Family Law Separations - Problem Solving not a Battlefield

Separations are highly emotion charged times and it can be difficult to make decisions. When emotions rule it is difficult to sort through what is important and what is not important, as well as making long term decisions, particularly about financial matters. It is certainly not a time when one should rush into making major decisions. Do take your time.

However, embarking on mediation, or divorce planning, can be far more lucrative for both parties as opposed to treating it like a battlefield, with the court providing the venue. And planning your divorce does not mean you rush into it.

Separation what next

Some people go and see their lawyer before they have even separated; others straight after separation and others leave it for years. The first question many ask is ‘What are my rights?’ or ‘What am I entitled to?’

It may be the approach by the spouse that sets the scene for a battle as opposed to civil negotiations. Hardly anyone is able to discuss or answer some of the following questions at their first interview with a lawyer:

1.     What do you need?

2.     What does your spouse need?

3.     How will you make the world go around?

4.     What’s available to divide between the two of you?

People tend to be too focused on rights, to work out their own needs. It may be that their needs coincide with their rights, whatever these may be.

Family Court Australia

In Australia once people have commenced proceedings for property cases, one of the first court dates is a conciliation conference. This is an attempt by the court to try and get people to reach agreement. To call it a mediation would be incorrect. It is more a process of persuasion by a court appointed Registrar. Those who have been involved in the process would not doubt agree with this statement.

It is not unusual though for comments like ‘the court is not about a financially fair outcome,’ or ‘just because you put a certain amount of money in, won’t mean you will get that amount back,’ during one of these conferences and it pays to bear that in mind when turning ones mind to mediation.

Reality is, both parties after a separation will probably be worse off than before. At the end of the day the pie will have to be divided between the two of you. Chances are one of you will end up with a little more than the other.

But consider getting to this point after having spent thousands of dollars in legal fees. Hardly any people who have spent twenty, thirty thousand dollars to arrive at a figure they are not exactly happy with, is ecstatic about the result, on the contrary. It is at this point in time people realize how futile court proceedings really are.

Alternative

Perhaps talking about mediation is the wrong phrase. Sometimes language plays an important role in how people accept a particular product or service.

Maybe the process should be thought of as divorce planning.

At the end of the day you plan your wedding, why not plan your divorce.

Instead of your property settlement turning into a battlefield it turns into a planning process.

Sure, it takes co-operation from both of you, but you may find it well worth it.  

It may require some work on both sides, but in the long run, the agreement you arrive at might be far more lucrative for you (and your ex) and you will have got there spending not even half of what it costs to go to court.

How does it work

An independent divorce planner (aka mediator) is hired by both of you. This person is legally trained, often they are ex barristers, lawyers or even judges, who facilitate the process.

It is not about forcing their opinion onto you. It is about facilitating the meeting between the two of you.

Why mediation might work

Think about going to court. What is the first thing you are going to be asked to do?

You are going to be asked to swear an affidavit setting out the history of the relationship (among other things).

Now you are asked to do this at a time when the relationship between you and your ex is at its most poisonous, which means your memory will be clouded by all this poison. Your version of what happened during the relationship will be loaded with negative emotions and memories. You won’t remember anything positive. In fact as you build up steam in venting, you cannot even recall why you married the bastard/bitch and any suggestion of you once loved each other is met with the poison arrow look.

This material is then served on your ex and now it is on for young and old.

If your memory was clouded by poison, you should read your ex’s version. He/she will give as good as they got. 

This sets the scene for a battlefield and makes world wars look tame.

Mediation on the other hand is future focused. Whilst some time may be spent discussing the past, generally the idea of mediation is not venting but looking forward. This immediately takes the venom out of the break up and puts people into a very different frame of mind.

The mediator will expect the two of you not to have much good to say about the other, but they will try and steer you away from the mud slinging as they know it is usually a very unproductive process.

Thinking about the future and your needs takes the negativity out of the settlement discussions. Focus is shifted from ‘he/she needs to pay for the affair,’ to ‘how much will it cost for me to live in ideal suburb.’

Preparing for mediation

Of course be it mediation or court, the first thing one has to know about is what are you arguing over? How much is in the kitty to divide up.

Do your home work. Get copies of bank statements, super statements etc. Get red book valuations on cars, boats, motor bikes and caravans. This is all work you can do yourself.

Get an estate agent to do a market appraisal on property, even if it is a drive by one. Organizing all this can be an empowering process. Once you take charge over your own affairs you will start to feel better. Gone are the negative thoughts, there will still be down times, with the focus by you on your future.

At the mediation try and think outside the square. The beauty of mediation is you don’t have to follow the traditional court orders. You and your ex can try and accommodate what the other person needs.

Sure, there may be give and take by both of you, but at the end of the day isn’t an outcome you have control over far better than one imposed by a third person who knows nothing really about you and your ex and your particular situation.

Final words

Why not try mediation? What do you have to lose? Even if you don’t settle at the mediation, you may find you and your ex have narrowed the issues you are still arguing over.

If you are unsure if mediation is for you, do the math.

Mediation is a far more cost effective way to try and settle your property (or children) dispute than court.

And, mediation is usually a lot faster than court, which can take anywhere from twelve months to two years.

Dying to Know Day

Have you heard of  dying to know day? http://www.thegroundswellproject.com/dyingtoknowday/

If not, you are probably not alone. Many people do not like to talk about dying, hence the idea of a dying to know day. 

  

We all know one day we are going to dye, but we live in denial. The end result is that major decisions one can make are not made.

Of course it is difficult to think about things like who will look after me when I’m old and unable to make decisions for myself, or who will make decisions for myself when I no longer can, or who should I leave my money to, when you are able bodied and death seems a long way off.

Trouble is that if you don’t make decisions about these things while you are still able to, you may have left it too late.

Life is unpredictable. Life doesn’t always follow a neat path. You may be lucky and it will work out for you, but then again, you not.

We all know about people who have been surprised by illness, injury or accidents, which left them unable to keep making decisions about their own affairs. And, unfortunately, often people like these did not plan ahead.

What can you do?

For starters you can get yourself documents called enduring power of attorney financial and enduring guardianship for medical decisions. Before you sign these documents you will need to work out who you trust enough to make important medical decisions for you and look after your finances. Bare in mind if you were to appoint someone like an accountant or lawyer, these people are entitled to charge for their time.

You should know the enduring power of attorney and guardianship means the person who is your attorney has the power to continue to make decisions for you even you lose capacity to do so for yourself.

Much is written on this and you can find more information here.

http://www.publicadvocate.vic.gov.au/power-of-attorney

Important Note: The law is about to change with respect to power of attorney and guardianship. The changes are to come into effect on 1 September 2015.

Mediation

If you think some of your decisions may create conflict amongst family members why not mediate with an accredited mediator before you make decisions?

For more information go to:

http://www.bassbaymediation.com.au/

or here:

https://www.deathwise.org/2012/02/22/mediating-end-of-life-disagreements/

Wills

A person which dies without a will dies intestate. This means that the law will determine how the assets are divided up. It does not mean your money will go the state.

However, to be sure your assets are divided the way you want, you should make a will.

Remember that superannuation is not part of your estate and you need to make a binding nomination with your super fund for your super to be distributed in line with your wishes. Check with your super fund what is required.

Want to know more?

Why not find an event near where you are on August 8 2015?

Peninsula Life Celebration and Divorce Logistics have joined forces with Bass Bay Mediation to be available for general information at Rosebud Plaza from 12.30 pm for a couple of hours on 8 August 2015.

New Year Resolution for Separated and Feuding Couples

With Christmas around the corner, the start to a new year is also not too far off. For many the new year is about starting afresh, putting the old behind and looking forward to the new. It is the same for those who have separated. 

If you have been stuck in the rut with your ex about settling property matters, now is the time to do it. 

What you have to ask yourself is does it really matter if you have to give a little to bring things to an end or are you hanging on for a reason? 

Sometimes people simply carry on the fight so as not to end the relationship, as signing off on property (or children orders) on a final basis means the relationship has well and truly come to an end. There will no longer be a need to communicate with your ex once you both sign on the dotted line and agree to orders. 

This can be a scary thing for some. Whilst ever there is a fight about property or children there is contact with your partner, all be it unpleasant contact (most of the time). But it is still contact. You are continuing your relationship, just in a different way to before. 

It is exactly for this reason you should take the bull by the horn and make your new year resolution to start afresh. And starting afresh means you need to let go of the old. Remember the saying out with the old and in with the new?

How can you meet someone else while you are embroiled in bitter family law proceedings or simply still arguing with your ex about how property should be divided? And if you have met someone else already they may be tired of you going on and on about how awful your ex is and also want you to move on. Lets face it, no one wants to continuously hear about the other partner's ex spouse. 

So if you are in need of a new year's resolution and you have not sorted out matters between you and your ex, now is the time. 

Let bygones be bygones and move on. It will be worth it. Just think who you will feel when the clock strikes midnight on the 31st of December 2014 and a the new year starts and it will be ex spouse free? 

Hopefully care free and fantastic, ready to embrace the world and face any challenge thrown your way. 

Go for it. 

Family Court System underfunded

According to the KPMG report the Family Court system is underfunded and thus under resourced.

No doubt most lawyers could have told you this before the report, with cases taking up to two years to make their way through the system to a final hearing.

And of course what most lawyers also know is that this type of delay is not good for anyone, particularly the people who rely on this system to make a decision for them.

What does this latest news mean? No doubt more delay.

Some sources say that over the next year twelve judges are due to retire, with no replacements for them on the horizon. It is believed that waiting times will go out to three years.

So not only do people face enormous financial strain by going to the family court, with people spending in excess of twenty thousand dollars to get to final hearing, but they have to wait years for their case to be heard.

It is no wonder some people are turning to divorce mediation as an alternative.

There are organisations like Relationships Australia offering mediation and there are private mediators.

Bass Bay Mediation is one such private mediation service who run their business from the Mornington Peninsula.

www.bassbaymediation.com.au

Surely a solution arrived at by the two parties to the dispute would be better than one imposed on them by a judge after waiting two to three years?

Being Child Focused during Separation

The current phrase in disputes involving children after separation seems to be the phrase ‘child focused’. Clients are constantly reminded to be child focused when thinking about arrangements for the children. It can be difficult though to be child focused in highly emotional times. Often parties think they are child focused when they are not.  

This is by no means surprising. The time when people are separating is the time when sane people do crazy things. Peaceful citizens can turn into angry roaring lions [metaphorically speaking].

Imagine the following scenario (totally fictitious)

Darren comes home early from work after having had a beer or two with his work mates and his wife’s mobile telephone beeps just as he walks in the front door. Without thinking he picks it up and looks at it, the words ‘honey you have a message,’ frozen on his tongue as he reads the rather private words of ‘can’t wait to be with you again’.

When he finds his voice he yells something like ‘how long’s this bein goin on you slut?’ Language might even be stronger than that but we do not want to offend readers.

She of course does not hold back either.

‘Who do you think you are snooping through my phone? When was the last time I looked at your phone? That’s right. I don’t. I respect your privacy. Do you even know what that is, or how to spell it? You useless bastard. Come in here half drunk and expect to tell me what I can and cannot do. When was the last time you listened to me or even looked at me or took me serious?’ There is a pause as she snatches the phone away from him. ‘At least Erik listens to me and appreciates me, which is more than I can say about you.’

Taken aback Darren grabs a beer and heads outside into his shed, seeking solace amongst the half naked woman plastered all over his walls. At least they don’t talk back.

Days later Darren has moved out, after Jenny his wife, locked him out. The police arrive and have to escort him off the premises, giving him a stern warning not to make a nuisance of himself again and not to threaten his ex wife and children.

Darren cannot believe it. It is his house. He paid for it. What is she doing?

Now he wants to see the kids. They are ten and eight.

‘Well, where are you living?’ Snaps Jenny into the phone, juggling shopping, opening a door and kids fighting.

Scratching is head and other parts of his body, Darren is reluctant to answer this.

‘What’s it to you?’ he says instead.

‘I want to know where the girls will be.’ Jenny does not even try to hide her impatience.

‘With me,’ replied Darren starting to get irritated. The police have already been to see him once to warn him about his behavior and language.

‘Yes, I know that,’ replies Jenny. ‘But where will you be?’

“What is this the Spanish inquisition?’ Darren starts to pace the room of his small flat. He does not want Jenny to know where he’s living. It’s the principle. And if he does not want to tell her he won’t. He does not ask her where she’s been every second of the day, nor where she went last weekend. He knows she was not at home.

Ten minutes later Darren hangs up on Jenny muttering fucking bitch under his breath, hoping she has not heard him.

Another ten minutes later the police knock on his door. Clearly she had heard him.

Several months later Darren spends supervised time with his daughters at a contact centre and is trying to find the ten thousand dollars his lawyer has asked him to pay into trust so he can see his girls more.

Darren cannot understand the system or how he, who used to be a hands on dad, has ended up where he is.

Analysis

Arguably neither Darren nor Jenny are acting terribly child focused.

Jenny would have to accept that Darren is the daughter’s father and needs to spend time with them.

If she has genuine fears about the girls safety there would be things she could do, such as offer day time contact only to start off with, until the parties perhaps had a chance to attend mediation to sort out things like why does Jenny want to know where Darren is living and why does he not want to tell her.

Equally Darren could be a bit more proactive and instead of stalking Jenny and his daughters make sure he has living quarters that are suitable for children. If he has a place where each girl has her own room (and or they share a room), with their own bed and clothing etc, there is really no reason why his ex wife cannot know where he lives.

Both parties in this case have taken a particular position without appreciating what their position is doing to their children. They too are caught in their parents turmoil and probably trying to work out how they fit into it.

Lessons to be learned

The Family Court provides some useful information to separating couples, including a form called a parenting questionnaire, which you can find by clicking on this link.

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d9f4c3c8bed0/Questionnaire_Parenting_010309V2.pdf

You do not have to be at court to use this form. If there is a dispute between you and your ex about the arrangements for children you may find it useful to sit down and fill out the form to work out what arrangements would be in the best interest of the children and what arrangements would work.

You will see that the form asks things like, ‘how far is it from work to the school the children attend, how do you propose to look after them after school, will you need after school care,’ etc. All practical things one needs to think about when making a proposal about the amount of time one wants to spend with the children or if you want the children to live with you.

The principles about matters the court has to take into account when determining what is in the children’s best interest can be found in section60CC of the Family Law act.

Remember, an agreement reached between you and your ex [say by attending mediation] has to be better than an order by a judge who will only ever see one piece of the 10,000 piece puzzle called your family life.

For mediators around Melbourne try these websites

www.bassbaymediation.com.au

www.relationships.org.au

And, if you are in a dispute with your ex about the children, try and take a step back once in a while and see if both of you are acting in the children’s best interest or if emotions are ruling the decision making. 

Navigating the Application for Consent Orders Form

In our last post we briefly touched on those fortunate people who manage to agree how to divide up their property and are simply looking for a way to finalise this.

It was suggested that the best way for this to occur is to use the form titled Application for Consent Orders together with the minute of order, both of which can be found on the family court web site.

The application form can be somewhat daunting with its 38 pages, but do not fear, it is not that complicated.

The first part is all about providing some information about you and your ex spouse. Basic information including date of birth (of you and your ex spouse), date you started living together as well as date of marriage (if applicable) and date of separation.

Other information you need to disclose is if there are currently other proceedings afoot in relation to family violence, information about any current orders and if either of you or your spouse are bankrupt (to name but a few of the questions).

Once you have completed this part of the form you make your way to part H, where you will need to provide information about income, assets, liabilities and superannuation.

As far as income is concerned you do not need to include any centreline payments. Income is purely what you receive pursuant to a wage.

Under property you and your ex spouse need to set out your current assets. By current assets the form means assets you each own now together or separate. If you are using this form some years after separation and have purchased property in your sole name this will need to be included.

If you own the family home together as joint tenants, you will each own it 50%. Do not set out the assets in this part pursuant to any agreement you have reached. For example, if your ex spouse is to receive the former matrimonial home do not list it just under your ex spouse but as the two of you owning it.

Similarly, if an asset is owned on paper in the name of the other person (the one not receiving it), you will need to list it though as if it was an assets of the person whose name it is legally registered in.

Take care with this section as you a duty to the court and to your ex spouse to comply with full and frank disclosure about your financial situation. Not listing an asset can be a costly mistake if your ex spouse finds out later and decides to have the orders set aside for lack of disclosure.

In our next post we will look at listing current liabilities and superannuation interests.

In the meantime you can find the do it yourself kit by clicking not his link:

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d904c3b27c0b/AppConsentOrders_Kit_070612_V1.pdf

Property Settlement by Agreement

We have reached agreement what now?

There are of course plenty of people who are able to agree about their division of property (house, furniture, cash etc.) and never need to see a lawyer. As a lawyer we would never hear about such cases.

If you fall into this category, congratulations.

Reaching agreement however is only the first step.

It can pay to still formalize your agreement. The most cost effective way for you to do this is by way of Application for consent orders and Minute of Order.

Both these documents can be found at the Family Court Web Site.

They look daunting, but are effective and best of all you do not need to see a lawyer. The two of you can do it by yourself.

The other way people often talk of formalizing their agreement is by way of binding financial agreement. This way though both of you will need to obtain independent legal advice, which will be costly.

Both the consent order form and the minute of order will be filed with the court and final property orders will be made. You can use this form for children orders as well.

For financial orders you need to fill in your financial situation now, not at separation.

In our next posts we will look at filling out the form in more detail.

In the meantime you can follow these links to have a look at both documents:

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d904c3b27c0b/AppConsentOrders_Kit_070612_V1.pdf

and

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb4bda4b44a8dd2/Consent_Orders_supplement_question010110V1.pdf