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Choosing the right family lawyer

admin — Tue, 17 Jan 2012 22:01:53 +0000

Ann Northcote

Choosing the right lawyer in a family law matter can often be difficult. A family lawyer is, for most people, someone seen for a small, but crucial, part of their lives- the end of a relationship. We are not like your business/commercial/property lawyer who you see from time to time over a number of years for different transactions.

Often your business lawyer is not able to be your lawyer in your family law matter as they may have acted for your spouse as well as you over the years. They may have prepared your Wills or acted for you in the buying and selling of homes. This is called having a conflict of interest. Even if they have not acted for your spouse, your business lawyer may have met your spouse over the years and feel uncomfortable about acting against that person. In addition, many business lawyers do not practice in family law and recognise that you need a specialist (“horses for courses”).

A good family lawyer needs to be sympathetic to you but will not always agree with you. You are not paying a lawyer to agree with you. You are paying a lawyer to give you their professional opinion and advice based on their experience and expertise.

Family lawyers need to have a working knowledge of many areas of law. A relationship breakdown impinges on many areas of law: from criminal law to bankruptcy; from property to tax law. A good family lawyer will know enough to seek advice from other specialist lawyers when your case requires it. A good family lawyer will also liaise with your accountant and financial planner, both to seek advice when needed, but also to make sure that the financial goals you were trying to achieve with them are consistent with the approach that is being taken in your family law matter.

You need to feel at ease with your family lawyer. Some clients express surprise at the amount of detail we need from them. Therefore before making an appointment you might wish to consider whether you feel more comfortable talking about private matters with a man or a woman or whether you want someone your age, older or younger? Different cases necessitate different levels of personal detail.

You should feel confident in seeking a second opinion if you just don’t feel right about something your lawyer is advising.

In seeking information about who to see, consult family and friends whose opinions you value. Your business lawyer, accountant or financial planner can also be a source of information and most firms have a website where you can gain a feel about the firm.

One of the most important things to remember in choosing your family lawyer, however, is not to leave it too long. If you are the instigator of the breakup then you may wish to get advice prior to separation. If the break up has come as a shock, you should have it as one of your priorities to obtain family law advice so you know where you stand. Some of the most important decisions are made at or very soon after the time of separation, and forming a trusting relationship with a family lawyer early on is an enormous benefit.

Published in B2B Canberra Magazine

Litigating the Clever Way

admin — Tue, 17 Jan 2012 21:56:32 +0000

Family law disputes often involve situations where one party needs a resolution more than the other. For example, if the wife has moved out of the former matrimonial home and she is now renting her own place, whereas the husband has continued to live in the home and he doesn’t have a mortgage to pay, then the wife’s level of urgency is greater. Similarly, if the children are living with their mother and not seeing their father, then the father needs the situation to change more quickly than the mother.

These situations are exacerbated because the ‘status quo’ established immediately after separation, both in property and parenting situations, can have a significant or even determinative effect on the final outcome. Where there is urgency, such as the need for a restraint to stop one party liquidating a trust fund or to stop a parent abducting children out of Australia, the stress is heightened further and the urgency rises to a new level.

In October, my colleague Juliette Ford wrote about collaborative law, and avoiding the litigation battlefield, as a preferable way to resolve disputes. Certainly in most, if not all, cases that is true. Litigation can be financially and emotionally difficult for people, if not properly managed. Further, in many situations, lawyers are unable to give their clients a satisfactory answer as to how long a case will take, and exactly how much it will cost, or to guarantee what the outcome will be.

With all those ‘cons’, it is understandable to think; why would anyone start Court proceedings? Sometimes, however, there is no choice. Some people are unwilling to negotiate, or they take provocative steps, with money and children, which leave the other party with no option but to go to court. Sometimes one party takes a “head in the sand” approach and refuses to deal with the issue. Many months of emotional angst and thousands of dollars can be spent writing letters, sending invitations to mediation, and trying to find creative solutions. Attempts to avoid Court are often fruitless. Ultimately, there are only two ways a dispute can be resolved; by agreement of the parties or by Court intervention.

There are ways to minimise the financial, emotional and time costs of litigation. The most important of these is to make sure every client understands what is happening at Court, the restrictions imposed by the process, and the opportunities to end the litigation by settlement.

Ensuring that clients have proper emotional support – from family and friends and also from professionals – is important. Firstly it is important for maintaining a good state of mind through a process that can last up to two years. Secondly, decisions in the Family Court are often ‘black and white’ decisions about financial matters – cost/benefit type decisions. Clients who are able to separate the emotional from the financial make better decisions earlier in the process.

Once litigation commences it is important not to just “go through the motions.” Each case has to be tailored to the client’s needs. Being proactive, using the litigation techniques that are available as to collating necessary information and using experts such as financial planners, child psychologists and superannuation experts can generate a better and often quicker outcome. Most people do not know that of 100 cases that start in the Family Court, only approximately 7 are ultimately determined by a Judge. The other 93 settle.

Litigation is not easy, but sometimes there is no other choice. The court process has inherent uncertainties and challenges. It is a difficult and complicated process that can, without good management, get out of control. Having an experienced family lawyer who you can talk to in order to help understand what is going on is a huge plus.

However, in addition, having a family lawyer who is client focussed from the outset, who knows when to litigate and when to hold off, who helps the client manage the fees, makes appropriate referrals to support services and who manages the inevitable shortcomings of the court system, will mean that whatever the outcome, the client will be satisfied that the most professional job was done.

For experts in family law litigation contact Farrar Gesini & Dunn.

Published in B2B Canberra Magazine

FGD Group Drinks

admin — Wed, 26 Oct 2011 03:01:54 +0000

Stephen Bourke addressed the group pointing out the benefits Family Lawyers have when being able to call on Macquarie’s expertise. At the same time our solicitors are on hand to help Macquarie Private Wealth clients with Estate Planning, Superannuation Splitting and matters arising from relationship breakdown.

Laurence Stanton
25th October 26, 2011, FGD Group Canberra

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FGD Group Golf and Cooking Day

admin — Tue, 18 Oct 2011 00:41:19 +0000

The Royal Canberra Golf Club and the new 3seeds cooking school were recently the venue for an FGD group gathering of their valued referrers and our solicitors.

Together, they competed on the golf course and the cooking course. Memorable slices being made at both venues.

In the end, all enjoyed some fine wine and the fruits of the cooking. “Warm coriander crepe with duck, cucumber baton & hoisin sauce, tartlet of blue cheese mousse & caramelised pear, and pan seared prawns with Ramesco sauce.
A perfect way for financial advisors, accountants, psychologists and lawyers to relax and enjoy their company far from the pressures of the office.
Laurence Stanton
15th September 2011, FGD Group Canberra

Family Law Myths – Will I get 50/50 ?

admin — Tue, 18 Oct 2011 00:28:39 +0000

Kasey Fox explores some common myths about property settlement.

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Spouse Maintenance: The forgotten entitlement?

admin — Tue, 23 Aug 2011 06:43:06 +0000

When parties to a marriage or defacto relationship separate, they usually consider parenting matters, property settlement, and divorce. However, in cases where one party has been the financial provider and the other has relied on that party’s income, the non-income earning party may have an entitlement to spouse maintenance. This is often not sought by a party who has an entitlement to it.

Spouse maintenance is financial support paid by a party to the relationship in circumstances where the other party cannot adequately support themselves after the relationship breaks down. It is commonly referred to as ‘alimony’ in other jurisdictions.

For example, in cases where the Husband is a high income earner and the Wife has not worked (or has only earned a modest income), the Court can make Orders that the Husband continue to pay the Wife a certain sum of money each week for her to support herself at the standard of living she had become accustomed to living.

This is a very common situation in Canberra, where there is a large population of public servants and a high median income. However, applications for spousal maintenance are relatively uncommon. One possible explanation is that unrepresented parties do not know they might have an entitlement, or that lawyers become preoccupied with property settlement and overlook the entitlement to spouse maintenance.

From a legal perspective, the classification of spouse maintenance is clearly distinct from child support, which is a payment for the support of a child managed by the Child Support Agency, or property settlement, which is the division of the property between the parties to a marriage in the fair and equitable way.

From 1 March 2009, the Family Law Act has assigned the same rights that married couples have to de facto couples. This is particularly significant, because if two people meet the test for a de facto relationship, even if they have not accrued any property during their relationship, one party may have an obligation to maintain the other.

The test the court applies is:
1. What are the reasonable needs of the party seeking maintenance?
2. Does the party seeking maintenance have the capacity to support themselves?
3. If not, does the other party have the financial capacity to support the party seeking maintenance?

Putting the right evidence before the court is essential in seeking orders for spouse maintenance.

A wide range of factors are taken into account, including the age, health, income and earning capacity of the parties. The court takes into account the standard to which the parties became accustomed to living during the relationship and endeavours, with some consideration to the reduction necessitated by the separation, to maintain that standard. The court must also take into account the need to protect a party who wishes to continue their role as a parent.

It is important that litigants do not blur the distinction between child support, property settlement, and spouse maintenance. The three concepts have clearly different roles in the family law system.

Spouse maintenance can be very lucrative in certain circumstances. This firm recently sought and obtained orders that a high income earning Husband pay to the Wife $6,000 per month by way of spouse maintenance. He will continue to pay child support for the children of the marriage, and her entitlements in the property settlement are unaffected.

Giving consideration to spousal maintenance early in a client’s case can make a significant different, both in terms of outcome and also in terms of their access to money during the proceedings, which can be a significant hindrance for the non-income earning party’s strategic position.

Published in B2B Canberra Magazine, issue 58

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Facebook and Family Law: Recipe for Disaster

admin — Tue, 23 Aug 2011 06:39:31 +0000

Not so long ago it might have been the case that the greatest risk associated with a big night out, or a verbal barrage towards your ex, was the later regret when shown the photos or reminded of what you said the next day. But a ‘dancing on the table’ photo or a reminder about what you said to your ex-partner can be a lot less damaging than giving evidence in the witness box in the Family Court, particularly if you were caring for your children at the time.

However, with an increase towards online and electronic forms of communication, the material can easily become available to a party to family law proceedings. If that person is upset, angry, or intoxicated, new forms of evidence are now being taken seriously in the Family Court. Potential litigants need to be more careful than ever not to do serious prejudice to their case.

A number of recent Family Court decisions have dealt with evidence from Facebook. In one recent decision, the Father sought that the mother and child be returned from New Zealand to Australia. However, because the Father had said to the Mother on Facebook that he agreed the child should live with her, the Court refused the Application.

In another case, the Father was ordered to keep the child at home during contact visits. He took the child to the beach. He was then photographed with the child at the beach, and the photo was immediately uploaded to Facebook. A mutual friend (but evidently a better friend of the mother’s) printed the photo and the Father was later found to have breached those Orders.

It is becoming increasingly common for one or both parties to abuse or denigrate the other using their Facebook ‘status’, or ‘Tweet’ their frustration about the other’s lack of parenting skills or unwillingness to be reasonable. As family lawyers, we welcome such errors of judgement if made by the other side but lament such decisions by our own client.

In parenting matters, the Court takes into account the extent to which each parent is able to promote and encourage the other parent. Comments like, ‘OMG he is such a loser’ and ‘LOL what an idiot’ are not indicative of positive and co-operative parenting relationships. It can be very difficult to ‘undo’ the damage of posts like that. The ease and speed with which Facebook, Twitter, SMS and e-mail can be accessed mean that correspondence is exchanged rapidly and in times when parents may have a high degree of conflict and acrimony.

Often the party who can compose themselves and resist the urge to criticise the other in the initial period of separation or disagreement finds themselves with a head start.

There are some upsides as well. The other use of Facebook to date is as a vehicle of service. In numerous recent Child Support disputes, parties who have no fixed address, or may be fleeing a violent partner, were also avid Facebook users. If satisfied that a person is very likely to see the documents, the Court can make Orders that instead of that person being served via Process Server, electronic transmission of the documents or a notification to the Facebook account is sufficient. This is particularly relevant when a party disputes paternity or where one party is ‘hiding’ and avoiding service.

In cases where one party wants to relocate with a child to live interstate or overseas, one significant hindrance previously was that the only method of communication available to the other parent was telephone. For young children, visual communication is considered particularly important. The prevalence and increased mainstream use of webcam and Skype has led Courts to determine that a relationship between a young child and the non-relocating parent can be maintained notwithstanding they will have little face to face contact. As such, it is now possible for some parents of young children to move away from the other parent, when they previously might not have been able to.

The emergence of online communication and its extension to online posts of photos and videos presents both traps and opportunities in family law proceedings. Giving consideration to the risks and benefits of new technology can be vital.

BTW, so u r not stuck in an ‘omg’ situation, c Ann or 1 of the other lawyers at FGD for gr8 advice about Facebook and ur other family law issues.

Published in B2B Canberra, issue 61 2011

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Family Law is a Maze – turn to the experts

admin — Tue, 23 Aug 2011 06:29:55 +0000

Farrar Gesini & Dunn’s television advertisement.

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Family Law Myths – Why do I need a Property Settlement?

admin — Tue, 23 Aug 2011 06:27:25 +0000

In this short video, Kasey Fox explores property settlement under the Family Law Act

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Equal shared parental responsibility does not mean equal time

admin — Tue, 23 Aug 2011 06:22:18 +0000

In this short video, Farrar Gesini & Dunn’s Averil Foster Talks about Equal shared parental responsibility for children.

The Family Law Act was amended in 2006 to make provision for a concept called “Equal Shared Parental Responsibility”. Many separating parents believe that this amendment to the Act means that children with separated parents should be, by law, spending equal time with each of their parents. This is a common family law myth.

The concept of equal shared parental responsibility is about decision-making in relation to long term issues in a child’s life, such as where they will live, what religion they will practice, what medical treatment they may or may not receive, what name they will be known by and what schools they will go to.

The Court will not make an order for equal shared parental responsibility if it is satisfied that this is not a child’s best interests.

The Family Law Act provides that if the Court is satisfied that parents should have equal shared parental responsibility, the Court must then give consideration to:
a. whether the child spending equal time with each of the parents would be in the child’s best interests; and
b. whether the child spending equal time with each of the parents is reasonably practicable,

if the answer to both of these questions is yes, the Court must consider making an order for the child to spend equal time with the parents.

If the answer to one or both of these questions is no, the Court must consider whether the child spending ‘substantial and significant time’ with the non-resident parent is
a) in the child’s best interests;
and b) is reasonably practicable.

Similarly, if the answer to both of these questions is yes, then the Court must consider making an order for the child to spend substantial and significant time with the non-resident parent.

The important thing to remember about the concepts of equal time and substantial and significant time is that even if all of the boxes are ticked, there is no obligation on the Court to make an order for either. The Court is simply required to consider whether it is appropriate to make such Orders. In considering whether it is appropriate to make such Orders, the overriding consideration for the Court is whether proposed parenting arrangements are in a child’s best interests.

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