Parental Communication Paramount Words by head of Family Law- Warren Tegg

Most separating parents want an ongoing and meaningful relationship with their children. They will, after all, be parents for life. But what is the key to parenting effectively, while living in separate houses? Parents will often each have different ideas regarding parenting, but that does not mean that one or the other parent is wrong, they are just different. And the differences are to be celebrated – those differences provide the children with two separate, and not necessarily opposing, viewpoints. In order for a shared parenting agreement to work, these two people have to find a way to work with their differences. Firstly, children are very intelligent, they know when a weakness or difference of opinion appears in the approach being taken by their parents. Anyone with children will know they will play these two parents against each other to gain an outcome they see as beneficial to themselves. This play off isn’t overtly selfish. Very young children will, early in the break-up, state to both parents that they don’t want to go to the other. This has nothing to do with choosing one parent over the other. This break-up is very unsettling for the child, so the child may seek the exact same loving and caring response from both their parents to make themselves feel safe. It is important for parents to recognise this and be able to maintain a basic and civil level of communication, just to protect themselves from being exploited. It is helpful for the children for them to focus, not on the differences, but basics that perhaps they substantially agree upon. This way they can support one another in parenting decisions – provided same are basic to the child’s welfare and do not create any risk to the children. The Court considers the parent’s ability to talk to one another about their children to be of paramount importance when looking at a co-parenting regime. It is deemed by the law to be in the children’s best interests that parents share the responsibility for the children’s care, but this becomes impossible if the two parents cannot cooperate together on some level. Being able to speak to one another civilly and make decisions about your children, even when you do not entirely agree with the other party, is of fundamental importance if it is your goal to be a share parent. Celebrate your different views, they introduce the children to diversity of thought! Agreeing on a set of basics you can live with, will lead to happier and more effective parenting.

Seeking healthy relationships with family , friends , neighbours and work colleagues?

Written by Family Law Head of Department, Warren Tegg.

I’m constantly negotiating. I represent people in dispute. They may fall foul of the law or be in dispute with a competitor, customer or supplier in business. My task is to negotiate an outcome. My work in Matrimonial or Commercial negotiation is assisted by an  understanding  the personalities I deal with. First I must understand my own. I learned that I am a strong personality,  a “powerful choleric” inBriggs Myers experts terms an “A” type. I say  “We work as a team and do it my way “ ! “Powerful choleric comes from  American psychologist (Florence Littauer). She simplifies a  personality test into two pages of strengths and weaknesses you identify. The result is a guide to  your own  blend of personality traits. Her work in  “Personality Plus” is both instructive and entertaining. You will be elated  to discover that you possess your own distinctive personality type and that, for instance , it is OK not to be like your partner. Step 1 shows how you view the world. Time to learn  how others view it. The brevity of this column prevents  a detailed explanation but people  are a combination of four personality types: Strong leader; Organised and meticulous Sanguine party animal; Easygoing Peacemaker Strong  leaders are great in a crisis. They know what to do next and will  make the decision. They do need organized help to actually carry out the decision. Some 37 % of people would rather do the job than make the decision. The world needs party people for  fun and gentle peacemakers to offset the decision makers. Opposites attract so Leaders seek organized peacemakers and vice versa. Party animals are great fun but they’ll forget to bring everything they need and don’t plan at all. Organized people may have trouble with spontaneity. And those seeking harmony may have trouble with  practicality. One part of a healthy relationship is understanding that our partner, co-worker or neighbor  views the world differently. Consideration of their personality in getting our message across makes communication effective. Understanding these differences will lead to healthier relationships.

“Maintenance and Child Support Explained” Legal advice by Warren Tegg of Bennett Carroll Solicitors- Head of Family Law

http://www.youtube.com/watch?feature=player_embedded&v=-8rxJBwcMdQ.

Bennett Carroll Solicitors have offices located in Brisbane and the Sunshine Coast

Freecall: 1300 334 566
Fax: (07) 3343 8664

Email: info@bcglaw.com.au

Website: www.bcglaw.com.au  

“How to get started for Divorce Settlements” Legal Advice by Warren Tegg of Bennett Carroll Solicitors- Head of Family Law

http://www.youtube.com/watch?feature=player_embedded&v=cqROCZVWY9k

Bennett Carroll Solicitors have offices located in Brisbane and the Sunshine Coast

Freecall: 1300 334 566
Fax: (07) 3343 8664

Email: info@bcglaw.com.au

Website: www.bcglaw.com.au  

Changes to Queensland's Domestic Violence Laws

The Domestic and Family Violence Protection Act 2012 (“Act”) comes into force in Queensland on 17 September, and brings many welcome changes to existing domestic and family violence laws.

The key features of the Act include:

1.    a new broader definition of family violence;

2.    a change in requirements that need to be satisfied for a Court to make a

Protection Order;

3.    guidelines for naming children of protection orders

4.    broader police powers;

5.    stronger penalties; and

6.    provisions for witnesses.

1.         New definition of domestic violence

The new definition of domestic violence is broader, and includes behaviour that is physically, sexually, emotionally, psychologically, and economically abusive. It further includes behaviour that is threating, coercive or in any way controls of dominates a person and causes that person to fear for their personal safety or wellbeing or that of someone else.

Examples of domestic violence included:

Ø  causing personal injury to a person or threatening to do so;

Ø  coercing a person to engage in sexual activity or attempting to do so;

Ø  damaging a person’s property or threating to do so;

Ø  threatening a person with the death or injury of the person, a child of the person, or someone else;

Ø  threatening to commit suicide or self-hard so as to torment, intimidate or frighten the person to whom the behaviour is directed;

Ø  unauthorised surveillance of a person (examples of surveillance by using technology including reading a person’s SMS messages or monitoring a person’s email account or internet browser history)

2.         Change in requirements for Court to make a Protection Order

Prior to the introduction of the Act, the Court could not make a Protection Order unless they were satisfied that:

Ø  an act of domestic violence occurred;

Ø  a domestic relationship exists; and

Ø  the person who committed domestic violence is likely to commit domestic violence again, or if the act of domestic violence was a threat, that the person is likely to carry out the threat.

The Act repeals the third requirement so there is no need for the Court to be satisfied that there is a likelihood of domestic violence occurring again, however this is something that the Court can have regard to. To make a Protection Order the Court needs to be satisfied of the first 2 requirements and also a new requirement that an Order is necessary or desirable to protect an aggrieved from domestic violence.

3.         Guidelines for naming children of protection orders

The legislation now provides guidance to the court to consider when it is appropriate to name a child on a protection order. The court may, in a domestic violence order, name a child of the aggrieved, or a child that usually, lives the aggrieved, if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from associated domestic violence, or being exposed to domestic violence committed by the respondent.

4.         Broader police powers

The new legislation provides police with broader powers where there is domestic violence.

The police can issue protection notices, and a condition on such a notice may prohibit the respondent from entering, attempting to enter, or remain at the stated premises, or approach or attempt to approach the aggrieved , or contact or attempt to contact or ask someone else to contact the aggrieved. This notice can be made for up to 24 hours.

The detention powers of police have also been increased, and police can detain a person for up to a period of 8 hours if they reasonably believe it is necessary to make arrangements for the safety of the aggrieved or a child; or where a police officer reasonably believes the person is intoxicated to an extent that the person is incapable of understand the nature and effect of a document that must be provided when the person is to be released from custody.

To assist with the problem of serving a respondent with a Protection Order, the police have the power to request a person remain at a locality for a time reasonably necessary for the police offer to serve the respondent with an application. Further, the legislation now provides that a Temporary Protection Order will continue in force until the final Protection Order is served, therefore the respondent can be in breach of the order if they are made on similar terms despite the fact they have not been served.

5.         Stronger Penalties

There are now increased penalties for those who breach protection orders. The general maximum penalty for contravening an order has been increased to 2 years imprisonment, and $6,000 in fines (previously 12 months, and $4,000).

6.         Provisions for witnesses in domestic violence proceedings

The legislation puts in place safeguards for witnesses giving evidence in domestic violence proceedings. Witnesses may be able to give evidence outside the courtroom by video link, give their evidence behind a one-way glass screen so that the witness cannot see the respondent, have the witness give evidence from a room outside of the courtroom, be accompanied by a person approved by the court to provide emotional support, and any other alternative arrangements the court considers appropriate.

These changes provide victims of domestic violence with more protection. If you have any questions in relation to this article, or require legal assistance with a domestic violence issue, please contact our office to discuss.

Surviving your Divorce- Chapter 26: Conclusion

CHAPTER 26 - CONCLUSION

As you can see the journey through a relationship breakdown is an emotional one.  It can be long and tortured.

There are however, several key aspects which, if held onto, can make the journey easier, faster and cheaper.

Maintaining balance, and keeping focussed on the most important issues, will help you navigate through this difficult time, and get you better outcomes, even if your opponent is being irrational and emotional.

Ultimately, you cannot make an agreement if your Ex will not agree, and a small proportion of matters will be determined by a Judge or Magistrate.  The ultimate benefit of having to go through this process is that someone other than you will be the focus of any unhappiness your Ex has regarding the outcome of the hearing, and this may help to “third party” the anger that sometimes accompanies the finalisation of these matters.

I hope that this short commentary on the journey will help you find some focus and balance, and will give you the tools needed to provide good quality instructions and make informed and incisive decisions on the way through.

Surviving your Divorce- Chapter 25: Delay in complying with orders

CHAPTER 25 - DELAY IN COMPLYING WITH ORDERS

Where property is to be transferred, often finance needs to be procured, and on occasion, the party’s application for finance fails, requiring a change to the arrangements.

It is essential that you seek to comply on time with Orders, and that you act quickly to enforce non-compliance with your Ex.

Having said that, if property or funds are to be transferred to you, and no finance is available to do so, other alternatives (usually involving sale of property), will need to be finalised.  It is essential that you continue to choose the option which brings the matter to a fair and fast conclusion, whilst not giving up your rights and entitlements.

As previously mentioned, your response needs to be calm and determined and focussed on your outcomes.

Suriving your Divorce- Chapter 24: Reneging on orders

CHAPTER 24 - RENEGING ON ORDERS

Unfortunately in Family Law matters (particularly dealing with children), parties will often be tempted to renege upon Orders for the transfer of property for arrangements with children.  The Court will seek to enforce an Order, unless the party wishing to renege, can show significantly changed circumstances beyond the evidence which was put at the Trial, or beyond the facts that existed at the time of the consent Order.

This is not unheard of in the Family Law jurisdiction, but if you intend to renege upon an Order (particularly for the return of a child at the end of the contact period), it is absolutely essential that you:-

(i)                seek advice before taking any action;

(ii)              have strong quality, independent evidence to support the changed circumstances that you seek to rely upon;

(iii)             be prepared to suffer Orders from the Court if your evidence is not sufficient or is found to be inaccurate.

Surviving your Divorce- Chapter 23: Draft orders and final orders

CHAPTER 23 - DRAFT ORDERS AND FINAL ORDERS

Often, orders are thrashed out by the parties’ advisers in the Court room, in interview rooms, or even in corridors.  They are often hand written and can be signed by the parties and handed up to be initialled by the Judge or Magistrate.  This is a good simple way of getting a resolution done at the time, before any party has the opportunity to renege. 

These Orders will have to be typed up and sealed by the Court.  There is often a short delay while this is done.  The original signed Orders, placed with the Court, and initialled by the Judge or Magistrate, do form a binding agreement between the parties.

It would be up to a party wanting to renege on those Orders, to show good reason to the Court why they should be vacated.  This can be done but is difficult to achieve.

Surviving your Divorce- Chapter 22: Negotiations at the Court door

CHAPTER 22 - NEGOTIATIONS AT THE COURT DOOR

A surprising number of matters settle on the morning of Trial, or during the Trial, particularly if matters are going badly for one side.  You should always be ready to consider a resolution which is acceptable to you and will stop the costs and delay.

Surviving your Divorce: Chapter 21- Giving evidence at Trial

Giving evidence can be a stressful time, but you should understand that it is a simple process that needs to be approached in a rational way.

In Australia in the Court system, Barristers do not carry on as you see in the fictional American television shows.

In Family Law matters your story is told by your affidavit which will already have been filed is available to the Court and the parties.

Your Barrister should only have to ask you a small number of questions in order to complete that evidence.  This saves you from having to remember all of the important facts for the entire history of the matter.

Your opponent’s Barrister will then get to cross-examine you.

This involves simply answering a series of questions.

The important rules to remember are:-

(i)            answer the question;

(ii)           answer only the question that is asked;

(iii)          do not provide additional information;

(iv)          keep calm and do not lose your temper;

(v)           remember that you are in control of the pace of the evidence; do not be rushed into answering; 

(vi)          take your time, think about the question; ask for it to be repeated if need be, and then answer in a calm rational voice;

(vii)         keep your answers short;

(viii)        do not answer the question that you think is being asked;

(ix)          remember, your Barrister will have the opportunity to clarify any matters in what is called re-examination (a series of questions asked after you have finished cross-examination).

Barristers will often use a number of techniques to attempt to get you to lose concentration or control.  Some of these are:-

(a)          rapid fire questions;

(b)          long convoluted questions;

(c)          suggesting that you’re a fool;

(d)          suggesting that you are a liar;

(e)          suggesting that you are mistaken;

(f)           leaving the subject to talk about something else and then returning unexpectedly.

Remember, take your time with answers to questions.  This allows your Barrister to interrupt if he believes the question is inappropriate, or an objection should be raised.

It is acceptable to say that you don’t know the answers to the question.  This is a far better response than attempting to guess or using expressions such as, “it was probably”, “I think it was”, or, “it would have been”.

With other witnesses giving evidence, you as a party, are allowed to be in the room. 

Your Barrister in cross-examining, will not want to be interrupted, but it is in order for you to make notes, and to liaise with the instructing Solicitor about whether or not these issues should be raised with the Barrister.  Most Barristers will stop and check with the instructing Solicitor before finishing the questioning of a witness, but it will be up to the Barrister’s discretion as to whether or not he raises issues that you believe should be raised. 

If you believe the issue is sufficiently important, then you are able to give the instructing Solicitor a written instruction that you want the issue raised by the Barrister.  This needs to be done quickly. 

It is important however that you have a measure of trust in your Barrister regarding which issues should be raised and which ones left alone. 

*Did you find this information useful? If so, please click on the G+1 icon below.

Surviving your Divorce: Chapter 20- Preparation for Trial

INTRODUCTION

Preparation for Trial if the matter fails to settle at the conference or other Pre-trial steps, involves finalising affidavits, exchange of disclosed documents, completion of material in reply to affidavits filed by the other side, briefing of Counsel, organisation of witnesses, and attendance at the Trial.

This process often makes your opponent realise that the matter is serious and is suddenly becoming expensive.  Significant numbers of matters will settle at this stage by an offer from one side or the other.  This is yet another trigger in the Court process to attempt to get matters finalised.

Another event likely to bring about discussions about settlement is the appearance of Barristers on both sides.  Counsel will be briefed with only the material that is relevant to completion, and this second set of eyes on both sides, often is a reality check for the parties, with the Barristers suggesting that the matter should be settled.  Discussions between the Barristers directly are quite common.

The trial phase is often the most expensive time consuming and stressful part of a Family Law matter.  Sadly, it is often the only time that some parties fully deal with the realization that the matter is coming to an end, and if a resolution is not agreed, then a determination will be made by the Court without any input from the parties.

1.         WHAT’S INVOLVED?

A vast amount of work will often have to be done by your Lawyer including:-

Finalizing evidence, finding and proofing witnesses, finalizing valuation evidence, checking public records and organizing Police Officers and other public officials, completing and updating disclosure of documents by both sides, updating financial information and business reports, and finalizing negotiations regarding the format of the Trial.

You will need to be available and focused on the task. 

You can assist and keep your costs down by providing as much of this information as possible.  Handwritten statements by witnesses and “secretarial tasks” such as chasing these people will save time and money.

A significant amount of time is lost, and costs incurred by parties who constantly ring and re-quiz their Lawyers about the same issues.

(i)                get the advice you need;

(ii)              make sure you understand it;

(iii)             if you doubt the advice you are receiving, change Lawyers;

(iv)             get on with the process.

2.         UPDATED MATERIAL

Preparation for Trial will often include updating your own affidavit material to cover new information which has arisen since the commencement of the matter, and to answer allegations made by your Ex in his or her material.

Your Lawyer will craft this information to your best advantage.  You should allow your adviser results of an editorial control; however if you believe something is important you have the ability to give a direct instruction to your Lawyer to include that material.  You should think carefully before overruling any advice from your Lawyer.

It may also be necessary to update valuations of assets, particularly if a business is involved.

3.         DIRECTIONS HEARING

At some stage in the 4 weeks prior to the trial date there will be a Pre-trial Directions Hearing. 

This is the Court calling the Lawyers in to find out whether the matter is ready, and what remains to be done.

It will be essential to the preparation of your case that you have complied with all of the Court’s procedures and are ready for the hearing.  This will involve providing all of the information that your advisers require, and funding the matter (including costs of a Counsel), through to Trial.

4.         FINANCIAL PREPARATIONS

It is also essential that you stay in touch with your Lawyer regarding their requirements for costs to avoid the possibility of being told close to Trial, that they require a significant amount of money or they will not proceed.

This is far more common than you would think.

You should raise the issue so that you know what your obligations are and you can save and provide funds for those obligations.

5.         CONFERENCE WITH COUNSEL

At some stage in the week prior to the trial, you will be called to a conference with Counsel. 

This is in effect a rehearsal where you will meet the Barrister who will actually conduct your Trial for you.  The Barrister will have a Brief from your Solicitor which provides only the relevant information off the file, and providing it at the Trial.

The Barrister will have a number of questions for you, and will take you through the trial process.

It is perfectly in order for the Barrister and Solicitor at that stage to run you through your evidence, and to advise you on tips and rules for giving evidence.

It is completely improper for them to “coach you”.  By this it is meant, suggest to you that your answers or your evidence should be particular things.  Most Solicitors and Barristers know how to conduct these conferences without creating this difficulty.

6.         THE ROLE OF COUNSEL

The Barrister in your case has been engaged to argue for you on the day.

This might seem like a little bit of duplication, “surely my Solicitor knows all about the case and would be best to handle it”.

With anything other than simple routine appearances, this is often not the case for several reasons:-

(i)                The Solicitor has anywhere between 50 and 100 files with clients all pressing for their matter to be completed; the Barrister might have 3 or 4 and can therefore concentrate on your matter solely.  The Solicitor will claim costs for both the preparation and the appearance.  The Barrister will appear for a fixed fee (though you should check that they are not charging a “reading fee”, as some Barristers have recently come up with).  Barristers are now required, in the same way as Solicitors, to disclose their fees, prior to engagement.  Your Solicitor will have a copy of this document.  You should ask to see it.

(ii)              Because the Solicitors are responsible primarily to pay the Barrister, they will ask you for this money in advance.  Delay in doing so might limit the ability to get the Barrister you want, as Solicitors will not engage the Barrister until confident they can be paid, and delay may mean the Barrister has already taken another Brief for that day.

Barristers are professional advocates used to arguing in Court every single day.  Using specialist Counsel enhances your presence in Court and enhances your prospects of a good outcome.  

7.         FORMAL OFFERS TO SETTLE AND THEIR CONSEQUENCES

There is a useful tactical ploy that your advisers may utilize to obtain some advantages for you in the event that your Ex will not co-operate.  A series of formal offers may well put him or her under pressure and expose your Ex to having to pay your costs of the argument. 

In all Family Law settlements, there is a series of offers made by either party.  These are not formal offers in most cases, they are simply proposals for resolving the matter. 

They are either accepted, rejected or a further offer is made which alters the terms. 

If your advisers believe that your Ex is being unreasonable however, they may talk to you about making a formal offer. 

This is a specific process with formal requirements set out by the Court.  If you make a formal offer, that offer does not have to be accepted by your Ex. 

If however, he or she does not accept that formal offer, and, subsequently, the Court makes an Order which is the same or worse as that Order, then you may seek that your Ex pay the costs of you continuing your argument, from the date the formal offer was made. 

This can be a quite serious threat, and it is a worthwhile tactical ploy to get your Ex to seriously consider resolving the matter.

The Courts are now quite enthusiastic about awarding costs against parties who should have accepted formal offers early in the process. 

*Did you find this information helpful? If so, please click on the G+1 icon below

Surviving your Divorce: Chapter 19- Costs Orders

1.         THE PARLIAMENT’S VIEW

There is a lot of argument about the costs of Family Law proceedings, and particularly who should pay them.

In other Courts in Australia and around the world “costs follow the event”, that is, if you win, the loser pays your costs.

In every Court in Australia, including the Family Court and the Federal Magistrates Court, the Judge or Magistrate always has a discretion in relation to costs.

The Court can award costs be paid by any party (including the Lawyers for a party).

There are however some basic rules.

The Government has decreed as far back as 1975, that, unless there is a good reason, each party should pay their own costs in the Family Court.

The idea behind this is to remove costs as a weapon, and to make people responsible for their own actions.

Often however, the opposite outcome occurs.

A financially stronger party will attempt to string out proceedings to gain a better arrangement, knowing that the costs are likely to cripple his or her opponent, and knowing that there may not be any consequence of having to pay the other party’s costs.

Historically, non-compliance with the Court’s Orders has been widespread due to the perception that there is no real penalty to be paid if the Order is not complied with.

The Court was set up by the Parliament in the mid 1970’s with the idea of it taking fault and punishment out of the equation and focusing on what was best for children and families.  This has lead to parties receiving (and sometimes playing upon), several chances to “smarten up”.

Increasingly however, and refreshingly, the Courts (and the Federal

Magistrates Court

in particular), are commencing to punish parties who have not done what they are required to do.

The Courts are increasingly happy to award costs against parties who consistently fail to comply with the Rules or do not satisfy Orders and meet time lines.  This approach, in my view, has and will continue to create major improvements in this jurisdiction.

The ability to award costs has always existed but is now being used more often and more sensibly to cause parties to get on with it and act reasonably.

2.         WHAT WILL THE COURTS DO?

In any Court action and in every interim application, the Court has a discretion to award costs be paid by any party to another party.  The Court even has a discretion to award costs against the advisers to a party.  The normal situation in Family Law matters however is that each party pays their own costs.  Increasingly, particularly in the Federal Magistrates jurisdiction, non-compliance with the Court process will lead to a costs Order.  This is a trend that appears set to continue, and reflects the Courts increasing impatience with parties who do not comply with their obligations.

Notwithstanding this trend, it was always difficult to predict the prospects of getting the costs Order either for you or against you.  The best course to take is to comply with the process and take any step required (including interim Court applications), to ensure that your Ex complies.

Gaining an interim costs Order against your Ex may well be a motivator to get the matter resolved.

3.         WHAT CAN I DO IF MY EX DOES NOT COMPLY?

Compliance with Court Orders, even in the Family Court, is mandatory.  The Family Court does take a somewhat less aggressive response to parties who do not comply and will provide, in many circumstances, an opportunity to rectify breaches and failures. 

If ever your Ex breaches or fails to comply with an Order, it is essential that you display a concerted, disciplined approach by using the Court process to require compliance, and by seeking costs wherever it is appropriate.  It is essential that your opponent realises that this is a serious matter and that compliance is a requirement.

4.         TYPES OF ORDERS MADE

The Courts have a graduated range of response Orders regarding non-compliance.  They are:-

(i)                an Order for compliance within a specific time;

(ii)              an Order for compliance and costs to be paid;

(iii)             overturning the original orders (return of the child, return of the property, change of the status quo);

(iv)             Contempt of Court – Fine and possible Imprisonment.

The more severe of these Orders are only applied in extraordinary circumstances, and you can then expect that immediate and swift punishment under the full weight of the law, will arrive against your Ex, with astonishing speed. 

You should react immediately to any non-compliance, and persevere to create evidence of a course of conduct of non-compliance.  This will, at the very least, show you as the party who is prepared to do the right thing by the Court, and allow your advisers to argue that your opponent is not a credible witness and should not be believed.

*Did you find this information helpful? If so, please click on the G+1 icon below