5 Common Family Law Myths

Our family lawyers chime in on their top 5 family law myths that you may not know about…

1. A Couple needs to live together for 6 months to qualify as a de facto relationship.

We hear this one a lot, and we don’t know where it comes from! The Family Law Act says that in order to commence proceedings for a property settlement, a de facto relationship must have lasted for at least 2 years, or the couple must have a child or the party to the de facto relationship who applies for the order or declaration made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant.

2. As soon as you “hit the threshold” of a de facto relationship, all of your property and assets will be divided equally with the other person in the event of a split.

Whilst, in theory, this is a possibility, there are a number of factors that the Family Law Act specifies a Court must take into account when deciding a property settlement division, and there is no automatic assumption of an equal split.

3. If 2 parents who have separated have children and those children spend equal amounts of time with each parent, then no child support is payable.

Whilst on the face of it we can see why this is a common assumption, in practice, this is not the way it works. If either parent applies to the Child Support Agency they will use a formula set out in the legislation to work out if child support is payable, and if so, how much. The amount of nights a child spends with each parent is one factor, but there are others, including how much each parent earns.

4. If you didn’t get married in Australia you can’t get divorced in Australia.

Again we can understand why this seems possible, but in fact, it is not the case. If one spouse is an Australian Citizen, or regards Australia as their home and intends to live here permanently, or ordinarily lives in Australia and has done so for 12 months prior to filing an application, then an Australian Court has the power to grant a divorce. That is of course provided that the couple was validly married in another country.

5. The Court will “punish” the person who is at fault for the breakdown of the relationship.

When we meet with clients for the first time, we are often asked about the consequences of behaviour and whether behaviour is relevant – in effect will the Court decide who is at fault for the relationship breaking down, and will that affect the property settlement outcome. Whether you think that is a good or a bad thing perhaps depends on your perspective, but the legal position in Australia is that the Court will not investigate the reasons behind the relationship ending.

What do you think? Check out some of our other blog posts:

• Mental Illness In The Workplace

• Discrimination on Public Transport

• Is Surrogacy Legal In Australia?

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005

Email: mail@aylwardgame.com.au 

Article Source: Family Law Myths 

Many couples separate and can agree on what they wish to happen in relation to a distribution of the asset pool (property settlement) and if there are children, the arrangements that they wish to put in place for the children’s future.

When couples are in agreement the options for formalising the property settlement and arrangements for the children are:

• Consent Orders
• Parenting Plan
• Financial Agreement

These options are discussed in more detail under the children and financial issues sections of this booklet.

WHAT HAPPENS IF COUPLES ARE UNABLE TO AGREE ON FINANCIAL AND CHILDREN’S ISSUES?

There are a number of ways to resolve diffences after a relationship has broken down.

1. Counselling
2. Collaborative Practice
3. Mediation
4. Family Law Litigation

1. Counselling

Counsellors can help you to work through problems after the breakup. You can find qualified counsellors in private practices, as well as in government and community-based organisations.

Counselling works best if you and your partner attend sessions of your own free will. However, if you and your partner go to the Family Court, you may be ordered to attend Counselling before a decision is made by the Court.

If Counselling does not prevent your relationship from breaking down it can still help with resolving emotional issues that result from the separation. It is a good idea to shop around to find a counsellor with whom you feel comfortable and confident.

2. COLLABORATIVE PRACTICE – THE NEW ALTERNATIVE TO LITIGATION

Collaborative practice is a popular dispute resolution method developed in the United States in the early 1990s. It has gained rapid popularity in the United States, the United Kingdom, and Canada. Now Collaborative practice is available to help people in Australia

Benefits of Collaborative Practice

• You have the benefit of being advised and supported by your lawyer at all times.
• The outcomes are generally faster than traditional negotiation methods and most certainly quicker than court outcomes.
• The outcomes are certain and long-lasting because they are owned by you as you assisted in creating the outcomes.
• The process promotes co-operation in the future, particularly where long-term investments are involved.
• Resolutions are reached in a dignified and respectful way.
• The outcomes are often tailor-made and more creative providing fairer settlements. 

The collaborative practice may be suitable for you and your partner if both of you: 

• Wish to spare your children from the emotional damage litigation can cause.
• Accept personal responsibility in moving forward and reaching an agreement.
• Believe it is important to create healthy and more holistic solutions for your future.
• Understand and embrace the necessity to make full and frank disclosure about financial issues.

The collaborative practice may not be suitable for you and your partner if either of you:

• Have a primary aim to seek revenge against your former spouse or partner.
• Are looking for a “soft option”.
• Believe the procedure will pressure your spouse or partner to agree to your wishes.
• Want to avoid giving certain financial information to your spouse or partner.
• Where your relationship has experienced domestic violence or any form of abuse. If this is the case, the lawyers will first have to determine whether Collaborative practice is appropriate. It may be that other professionals are required to be involved to assist and support you through the process and to ensure that your interests are promoted and protected.

Make your own decisions

The Collaborative approach will enable you and your partner to resolve your issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved. In the Collaborative practice process, emphasis is placed on reaching an agreement, rather than having to ‘battle it out in Court’.

Commitment to the non-confrontational dispute resolution

In the Collaborative practice, you will be asked to sign a Participation Agreement so that you demonstrate your commitment to resolving your differences with your partner in a respectful manner, with full and frank disclosure of information, and with a minimum of conflict. Open communication will build an environment of trust. This trust will help you, your partner, and both of your lawyers to work together in finding workable solutions to your dispute.

In Collaborative practice, you and your partner and your lawyers will work together to share information and to arrive at solutions through a series of meetings. Your lawyer will never negotiate deals without your active participation. A major benefit of Collaborative practice is that you and your partner can each contribute to the compromised agreements that you make together, instead of having to settle with a decision imposed upon you by the Court.

Total ‘out-of-Court’ settlement with Collaborative practic 

At the commencement of the collaborative process all parties and their lawyers will enter into a Participation Agreement. Pursuant to the terms of the Participation Agreement the parties agree that they will not litigate their matter in the Family Court. This means that if either you or your partner decides to commence proceedings in Court and continue with such proceedings during the collaborative process, your collaborative lawyer will not be able to represent you in the collaborative process they will only be able to refer you to another trusted practitioner to handle your Court case.

How does it all work?

Collaborative practice is different from going to Court. You will be in a room with your lawyer as well as your partner and their lawyer. Both lawyers will be properly trained in the collaborative approach. We all work together towards the common goal of resolving the dispute between you and your partner, with emphasis on retaining your dignity and best interests.

You will have your collaborative lawyer advising and assisting you throughout the negotiations. The playing field will be more even between you and your partner, because you and your partner will have your respective lawyers to support you, as well as other professionals if necessary and with your consent.

The integrated approach of Collaborative practice

Collaborative lawyers often work with other professionals, such as accountants, financial planners, valuers, counsellors and mental health professionals, who are trained in the collaborative approach. These people will work together with your collaborative lawyers with your consent with a focus on developing an overall dispute resolution package that will provide both you and your partner with security and direction.

Note: In Collaborative practice, your lawyer and your partner’s lawyer will draft your agreement in legal terms.

3. MEDIATION

Overview of Mediation

Mediation is a voluntary process, but the Family Court may order that you and your partner participate in mediation, depending on your circumstances. Only you, your partner and the Mediator will be part of the Mediation process. Depending on the level of conflict and personal dynamics of the relationship between you and your partner two Mediators may be necessary.

Role of the MediatorIf the Family Court orders mediation or you and your partner agree, you may be allowed to have your lawyer present in the mediation. The Mediator’s role is to assist communication between you and your partner so that you can have open discussions and negotiate a settlement.

The Mediator’s aim is to facilitate open communication between you and your partner so that you can:

• identify issues of the dispute;
• generate options to address these issues; and
• agree upon ways to resolve the issues (i.e. ‘settlement’).

The Mediator’s role is essentially a neutral one.  The Mediator:

• will not take sides;
• will work with both you and your partner to help you negotiate your own decisions together; and
• will not represent either of you in Court either before or after the Mediation.

Characteristics of Mediation

• All decisions in mediation will be made by you and your partner, not the Court or anyone else.
• Mediation will help you to identify important issues that relate to your assets and finances and/or care arrangements for your children.
• Mediation is readily accessible, making it fast and efficient.
• Mediation is a popular form of alternative dispute resolution.

THE MEDIATION PROCESS

1. Fact finding and isolation of issues

At this stage the Mediator will obtain from you as much relevant information as possible, identifying the issues to be discussed and identifying any underlying conflict which may be associated with such issues. The issues will deal with such matters as property, financial assistance and the children.

Once the issues have been identified, the Mediator will then establish an agenda setting out the order in which the issues should be dealt with and which you believe would be the most appropriate way of dealing with such issues.

2. Creation of options and alternatives

At this point, you and your partner will be looking at all the options and alternatives which could apply and which could be of assistance in resolving the issues which have been identified. By dealing with the options and alternatives, you will determine the most effective way of dealing with each issue. At this time, the Mediator will encourage you to be as creative as possible in setting up these options and alternatives.

3. Negotiation and decision-making

At this point, you will be:

1. Choosing options which you can best live with;

2. Ensuring that you fully understand the details and implications of each proposal and what their consequences will be for you. This stage of the process may extend over one or two sessions. As you could imagine there will be a lot of discussion at this point in reaching agreement on those options and alternatives.

4. Clarification of agreements reached

Hopefully, agreements will be reached on issues which have been isolated and discussed, and the Mediator will then prepare a written draft setting out your concerns, intentions, the facts agreed and decisions which have been reached. The agreement can also deal with your future dealings and relationships.

5. Review of Process

At this point you can look at the matters that need to be made legally binding and determine the future review procedures required, if any.

6. Implementation stage

This really speaks for itself in that the agreement is then put into practice.

What is the difference between Collaborative Practice and Mediation?

Mediation involves an independent neutral professional who facilitates discussions between the parties and helps them to reach an agreement. The Mediator does not provide legal advice to either party during the discussions.

In Collaborative practice, the lawyers provide advice to their clients and help them assess realistic options. The lawyers then support the clients through the negotiation process to reach an agreement.

Costs associated with the Collaborative Practice and Mediation

• Initial consultation with your lawyer.
• Assistance of the lawyer to complete a short history statement, if necessary.
• Assistance of the lawyer to provide full disclosure of documents, if necessary.
• Attendance by the lawyer in the Mediation session and in the Collaborative meetings.
• Attendance by the lawyer in the Mediation, or throughout the entire collaborative process.
• Preparation of consent documents by the lawyers.
• Involvement of the lawyer throughout the collaborative process.

Other information relating to costs of Collaborative practice and Mediation

• Discussions and agreement on the payment of the fee.
• The fee may be a shared arrangement.
• The costs of the Mediator will be agreed prior to the commencement of the process.
• Because of the short duration for the preparation for attending on and completion of the Mediation and Collaborative practice processes, the costs are limited.

Cost of Collaborative practice Mediation compared to Litigation

Because Mediation and the Collaborative process resolve matters speedily and amicably, the financial and emotional damage normally caused by Litigation will be avoided by you, your family and your friends.

Mediation and Collaboration will also serve to minimise conflict between you and your partner, so that you can make amicable decisions regarding your finances and other personal interests. It will form a basis for your ongoing relationship with each other.

How is Collaborative practice different from traditional Court proceedings?

When one party commences Court proceedings they file an Application with the Court setting out the orders they want the Court to make. Both parties then go through a sequence of Court proceedings and conferences and hearings that can take many months or possibly years before they have a final trial where a Judge makes a decision as to what orders will be made.

Through Collaborative practice, separating couples and their lawyers work together, sometimes with other professionals such as relationship therapists, valuers, accountants and financial planners, to find out what each party wants and how that can be achieved. The Court is not involved in this process and no documents are filed with the Court whilst the negotiations are ongoing. If an agreement is reached, the parties can elect for it to be drafted as a consent order to be lodged at the Court or to be incorporated in a binding financial agreement.

Don’t be frightened to make enquiries and conduct your own research. It is better to be empowered with legal and other knowledge than to worry about problems that may not exist.

Invitation: You are welcome to arrange an obligation free 20 minute consultation with one of our qualified lawyers, to discuss your circumstances.

Efficiency of Collaborative practice and Mediation

Dispute resolution via Mediation or Collaborative practice can be arranged in a timely manner and satisfactory outcomes can be reached relatively quickly. With either method, negotiations usually take place either over a number of sessions, or during one day, depending on the complexity of the dispute. By using either Mediation or Collaborative practice settlements can usually be reached after 6 to 8 hours of negotiation. Sometimes, Collaborative practice may take longer depending on the complexity of the dispute and whether other support professionals need to be consulted.

4. Family Law Litigation

Overview

Family Law exists to deal with legal issues resulting from separation. Our principal Ian Field is an accredited Family Law Specialist. We can provide you with advice that will empower you with knowledge of your legal rights and obligations following the end of your relationship. Our advice to you can also assist you in negotiating a settlement with your partner because you will have better knowledge of how to effectively deal with your partner’s needs and requests.

Family Court of Australia

The Family Court of Australia is the final resource available to you to reach settlements on issues in dispute. The Family Court is conscious of the expense involved in resolving issues and the emotional turmoil that is normally associated with the breakdown of a relationship. The Family Court will make orders on matters requiring urgent attention.

Financial issues relating to marriages can be brought before the Family Court:

• at any time after separation; and
• up to 12 months (1 year) after the granting of the divorce.

Financial issues relating to de facto relationships can be brought before the Family Court within a period of 24 months (2 years) after a separation of the relationship.

the matter is urgent;Parties who wish to make an application in relation to children’s issues (other than an Application for Consent Orders) must first participate in family dispute resolution in an attempt to resolve the care arrangements in relation to children. A party must file a mediation/counselling certificate together with their application for children’s orders unless one of the following circumstances apply:

• one or both parties are unable to participate in family dispute resolution;
• there has been or is a risk of family violence by one party of the parties; and
• there is a risk of abuse of a child/children by one of the parties.

The Federal Circuit Court

The Federal Circuit Court offers a Court system parallel to the Family Court. This Court also has other federal jurisdiction, including bankruptcy. It combines its federal jurisdiction with family law matters

The purpose of the Federal Circuit Court is to provide a faster, less expensive and less complex option for litigants and also to ease the workload of the Family Court. This allows the Family Court to focus on complicated matters that require the attention of a superior Court Judge.

The use of conciliation counselling and mediation will be strongly encouraged in appropriate cases, using both community-based counselling and mediation and the Family Court services.

The Federal Circuit Court shares its jurisdiction with the Family Court and the Federal Court. The Federal Circuit Court legislation includes provisions that enable Federal Circuit to develop procedures that are simple and as efficient as possible, including power to make rules to set time limits for witnesses and to limit the length of both written and oral submissions.

Costs of Proceedings in the Family Court or the Federal Circuit Court

Normally, each party pays their own costs associated with the Court proceedings. In some instances, a party may seek a ‘Costs Order’ against the other party in their application brought before the Court.  The Courts do have discretion to award costs against the other party in certain circumstances.

Costs may be awarded where the proceedings that have been instituted are frivolous or for some other reason the party was unreasonable in opposing or bringing applications. Costs are awarded on the actual work relating to the Court proceedings and are based on the Family Court scale, at the discretion of the Court or an indemnity basis.

Fact: An overwhelming majority of cases are resolved by agreement between parties. Historically, only 4% of matters in the Family Court have required a judicial decision.

 

Marriages Families and Separation factsheet

Link to the Queensland Collaborative Law website

http://qcl.org.au/

FROM OUR LINKS DROPDOWN

Feeling Stressed

Article Source: Separation And Divorce

 

Men are often the victims of domestic violence, says Bettina Arndt

Check out a recent discussion about gender equality regarding domestic violence.

Comments from Mr. Ian Field:

Good on you Bettina. It’s about time someone stood up and presented the true facts about domestic violence.

Bettina Arndt wrote a very thoughtful article on domestic violence in the Weekend Australian, in the Inquirer section of the paper [Nov 14-15 2015].

“Our culture assumes domestic violence is almost invariably committed by men. But the data reveals a surprisingly high number of women are abusers “

A copy of her article has been published and is available here and audio is available below:

Quotes from her article:

“Yet where the anti-male bias reaches its zenith is in the witch-hunt over domestic violence. —the zealots controlling public debate on this issue are absolutely determined to allow no muddying of the waters. Violence by women is dismissed as irrelevant, violence against men is routinely ignored or seen as amusing.”

She goes on to say in her article that Erin Pizzy who set up the world’s first refuge is now world-famous for her strenuous campaign arguing that domestic violence is not a gender issue. Bettina quotes from a book written by Erin Pizzey, ”I always knew women can be as vicious and irresponsible as men“. She further quotes, “We must stop demonising men and start healing the rift that feminism has created between men and women—insidious  and manipulative philosophy that women are always victims and men always oppressors can only continue this unspeakable cycle of violence.”

“In Australia, men made up a quarter of the 1645 partner deaths between 1989 and 2012. And proportions of non-physical abuse [ for example, emotional abuse ] against men are even higher. Women are about as likely as men to kill their children and account for more than half of substantiated child maltreatment perpetrators.”

Bettina makes a strong statement in her article, ”BOTH MOTHERS AND FATHERS CAN BE VIOLENT; WE NEED TO ACKNOWLEDGE THIS“

Again she quotes Erin Pizzy, “The roots of domestic violence lie in our parenting. Both mothers and fathers can be violent; we need to acknowledge this. If we educate parents about the dangers of behaving violently to each other and to their children we will change the course of those children’s lives “

In my experience violence in a family breeds violence. Children who suffer violence at the hands of their parents in many cases are violent in their relationships in the future.

POLICY ANNOUNCEMENT

Bettina refers to Malcolm Turnball’s first major policy announcement, the launch of a $100 million women’s safety package, and the speech of Rosie Batty who herself suffered the victims of domestic violence,” This is a gender issue “ she said firmly, mouthing the party line—not one word of compassion for men, nothing about men and children who are victims of female domestic violence.

Malcolm wakes up to the facts. For the sake of presenting a non-biased and truthful view of domestic violence, read the article of Bettina Arndt. Hopefully, his views on other issues are not as flawed.

In my 40 years of practice in family law, I’ve seen the violence emanating from both men and women. In my experience, there is a perceived bias of many magistrates [not all] hearing domestic violence applications towards women. It is too easy for allegations to be made against a male partner which invariably leads to domestic violence orders issuing against fathers naming the children as aggrieved persons in the orders effectively shattering the family relationship causing severe trauma of not only fathers being torn away from their children but children who have a close bond with their parents being torn away from the love and affection of their fathers. These traumas can last a lifetime and effectively disrupt any meaningful relationships the children of such orders may have in the future. In many cases, such orders are justified. In many cases, they are not. The applications are extremely hard to defend. The Courts must recognise that family violence may stem from women and not always from men. It is to be hoped that the special domestic violence Court being trialed in the Southport Court recognises the true position in such matters and makes orders where the fault really lies.

Bettina Arndt states that Queensland Premier Annastacia Palaszcuk recently made headlines by calling for campaigns against domestic violence to include male victims. Good on you Premier.

Wake up Australia. There are two sides to this issue.  

Contact us 

Article Source: Domestic Violence

How To Get Divorced Without Going To Court

Just the very word “divorce” is scary for many people. Thoughts of never-ending legal battles and disputes between the separating parties are often how most people view an impending divorce lawyer, followed up by opposing lawyers grinding it out in lengthy courtroom proceedings.

But does it always have to be that way? Can a divorce be settled in a more congenial fashion that doesn’t involve the courtroom?

Well, in order for a divorce to be official, it does have to pass through the court system, so you can’t avoid it altogether, but that doesn’t mean you have to make an appearance in court yourself or attend divorce proceedings. If children are involved, then it is certainly advisable to make an appearance, though.

What people associate with divorce is legal battles over the division of property and the custody of children? They envision drawn-out courtroom antics reminiscent of a Hollywood legal drama. In some circumstances, this is unavoidable where both parties really can’t reach an agreement, but in most cases, it doesn’t have to be this way.

With the assistance of expert mediation services, much of the courtroom dilemma can be avoided, and it’s far better for everyone involved if this is the case. Of course, this scenario is largely dependent on both parties being keen to cooperate and reach a mutually beneficial agreement. If they are, then most of the negotiations can be kept out of the courtroom and a compromise settled on during mediation with each party assisted by their legal representative.

An example of  “Divorce Mediation”

If a parenting plan can be agreed upon through mediation, then this will avoid any bitter custody battles being fought out in court. The same goes for the division of any property or assets acquired during the relationship.

While it’s not always easy to reach a compromise that everyone is happy with, if it can be done through mediation processes, it’s a far more palatable outcome than hammering out a settlement before the judge.

Divorce is painful and stressful enough without having to endure lengthy court battles to come to an agreement. Mediation sessions are a far more congenial environment for establishing an outcome that both parties can live with. While dealing with the court system cannot be avoided entirely, it can certainly be minimized to the bare essentials.

Your Local Mediation or Divorce Lawyer Experts Can Assist

Aylward Game Solicitors in Brisbane have been specializing in family law for 80 cumulative years. That’s a lot of experience for you to call on. You can make a consultation with a divorce lawyer for this.

So, before considering taking your divorce directly into the courtroom, first discuss your situation with one of our sympathetic and highly experienced representatives. If your estranged spouse is agreeable to the mediation process, you can avoid most of the courtroom drama and come to an amicable and acceptable arrangement in a more relaxed manner.

First, seek expert legal advice so you are made fully aware of the options available to you. Make an appointment today on 1800 217 217. 

Article Source: How To Get Divorced

Was Your Redundancy Genuine or Disingenuous? – An Employee’s Perspective

Got some bad news at work recently? Made redundant or sacked?

Can you as an employee be made redundant, and in what circumstances?

What is Redundancy under the Fair Work Act 2009?

Section 389 of the Fair Work Act 2009 defines “redundancy” as either:

• When the employer either no longer needs the job of the redundant employee to be performed by anyone.
• When the employer becomes insolvent or bankrupt.

A typical example would be when the employer brings onboard new technology and replaces humans with robots, or when due to an economic downturn the company either slows down its activity or closes down. Redundancy can also happen for example, when an employer:

• Relocates interstate or overseas.
• Restructures itself due to a merger or takeover by a new owner.

How do you know if your employer’s action of redundancy is genuine?

This is a question of fact. The fact can be found from the employer’s conduct which is likely to become known after your redundancy is affected and you left the employer. An example of this could be a scenario whereby the employer told you that your role is no longer needed only to find out later that they hired someone else for the same role they claimed was discontinued. Other examples can include; the employer ignoring or failing to consult with you under an award or registered agreement. The redundancy could also be perceived as disingenuous if the employer was able to provide the employee with another job within the employer’s business, but it chose not to.

If you are terminated under a genuine redundancy what are your entitlements?

Section 119 of the Fair Work Act 2009 spells out your rights upon a genuine redundancy. There is a table with a defined schedule and rate to calculate your redundancy payment. There are exclusions too. For instance, if you did not have continuous employment with the employer for 12 full months, or if the employer is a small business employer, you may not be entitled to a redundancy payment.

Another example is where on the sale of a business, the incoming employer (i.e. the buyer) makes an offer of employment to the employees of the business and an employee rejects that offer.

If you are faced with a redundancy you are advised to obtain qualified legal advice to assist you to determine whether the redundancy is genuine and whether the amounts you are being paid are correct. The redundancy rights mentioned here are in addition to any of your entitlements, such as annual leave and long service leave, accrued with your employer prior to the redundancy notice.

What if your redundancy is disingenuous?

If you have proof that your redundancy is disingenuous you may be entitled to lodge an unfair dismissal claim with the Fair Work Commission. You have 21 days after the day you are notified of the redundancy/dismissal to apply to the Fair Work Commission for unfair dismissal. If the facts support your claim that you have been unfairly dismissed, you may be entitled to reinstatement and when appropriate receive your lost pay. Again you are advised to seek qualified legal advice to assist you to determine your legal position and if necessary enforce your rights. This can benefit you by, amongst other things, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue, and more importantly, that your claim is lodged within the prescribed time.

If you or a loved one has recently lost their job, it is worth speaking with an experienced employment lawyer to ensure your rights are enforced on 1800 217 217. 

Article Source: Disingenuous