When that first bill comes in from your solicitor, how do you pay it? When you are in a relationship money is joint and bank accounts are joint. Where does that money come from to pay your first solicitor bill after separation? It is very tempting to take that $20,000 from the joint savings account to pay your solicitor fees.

The legislation provides a starting point for parties to consider where the money comes from to pay your solicitor bills. Section 117 provides that each party to a proceeding is to bear their own costs. Meaning that the money to pay your solicitor shouldn’t come from the property pool that needs to be divided. ie, your solicitor costs can’t come from the joint bank account.

But what happens when it is taken from the property pool (say that $20,000 sitting in a joint savings account), the case law says that money needs to be added back into the property pool.

• In Chorn & Hopkins (2004) FLC ¶93-204, the Full Court of the Family Court at [57] said “If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.”
• In Farnell & Farnell (1996) FLC ¶92-681 the husband used $20,000 he withdrew from a joint account at separation on legal fees. The wife gave no evidence as to her legal costs. The trial judge treated the $20,000 as a notional asset which he added back to the total property pool. The Full Court dismissed the husband’s appeal.

What if you choose to take a loan out to pay your solicitor bills. Can that be included in the balance sheet as a liability? The case law very clearly says no. It cannot be included as a liability in the property pool:

• In Chorn & Hopkins (2004) FLC ¶93-204, the Full Court of the Family Court said, “nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties.”

The simple answer is legal fees cannot come from the property pool, or you risk having to account for them as an add back to your detriment.

What happens when your previous partner says, “I don’t believe that child is really mine”. Of course, there are a great deal of emotions during separation. Even where there was never infidelity, the question of parentage can be raised by the other party out of hurt feelings. Other reasons might be that a claim is made for the payment of child support.

The person questioning the paternity of a child have not considered how that question could affect the child in question. If the child is well into teenage years or a pre-teen, the relationship of parent/child is well established. The question we would pose to the person wanting the test is “have you considered the child and how they will react?” How will you explain your reasons for the testing to the child? and “what is it that you will do if they are not your child?”. When a parent has been a parent for a long time, do they want to sever that relationship? Are they proposing to remove that child from their life? What will happen in the event that the child is not yours? 

These issues must be considered before asking for or agreeing to the DNA test.

Be aware that proper DNA testing isn’t taking a hair from a hairbrush and sending it to a lab. It requires a blood test from a child which is usually traumatic in itself but how will it be explained to an older child/teenager as to why this test is required?

The court take a strong view in relation to parentage testing and say that there must be evidence to put parentage in issue – mere doubts are not sufficient.

The starting point is the presumption of parentage under the Family Law Act.

For married couples, under section 69P, if a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.  

For de facto couples, under section 69Q, is that if the child was born to the woman AND at any time during the period beginning not earlier then 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married then the child is presumed to be a child of the man.

Further, there is a presumption that if a person’s name is entered as a parent of a child in a register of births or parentage information then the person is presumed to be a parent of the child (s69R).

Further, there is a presumption as to artificial conception procedures under s60H(1).

There appears a vast amount of presumptions and the onus is on the person who says the child is not theirs, to rebut that presumption. However, case law has very much made it clear that parentage is no longer determined by legal presumptions. In G v H [1993] FamCA 39; (1993) FLC 92-380 Fogarty J noted at 79,942: “Paternity is now a medical and not a legal issue.”

A DNA test will confirm paternity, not 100% but with such a strong likelihood of paternity that it can be said legally that the child is the child of the father. A DNA test will exclude a person being the father of a child with 100% certainty. It is a very simple answer to the question of paternity to do the test.

But firstly, consider the child.

After separation, it is common that one party stays in the matrimonial home. Either they ultimately want to keep it from any property settlement or they want/need to remain there until the house is sold.

The good reasons to change the locks is “I am scared of them returning”. Change the locks! Your personal safety is paramount.

The bad reasons to change the locks is to stop the other person from entering the residence to collect personal possessions. It is always best to arrange for these possessions to be collected from an agreed safe location.  Unless of course, you have an objection to the items they are wanting to collect.  Arranging a time and location to make an exchange is the best solution.

The frustrating reasons to change the locks “I think it will annoy them”. Frustrating negotiations is never the answer. Another frustrating reason is when parties are living separated under the one roof. Don’t change the locks to “lock them out”. If living separately under one roof is not working, lets discuss how best to move forward and negotiate who is to remain in the residence.

Who’s name is on the property can also change the answer.

• If the property is held solely in your name, then go ahead and change those locks. It is your rights over the property.
• In general, matrimonial property is held in joint names.  Both are entitled to access the property. But when there are genuine concerns for safety. Your safety is the first concern! Change the locks.
• What if you are in rented housing? You must first obtain the consent of the landlord. And in doing so, you need to look into your options to remove your previous partner from the lease.

The court can make orders about who can occupy the family home and restraints on the other party from entering the property.

Our thoughts on changing the locks is that it is reasonable in many situations. To ensure you know what is best for you, obtain legal advice first.

We appreciate it is very overwhelming when you don't know where to begin to start sorting out the division of property following a separation. Here is our process.

The starting point is for us to gather information from you so that we can give you an advice as to what would be a fair outcome for you. We need to know things like, what all of your assets are and what you think they're worth; how much debt do you have; what did you have at the start of your relationship; What contributions did you each make during the relationship both financial and as homemaker and parent if applicable; What's your current financial situation and what does the future hold for you.

Once we have this information we are on our way to giving you an advice about what your proposal might be to resolve the division of property between you and your former partner.

We charge according to whatever time is spent on a file and it is at an hourly rate of $400 per hour plus GST. In order to try and save you at least an hour of fees we have a questionnaire that we send for you to fill in, in your own time, which asks all of the questions above.

When the questionnaire is returned to us, we have a look at it and make a time to go through it with you. It might be the case that we need some more information in which case we will tell you what that is and how we go about getting it. If there is enough information from the questionnaire for us to give you an advice about a good proposal and outcome for you, then we will talk about that at an appointment. We will also talk about how we can put your proposal to your former partner, will it be by way of you talking to your former partner, us writing them a letter, you both attending a mediation, or a combination of all of these things? There is no right or wrong method and we will talk to you about what is the best for you.

Once a proposal has been put to your former partner, we wait to their response. Their response will let us know the future pathway for your matter. For example, the response might indicate that you and your former partner are quite close to reaching an agreement. Or it might be the opposite. Either way, we will let you know what the next steps are and give you a further estimate of fees.

At all times what we are working towards is having you and your former partner reach agreement about the division of your property and having that agreement documented in a legally binding manner, usually, by way of an application for consent orders although a financial agreement is also an option. We will talk to you more about this when the time comes.

We will tell you what to expect, what we require of you, and what you can do to assist us to minimise your fees. Hopefully this will make your pathway through the process a lot easier!

Every child is different with their own unique needs. Some children will do well in a shared care arrangement. Other children do not cope with it at all. As a very general rule of thumb, the older the child, the more likely they are to cope with a shared care/equal time arrangement. Again very generally, the thinking is that children under school age
would not cope well with shared care/equal time as it is difficult for them to transition between households.

As a child gets older, it is easier for them to adapt to a different household moving back and forwards between households, juggling school commitments, remembering what clothes and equipment to bring to each house and so on. If parents want shared care arrangements to work they must be able to co-parent and communicate effectively and the most important thing is that there must not be any conflict between the parents to that the children are exposed. Parents also need to have a consistent and united approach in relation to the core values of parenting; and a consistent approach in relation to things like homework, chores, after-school activities, time on devices, etc.

Also, be aware that a shared care arrangement does not necessarily have to be weak. It could take the following pattern:

Each week – Monday Tuesday with parent 1, Wed Thursday with Parent 2; then in week one of a fortnight - Friday to Monday with Parent 1; and in week 2 of the fortnight, Friday to Monday with Parent 2. ( In other words – 2/2/5/5 nights over a fortnight).

Or it could be 3 to 4 nights with each parent swapping to 3 to 4 nights with the next parent and so on.

What factors will determine what’s appropriate, is the age of the child, the living circumstances of the parents (for example how far apart they live from each other), the after-school activities a child has and most importantly the ability of the child to spend up to a week away from each parent or whether the child copes better with shorter periods of time.

It is widely accepted in the court that children under a certain age meet their milestones and are happier healthier children when they live with the person with whom they have their primary attachment. In other words, the person with whom the child is most bonded, and to whom the child looks to meet the child’s needs. Whilst a child does often have a primary attachment with their mother, it is not necessarily the case that a young child’s primary attachment is their mother - it could be their father or another person.

As it is almost always the case that the person with whom the child has their primary attachment, is also the person they live with the most, I will call that person ‘the primary carer’.

What the experts tell us is that young children do not cope well when they are separated from their primary carer for extended periods of time. Young children need to have a primary base, with the primary carer and spend frequent but relatively short periods of time with the other parent.

All children are different but as a general rule, when children are under the age of three, they may not cope well with being away from their primary carer overnight. They are better able to cope with regular consistent periods of daytime with the other parent.

Every child will differ also as to when they would cope with a period of overnight away from the primary carer. With some children, it could be after the age of three but with other children, it might not be until the age of five or even later. It is very important to work with the pace of the child, if children are not ready to spend overnight time then it can be traumatic for them to do so. Parents can also help their children by acknowledging that time with the children is about quality, not quantity; and in particular to understand that you get more out of spending daily time with your child while he or she is awake and active than while they are asleep.

As a very general rule, this is commonly what the courts might say about overnight time for children of different ages:

Under the age of two, no overnight time;

• Between 2 and 3 years of age, a child might cope overnight if he or she has a solid relationship with the other parent (the one with whom they will be staying overnight) and the surroundings are familiar.
• Between the ages of three and five or six, when a child starts school – 1 to 2 overnights per week
• In the early primary years, and if there has been a pattern of overnight time already in place, a child of between the ages of six and 12 would cope better with two nights to 3 nights with the other parent.
• A week about or shared care arrangement in general terms works better for children who are older, late primary and into high school. I cannot stress enough that each child is different and this is a very general guide only.

What can parents do to help their child settle into overnight time with the other parent?

First, and most importantly, is to remove your child from any conflict between you. Be aware, that children pick up on more than just the language used. They will notice body language, and the tone used, even if they don’t quite understand the language used.

Again what the experts tell us is it is not so much the separation that affects children but the conflict associated with it. If parents can do their utmost to make any interaction between them that involves the child, as pleasant an experience as possible, they will be doing their child a great service.

It will also be very helpful to your child if you can have a discussion with the other parent about the child’s routine and try to have consistent ideas about what food your child will eat, what time their bedtime should be, what their routine is for bedtime, and so on. A child who has a favourite toy should be allowed to have that toy when they stay overnight.

Something I’m commonly asked is whether you should allow your child to call the other parent if they’re having an overnight with you. The parent having overnight is obviously concerned that if the child is upset and wants to speak to the other parent, by doing so, the child will then want to return home to that parent.

That might very well happen. But wouldn’t it be better, to demonstrate to your child that he or she can trust you that if they are really upset and just want their mum/dad, you will allow that to happen? Knowing that their needs will be met and that they will not be left feeling distressed or anxious, will give a child much greater trust in you. It’s just a fact of life that some children suffer anxiety being separated from their primary carer and it is best to help the child through this as best you can rather than resist it.

It will also build greater trust in the other parent for you to let them know that the child is distressed and give them an opportunity to settle the child.

So my advice is, to let the child have a phone call at bedtime to the other parent, let them have a photo of the other parent if that’s what they want, let them have their familiar toys and clothes and try to follow the routine they have at home. All of this will go a long way towards an enjoyable overnight experience.

Why would you get a Financial agreement?                           

You’ve had a bad break up with your ex but life does go on - thankfully!  - and you’ve met the person of your dreams. You are worried that even though this feels like forever, if this relationship does end, what is going to happen to your hard earned property? (more…)

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Selling the family home following a separation is often a reality. Like any sale, you want to maximise your sale price.

It is also important to work with an agent who understands that their clients are separated - and it may not be easy to get joint decisions about the sale! The agent will need to be prepared to work with both owners, i.e. husband and wife, separately, and makes sure that each person is involved in making a decision. Often the agent needs to navigate the tensions of separated couples and try and get them to reach an agreement on the sale.

I always suggest to clients that if they can’t agree on an aspect of the sale- that they should agree beforehand to let the agent make the final decision. Bear in mind - the agent also wants the quickest sale at the best possible price!

I contacted Zoe Wicks, an experienced agent who has recently moved back into the Edge Hill area – for her perspective and expert advice on how to sell your property when you have separated:

“When I'm working with a couple who are separating, I'm always very sensitive to the situation and the emotions that are felt by both parties. I am very diligent with my communication; ensuring I keep both parties well informed and that all communication is equal and non-biased. It's important that both parties feel supported and understood, and that they feel safe in my hands – receiving good, solid professional advice.

Having a strong leadership approach is important when selling a property for a separated couple, as delays in agreement can negatively affect the sale outcome.

Often these properties may have been neglected because both parties have moved out, or there have been disputes with money, a shortage of money, or sometimes purely from the owners dealing with the overwhelm of emotions and life changes. Amongst everything else they are having to deal with – the home maintenance falls on the wayside. I take a lot of time and care in helping to best prepare the home for sale behind the scenes, before we go to market. This process can often be quite long and challenging (depending on the situation), but is absolutely essential in achieving the highest possible price for the owners.

Right now, the property market wheels are still turning; they may be turning slower, but they are still turning.  Having a roof over our heads is essential, we still need places to live, to call home - for each new chapter and season of our lives.

I'm definitely feeling that with the advent of what's happening in the world- people are reassessing their values, favouring less populated areas, healthier environments, nature & self-sustainability, lifestyle, and warmer climates- which are all positives for us living in Cairns.

I feel there is a renewed interest in Cairns from southern & international buyers for these reasons.  The simple life has come back into fashion; be that by forced external factors combined with new internal drivers.  First home buyers have a strong presence in the market as there are good value properties to be snapped up, coupled with low interest rates and Government loan incentives.  Second or third home buyers are in the market as well- they are taking their time to buy, but jumping when they find a property they love.  Investors are also looking to buy property in the Cairns area, as the return on investments are still very competitive and better then what the banks can offer- even with the downward pressure on rental prices.  The low entry level prices allow investors to spread their risk.”

It is great to hear that in Zoe’s opinion- the property market is still viable, and it is possible to get a good price for your property! For more tips, check out Zoe Wicks Real Estate’s 101 tips to maximise your sales price here.

With thanks to: Zoe Wicks, LREA | Zoe Wicks Real Estate |   Ph: 0477 114 778   |   Email: zoewicks@atrealty.com.au

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

I read an interesting article last week, entitled: 'When Coronavirus lockdowns ended in cities across China last month, there was one thing a lot of people couldn’t wait to do: get divorced.' Here is the link to the article: https://www.mamamia.com.au/relationship-tips-covid-19

Apparently, the Global Times reported that there has been a “record-high number of divorce requests in recent weeks” in the Chinese city of Xi’an. The article wonders whether the same might happen in Australia, when couples are forced to spend more time together then they are used to.

Then a colleague sent me this image; - which I found funny, only because it pokes fun at Lawyers, and I think sometimes we need that.

It did cross my mind if there would be more separations as a result of the virus, and if there is - there is nothing funny about that. One reason certainly could be that spending so much time together causes the cracks in the relationship to appear. What is perhaps more likely, is the terrible financial impact this virus is having on Australian families and the tension this will bring to a relationship.

I have seen lots of jokes on social media about how alcohol consumption has increased for many; again, for many this is no joke and it will be the issue that brings a relationship to an end.  Depression over a lost job, fear about finances, increased drinking and/or drug taking – it’s a recipe for disaster with a great concern being the increase of family violence.

If you feel your relationship is floundering since the outbreak, what can you do?

• • Talk to each other about it
  • Get help! You can still access counselling services online or over the phone. There is also a lot of help out there to assist those who are struggling financially -  head to https://www.servicesaustralia.gov.au/ for more.
  • Be Safe – not just from the virus but from dangerous situations. If you are worried about family violence, call the police.
  • Seize the opportunities for quality time with your family, that you may not have had before
  • Hang in there – this won’t last forever.

If you really feel as if your relationship is at an end and you don’t know what to do, call us. We can help.

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

In times of crisis, parents have to work together like never before. I say it all the time, co-parenting after separation is very hard, but I have just seen it become even more so in the face of so much uncertainty and fear. Things are changing daily and parents are understandably very concerned about the safety of their children in this crisis.

Here are my top tips for Parenting in a Pandemic (taking some inspiration from the Family Court/Federal Circuit Court recent release for parents/carers on their website).

#1 - Follow existing arrangements and in particular court orders, as best you can, while you can. Strictly following court orders may no longer be possible; for example, the handover place you have been using is now closed. Many state borders are also closed. So, find a practical solution – a different place. Extra time next school holidays.

#2 – Have sensible conversations NOW - not only about your ability to comply with current orders; but what will happen in the event of a lock-down. Try to adopt a practical, “common-sense approach”, that keeps to the ‘spirit of the orders’; but most importantly always considering the safety and best interests of your children. The best outcome for your children is if you can work together to vary arrangements so that children maintain contact with each parent in a safe way.

Record any agreements about new parenting arrangements, in writing.

#3 – Try to understand the concerns of the other parent when negotiating new or revised arrangements. If you are proposing the other parent’s time with the child is restricted, unless they can understand your concerns, they will be opposed to what you suggest. Be mindful that your idea of what is ‘safe’ in this new world may not be the same as the other parent. What can you do to find a solution? If you are the parent who wants to keep the children with them, look at arranging extra contact with the other parent such as Skype, Facetime or telephone. Perhaps ‘make-up’ time could be considered, if appropriate.

#4 – Mediation is still a great option.  The court website advises that if parents are unable to agree, they can make an on-line application to vary existing orders. However - unless it is a case involving family violence, child abuse or is urgent, parents are still required to make a genuine effort to try and sort it out their dispute through family dispute resolution (mediation) before filing an application for parenting orders.

If you do file an application, don’t expect the court will be able to act quickly- except in urgent cases or where the court considers children are at risk.  The court is operating in very difficult circumstances and can only deal with priority matters.

#5 – Get advice. Not just from your Lawyer, but from health professionals, schools etc. Be up to date with the latest Government advice, it might have changed overnight.

Unfortunately, I foresee many situations arising where there will be no agreement, where one parent feels they have had a care arrangement imposed on them by the other parent. This is why it is important to talk about these issues now. You don’t want to be having these conversations in the panic of a lock-down. (At the time of writing this article there has been no such announcement but the indication is, it could happen).

Finally, a plug for the KEEP IT IN CAIRNS (#doitwithalocal) campaign.  Every single person in Cairns will have been affected by this virus. We all know someone who is now out of work. If we can spend every dollar locally, we help keep businesses open and locals in jobs.

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

In times of crisis, parents need to work together. This means, making proper arrangements for children in the event of a lockdown situation. The information we are currently receiving is that it is business as usual in relation to court orders and parenting arrangements. In other words, parents should follow existing arrangements and in particular court orders, as best they can. Parents are encouraged to adopt a common-sense approach. As to what is a common sense approach, appears to differ between parents, and this is where disputes are arising.

We think that the best common-sense approach is for the primary carer to retain the children during a lockdown and be willing to offer make up time to the other parent, along with extra phone calls and/or Skype and Facebook communication. This of course depends upon each parent’s situation, the safety of the home and their ability to provide care for children during a lockdown. This is why we suggest the primary carer would normally be best placed to care for children over a two-week period, if children are in their care mostly in any event.

This does not mean the other parent could not take the children for two weeks, but it is most definitely a case by case basis.

For parents who share care, perhaps the common sense approach is that the children stay where they would normally be pursuant to court orders in the event of a lock down, with make-up time to occur at the end of the period.

There will inevitably be breaches of court orders during this period, but we doubt the court is going to be much interested in a flood of Contravention applications as a result. For this reason, we encourage our clients to try and reach an agreement about what might happen in the event of a lockdown, because if there is one- it will only be at short notice.

Here are some tips from the Family Law Section:

Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 25 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

I’ll set out what equal shared parental responsibility means in the Family Law Act:

“equal shared parental responsibility” means that parents must consult with each other and share responsibility for decisions about “major long-term issues” in regard to the children.

The phrase "major long-term issues" is defined in the Family Law Act as follows:

“issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

1. the child's education (both current and future); and
2. the child's religious and cultural upbringing; and
3. the child's health; and
4. the child's name; and
5. changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”

Consultation

“Consult with” is not defined in the Family Law Act but it has its normal meaning – “Speak to about” But what happens when the other parent is someone who doesn’t respond in a timely manner - or at all?

My suggestion is that in drafting consent orders, you might want to add a clause that says something like:

• for the purposes of consultation, you will advise the other party of a decision you seek to make relating to long term issues to do with parental responsibility. If the other party does not reply to you within 14 days, you will be able to proceed with that decision as if there had been consultation and discussion.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Even though the family unit is no longer, it is still possible to have a happy ‘family’ after separation (it might even be a happier one!).

The key to a happy family, after separation- is good CO-PARENTING. I also think these tips apply to any family because as any parent/carer reading this article knows, it’s hard enough to parent at times, separated or not. Here are the five “C”’s to good co-parenting, noting that any reference to ‘parent’ is of course referring to anyone in a carer role.

#1: Conflict – getting rid of it

Children do not thrive after separation when parents are in constant battles with each other. A child who is caught up in the bitterness of their parent’s separation is at real risk of suffering psychological harm. I do believe good co-parenting does include conflict, but it is how parents go about managing and resolving their conflict that is all-important. I also believe it is good for children to know that Mum and Dad don’t always agree but they are able to discuss their differences of opinion in a good way.  How is it possible to do this? See #2!

#2: Co-operation - A business-like relationship

Try looking at your co-parenting arrangement like a business relationship. You know that you can be in business with someone you don’t particularly like. You and your business partner might not be friends, but in a good business partnership chances are you treat each other civilly and with respect. You both have a common goal, making your business successful. Business partners will co-operate with each other for that common goal; leaving aside their personal feelings for the other person.

For separated parents your common goal is the happiness, stability, and future well-being of your children. Parents who can put aside their hurt and anger, and co-operate for the benefit of their child, can create happy kids even after separation and will be much happier themselves.

#3: Communication

This is really the key to any successful relationship – good communication. Separated parents will need to work this out. HOW they will communicate? Face to face probably isn’t the best option all the time, so will it be by phone or text or email? There are a lot of new apps out there these days helping parents with communication, such as “Talking Parents”. Also work out WHY you need to talk, for what reasons. What decisions should you discuss jointly and what do you agree you can each decide on when the children are with you?

#4: Consistent parenting

This applies to all families separated or not. Children do best when they have consistency. For together parents this is a united front. For separated parents this means similar rules in each household – as to TV time, social media, jobs, bedtime, and so on.

#5: Consideration

Our wish for our clients here at Collier Family Law is that they can “Divorce with Dignity”. It is always a sad time but it doesn’t have to be soul destroying. It comes down to how parents choose to act and respond; whether they choose to act with consideration of each other, and mutual respect for each other’s role as parents.

Article written by Nardine Collier

Family Lawyer Cairns & Alice Springs

Mediation in Family Law matters is also referred to as Family Dispute Resolution (“FDR”). Before a person can make an application in the court for orders about children, there has to have been an attempt to resolve the dispute, by attending an FDR process (a mediation).

If you are invited to attend an FDR process, and you not wish to attend mediation, that is your choice. However, you should be aware that if a person fails to engage in an FDR requested by the other party, a certificate (called a s60I certificate) will be issued stating:

“The person did not attend FDR due to the refusal or failure of the other person or people to attend”.

If proceedings end up being filed in the court, the Court will be able to take into account a party’s refusal to attend FDR if there is an application for costs. It is possible that the Court will make an order for the other party’s costs to be paid by the person who refused to attend mediation; if the refusal to attend mediation increased the costs of the other party. In other words, they had to come to court because the other person in the dispute refused to try and resolve the dispute.

It is always a good idea to get some legal advice about the consequences of refusing to engage in an FDR process.

In most cases, mediation in family law matters is worth a try. There will be some cases where it isn’t appropriate, in which case the s60I certificate will reflect that the Mediator made the decision not to proceed. In that case, a person wouldn’t be at risk of a costs order.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Let me tell you about a recent child inclusive mediation I attended. What a great process! But firstly – what is it?

Child Inclusive Practice involves children from say four years of age. They meet with a qualified Child Consultant who will talk to them about the dispute the family is involved in; for example -  their views;  and what they really think about the separation; with whom they want to live and how often and under what circumstances do they want to see the other parent.

The Child Consultant will then meet with the parents if the child says that is OK, to relay what the child has said. The parents would then go on to mediate the dispute, taking this information on board. Hopefully they will see their dispute through the eyes of their child.

It is very powerful to hear what a child has to say. What a child really thinks, not what they tell each parent. Understandably, parents in conflict find it hard to put their feelings about each other aside, when that happens the child gets lost in the conflict.

In the matter I recently had, Sally aged 7 (not her real name) said that when Mum and Dad argue she feels sad, lonely and scared. She chose a Bear card of a very sad looking bear indeed. When asked what it is like to go from one house to the other she chose a picture of a broken bridge, which was so long you couldn’t see the end of it, full of sharp rocks underneath. Pretty easy to guess how this little girl is coping with the separation.  Mum and Dad were very surprised by her comments as they both thought she was going Ok and were sure she hadn’t heard their fighting.

Is this a good process for everyone?
It’s a great process but only if:

• Parents are really genuinely interested in knowing what their child has to say, will accept it and will respect the child’s view;
• Parents are genuinely committed to resolving the dispute;
• Parents can be tough enough to hear what they might not what to hear

Most importantly, parents must be able to promise to NEVER EVER question/quiz/grill their children about what they said to the mediator. This has potential to cause great harm to a child who may find it extremely difficult to trust any sort of similar process ever again.

In expert hands, child inclusive mediation is something all parents in conflict might consider.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

I credit this blog to two amazing women I am lucky to know at the moment. Lucy Stokes who nags me to write blogs and then has the tedious task of posting them for me; and Laurie Pritchard who runs Small World Adventure Tours and who sits on the Cairns Business Women’s Club Board with me.

Laurie recently did a presentation about “the confidence con”, busting the myth that confidence comes from being good looking and /or wealthy. She says true confidence doesn’t comes from being beautiful or rich, but rather from doing something that’s hard. The achievement of something challenging (particularly when you doubt yourself) is the greatest confidence boost of all.

She told us of an African teaching called “Run towards the Roar”, a means by which African lions catch the antelope. The older lions with less stamina - and teeth! – waited on one side of the long grass. The younger, fitter lions waited on the opposite side. The older lions roared and the fearful antelopes ran away from the roar, but unknowingly, towards certain death where the younger lions waited. (Actually, it was probably the lionesses who came up with this strategy and did all the work!).

So, the elders said, “Run towards the Roar”! for there, is the greater chance of survival.

In other words, face your fears. If you can do this at every opportunity, that is what will build confidence and resilience.

Lucy’s message is “Eat the frog first”, which is a saying from a book written by Brian Tracy. OK, no-one wants to literally eat a frog, right? (unless we are French and the frog’s leg is cooked and smothered in garlic; or starving in the wilderness…but you get the picture). Lucy says, when faced with something you REALLY REALLY REALLY don’t want to do, is to just eat the frog. Do the unpleasant thing and get it out of the way. She uses this in the context of work. You know that task you have just been putting off? Get it out of the “too hard basket” and just do it. Eat that frog. Make it the first thing you do each day. (I have lots of frogs in my pond at times!).

How often, when finally we tackle an unpleasant job, do we find it actually wasn’t as horrible as we thought..?

So, what does this have to do with separation and Family Law?

Well, firstly, the message is to face your fear. Here are two scenarios you might relate to (or know someone who does).

Nardine Collier is a Nationally Accredited mediator and has been mediating family law disputes for 20 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel mediator for various Australia wide organisations and for courts and tribunals, and regularly mediates at legal aid conferences in family law, in Cairns and the Northern Territory. She is also the Cairns representative of the Queensland Chapter of the Resolution Institute of Australia.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

I recently read an Interesting article on news.com.au entitled;

“My partner’s ex-wife ‘stole’ my inheritance

A WOMAN has been forced to pay more than half a million dollars to her partner’s ex-wife after being trapped by a bizarre law.”

The lady in question (“Deb”) had met the love of her life (“Jim”). Jim had been previously married but believed his property matters had been sorted out with his former wife. (You can see what is coming, can’t you?) Deb got an inheritance and they bought a house. Jim then received a claim from his former wife seeking a property settlement, because it turned out that their property had actually never been formally resolved. The article says that “Deb” ended up losing half a million dollars including her inheritance as this had to be paid to Jim’s ex-wife.

This is a pretty extreme scenario, but what you do need to know is:

• The only way to formally settle property between couples after separation, so that it is legally binding, is by way of court orders (be that consent orders or by order of the court following a contested hearing) OR a financial agreement.
• Letters between you, or even a typed-up agreement, is NOT a binding agreement and is only evidence of what was intended. The court is able to make orders that are not what was agreed if the agreement reached was not “just and equitable” (these are the words in the Family Law Act).
• So – when you settle property matters, go the extra step and make sure you formalise the agreement.

The second problem poor old Deb faced was that by the time the property was divided as between Jim and his former wife, Jim now owned property with Deb, that was included in the property pool to be divided between him and his ex-wife. How can this happen?

This is because when the court comes to look at a property case, it looks at CURRENT assets and liabilities. Not what you had at separation (although that is important) but what you currently have. If there is a sufficient connection between the property you currently have, and the relationship, the court might include the current property, in the property pool of assets to be divided – even if you acquired the property after separation and own it with someone else.

Of course, there are many factors involved, but you cannot assume that the property you have with your current partner is ‘safe’ from a claim by your ex-partner. If this scenario bothers you, the best thing you can do is seek some legal advice as to how you might be able to protect your current assets – particularly if you are the “Deb” in your situation.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

What are consent orders for property? Is this something I need to consider?

Yes. If you have reached agreement with your former partner or spouse about your property, you most definitely should finalise it by way of consent orders. So – what are consent orders and what do you need to do?

What are “Consent Orders”?

When we say “Consent orders” we are talking about an application that is made to the Family Court asking the court to make orders in relation to property. There are two forms that are submitted. One is the Application itself, where you set out your details, list your property, and give the court information about relevant matters and what the division of property is going to be. The second document is what we call “Minutes of Consent Orders”. This document contains the actual orders you are asking the court to make – for example, “that the Husband transfer to the Wife his right title and interest in the former matrimonial home at 1 Brown Street..etc. “

But we agree – do I really need to bother with this process? I don’t want to go to court.

YES! You do!! Firstly, you don’t actually go to court, the orders are filed in the court but the Registrar will consider them in chambers without you having to attend. The Registrar will make the orders if he or she considers them to be “just and equitable” - i.e. a fair outcome taking into account the facts of your particular case.

By filing an application for consent orders, if the court approves them the orders become orders of the court just as if you went to court and the Judge decided after hearing your case. Once you have final court orders in place, in theory, no-one can come back for another go! As with everything there are exceptions to the rule of finality which I won’t go into here – you are fairly safe to assume that the final orders are just that and there will be no future attempts made by anyone, to alter the division of property. This means you can now get on with your life financially knowing that your future earnings and property are protected from any further claims.

The next good reason to have consent orders is that you can enforce the orders if necessary. For example, your ex refuses to sign the transfer of title for the house. You can ask the Registrar of the Family Court to do so, if you have those orders in place. If your ex is supposed to pay you money for your share of the house and they default, court orders allow you to have the property put on the market and sold.

The other advantage is that if you have a court order, you are exempt from stamp duty if you are taking over the title in the house.

Can I prepare a consent order myself?

You can certainly download the form from the Family Court website – it’s called an Application for Consent Orders. You will be able to fill in a lot of the form yourself, and the form has a very helpful section at the start which explains the form and how to fill it in.  However, just about everyone I speak to tells me that there are sections of the form that they are just not sure about. If the form is wrong, the Registrar will often not make the orders sought, so you have to get it right. Then there is the second document, the actual orders themselves. It is VERY important to get this right and to ensure that you have all the necessary orders to protect your interests. You will struggle to find a precedent online and every case is different, so the precedent you might find, may not suit your case.

It really is best to get some legal advice. At Collier Family Law we are happy to work with you as a “DIY…WOH” 😊 DIY – as in, you fill in as much of the form as you can to save our time (which is your money) but “with our help” – we check the form for accuracy and make sure all the necessary orders are in there, correctly worded.

What does it cost?  

There is a court filing fee of $165. You may be exempt if you hold certain government concession cards or can demonstrate hardship. The legal fees for preparation can vary depending on how complex the document is and how much of it we do for you, but we will give you that estimate at an appointment.

Can I get a final agreement any other way?

Yes, you can enter into a financial agreement. The process is quite different however and you must obtain legal advice before thinking about a financial agreement, as to whether the consent orders process is a better option.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

I thought this was an interesting idea...

The Sydney Morning Herald recently published an article (12/9/18) entitled “Divorce hotels are coming to Australia”. That article states:

“The premise is simple: couples check in to a hotel in two separate rooms for two nights, where they undergo mediation processes behind closed doors and away from outside responsibilities.

The idea is that, over the course of a 48-hour hotel stay, all divorce arrangements can be made.”

A couple were quoted as saying that it worked for them as it means they could get away from commitments and day to day obligations (such as children, they said! Ha ha) and really focus on their ‘divorce’ (by which, they meant, their property settlement and possibly arrangements for children.)

“The CEO of DivorceHotel, Jim Halfens developed the idea in the Netherlands around seven years ago and the company is now operating in the US and the UK, with an Australian expansion planned for 2019.

His idea involves providing all the professional support a couple need to arrange their divorce (“lawyer, mediator, financial advisor, maybe therapist”) all under the same roof at the same time.”

The article is quick to point out that this idea wouldn’t suit everyone and would only work if couples were amicable.

It’s definitely an interesting idea and I can see how it could be adapted to be more affordable. Much as I’d love my client to pay for me to stay at a swanky hotel for 2 nights, that might be out of the reach of many; and really, not necessary.

The idea of all the necessary players, such as the mediator, lawyers, accountants, financial planners, etc getting together in one place is not new. “Collaborative law” is a concept where the parties do just that. Collaborative law in its pure form has other rules and restrictions which doesn’t appeal to me, but the idea of everyone being accessible AND trying to get things done in a focused time-limited process, is a great idea.

How about this:  DIVORCE DAY (AKA “D-Day”)

• Choose a family law mediator.
• Both engage lawyers for this process
• Have the mediator and the lawyers negotiate and agree a schedule of dates – i.e. the date by which all documents have to be exchanged by, valuations obtained, etc, so that by the time D-Day rolls around you both know what your assets and liabilities are and have received advice as to what is a just and equitable outcome.
• Arrange any other participants such as accountants, financial planners, mortgage broker, etc.
• Book a neutral venue – the Boland Centre in Cairns is excellent.
• Set aside the day and make appropriate arrangements.

You might both agree that you will not leave the venue until the matter is finalised. In which case…maybe you will need that room after all?

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

For a lot of families, a verbal agreement is fine. A verbal agreement will work if you are reasonably amicable, able to communicate, and trust each other. Also, if you are both prepared to have some flexibility in your arrangements.

There is no ‘law’ that says you must reduce your verbal agreement to writing, so if it is working for you, all good.

However, be aware that there are two disadvantages to a verbal agreement. The first is uncertainty, and misunderstanding as to what really was agreed. The second, and biggest problem is that if it all goes pear-shaped, a verbal agreement is not legally binding or enforceable.

Another option for parents is a parenting plan which is simply a written agreement as to arrangements for children. It is signed by both parents but not filed in court. A parenting plan at least gives some certainly as to arrangements, but again, it is not legally binding or enforceable (as it is not actually an order of the court). It is good evidence of what was agreed, and the court will try to honor the parenting plan if the arrangements are in the best interests of children.

The best written agreement is one that is made into consent orders that are filed with the court. You don’t need to go to court, you simply file the application and the Registrar of the Family Court will make the orders in chambers (without a court sitting) so long as he or she considers the proposal is in the best interest of your children.

A consent order is a court order, just as if you went to court and argued the case and the Judge made the order. A consent order is binding on parties and it can be enforced if necessary. It provides certainty for children, and for families.

If you want to amend a consent order, you may need to file a further application; although it is worth thinking about whether you really need to do so. If arrangements are changed by agreement, you are not in breach of the current orders, but you MUST get that agreement in writing. If the changes are substantial (such as a change of which parent the child lives with) then you should file a further application for consent orders.

Is it easy to do it yourself? For more information, the Family Court has a very helpful ‘kit’ that you can look at if you want to have a go filing it yourself. Go to www.familycourt.gov.au – application for consent orders. The Application itself is quite straightforward, but where people come unstuck is how to complete the actual orders themselves, for example as to parental responsibility, the actual arrangements themselves, and how to word all of these things. You won’t generally find any templates on the websites, and even if you do, you should take care using them without legal advice.

As always though, I recommend you get some legal advice about your agreement before you file it as there are some orders the court just won’t make (child support, for example) and also to make sure you have covered off on all the issues that might arise.  These are court orders that are binding and enforceable and there can be severe penalties imposed for breaching court orders. You want to make sure you haven’t unintentionally, agreed to an order that might be a problem in the future.

At Collier Family Law we offer a service whereby you fill in as much of the paperwork as you can, we provide you with a template of suggested orders and then work with you to finalize them. With you doing as much of the paperwork as possible (rather than paying us to do so) you reduce your fees.