There is another push from Australia’s politicians to reform the family law system.

As a family law solicitor with more than 15 years’ experience, how can you disagree with proposals to create a system that minimizes stress, trauma, costs and puts a focus on out-of-court settlement?

Trouble is, the family law system attempts to do this already.

Only a very small number of family law disputes ever reach trial stages. In fact, only 3% of matters ever end up in court to decide their parenting arrangements or financial settlements.

Australia’s family law system desperately needs change, but probably not in terms of its structure, but how it is work better with the structure in place.

What very few politicians are willing to accept is that the system requires more funding. We need more Registrars, more Court Administration Staff and most importantly more Judges to unclog the system. But in these times of growing political austerity, where governments are willing to take our money but not spend it, more funding doesn’t seem to be an option.

So now the gaze of those “reformers” (headed by Pauline Hanson) shifts to the Lawyers who practice in the Family Law Jurisdiction. Apparently we lawyers are nothing more than a pack of vultures, lining our pockets while we pick over the bones of broken families; dragging disputes out for our own benefit.

Frankly, we are sick of being characterized this way.

Let me say something that you probably didn’t think you’d hear from a Family and Divorce Lawyer:

We don’t want your dispute to drag on or progress to litigation!  The best way to resolve your dispute is by good old-fashioned negotiation and sensibility to reach a resolution by agreement.

Family Law is an intimate field of specialty – we share a lot of the pain and stress you experience and the fees we charge reflect the years of study and investment it took to want you to come to us.  It is our expertise that you are paying for.

Unfortunately, Family Law proceedings, like any legal dispute, can easily balloon into ugly, costly battles if you are after an all-out war or proceed to litigation.

So, in the spirit of reform, here’s five tips on how to minimize your legal fees if you’re going through a divorce or dispute regarding your children’s future care arrangements or property settlement.

1. Know how your Lawyer’s charges:
   A brickie gets paid per brick laid. A sales rep relies on commission. A Lawyer charges by the hour. That means whatever time we spend on your case needs to be charged back to you. The less work we do, the more you save. This is directly linked to the next two points.
2. Be organized:
   A lot basic leg work we do can be done by our clients. Organizing receipts, emails and other documentation can take us hours. Your lawyer would rather do what they specialize in than sort through a box of loose papers. Save yourself money (literally) by getting as organized as possible before coming to see us.
3. Trust your Lawyer. Let them do their job:
   There is a lot of waiting. Waiting for Court Dates, waiting to hear from the Lawyer on the other side, while they wait to get their client’s instructions. As your Lawyer, we will contact you once something happens by way of update or we need more information from you.  You don’t need to check up on us to make sure we are doing our job. It can be hard, given the personal nature of your dispute, but rest assured we do have your best interests in mind even when you don’t hear from us.  Why charge you when there is nothing to add?
4. Approach your family dispute like a business dispute:
   Don’t treat your Family law matter like a chance to exact personal revenge. This is how disputes turn ugly. You need to make decisions that aren’t just personal but commercial. Keep your eye on the bigger picture and trust your Lawyer to give you good advice that you should follow. If we say that is not relevant, or your end goal is impossible, believe us. Yes, we are on your side, but we are also here to advise on the realities of good outcomes as opposed to impossible outcomes, which will simply have the effect of increasing your fees in the longer run.
5. Bigger doesn’t necessarily mean better:
   Many people think a big law firm means better service. This isn’t always the case. Big law firms have big overheads; that skyscraper in the city isn’t cheap and you’ll often find they charge higher fees (especially for consumables like photocopying) to claw back money where they can. Always check the fine print on your Retainer to see where you might get stung.

To some, seeing Christmas decorations in the shops in October makes no sense … I completely agree.

However, as a divorce lawyer it does serve as a reminder to advise clients  to think ahead to Christmas day, and what plans will need to be made to ensure that the children are able to spend the day with both parents, irrespective of the current situation between their parents.

If parents are in a protracted position and can’t agree, they should at least attempt mediation (or as it is otherwise known alternate dispute resolution) at places such as Relationships Australia or Anglicare.  Failing agreement at mediation, the only option is to file an application seeking interim orders, especially with respect to the festive season.

The Family Court and Federal Circuit Court is already inundated with applications, and to guarantee a listing before a Judge to address the matter, a cut-off date to receive applications is implemented.

The cut-off date this year is 9 November 2018.

Unfortunately, for many families filing an application whilst attempting to agree an outcome doesn’t bode well.  It may create suspicion in the other parent and shut down any chance of negotiating amicably.  It is also a very costly exercise.

Sadly, the ones most affected by these decisions are children. For many, their parents’ inability to vary care arrangements between them, or filing an application after the cut-off date could mean missing out on one half of the family Christmas.

None of us want to see our children hurt by situations like this.

We should take a lead from the Great War of 1914-18.

It was during Christmas of 1914 that German and British soldiers, who’d been locked in months of gruesome trench warfare, did something no one expected.

They put down their weapons, met in no-man’s land, exchanged small gifts and played friendly games of soccer.

For that short time, they found a common ground to celebrate this most special time of year.

Perhaps there’s a lesson in that for us all. While the court’s deadline can’t be moved, perhaps some of us can.

Maybe now is the time to meet on common ground and try to find a solution that is in the best interests of your children – a solution which, depending on your circumstances, you can live with.

My ex and I have very different ideas about how we want our children educated.  Even when we were together we couldn’t agree and it was one of the reasons why our marriage ended.  With our eldest child starting school next year we need to make some important decisions.  I really want both our children to attend the small Catholic school around the corner, but my ex was always adamant that the local State school was ‘good enough’ for him and that his children ‘would never grow up to be entitled brats’.  Since he only has them alternate weekends anyway, can I just enrol them at the school of my choice and send him the bill later?

The Answer is NO.

The Family Law Act presumes that both parents should have shared parental responsibility when making long term decisions about the care, welfare and development of their children.  Education falls within this category.  There is a positive obligation on both parents to make this important decision.

Indeed, some parents don’t see the need in sending their child or children to private schools.  Some parent’s look at the fees they charge, and simply will not entertain sending their children there.  It is not uncommon to hear one parent claim that since they are already paying child support, they should not be expected to ‘cough up more cash’ to fund the cost of expensive school fees.  Obviously, this becomes a major source of discontent if the parent receiving child support wants to send the child to a private school, and doesn’t understand the other parent’s rationale.  It’s about the child isn’t it.

In the first instance, your primary aim should be to work with your ex to share your ideas about the type of education you want for your child.  Ideally, through this discussion you may come to an agreement, or a compromise.  It may be that both parents agree to contribute to the costs of education.  In some situations, you may achieve consent to enrol your child in the school of your choosing, albeit with the proviso that this expense is borne by you entirely.

Where these discussions fail, or are not possible, such negotiations may take place through mediation or with the assistance of a Family Solicitor.  In this manner, as with other Family Law disputes, your lawyer will negotiate with your exes’ lawyer until a suitable compromise can be reached.  Should this negotiation fail the matter can be brought to the Federal Circuit Court with the Judge ultimately deciding what is in the best interests of the child.

While there are no simple answers to your dilemma, it is critical that separated parents with children work to find solutions that are ultimately in the best interests of the child.  Too often, I observe situations where parents lose sight of their parenting responsibilities and this situation is used as an opportunity to ‘get one over’ their ex.  Children should never be used as pawns in this game.  Sometimes, the best solution is to be open to compromising some of your dreams so as to move forward and ensure your child greater stability in the long term.

When you separate, there are so many things to consider.  Obviously if children are involved the primary focus is making sure that they feel loved by both parents. Initially, your immediate considerations revolve around their living arrangements.  Will they live with mum, dad or a combination of both?  Will they continue to live in the house that they know, or will circumstances necessitate a move somewhere new.  Lastly, the question of when and how they will they see each parent emerges.

You are doing well if you manage to work out these arrangements without hitting too many speed bumps along the way.  However, even the best negotiated arrangements can hit a wall when it comes to special occasions. What happens when both mum and dad want to spend time with the children at the same time?   Special events, such as birthdays, Christmas, and Easter may become tricky without some forward thinking.

The usual and best approach to avoid any feelings of disappointment on these special occasions is to suspend the usual care arrangements for that day.   Rather than leaving the planning to the last minute this is one situation where planning needs to occur a few weeks (or even a couple of months) before the event.  While it may help to speak to other separated families for ideas on how they deal with these events; what your plan will look like will depend on the unique dynamics in your family.  Unfortunately in the world of split families there is no such thing as a ‘one size fits all’ arrangement.

Of course, in families where there exists good communication, negotiation can be easier, with parents managing this independently.  However, when this is not present, or if negotiations turn ugly, or fail to move forward, it can be worthwhile to seek to professional support from a skilled family lawyer, to mediate an equitable solution that best serves the needs of the children, parents and their extended families.

For compassionate, family first, legal advice speak to Joanna Diamantopoulos at Welden & Coluccio Lawyers. 

 Because We care and because Your family matters.

There are times in my job that I feel more like a relationship counsellor than a Lawyer. Family Law is one where these roles work hand in hand.  It is to be expected.  I work closely with people as they struggle through the life challenges that separation and divorce bring.  I aim to make the transition for my clients, their children and at times extended families, as stress free as possible.

But sometimes, my client’s emotional needs and internal struggles go beyond giving them helpful and beneficial legal advice.  They need more than an ear to bend and some kind words to get them through this difficult period.  I know I am not trained in psychology, nor do I have a qualification in counselling; but I can appreciate when a client needs to seek the help of formal counselling.

I wish to highlight the important role that professional counselling has in the legal process.  In some situations it is wise to consider employing a professional relationship counsellor (psychologist, psychiatrist or other mental health professional) to work with the client’s through some issues that may emerge as a result of their separation or divorce.  This approach can often assist clients to effectively overcome a range of mental blocks or challenges that may be preventing them from reaching a satisfactory legal solution.

I want the very best for my clients and sometimes doing this means ensuring my client’s get any help they need from not just from me, but other professionals that can guide them through this life challenge at a faster pace, enduring less pain than might otherwise occur.

In 2016 there were 24 million pets in Australia.  In fact, last year 62% of Aussie households had at least one pet.  One only needs to undertake a quick google search to realise that doggie and feline hotels, day care facilities and designer pet accessories are big business.  Certainly, the booming pet care industry reflects a significant change in attitudes towards our furry friends.    Indeed, many now view their pets as proxy children or ‘fur-babies’.

For lawyers specialising in Family Law, we have noticed a shift in thinking with regards to pets following separation.  Where once, poor Fido went with ‘whoever’ was willing to take him, more often this very question is the source for heated discussions and immense conflict.  Increasingly separating clients will dedicate a significant amount of time and energy to discussing (arguing) about where their beloved pet will live.  At times this becomes so emotive that it could easily be mistaken for a discussion about care of a human child.

Contrary to this, insomuch as the Court is concerned, pets in separation are treated as property.  Who keeps the family pet, is a decision the Court can in fact make but is the extent of their determination and no other consideration is given to the other party maintaining their relationship.

If there is evidence before the Court as to the pet’s monetary value (i.e in the case of a pure breed) it will be taken into account when determining the overall property settlement. More often than not however, the reality is that pets, unlike inanimate objects, form emotional bonds between the parties and the children of the relationship, and leaving this important decision to the Court, is bound to lead to heartbreak for all concerned.

Considering that the Court’s position is generally not a helpful one it may seem appropriate to approach the issue akin in many ways to the one undertaken with regards to children.  It is best to try and resolve to settle emotionally charged disputes over a beloved pet by way of negotiating a solution of a kind of ‘shared-care’ arrangement, along with handover clauses, While an Order may not necessarily be fashioned for share care arrangements over a pet, it does not mean an agreement cannot be reached.

For this and any other matter related to Family Law contact Joanna Diamantopoulos or one of the team at Welden & Coluccio Lawyers.

We live in a world in which we are increasingly electing to do certain things using online platforms such as grocery shopping and paying bills.  It is becoming a way of life; the new norm so to speak.   While it is fair to say that law has been slow in the uptake, some legal processes are now occurring in cyberspace.

From 1^st March 2017 an Application for Divorce will no longer be able to be filed in person at the Family Court Registry.  Rather, it will need to be e-filed via the Commonwealth Courts Portal.

What does this change mean for clients?

For clients who prefer to engage a Family Law Solicitor to file the Divorce Application on their behalf, the move to e-filing will have little to no impact except that it may mean that they have to spend a little more time with their solicitor when completing and signing the application.  Additionally, as payment of the filing fee must be made via credit card when e-filing, the Solicitor could use the client’s credit card, instead of necessitating that the client deposit funds into the trust account, waiting a few days before the Application can be filed and a hearing date set, as was the case in the past.  However, for many individuals who had intended to forgo the services of a solicitor and file their own Application for Divorce, this may present a few challenges.

The new online process will require the Applicant to firstly create a file on the Commonwealth Courts portal in readiness to complete the Application online.  Part-way through, the Application will have to be saved in order for a copy to be printed.  Another court document called an e-affidavit will also need to be printed, and both documents will need to be taken to a solicitor or Justice of the Peace to be signed by the Applicant.   Once completed the e-affidavit needs to be scanned and uploaded to finalise the on-line Application ready to serve their spouse.

This new process has been developed to alleviate the demand on Court Registry Staff.  While the online process will be embraced by many tech-savvy individuals, to those that may not be so tech-savvy; the stop and start nature of the process will no doubt be perceived by many as being ‘messy’ and somewhat ‘clunky’.  Indeed, to those lacking a reasonable standard of computer literacy (or appropriate facilities, including the ability to scan documents), this process will seem an insurmountable obstacle.  Certainly, many may give up altogether and employ a solicitor to undertake what they previously would have felt confident in undertaking on their own.

For support or advice with this, or any other Family Law matter, feel free to contact Joanna Diamantopoulos or the team at Welden & Coluccio Lawyers.

Joanna Diamantopoulos has more than a decade’s experience as a family lawyer.  Today,  she shares some wisdom for parents who are in the throes of a relationship breakdown, with advice for making this event a smooth transition for children.

Separation and divorce is unquestionably one of the more stressful life events you can experience. It creates an emotional upheaval, not only for you but also for your children (irrespective of how old they are). When faced with this situation it is paramount to remember that children are innocent bystanders in the tug and war of separation. Too often I’ve seen parents involve the children, some of them very young, into what is essentially adult conflict. Children, of course, lack the tools to manage the complicated issues and the range of emotions surrounding separation (indeed many adults find this challenging also).

While separation and divorce is always a challenging time for children, there are a few things that you, as a parent, can do to make this difficult transition easier.

1. Do not tell your children how bad their mother or father are, or point out the things they do wrong or the mean words that have been exchanged. This isn’t your children’s fight. Children have an unconditional love for both parents and their love should not be clouded by your war;

2. When transitioning from one household to two, allow your former spouse to take some household furniture and effects and even some of the children’s favourite things. This will assist a child to connect their old life and feel at home irrespective of whose house they happen to be staying at.

3. Keep the lines of communication open. There are ways to communicate without necessarily having to speak face to face. Email and text message can be easily exchanged in order to avoid the tensions associated with talking to each other when emotions are high. It is advisable to keep any correspondence business-like in tenor. Use respectful and polite language.

4. Remember children have commitments also. Sport, dancing lessons, karate or even party invitations. Don’t let the new living arrangements interfere with the children attending these activities. It is understandable that a non-residential parent wants to spend as much time with their children as possible, but failure to take them to their activities, can be perceived by them as a punishment. Enjoy the activities with your children, stay, watch and interact with the rest of the parents. No doubt your children will be happy just to have you there.

5. Do not use your children to “spy” on the other parent. Of course you can ask how their weekend was, but don’t push for information like it is the Spanish inquisition as you try and get dirt on your former spouse.

These common sense tips will assist you and your children through the trying time that is separation. They are not difficult, complex or hard, but sometimes are simply forgotten due to the barrage of extreme emotions encountered during separation and divorce.

So you’ve been separated for a while and you haven’t yet managed to get around to sorting out the property settlement.  Life gets busy.  You might be operating in a ‘state of denial’ and emotionally unprepared to deal with it.  Sometimes reluctance simply stems from the reality that things are so complicated that you ‘just know’ that you will need to pay a lawyer to sort it all out.  Whatever your reasons for delaying your property settlement you must know and understand the risks associated with doing so.

Know your time limits:  There are time limits in initiating proceedings seeking property settlement or orders for maintenance in the Federal Circuit Court or Family Court.   For parties to a marriage this time limit is 12 months and 1 day from the date your Divorce became final (having had to be separated for 12 months to be able to file for Divorce in the first place).  For parties to a de facto couple it is 2 years from the date of separation.

When your time limit expires: Should your time limit expire without having finalised your property settlement (or issued proceedings to do so), you will be have to obtain special permission (formally called “leave of the Court”) by way of an interim Order.  The Court does not automatically give leave to the parties unless there is merit to do so.  For example, if it can be demonstrated that considerable hardship or financial disadvantage will be experienced by either party if these proceedings are dismissed on account of the expiry of the time limitation, it is likely that the Court will allow the Application and then hear it in the usual manner.   For maintenance proceedings it will need to be established that at the time the time limit expired you were unable to support yourself without government assistance (an income tested pension, allowance or other benefit).

The Unexpected (or Anticipated) Windfall:  Before you delay your property settlement it is critical to understand that the law is very clear that the property pool is assessed at the time of trial (not the date you separate).  Supposing you receive a large sum of money after separation (but before a property settlement takes place), this money may form part of the property pool.  Windfalls may be anticipated (an inheritance) or they may even be unexpected (lotto wins).

Beware the Risk of Dissipated Assets:  Delaying your property settlement can leave you exposed to the risk of dissipated assets.  Essentially this happens when one party wastes or squanders assets post-separation.   In order to prevent inheriting the impact of your exes poor fiscal choices you will need to prove that assets were indeed squandered on non-essential living expenses (ie demonstrate that your ex really didn’t need extended vacations on the Caribbean).  Proving this is the case often leads to long (and expensive) legal battles.  Should this be proven the Court will often treat the dissipated assets as a premature distribution of matrimonial property.  In other words, the person responsible for the dissipated assets gets less in the final settlement.  Alternatively, the Court may increase the percentage split awarded to one party than they otherwise would have received to ensure a just and equitable division of assets.  The Court’s approach varies, and there are many schools of thought as to how situations such as these are to be dealt with.

The Risk of Death: Delaying your property settlement can leave you open to other risks should one person die unexpectedly.  In this scenario it is no longer possible to finalise property settlement.  Instead assets are distributed according to the Will (which you may or may not have updated since separating) or by way of the ownership of the assets.  Even in the event that the deceased dies intestate it is possible (and likely) that the surviving (albeit ex-spouse) will benefit from the assets.  Such circumstances often give rise to more legal issues under the Probate and Administration Act.

Irrespective of whether or not you have an updated Will, without a property settlement, any assets that are owned as joint tenants (like your marital home) will be automatically transferred to the other joint tenant.  Jointly owned assets do not form part of the estate.

While you may have some ‘real’ excuses for delaying your property settlement it is apparent that this should never occur without close consideration of the risks associated with this delay.  Property settlements, no matter how tricky, are always best dealt with in a timely manner.

I’m miserable and have been for a long time now.  My wife and I have, for the past 12 months, lived more like housemates than spouses only speaking when necessary (mostly with regards to the three children we share).  The marriage is over.  I know that I should move on but the thought of hardly ever seeing our children is the only thing stopping me.  The current legal system is one which mostly favours the mother in terms of care arrangements; right?

When relationships dissolve to the point where spouses are hardly talking to one another this becomes a situation that is toxic for all involved, not least of all the children, who are not immune to the fact that their parents aren’t sleeping in the same bed or spending any time together.

I act for either party, but both express concerns about either ending or leaving the marriage because of the fear that their relationship with the children will be affected on account of how much they will get to see them.

The Family Law Act (1975) was never designed to promote the role of either parent but there is a perception that the mother will given/assumed to be the role of primary parent responsible for the children over and above that of the father.  In fact, the objective of the Act very clearly stated that ‘the primary consideration is what’s in the best interests of the children’.

The first step in determining what the children’s future care arrangements should be is for both parties to attend a Family Dispute Resolution Conference or more commonly known as mediation.  It is always best to try and resolve matters between the parents keeping in mind how the best interests of the children will be met.  It allows for both parents to have input and gives consideration to what each parent thinks is important to the children and to them as well.

It matters can be agreed between the parents at mediation, they often seek that agreement to be drafted into Consent Orders.

However if an agreement cannot be reached, proceedings are usually issued and left to the Court to decide what is in the best interests of the Children.

The Court will work to consider all factors when considering the future care arrangement to ensure that this occurs.  It also follows that in most cases (eliminating situations of neglect and abuse) it is ‘in the best interests of the child’ to have a meaningful relationship with both parents.

Of course the Court will take into consideration other factors before making an order.  These factors might include; the child’s views (what they want), any family history of abuse or violence, the age of the child (it may be impractical for a breast-fed infant to spend extended periods overnight with the male parent), ensuring that the child has access to their extended family (especially grandparents or siblings), or other issues specific to the child (health issues, psychological needs, maturity).

In the past, more than thirty years ago, it was commonplace for the Family Court to award primary “custody” of children to the mother, with fathers having “access” only on alternate weekends.  Such arrangements proved not to be in the best interests of most children and have since been abandoned under the current amendments to the Family Law Act.

Similarly, if we were to delve further back into history we discover that mothers had virtually no rights whatsoever to children following divorce.  Clearly both extremes are harmful for the people the Law is ultimately striving to protect; children.

The terms “custody and access” have been replace with “live with” and “spend time with” which avoids the ideals that the mother owns the children and allows the father token time with them.  It is now the case that where it is appropriate, there will be a consideration of shared care arrangements, or significant and substantial time with the non-live with parent.  The notion of “significant and substantial time” promotes more time than simply alternate weekends.  It seeks to involve the parent in the weekly routine of school runs, or school pick-ups.

In spite of this Fathers may remain somewhat disadvantaged when it comes to orders in Family Law in other ways.  In spite of the feminist movement, in the majority of families it is still the male who is the primary breadwinner, with females more likely to undertake part-time work coupled with parenting and domestic duties.  Traditional arrangements like this, especially when fathers work long hours that may include interstate travel, can work against men in this situation.  In the event of this I recommend that my clients consider carefully how they might tweak their current lifestyle and working arrangements to create a situation that ensures that quality parent-child living arrangements are available so as to meet the unique needs of the children involved.