Usually, the main scope for dispute arises in steps two and three where parties dispute how they contributed to the assets or the weight that should be given to their current circumstances and future needs. Frequently, the significance of the first step of this process is overlooked.

There is rarely a difficulty in attributing a value to liquid assets such as bank accounts and share portfolios – the value given to such assets is the realisable cash value of the asset. Tangible assets such as houses, land, cars, and chattels are taken at their sale or second hand (not insured) value, and often need to be valued particularly where neither party knows the value of the assets or there is a dispute.

Obviously, the more assets there are to be divided, the greater value of assets that a party will receive in the eventual settlement. A number of techniques can be employed to maximise (or, in other circumstances, minimise) the value of the asset pool to achieve a more favourable result. The emergence of trusts, superannuation and structured asset holdings has been considered by courts in determining what property is available for division.

One contentious point relates to monies that were in existence at separation that have been spent by one of the parties, for that party’s benefit, since the time the parties separated. The generally established rule is that those assets should be notionally added back to the pool (dubbed an ‘add back’) and considered an asset that the party receiving the benefit had already received.

There are three main categories of add backs:
Legal Fees – the Family Law Act says each party should pay their own legal costs. If a party uses joint funds to pay their legal fees, then there is a strong case for those funds to be considered already received by the expending party in the property division. Adducing evidence about legal fees and the source of funds used to pay the legal fees can often result in the other party’s legal fees being ‘added back’ to the pool;
Waste – Where a party has intentionally acted to reduce the asset pool available for division, or acted recklessly or negligently and thereby caused a reduction in the asset pool, the wasted monies can be considered in determining the outcome; and
Spending Monies/Disposing of Asset – If one party spends monies existing at separation, or disposes of and receives money for an asset that existed at separation (thereby depleting the asset pool), the value of the asset or monies as at separation can be added back to that party.

Clients must be careful about their conduct with money post separation but pre settlement. Previous cases have penalised clients for gambling, offering the use of an asset to a third party for no charge or below market charge, or ill advised business ventures. Even the purchase of reasonable assets that are likely to decline in value (such as boats, vehicles, or in one case, $1.8million worth of wine) can result in a financial penalty to one party.

Taking a great amount of care to consider the asset pool at separation as contrasted to the asset pool at the date of settlement or hearing can result in a more favourable outcome for your client.

Gavin Howard is a senior solicitor and In House Counsel at Farrar Gesini & Dunn Family Lawyers. Contact Gavin on 6290 9818.

Olivia Gesini, Denis Farrar and I seized on an opportunity in the mid ‘90s to build a boutique law-practice specialising in family law and we have never looked back,” FGD Group CEO Jim Dunn said. The opportunity presented itself when Ms Gesini and Mr Dunn were practising family law with a big local general law firm that wanted to go national – they got together with another local family law specialist Denis Farrar and set up their own local firm specialising in family law.

“The idea of specialising in family law hit the spot with the Canberra community. Because family law is complex, people need a specialist when they are separating or divorcing,” Mr Dunn said. The FGD Group currently comprises four business units – Farrar Gesini and Dunn Family Lawyers (traditional family law practice), Consensus Family Law (out of court solutions), Certus Law (estate planning and superannuation) and SuperSpliting (advises legal practitioners on how to split superannuation on family breakdowns). “Basically there are two law practices Farrar Gesini and Dunn and Certus Law and underneath each of these are Consensus and SuperSpliting respectively,” Mr Dunn said.

Mr Dunn says they have structured the FGD Group like this so the two practices can each specialise in their particular area. “Four businesses provides the benefit of specialisation through things such as: unique procedures; training and personnel – each business has a separate and specialised culture but are a critical part of the group,”Mr Dunn said. According to Mr Dunn the FGD Group has been successful because they have been able to attract and retain excellent staff. “My view is that to be the best in whatever business you are in, you have to have passionate and happy people working with you,” Mr Dunn said.

The FGD Group works very hard at ensuring their staff have a good work-life-balance. “Four years ago we instituted a four day week for all staff with no reduction of salary. This equates to 45 extra days off per year or nine extra weeks leave,” Mr Dunn said. The FGD Group also provides fresh fruit, lunches, Pro-Fit and Yoga classes and other substantial rewards and celebrations for group successes. The FGD Group also takes advantage of IT solutions that enable staff to work more flexibly.

“All of the directors are linked in and can work from home. Many of our support staff can work from home and many do this to juggle work, home and family duties,” Mr Dunn said. The FGD Group has attracted some of Canberra’s best lawyers to join them in recent years. “In 2006 we amalgamated with Stephen Bourke –who now heads Certus Law – Stephen had a long history of working in the Attorney General’s Department and wrote the legislation that enabled superannuation to be split on the breakdown of marriage,” Mr Dunn said, “In 2007 we also amalgamated with Chris Crowley, one of pre-eminent family lawyers in the Canberra region.” The separation rate in Canberra is relatively high – at about 50 per cent for first marriages and higher for second and subsequent relationships. “We believe that successive governments have tried to make family law more accessible, less complex and cheaper for clients and realised we needed to diversify as a firm,” Mr Dunn said. Mr Dunn says they amalgamated with Stephen Bourke to take advantage of the superannuation, estate planning and wealth transfer between generations i.e. the needs of baby boomers,” Mr Dunn said, “Certus Law has been very popular and the work is ‘booming’.” The FGD Group’s second response, to the need to diversify, was to look at practising family law differently. “We established Consensus Family Lawyers so that one part of our business could focus on out-of-court solutions and another on traditional family law processes,” Mr Dunn said. Mr Dunn said that splitting to two family law practices has invigorated all of the family lawyers in the FGD Group. “When we were one business unit, our lawyers had to focus both on court and out of court skills. Now there are two distinct pathways for our professionals to focus on and for our clients to choose from,” Mr Dunn said. Even CEO Jim Dunn’s position is not that of a traditional managing partner in a law firm.

Mr Dunn says that the role of a managing partner in a traditional firm was to ‘hire and fire’ and ‘make sure everything was ticking along’. “I believe my role as CEO of the FGD Group is to provide ideas, talk to our people and keep them inspired and impassioned. I need to anticipate the needs of both clients and staff,” Mr Dunn said. The future is certainly bright for the FGD Group. “I believe that our future lies in bringing more businesses into the FGD Group – letting them keep their own identity and specialisation but become part of the FGD Group from a cultural view point,” Mr Dunn said.

In Canberra a unique approach is proving to be a viable option for many separating couples. It is not the long, drawn-out court route which can spin out of control. It is not arbitration where a decision is imposed. And it is an alternative to collaborative law which still sees two opposing sides trying to strike middle ground through their own legal representatives. The unique approach, says Robert Routh, a lawyer with Canberra’s Consensus Family Lawyers, involves a neutral facilitator/convenor—a third-party with a law degree and extensive experience in family law matters.

“As a facilitator I’m at the centre of discussions from the outset,”says Robert. “My job is to outline in a practical way the real solutions available to those involved, and the pros and cons of each. I then work alongside both parties to help them determine the best outcome.”

But is this approach truly effective or is it just wishful thinking?“I’ve handled more than a thousand cases this way and have seen the positive results, no matter how complex or messy the individual circumstances are,” says Robert. “There are many benefits—it saves time, money and ongoing grief, it reduces the stress on the parties separating and the trauma faced by family members, and it helps preserve the valuable relationship each party has with their children.”

The first stage of the facilitation approach is an initial meeting during which the separating couple provides the facilitator with essential details on their respective financial contributions, common assets, and matters relating to children. “If the facts brought to the table are sketchy, I work with the parties to develop a plan—that they agree to—on how to gather more details, who will do it and by when,” says Robert. The second stage is the ‘settlement conference’. “I organise the conference after reviewing the facts from both sides as they are presented. As the neutral party I control the conference so matters stay on track. I’m there to provide guidance on the spot about what each party wants, or thinks they want, and on each option. Is it likely to end up in court, for example, and, if so, how much could it cost and how might a judge decide how property should be divided and how children should be cared for?”

The final stage sees the facilitator help prepare the documents required to formalise the agreement, so the parties separating can get on with their respective lives. An added benefit of the facilitator approach is it gives couples the power to make their own decisions about the care of their children and how to divide their assets. However, it is critical, says Robert, that both parties commit to the process. And it is not a problem if they have already engaged legal counsel or feel ‘safer’ doing so—their respective lawyers are free to attend the settlement conference and be part of the ongoing discussion. Robert first acted as a facilitator when working at the Family Court and for four years saw the approach prove itself time and time again. It was so successful he continued with it after joining Consensus Family Lawyers.

“The Family Court of Australia reports that a high 94 per cent of collaborative law cases settle successfully without going before a judge,” says Robert. “However, they can still drag on and become costly because there are still two opposing sides jockeying for common ground. Using a facilitator is flexible like collaborative law, but it cuts to the chaseand gets results even quicker.”

Juliette grew up in Melbourne in a family that vigorously discussed politics over the dinner table and can remember from as young as six discussing the hot topic of the year – the dismissal of the Whitlam Government.“I suppose my interest in politics and national and international affairs came from my Dad’s side of the family. Dad’s mother was widowed when he was nine during the Depression. The bank foreclosed on their house and my grandmother went into the food business. Her rationale was that ‘No matter how bad things are people still need to eat’,” Juliette said.

Once Juliette finished her secondary schooling, she couldn’t wait to get to university.In 1985 Juliette commenced an Arts degree at Monash University and then transferred to Law. She completed her Law degree in 1990. Juliette says that despite people’s perceptions of what a feminist is, she is an active feminist.“It is important that women who have benefited from what feminism has achieved don’t disown the movement, but continue to redefine what feminism means for them and educate other people in relation to what has been achieved and what is still to be achieved,” Juliette said.

Juliette graduated in 1990 with a passion for family law but didn’t leap into a family law practice. Instead she did her articles with Meerkin and Apel, a boutique commercial law firm. “During my law degree I liked family law because I thought it would match my expertise as a lawyer and my interest in people. It was also a federal jurisdiction so if I was to move around Australia I could take it with me,” Juliette said.

Juliette was admitted as a lawyer in March 1992 and took a job in Perth with the Aboriginal Legal Service for Western Australia as their family lawyer in August 1993. “My boss at the time said ‘I’m extremely concerned as to whether you have the experience and ability to cope with this job but I’m giving it to you anyway,” Juliette said. Juliette threw herself into her work and relished working for a community-based organisation especially her court work and client work.“The level of resourcing meant I had to come up with a system for deciding which matters to take on. I also had to strip away some of my idealism and treat people as people,” Juliette said.

In 1996 Juliette joined one of Perth’s leading generalist law firms Dwyer Durack Lawyers and became accredited as a family law specialist.

“In 1997 I moved to Canberra because my husband Tony wanted to undertake a PhD in philosophy at ANU. So we packed up and moved,” Juliette said.

In 1998 Juliette worked for the Welfare Rights and Legal Service running a poverty law practice. In 1999 she worked for the Women’s Legal Centre doing policy and advice in family law and also started lecturing the undergraduate family law course in family law. In 2000 Juliette was appointed as a Registrar of the Family Court in Canberra.

In 2001 after being approached by Olivia Gesini, Juliette joined Farrar Gesini & Dunn as a Partner. Juliette says that one of the most innovative developments at Farrar Gesini & Dunn has been the adoption of collaborative law practices.

In collaborative law, the separating couple engage a lawyer and all four parties sign a contract committing to resolving issues without going to go court or making threats to go to court. It can also involve family consultants and accountants when required.

“The benefits of collaborative law are: it is more time efficient and therefore is more cost efficient; engages lawyers for facilitating a result rather than having one eye on litigation and there are four, or more, people solving one problem rather that competing teams fighting over a limited pool.”

Juliette says that one of the things that attracted her to Farrar Gesini & Dunn was their innovative approach to addressing the everyday challenge of maintaining a professional and interesting career and having a life outside.

“As a Director I do not work full-time. All staff work a four-day week. The firm offers a personal trainer every Tuesday and Thursday to conduct a fitness class. Lunch and fresh fruit is supplied. There are also group trips away involving the whole firm and their partners and kids,” Juliette said.

Juliette Ford is also committed to Canberra.“Canberra is what I call a liveable city. You can have a very busy work life, work long hours and be home within ten minutes of finishing work. It is one of the few capital cities that has real seasonal change,” Juliette said.

Managing partner Jim Dunn says Canberra’s legal profession has gone through a substantial transformation since the firm opened for business in 1995.

After an influx of large international and national firms during the 1990s, who “gobbled up the mid-tier firms”, there were no strong local firms left, Dunn says.

But the emergence of boutique practices has changed all that.

Boutique firms were very new in Australia then, Dunn says. “Now, 95 per cent of [family law] work in Canberra would be done by boutique firms.”

As boutique firms became more common in the past decade, family lawyers and the courts became scapegoats for politicians troubled by the worsening state of family law litigation, Dunn says.

“Both the length of time to resolve, and cost, the blame was being laid at our feet, as well as the court’s feet,” he says. “There was a terrible relationship between the Family Court and the Howard government.”

But he says most family lawyers have their hearts in the right place. “The want clients to resolve the matter,” Dunn says. “They don’t want to go to court; they want to do it cheaply.”

Collaborative lawyering has emerged as one solution to spiralling costs and lengthy court cases. The firm used an expert form Canada to train staff in 2005, with an emphasis on interest-based negotiation.

Under the system, lawyers and their clients agree not to go to court. If a resolution fails to occur, those same lawyers cannot represent their clients if they wish to pursue litigation.

The rise of collaborative law has brought benefits not just for clients, but for lawyers as well.

In avoiding the adversarial nature of litigation, collaborative lawyers are more willing to trust each other and work towards mutually beneficial solution, Dunn says.

“In litigation, you get a letter from the other side, and it’s outrageous, you show your secretary, throw it down, get the dictaphone out and fire something back at them,” he says. “Some lawyers thrive on the more aggressive side. But we’ve seen the frustration over the years. Real people can’t afford litigation.”

The decision to implement a four-day working week came as a result of Dunn’s view “that we really ought to be able to work less”.

The short week applies to all staff: half take off Wednesday, the rest Friday, and the arrangement alternates week to week.

As a trade-off, staff are expected to be 10 per cent more productive, billing six hours a day.

We have brought a team of people together at Consensus Family Lawyers who will use collaboration, mediation, facilitation or arbitration as the primary way to reach an outcome.

The establishment of Consensus is in response to our perception that there are at least two legitimate ways to resolve disputes which arise as a result of a couple separating and that conventional lawyers only address one of those ways.

The first is the traditional way which Farrar Gesini & Dunn will continue to practice. This involves identifying what problems need to be resolved, what are the relevant facts and identifying what the law would say is a fair solution to the problem. This is known as a “rights based” analysis. The practice then advises its clients on the most cost effective method of achieving that solution.

The second way which will be practised by Consensus Family Lawyers involves a commitment by its lawyers that they will exhaust non-court based processes to find solutions to their clients’ problems. Consensus will identify what is important to each party for example their contributions and what each party wants to achieve by way of their financial security, and their relationship with their children whilst finding a way to maintain effective communication and appropriate relationship with their former partner – in essence endeavouring to reach an outcome which reflects these ‘interests’ without resorting to Court. This is known as an ‘interest based’ analysis.

The Canberra family law landscape has now changed. Consensus will provide a solution for those who are separating and want to avoid Court at all costs.

www.cflaw.com.au

In 2006, the Federal Government changed the Family Law Act to introduce a change in the way children’s cases were determined.  The changes move away from traditional concepts of “custody” and “access” towards a more modern and co-operative system of “live with”, “spend time with”, “communicate with”, and importantly, “parental responsibility”.  The new law has been argued in the Full Court of the Family Court many times and a clearer understanding of what the various terms mean has now been established.

The underlying principle of the parenting provisions in the Act remains that the Court must do what is in the best interests of the child.  There are a number of factors the Court must take into account, most notably, the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm, abuse, neglect and violence.

Under Australian law, there are no presumptions about how much time a child should spend with each parent.  There are, however, a number of considerations that the Court must take into account.  While many cases still result in child living with each parent equally, such as a week-about arrangement, the majority of cases do not.  In circumstances where the parents cannot communicate, or when the parents are geographically apart, the Court can still provide for the parents to share parental responsibility, whereas the child clearly lives with one parent and spends time with the other.

Parents still commonly confuse the various terms, which, despite seeming simple, may have a legal meaning that extends beyond their ordinary connotation.  The way that a Court must now determine a parenting dispute is as follows:

1. The Court must begin with the presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility.  This means general parenting duties, powers and responsibilities, including decisions about education, health, religion, etc.  In most cases parents agree that they will continue to have joint parental responsibility.  However the presumption is rebuttable in cases where there is evidence of violence, or a risk of harm, or where a court decides that for other reasons it would not be in a child’s best interests.
2. If the Court has decided that equal shared parental responsibility should continue, the Court must then consider the possibility of the child spending equal time with each parent, and whether or not this is reasonably practicable.
3. If the Court has determined that it is not reasonably practicable for the child to have equal time with each parent, the Court must consider the possibility of the child spending substantial and significant time with each parent, and whether that is reasonably practicable.  “Substantial and significant time” is a vague term, but includes weekdays and weekends and might be an arrangement between 3 and 5 nights per fortnight with the parent the child does not live with.  The intention is that both parents should have the child on school nights, weekends and holidays.

Under the new law, it is not uncommon for a parent to have equal shared parental responsibility but only have the child in their care every second weekend, or from Thursday until Monday each alternate week.  The two concepts – of “parental responsibility”, and of “living with/spending time with” – although related, are different and the approach taken to determining each of them differs on a case by case basis.

Matters can be further complicated when there are issues of violence or neglect, when one parent is seeking to relocate, when one or both parties have re-partnered and there are stepchildren involved, or when grandparents wish to become involved in proceedings also.

If you require assistance with a parenting dispute, please make an appointment to see a lawyer at Farrar Gesini & Dunn by phoning us on 6257 6477.