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.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Another role I have is what is called an Independent Childrens Lawyer (ICL). The job of the ICL is to present an independent view to the court as to what is in a child’s best interests, and one of the best things about the role is that you can talk to children who are involved.

An ICL is only appointed once there are court proceedings and usually where there is high conflict between parents. So, it’s hardly surprising that what a lot of kids say is the one thing they want more than anything, is for Mum and Dad to stop fighting. It makes children feel incredibly sad when their parents fight. Even with the best intentions kids end up right in the middle of their parent’s conflict and often feel they have to choose. Mostly, kids don’t want to choose. They love both parents and they don’t want to upset either one. An adult would find it very hard to choose between two loved ones, so imagine how hard it is for a child.

Conflict between parents puts an incredible burden on children and can result in poor performance at school, emotional issues, behavioural problems, often long lasting psychological trauma. Every parent will say they would never hurt their child, not realising that unresolved parental conflict does just that.

I heard something very powerful in court the other day from Judge Willis, Federal Circuit Court Judge.  She had two parents before her, who had been in high conflict for years. She told them that it “was time to lay down your weapons”. “Put up a white flag”, she said, “just be parents, and help your child through this.”

She also made the comment that it is hard enough to co -parent when you are together let alone when you are not. Any separated parent knows how true that is and how hard it can be when the conflict between you prevents you from talking to each other as parents. How can you move forward?

This where family dispute resolution – mediation -  can help. Even if there has already been an attempt at mediation (which in most cases has to happen before an application can be filed) – give it another go. It is never too late. Resolving conflict is like quitting smoking, as soon as it stops, the damage starts to heal!

There are a number of excellent private mediators in Cairns who specialise in family law disputes; and there are great services such as Relationships Australia and the Queensland Legal Aid Conferencing program.

Mediation gives you the chance to ‘lay down your weapons’, to find ways to put aside the conflict and focus on the way forward for your children.

Not only can Mediation resolve disputes, it helps you come up with strategies to improve communication between you so you can get on with the job of being the very best parent you can be.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

As a separated mother of 2 teenagers, I know first-hand that co-parenting while you are both together can be difficult. Co-parenting after separation can sometimes seem almost impossible.

In the last article I talked about two very important things separated parents can do, to make the minefield of parenting a bit easier. The first and most important thing is to protect your kids from conflict. Children can’t watch the two people they love most in the world yell and scream at each other without feeling miserable, scared, worried, at fault. Kids don’t need to hear one parent talk badly of the other.

So the aim is, to put your feelings aside for the benefit of your children and develop a “business-like relationship” with the other parent.
How can you do this?

Improve your communication

This is really the key to any successful relationship – good communication. Being able to get your point across without it all falling apart into a horrible argument. Feeling as if you are being heard. Feeling as if the other parent is listening to you, even if they might not agree with what you have to say.

Mediation is the ideal environment to discuss strategies for effective co-parenting. Mediation is structured so that each person gets their turn to speak without interruption. A mediator can assist you to try and see the other’s point of view. A mediation can put together a list of things to be decided, moving forward - how will we communicate? What about? How often? What can we agree on, so our parenting is consistent?

For example, you might agree to only communicate by text or email, unless it is an emergency. Of course, we all know someone who regularly talks to their ex on the phone (some even go out together regularly!) and while that is fantastic, it isn’t for everyone. Or not yet, anyway!

You will hopefully put some boundaries in place – i.e. that all discussions are respectful and only about the children. You might agree to use a “communication book” – this is a book which passes between the parents in the child’s bag, for example, in which you record only matters of importance to do with the children’s welfare such as illnesses, activities and so on. Just be mindful that if children can read, I guarantee you they will read this book – it’s all about them after all! – so it is vitally important that what is written in there is respectful and without conflict.

Consistent Parenting

 In the digital world parents are using communication apps like “Talking Parents”. Also, in this digital age, schools have apps, allowing both parents access to information direct from the school. Consistent parenting Imagine if you had two jobs and one boss was very laid back and you could do what you liked but the other boss was a stickler for the rules. You’d get confused, right? Children do best when they have similar rules in each household – as to TV time, social media, what is expected in relation to jobs, what time is bedtime, and so on. You and the other parent can hopefully agree on these sorts of things. As for the things you can’t agree on, try and work out why you disagree. For example; you might think a particular TV show is not age appropriate but the other parent doesn’t see anything wrong with it. Mediation is an opportunity to work through these issues to see if you can reach some compromise.

All parents – loving each other or not – are going to disagree at times about how to raise their children. If you can work out what those disagreements are and how you might manage them, co-parenting will be a lot easier!

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

• behaving aggressively
• teasing or practical jokes
• pressuring someone to behave inappropriately
• excluding someone from work-related events or
• unreasonable work demands;
• Management action that isn’t carried out in a reasonable way.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Joan (not her real name of course) HATES her job. All was well, until she plucked up the courage to ask for a pay-rise. Her boss was abrupt with her and just said no. She was very embarrassed and upset. She felt she wasn’t well regarded, so since then she has only done the bare minimum her job requires.

Joan became more and more unhappy and her misery was apparent to her colleagues and worse, to customers. Her colleagues stopped asking her out for drinks on a Friday night, and to her great distress she has just found out there was an impromptu early knock off with drinks in the boardroom, on a day she was off work sick. She doesn’t think it was spur of the moment,  that it was planned because she wasn’t there. She thinks no one in the office likes her.

The boss, Joel (definitely not his real name) just doesn’t know what to do. He really couldn’t afford to give Joan a pay-rise, he knows he didn’t handle her request very well, but since then she, quite frankly, is a misery to be around.  He has tried to talk to her, but she is not very approachable and the last time he tried she burst into tears and took the rest of the day off.  He really doesn’t want to sack her, and he is not even sure if he has grounds to, because she does do her job - just without much enthusiasm. She has started to take more and more sickies lately though and he wonders if that is grounds for dismissal, although she does always produce a medical certificate.

The tension is starting to effect the whole workplace, with staff morale not being as it was. Other staff are starting to call in sick and the growing number of sick-days is certainly effecting the overall productivity of his business. What can he do?

This is based on a true life scenario. It ended up with “Joan” leaving work claiming she had been bullied and had suffered depression as a result and was unable to work. It cost the Employer a lot of lost time, and profit and did affect his reputation and overall business.

What could he have done? He did try and talk to Joan. The trouble was, he didn’t handle it all that well (let’s be honest, he probably made it worse) and she in turn couldn’t see the ‘olive branch’ for what it was and thought he was ‘having a go’ at her for taking sick leave.

What would have worked better, was an opportunity for both Joel and Joan, to air their grievances to a neutral third party, and then work towards finding a solution. Joel was prepared to ( and could have, at the mediation) apologise for the way he handled the request for a pay rise. In turn he could have explained to Joan ( which she didn’t know) that on the day she asked for the pay-rise he had just found out he had a big tax debt to pay, and so he wasn’t as receptive as he might have been.

It might have taken just that sort of conversation, in a controlled environment, to get the working relationship back on track.

Don’t let workplace disputes get out of hand.

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Last month I wrote about mediation and how effective it is as a means to resolve disputes quickly and cost effectively.

There is another process in the Family Lawyers toolkit, called Arbitration.

Family Law Arbitration is, like mediation, a voluntary process where an accredited Arbitrator decides the property case instead of a Judge. The parties must choose an Arbitrator from a list of accredited Arbitrators, which can be found at www.aiflam.org.au.  (AIFLAM is the national body for family law mediators and arbitrators).  The parties must agree how the Arbitration is to be conducted -  whether the decision is to be made just on written documents, or whether other evidence is required; what documents are required; when those documents are to be produced, and so on.

The Arbitrator will consider the evidence and submissions, and applying the relevant case law and legislation, decide the property case and give the parties a written Judgement called an “award”. The Award can be registered with the Court and is then binding and enforceable.

The Award can be reviewed by a Judge on questions of law; and/or set aside on certain grounds, such as fraud, non-disclosure for example, and if there was a lack of procedural fairness in the Arbitration.

The only limitation placed on Arbitration is that it is limited to property settlement and spousal/defacto maintenance issues. An Arbitration cannot deal with parenting matters or child support issues.

What is great about Arbitration?

It is timely, cost effective and YOU have a say in the process.

• The Federal Circuit Court, where most family law property matters are dealt with, is an incredibly busy place. Most registries have a wait of at least 12 months, before your property case can be heard; in some Registries down south people wait for three years. In Cairns there are no more trial dates available this year. Whereas, an Arbitration can be finalised in weeks.
• You and the other party, with your lawyers, agree the process. Will it be an Arbitration on the papers? What is the timetable for provision of information? What information will the Arbitrator receive? Will there be any affidavits/oral evidence/cross examination? ( NB whilst an Arbitration can mirror a trial, most arbitrations are ‘on the papers’).

• COSTS – I was recently told that the cost of an average family law trial is $43 000. Each. Many trials cost more than $50 000 each. Who has that sort of money?

Whereas, an Arbitration on the papers can be as little as $3000, shared by both parties.

• The Arbitration can be used to resolve part of the property dispute with other matters being heard by the Court. It can also be combined with mediation.

Will the person doing the Arbitration be any good?

Yes, but there is no getting around the fact that the Arbitrator isn’t a Judge and hasn’t had years of deciding cases; although having said that there are retired Judges on the AIFLAM list. However, you can’t be accredited as an Arbitrator unless you are a Family Law Specialist. This gives you confidence that an experienced family law specialist is deciding the matter. You can also be assured that an Arbitrator will do everything to ensure that they give a decision that is within the range of what the court would decide as we have our reputation  - and therefore our livelihood - at stake if we get it wrong!  Further if there is an error of law the Award can be reviewed by a Judge.

• Arbitration is perfectly suited where the property pool is not substantial – where you don’t have a lot to argue about.

What’s in it for lawyers? – Some lawyers may not agree but in my opinion as a family lawyer the files that made me the most money also caused me the most stress and took up the most time. The best files, in my practice, are the ones dealt with quickly, where the client is reasonably happy with the outcome.

Mediation, Arbitration, or a combination of both processes, can help separated people resolve their property settlement quickly, with considerable cost saving and less emotional stress.

• COSTS – I was recently told that the cost of an average family law trial is $43 000. Each. Many trials cost more than $50 000 each. Who has that sort of money?

Whereas, an Arbitration on the papers can be as little as $3000, shared by both parties.

• The Arbitration can be used to resolve part of the property dispute with other matters being heard by the Court. It can also be combined with mediation.

Will the person doing the Arbitration be any good?

Yes, but there is no getting around the fact that the Arbitrator isn’t a Judge and hasn’t had years of deciding cases; although having said that there are retired Judges on the AIFLAM list. However, you can’t be accredited as an Arbitrator unless you are a Family Law Specialist. This gives you confidence that an experienced family law specialist is deciding the matter. You can also be assured that an Arbitrator will do everything to ensure that they give a decision that is within the range of what the court would decide as we have our reputation  - and therefore our livelihood - at stake if we get it wrong!  Further if there is an error of law the Award can be reviewed by a Judge.

• Arbitration is perfectly suited where the property pool is not substantial – where you don’t have a lot to argue about.

What’s in it for lawyers? – Some lawyers may not agree but in my opinion as a family lawyer the files that made me the most money also caused me the most stress and took up the most time. The best files, in my practice, are the ones dealt with quickly, where the client is reasonably happy with the outcome.

Mediation, Arbitration, or a combination of both processes, can help separated people resolve their property settlement quickly, with considerable cost saving and less emotional stress.