ve both had advice now you can get down to brass tacks. If you’ve followed point 2 above, communication should be possible and you’ll save a fortune in not needing family lawyers bounce letters back and forth. Here I find email is best because it is in writing (which encourages people to behave) and date stamped. Please note generally settlement discussions are “without prejudice” and section 131 of the Commonwealth Evidence Act 1995 applies. This means generally settlement negotiations cannot be used in evidence in the family law property proceeding. The key here is to limit your “without prejudice” settlement communications to negotiations; and don’t mention other wider issues in the same correspondence. Please note however if the matter doesn’t settle, and reasonable offers have been rejected, after the trial the judge can consider the offers in deciding whether to make a costs order against a party.
  5. Go back to your family law lawyer – After you’ve reached an agreement, the agreement needs to be formally recorded in order to achieve a final resolution. You’ll already know this however because you will have gotten the advice first at step 3 above. The party’s family lawyers will be able to advise you what method of recording the agreement is best for you.

Sometimes when communications break down some help is required. Using your Brisbane family lawyer places a degree of separation between you and your spouse/partner if relations are strained. Mediation is also a very useful process to help people reach an agreement.

Remember, the cost of separation is not always financial. The emotional cost must also be considered and in my experience most people can only really start to heal their emotional side after their family law issues have been resolved.

Peter HooperHooper family Lawyers in Brisbane

After the reality of the separation has set in, most people start thinking about how the future will look, and how they are going to finalise the current chapter of their lives.

Not surprisingly, for the first time ever it dawns on them they should probably speak to a solicitor and specifically a matrimonial lawyer or family lawyer. If you watch a lot of US drama programs the phrase “divorce lawyer” might be on your radar.

Having never been in this situation before, stressed and fearful about the future, and with the internet overflowing with options for lawyers of all shapes and sizes; the next question springing to mind is “which family lawyer should I choose?”

Here are 5 tips that I think might help you weed out the winners from the “wannabes”:

  • Firstly, make sure they know something about family law and the way the family law system operates. This might seem like a given, but take it from an accredited specialist family lawyer in Brisbane who deals with other Brisbane lawyers on a daily basis; there are plenty who dabble in this area without a high level of knowledge. Ideally your solicitor will specialise in family law and be a Law Society accredited family law specialist. Getting poor advice early on can set the stage for a protracted, unhappy and expensive litigation;
  • Secondly, find a lawyer who’s happy to speak to you frankly about costs. You have the right to negotiate the retainer and it is important that budgets are discussed before the work starts. Sometimes commercial considerations will need to shape the decisions you make; and failing to plan ahead can lead to disaster. The worst lawyer is the one who runs up a massive bill, and deserts you half way through a matter when the funds run dry. Your family lawyer should put your best interests ahead of their fees.
  • Thirdly, your family lawyer needs to be level headed and not seek to unnecessarily antagonise your ex-partner. Separation can be high conflict; however often relationship are ongoing, especially where children are involved. Ask your family lawyer about the FLPA “Best Practice Guidelines for Family Lawyers”. If they turn their head like a confused puppy you may be in trouble. Sometimes it becomes necessary to adopt an aggressive approach, however this should only occur after more amicable attempts at resolution have been exhausted; or in response to an ex-partner (or their lawyer) resorting to bully tactics.
  • Fourthly, you and your family law matter are unique and you need to be treated as such. As I heard one of our Judges say in the Federal Circuit Court in Brisbane recently, “…this is not a sausage factory”. People deal with the stress of separation in different ways and your lawyer needs to have the life experience and maturity to understand where you are at. Additionally, the advice you receive must be tailored to your particular circumstances and a case plan developed early on as to how your matter will be managed. The old business adage applies here, “those who fail to plan, plan to fail”. Having a plan also helps manage your budget; and remain focused on the important issues to be negotiated or determined.
  • Fifthly, find a lawyer you like. I’m not kidding, it’s important. You need to be able to trust this person with the most personal aspects of your family life and you need to respect the advice their giving you. If you like your lawyer chances are it’s because your gut is telling you they have your back and they’re trying hard to help you.

Hopefully the above will be helpful in finding the right lawyer for you, and take some of the stress out of separating; and moving forward with your life.

By Peter Hooper – Brisbane lawyer specialising in family law

 

Contrary to popular belief, most family lawyers I’ve encountered prefer to resolve their matters early, and amicably, as opposed to after a long litigation and destructive trial.

The benefits of an early, amicable resolution are obvious:

  • Move on with your life more swiftly;
  • Spend less of your hard earned money on legal fees;
  • Avoid the emotional cost of a court battle;
  • Protect your children from the emotional trauma of parental conflict; and
  • Preserve a working relationship with your ex-partner that will provide stability for your children, and give them positive role models for their own relationships.

Some people might be tempted to say, “Yes, yes but what can I do, my ex is the problem”.

And this might also be true; however there are approaches to relationship breakdown that can be taken to give yourself the best shot at achieving an amicable separation without rolling over and allowing the ex to tickle your tummy.  

Here is my humble opinion:

  1. Look into your counselling options. First and foremost explore whether your relationship can be fixed, and look at what you can do to improve things. Prevention is always better than cure.
  2. Accept that you can’t change or control your ex-partner, but you do have the ability to control your own situation. This relates to your entire outlook and includes perhaps not drinking so much, getting some exercise and not “mirroring” aggressive behaviour. You can each spend a lot of time focusing on what is wrong with each other; when what you really need to be doing is focusing on yourself.
  3. If the relationship is too broken to fix, be respectful in implementing your exit strategy. Remember you once loved this person and maybe had children with them. If you’re grieving at the loss of your partner or hurt by their conduct, acting out maliciously might provide a short term reward, but in my experience the long term effects are all negative.  Again counselling can be the key to managing the stress of separation.-In writing this I’m reminded of the old Chinese proverb: “He who seeks revenge must first dig two graves.”
  4. Once you have decided or realised that the separation is final, get some advice from an accredited specialist family lawyer. There are two reasons why this is important; firstly, you can’t commence any proper negotiations until you know where you stand, and what the range of outcome or entitlement might be. Secondly, in consulting a family lawyer you will commence the process of managing your post separation communications and relationship;
  5. Obviously when you’re hurting and angry you’re not going to be best friends with your ex. What you should be aiming for is establishing a businesslike approach to your communications. This means focusing on the issues at hand, and not the issues that may have led to the relationship breakdown. Speak to your ex the same way you might speak to someone you don’t know.
  6. Try to engage in a cooperative rather than competitive negotiation. This means rather than arguing for every concession you feel entitled to, try and work out what your motivations and needs are, and try and understand what your ex-partners motivations and needs are.-This is illustrated by the “Orange Story”. The story goes; two sisters fight over an orange. They resolve the fight by agreeing to take half the orange each. One sister uses the rind to make a cake, and throws out the pulp, the other uses the pulp to make juice, and throws out the rind. The story is simplistic but demonstrates that it can be important to understand what underpins the other party’s position;
  7. Be prepared to compromise and narrow the issues. Start your negotiations with the things you can easily agree to, and work towards the more difficult items. If you can tick off some areas of agreement early a positive momentum builds towards resolving all issues.
  8. Factor in the costs of not agreeing. Litigation has a financial and emotional cost.

I tell all my client’s that there is only two ways disputes between parties can be resolved in a civilized society, that is, agreements between the disputing parties or orders from Judges. Following the above will give you the best shot at formulating an early agreement, and avoid setting foot inside a court room.

Peter Hooper is an accredited specialist family lawyer in Brisbane.