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It is not uncommon for people meeting with their family lawyer for the first time to raise issues of fault, wrong doing or poor conduct by the other party.

Many people automatically assume these are the types of issues that will be most relevant in the event that going to Court becomes necessary.

In my experience, if a party is suffering from the loss of the relationship, betrayal associated with an extra-marital affair or fear of change, retribution and validation of those feelings can also drive a client’s perception as to what is relevant or important. Again, in my experience, this often manifests as an aggressive approach to litigation, intractable positions, and allegations being raised in correspondence and court documents and in some cases harassing behaviour or family violence.

 

In general terms, what does the Family Law say about fault or conduct?

Prior to the Family Law reforms in 1975, there were 14 grounds for Divorce, the majority of which were fault based. This included conduct such as habitual drunkenness, physical cruelty, desertion, adultery, imprisonment etc.

The Matrimonial Causes Act 1959 was repealed in 1975 to remove the 14 grounds and introduce one ground, that is, “irretrievable breakdown of the marital relationship”.

Whilst proving fault under the 14 grounds was difficult and often unsavoury (imagine private investigators spying on people to prove an affair, or taking photographs etc), proving the irretrievable breakdown ground only requires a 12-month period of separation.

The general flavour of the reform across the wider areas of parenting orders, property settlement and spousal maintenance, was also to recognise the undesirability of “fault” paying a part and to move away from evidence relating to bad conduct being raised in proceedings.

 

Does fault pay any part now then?

The answer is yes.

In some circumstances fault still does play a role. Not with respect to divorce but in relation to certain aspects of parenting, property and spousal maintenance.

 

Parenting orders

As I have discussed elsewhere on this site, Family Court and Federal Circuit Court judges have a broad discretion to make Parenting Orders subject to the best interests of children being the paramount consideration, and considering the Objects and Principles underpinning the Family Law Act 1975 relating to children’s cases.

Often fault or conduct will be relevant in determining whether children are at an unacceptable risk of harm, whether a parent has capacity to properly care for children, maturity and lifestyle of the parents, family violence and other conduct depending on the circumstances.

Thus, conduct such as family violence, alcohol/substance dependency issues and poor lifestyle choices (for example surrounding neglect) can clearly be understood as being relevant in a child custody case.

In my experience however, it sometimes occurs that people will want to place greater restrictions on the other parent’s time as “punishment” for bad behaviour, such as extramarital affairs or re-partnering, and this is not something relevant to who children live with or spend time with.

Indeed, this type of anger can often backfire, with the party’s who’s conduct is creating high conflict being examined as a potential source of risk of emotional harm to children.

This is where a good family lawyer can help, by determining the relevant from the irrelevant and assessing the evidence which is the currency of any court.

 

Property settlement

In my view there is less scope for fault or conduct to be relevant in a property matter.

Again, anger over affairs, re-partnering, loss of a life partner etc is not directly relevant but it can certainly drive a dispute. Family lawyers can assist in filtering some emotion from communications and how your evidence is presented.

Mediators assist by diagnosing the underlying causes of a dispute and using interventions such as reframing to provide a more neutral or positive interpretation of events.

Some examples of the type of conduct that can be relevant is as follows:

  • Losses from reckless, wanton or negligent conduct. This would include deliberately destroying an asset, things such as gambling losses or behaviour such as removing or hiding property without sufficient explanation. The conduct would be relevant, but the judge retains a broad discretion as to how the conduct will affect distribution of assets.
  • Family violence in some limited circumstances can be regarded. Lawyers often call these cases Kennon cases”. In these situations, one party’s violence has made the other party’s contributions to the property pool, or welfare of the family, more onerous. From a practical perspective evidence may be difficult to obtain to establish the “special burden” and the weight this evidence will be afforded is at the judge’s discretion.
  • Generally, a Court will consider you take your partner as they are i.e. a spend thrift or a saver, however in some circumstances it may be possible to argue “negative contribution” due to excessive habits or poor judgement with money. While cases often interpret this type of behaviour differently it will usually come down to a question of degree in the context of the amount of property available for distribution.

 

How Hooper Family Lawyers Gold Coast and Brisbane can help?

The Family Law jurisdiction is complex and often judges have broad discretion to weigh and interpret evidence. As experienced, specialist family law solicitors we can identify for you what is relevant, tell you how we think a Court will interpret the evidence you present us with, provide a filter for emotion or anger and move towards a faster resolution.

As identified above, sometimes placing evidence of irrelevant conduct or the making allegations of misconduct without sufficient evidence can back fire for your case and put you in a worse position. Thus, your choice of solicitor is an important one.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Coolangatta office on 5599 3026 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://www.hooperfamilylawyers.com.au/

 

1 – Section 60CC(3)(m) refers to any other fact or circumstance that the court thinks is relevant. Thus, there is a potential for almost any other form of conduct to be raised if it’s is relevant.

2 – In the marriage of Kennon [1997]F.L.C.92-757

“What’s mine is yours and what’s yours is mine” …but what about the joint bank accounts?

Most people who are married or in committed relationships intertwine their finances. Typically, this takes the form of joint ownership of the family home, motor vehicles and of course the joint bank account (or credit card).

While most people realise there is a process to divide assets and work out who receives what, in our experience there is often confusion regarding the law surrounding accessing jointly held cash.

Common questions people ask family lawyers are:

  • Can I take my half from the joint bank account?
  • Can I take all of it?
  • He/she has transferred it to their account, but I know the banking passwords – can I take it back?
  • How can I stop him/her accessing the joint account?

What’s ours is mine…

When people co-own a bank account both parties are equally entitled to access all of the money i.e. they don’t own half each. They each own the full amount.

This means that whoever gets to the bank first (figuratively speaking – probably the computer first) can legally clean out the joint account.

In this situation it would be necessary for the party who didn’t take the money to take further steps to protect their interests. Neither the bank nor the Police would bear any responsibility to rectify the situation.

Fortunately, however the Family Law Act 1975 does contain remedies and provide Judges with power to address this situation on an interim, or final basis.

For example, if someone was to transfer money to their own account from the joint account, the Court would be able to make Orders, such as, for some or all of the money to be paid to the other person, restrain a person from further dealing with the money, or Order that it be paid into a trust account pending the final determination of all of the issues.

What’s yours is mine…

It is also not uncommon for married couples or people in de facto relationships or other committed relationships to share passwords, pin numbers or banking details (their banks would be angry if they found out).

We have also encountered situations where some people regard being married, or in a de facto relationship (particularly for a long time) as granting equal rights to property. This is not the case.

Being married or in a relationship does not convey property rights.

People may have a common use of property, but ultimately if property is not jointly owned it generally belongs to one of them.

During the relationship it may have been ok to use credit cards, bank accounts or make bank transfers from your partners account but only because this was impliedly or expressly authorised.

If there is no authorisation from the owner, then accessing funds in the above manner may well be stealing, and land you in hot water with the police.

As a general rule, if you’re separated do not use the ex-partners cards or accounts unless there is an express authorisation (in writing).

What’s mine is yours…

The Family Law Act 1975 empowers the Court to adjust interests in property provided the Court does “justice and equity” i.e. the court can take what’s yours and make it his or hers.

The Court also has a number of powers (alluded to above) that can assist in making sure property that may be distributed between the parties to the relationship, is protected until such time as all of the matters are considered.

There is also steps that people can take themselves to avoid Court, unnecessary costs and inflaming the situations. Some examples are:

  • Contact the bank and see if they have an ability to “freeze” an account at the behest of one party;
  • Have a discussion with your ex-partner. Ask them whether they will agree to splitting the funds a certain way, or whether they will agree to having the money deposited to a neutral third party such as a solicitor’s trust account, to be held for both parties.

If in doubt and before taking action that you feel may not be right or may likely inflame your situation, please contact a family law solicitor at Hooper Family Lawyers at Victoria Point or Coolangatta on 3207 7663 for advice.

Alternatively for more information we have many helpful resources on our website.

Accredited Specialist Family Lawyers Gold Coast and Coolangatta

Hooper Family Lawyers is making a sea change…of sorts…we’re staying in the Brisbane Bayside (we love it here) however we now also have a branch office on Griffith Street, Coolangatta.

We will be offering specialised Family Law advice to the Gold Coast and Northern NSW regions including:

  • Family law advice;
  • Consent orders;
  • Parenting Plans and child custody matters;
  • Mediation;
  • Property settlement;
  • Spousal maintenance;
  • Domestic Violence protection;
  • All other aspects of de facto and family law legal and Court representation.

Our office in Coolangatta is situated within walking distance to the Magistrates Court at Coolangatta, and we will be providing representation in the Federal Circuit Courts at Lismore and Southport, as well as representation in the Brisbane Family and Federal Circuit Courts.

For us this is an exciting opportunity to grow our firm, forge new relationships, and provide our expert family law services on the Gold Coast and Northern NSW.

Our mediation services via “Decide Mediation” will also be available from the Gold Coast office, and we are available to travel for mediation from Brisbane to Coolangatta and Northern NSW.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost effective manner. Please contact our Coolangatta office on 1800 891 878 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://www.hooperfamilylawyers.com.au/

Separation and divorce proceedings can cause strong emotional reactions such as anger, hurt, fear and anxiety about the future. When emotions are running high it can be difficult to make the best choices.

The following are some tips to assist you with the emotional aspects of marriage breakdown.

  • Consider reconciliation

Divorcing isn’t always the final solution. Ask yourself whether the relationship can be salvaged. There are relationship counselling services you can access and participate in as a couple.

The Family Law Act 1975 requires that your family law solicitor provides you with prescribed material regarding the availability of reconciliation services. Prevention is better than cure, so ultimately reconciliation may be the best outcome for your family, emotionally and financially.

  • What if the marriage or relationship cannot be saved?

Often when people are at the point of obtaining advice from a family lawyer, the reality is the relationship can’t be saved.

If you find yourself separating, there are steps you can take to make the process a bit easier on yourself.

  • Don’t forget the self-care

Taking care of yourself makes you feel better in a difficult situation.   

It’s not always easy to do but getting enough sleep, eating healthy food, exercise and getting help, or information, will improve your situation and outlook. If you are struggling with anxiety or depression a useful place to start is with your general practitioner who can refer you to psychologists or counsellors.

Your lawyer can help to demystify the legal process, and provide you with a road map for resolution leading to the next phase of your life.

Something simple, like your favourite meal, is a great form of self-care

Something simple, like your favourite meal, is a great form of self-care

  • Flexibility

If you’re negotiating property settlement or children’s time, it is important to consider keeping an open mind and not become “positioned”.

Becoming positioned is when you draw lines in the sand, create “bottom lines” and say things like “my way or the highway”.

Often in negotiations or mediation, it is more useful to consider the interests of everyone involved (including children), the costs involved in litigation (including the non-financial, emotional cost of a protracted legal fight) and the time you will spend dealing with lawyers and Courts that you could be spending getting on with your life.

  • Try not to “mirror” hostile behaviour

Often separation isn’t amicable. You may find yourself confronted with aggressive, angry and unreasonable behaviour.

If you’re also angry it can be a natural reaction to respond in kind. This situation is rarely helpful and tends to escalate conflict.  Conflict in family law matters tends to make resolutions more difficult to achieve and can be very emotionally harmful to children caught up in the middle of such a dispute between their parents.

You can’t control what your ex-partner is doing but you can control yourself, and choose not to mirror destructive behaviours. Often when one party refuses to “mirror” aggression, a de-escalation will occur. Family violence of course should not be tolerated in any context. If you or a family member is confronted by family violence or threats of family violence you should contact police or discuss options for your safety with your lawyer.

  • Get proper advice

You may find after separation you start receiving lots of advice from family and friends about your “legal rights”. While they generally mean well, be wary of the back yard or BBQ advice.

Family law is complex and while someone may know someone with a situation similar to yours, family law outcomes will depend on many different factors unique to individual circumstances. Early advice from a family law solicitor will assist you understand what you need to do, and will likely make you feel better.

In my experience, one of the most common types of remarks people make leaving my office after an initial attendance for advice is “thank you, I feel much better now”.

Need more help? We have these too:

When a separation happens, it’s logical to contact a divorce lawyer to guide you through the process. There’s a lot of advice for them to give and they can’t explain it all in one meeting, so we compiled this list.

Help us help you.

It’s better to come prepared to the initial meeting and the ones that follow. Relevant dates (marriage, birth dates etc), financial documents such as tax information, payslips, receipts, phone records, letters, and the like will help your divorce lawyer get a better picture of the situation. It is very helpful to produce a list of all of the assets and liabilities of the marriage or relationship.

Don’t do things out of spite.

Divorces are what you make of them, and contrary to common belief there is such a thing as an amicable divorce. It’s not good to be that person who throws out their partner’s things onto the pavement and blasts angry messages over Facebook. Vindictive, angry behaviour makes resolution more difficult and in some cases amounts to family violence.

Don’t listen to divorce gossip.

No matter how good your friend’s or family’s intentions are, everyone’s situation is different. Don’t ruin a potentially smooth process by comparing your situation to your sister’s/neighbour’s/anyone else’s. It’ll cause you headaches of all different kinds.

You are important, so take care of yourself.

Get a counsellor if you need to. Lean on someone you trust (just don’t listen to their divorce advice) and be with your children. Go to the gym and sweat out some frustration. There’s no ‘emotional justice’ in divorce, or control on either side. So don’t expect to ‘win’ per se, just be happy you made it through.

The process takes time.

The courts, the law, and the paperwork in your divorce moves according to its own schedule. Litigation takes even longer thanks to court dates, applications and the like. Your divorce lawyer will advise against going to court, but sometimes it can’t get helped if there’s major issues that can’t be resolved easily. Clients shouldn’t expect to walk away from the whole affair quickly. There’s assets to divide and sometimes custody to work out.

You can’t talk to your spouse’s solicitor.

If you have representation of your own, it’s not allowed. If you try and contact them they won’t speak to you. Your own divorce lawyer is on your side and is there to convey messages. You can trust them to do it.

Separation is usually stressful but often more so where domestic violence has characterised the relationship, or has become present on separation.

Domestic or family violence has several definitions and can be physical, emotional, financial, sexual, social or spiritual. Often domestic violence is grounded in one person attempting to exercise their control over another person.

Research into domestic violence indicates there are categories or characteristics to the behaviour that professionals working with people caught up in violent relationships ought to recognise. Some examples are:

  • “Coercive and controlling violence” – where violence is used to disempower or control another person;
  • “Situational” -where arguments escalate to the point of violence, often by both parties towards each other;
  • “Violent resistance” – when a partner uses violence to defend against abuse;
  • “Separation induced violence” – often isolated acts of violence in response to the stress of separation, seeking to regain control.

Nobody should ever feel unsafe in a relationship. But for your health and safety, there are important steps to take when you separate in circumstances of family violence.

Escape – Physical safety first

If you are in a situation of immediate danger remove yourself, children and pets from that situation.

If you are unable to get to safety you should immediately call Police.

Getting to safety is often very difficult for practical, financial and emotional reasons however there is support available.

Some of the assistance currently available is:

  • DV Connect Women’s Line 1800 811 811
  • DV Connect Men’s Line 1800 600 636
  • Kids Help Line 1800 55 1800
  • Lifeline 13 11 14

Currently the Queensland Government has useful information available on the following link:

https://www.qld.gov.au/community/getting-support-health-social-issue/domestic-family-violence-getting-help/

Some organisations recommend preparing a “go bag” that includes clothes, cash and essentials for the children. Having copies of financial information, and other important paperwork such as pass ports is important as well. The Domestic Violence Crisis Service has a useful checklist that can help with the planning.

Get a lawyer

Empowering yourself includes getting a legal specialist on your side to assist you.

In this situation knowledge is power; and knowing your rights with respect to Protection Orders, child custody, property settlement and court procedures, can assist you to with separation strategy. Your lawyer is your guide during this tough time.

Some charity organisations against domestic violence offer free advice or you may be eligible for legal aid. Some lawyers, such as Hooper Family Lawyers, are private firms on the Legal Aid Queensland panel who can make the application for you, and be nominated as your family law solicitor.

Tell someone

If you are living with family violence speak up.

Ideally you would make a complaint to Police if you are a victim, however you may not yet be prepared to make a formal complaint.  

Counselling services such as those referred to above may be able to assist and if you need someone to talk to.

Trusted friends and family members can also be good people to talk to regarding the situation as well as a trusted general medical practitioner.

It is important that you are certain whoever you talk to will not report back to the perpetrator.

What if a Protection Order is breached?

A breach of a Protection Order in Queensland is a criminal offence.

If a Protection Order has gotten breached, the Police will require evidence before bringing criminal charges against the perpetrator. In criminal court matters, there is a higher standard of proof (“beyond a reasonable doubt”). The evidence the Police need must be sufficiently strong.

Police will often say to victims they should record any breaches if possible. This should only be done however when it is safe for you to do so. For information regarding your legal rights to make recording please refer to our article of the topic:

https://www.hooperfamilylawyers.com.au/recordings-as-evidence-in-courts-exercising-jurisdiction-under-family-law-act-1975-2/

The family report has significant weight in parenting proceedings and to assist with parenting arrangements post separation. It is often very helpful to have a family report prepared prior to mediation or family dispute resolution to assist separated parents. It is important to understand what the report entails, who writes it, and how it affects custody arrangements. 

Who writes it?

The court appoints a specialist family report writer to write the family report. The family report writer is an independent expert and can be appointed privately by the parties or as Court appointed “family consultant”. Strictly speaking the report writer has the status of being a Court Expert (Federal Circuit Court Rules) or Single Expert witness (Family Court Rules). This means the family report writer is not a witness for either party and may be cross examined by either party. The specialist normally has a background in psychology and/or social work.

How is the report written?

Once the court appoints the report writer or consultant they begin the interview and observation process. They will interview both parents and people close to the family and often observe the children in an informal interview, observe transition between adults, and see how they interact with the adults. The children have the option to speak with the family report writer or consultant but can choose not to.

What factors are considered?

In a custody matters, the aim is to ensure the best interests of children are met. Interviews with family members assist to determine issues in the custody matter that need to be addressed and provide recommendations as to the best interests of the children:

  • The nature of the existing parenting arrangements and important relationships in the lives of the children (parental and other)
  • Examination of allegations of unacceptable risk of harm (physical, psychological or sexual)
  • The responsibility parents have shown towards obligations as parents
  • The parent’s capacity to care for their children
  • The views of the children in the case

To keep in mind

It is important to make sure you attend the interview process. Failing to attend may cause delay, potentially cause costs against you, or that the family report is admitted into evidence without your input. Your divorce lawyer should provide you with date, time and other necessary information in advance. 

The report is only one piece of evidence in the case but the judge usually places a fair degree of weight on the opinion of the independent expert. The report writer or consultant makes recommendations about custody and access to children but the court isn’t obliged to follow them. If there’s an argument about the report, there’s an opportunity to cross-examine the consultant and the family members they interviewed.

Lastly, there’s no such a thing as off the record in a meeting with the report writer or consultant. They’re obliged to write a thorough report. Anything they’re told either goes in writing or sent to the court.

Family Consultant FAQs

What is a family report?

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)

What’s the child inclusive mediation method?

Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):

  • The session with the children must be supportive and appropriate as to the dispute and separation
  • Decision making shouldn’t be a burden the children carry
  • A therapeutic element is needed to help children with coping, providing information and validating their experiences
  • Assisting parents to hear and reflect upon the children’s experiences to better understand the children’s needs

Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.

The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.

Does this method work?

In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:

  • 82% of CI cases felt this method had improved the way their dispute was handled
  • 61% of children reported better outcomes for the family

In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)

For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).