RBG may be gone, but Queensland has its own icons to admire
While we grieve the loss of an iconic female lawyer, I reflect positively that we have many such icons available to us here in Australia.
A Queensland lawyer, also female, has been Governor General of Australia and Governor of Queensland.
The current Chief Justice of the High Court and the Queensland Supreme Court share those qualities.
We have been represented by Justice Michelle May AM QC when she held the position of head of the Court of Appeal in the Family Court.
We have had outstanding judicial appointments to the president of the Queensland Court of Appeal in Justice Margaret McMurdo and Justice Margaret White before their retirement.
Supreme Court and District Court appointments such as the current benches inspire us too. The current Deputy Chief Magistrates in Queensland are both female.
It is dispiriting to most and offensive to many that we are watching an application of power in the US try to undo her hard work. The laws Ruth Bader Ginsburg fought for many years to change are now being threatened.
More positively, someone in power, almost certainly a male, did appoint Ruth Bader Ginsburg to the bench. I do not know who that was but power used in a way that I would consider, wisely, restores faith.
Someone appointed those first women to the bench in Queensland.
Margaret McMurdo when appointed to the District Court was the first female judge in Queensland and when appointed as the President of the Court of Appeal, she was the first female in Australia to hold that role. She was appointed by the Goss Government. That is so remote in history. How recent it is may surprise the lawyers who have had the pathway opened for them. The attorney at the time was the Honourable Matt Foley.
Whilst we want to see more women in the power seats, we also need our male colleagues to support and foster this change for the benefit of all.
How negotiation can help you get your desired outcome?
Negotiation is the process of people deciding to make concessions to achieve a compromised outcome. The nature of the process is that each person compromises their ideal outcome to get an outcome that suits their resources.
Negotiation is a tool a person can choose from to resolve a family law matter.
Negotiation is a much-discussed concept. We actually do it all the time and it’s part of how we transact life. Simple things like smiling and working out where you stand in a queue is a negotiation as is finding and taking a car park.
Negotiations can be between the people themselves or by correspondence between their lawyers. The advantage of using lawyers is the clarity of each offer and their ability to compare offers to the alternatives to negotiation. The Australian family law system builds in enormous judicial discretion. When family lawyers assess an offer they apply, among other issues, the principles guiding that discretion to your case. That advice contextualises how good, or bad, a negotiated outcome actually is.
People can become disillusioned with negotiation. It can be slow, because it depends on one party answering the other. Negotiation can be a steady process, like a tennis game where each player lobs a ball back to the other without much ground being gained or lost.
However, the process can uncover and clarify the genuine disagreements and barriers to resolution. People often have unspoken goals or fears obstructing agreement. Sometimes the best way to understand the other party is to consider their response to an offer.
Examining why people want parts of an outcome is key to understanding which parts can be compromised to pursue their priorities. For instance, one person might want to maximise their superannuation and the other might want to keep the family home. Negotiated outcomes can be tailored to those goals where a decision imposed by a judge might not be.
Negotiations can provide data that, like advice, informs decisions. If you make an offer splitting the value of every asset down the middle, and the other party responds with an offer adjusting how the value is distributed between assets, you have learned about what assets are important to them and which they are willing to compromise.
What a person holds steady and what they concede helps to work out their boundaries. Boundaries can change as time continues and resources are spent.
The “I must have” at week three of separation may mean nothing after 12 months. It is important people don’t get stuck holding onto a now irrelevant goal.
Your lawyer should provide advice at each point.
Sometimes a client will say their former spouse is a skilled or tough negotiator. Sometimes that describes the other person, sometimes it expresses uncertainty, powerlessness or a sense that resources are not equal. Relationships with unequal power can leave people believing, rationally or not, their ex-partner has extraordinary powers to control the outcome. An experienced family lawyer considers the broader context to understand these comments.
A formal negotiation can be a discrete step people take, but negotiation between the parties continues throughout. Many thousands of matters have been resolved by letters between lawyers or discussions around a table. Thousands more have been resolved by spontaneous negotiation outside the courtroom. Negotiation is part of every tool used to bring matters to an end.
If you have a matter you would like to discuss contact our office to arrange a time to speak with one of our team admin@feeneyfamilylaw.com.au
‘Please Explain’: The Effect of Protection Orders on the Outcome of Family Law Parenting Orders in Australia
By Lucy Hannell
Earlier this year I submitted my Undergraduate Honours Thesis titled, “˜Please Explain’: The Effect of Protection Orders on the Outcome of Family Law Parenting Orders in Australia. This was a year-long project and was my first attempt at writing in a professional academic style, similar to how journal articles and reports are written.
The inspiration behind my thesis came from the current Joint Parliamentary Committee’s Inquiry into the Family Law Act. The purpose of the Inquiry was to review whether the current family law system properly supports parents and children during the end of a family relationship. During the commencement of the Inquiry, Deputy Chair of the Committee, Senator Pauline Hanson, made several statements to the effect that women often make false allegations of domestic or family violence in order to obtain a protection order. The women then allegedly use these protection orders, which have “˜legitimised’ their false claims of violence, as a tactic to gain a more favourable outcome during their family law parenting proceedings. These allegations echo what is a common and powerful argument purported by fathers’ rights groups and others throughout the history of Australian family law.
It was this controversial overlap between the legal and political environments that made me question, through my thesis, do protection orders really affect the outcome of parenting cases? The empirical research that I conducted sought to test the accuracy of the idea that protection orders are such a powerful and useful tool that can sway a parenting case in a mother’s favour. I utilised a socio-legal approach to explore the interaction of the protection orders in family court proceedings. This acknowledged the politicised and debated nature of the family law system.
I undertook an in-depth thematic analysis of ten Queensland and ten New South Wales cases, that proceeded through the Family Court of Australia and the Federal Circuit Court of Australia, where protection orders existed against at least one of the parties to the case. These cases ranged from 1 January 2018 to 4 May 2020 to provide a two-year case pool. The case sample was significant of the time period in these states and created the basis for the beginning research. Through initial data collections, two strong cross-themes emerged that formed the basis for the final case analysis. the cases were assigned to one of four groups from these two themes. The themes were whether or not the mothers’ allegations of family violence were believed by the judge during their parenting matter hearings and whether or not the protection orders were significantly discussed by the judge. The thematic analysis further employed a feminist lens to assist in explaining the behaviours of the parents in these cases and why judges may or may not have considered the existence of protection orders in their decision-making.
Groups Three (protection order discussed and mother believed) and Four (protection order discussed and mother not believed) had three cases total with judicial commentary of protection orders outside of the general relationship chronology discussion. The two Judges in Group Four did not believe the mother’s allegations. The only judicial commentary that was of significance occurred in the one case under Group Three which directly addressed the research question. My case analysis found that judges are more likely to rely on the credibility of the allegations and history of violence rather than the mere existence of protection orders when making decisions on parenting orders. Protection orders existing had little weight in the majority of cases and, when they were discussed, there was no real significance in the comments surrounding the credibility of the protection orders themselves.
My case analysis contradicted the view of fathers’ anti-feminist groups and simultaneously reinforced the existing evidence around silencing of allegations, the lack of and difficulty retrieving corroborative evidence, and entrenched parental alienation issues in family law. The majority of cases further supported the view that, whilst there are some women who may misuse the family law system, most are exercising their legal rights for themselves and their children to be protected from family violence.
I recently received the results on my thesis and I am very happy with my feedback. I hope to further improve and continue my academic writing in the future and, perhaps one day, continue on to do a PhD.
Your attitude towards the other parent will be key to your child’s matter. The heart of every child’s matter is what’s best for the child. Most of the hidden traps of the area are behaviours indicating a parent is focussed on themselves and not the child. The easiest way through parenting matters is to be genuinely dedicated to the child’s interests above your own. However, otherwise ideal parents often get into trouble with their attitude to the other parent. Essentially, is there any goodwill between you?
The law presumes a meaningful relationship with both parents and the parents having joint decision-making power is in the child’s best interests. This can be hard to swallow in the middle of your collapsing relationship, when you’re worried about your child’s future and your own.
These presumptions are balanced against the need to protect the child from harm the other parent could cause. If you are genuinely worried the other parent will hurt or neglect your child, you need to act protectively. Unacceptable risk of harm and how to respond to a genuine fear of the other parent is a topic that deserves more attention than the scope of this article accommodates.
Your child’s relationship with their other parent is vulnerable to how you talk about that parent. The law takes any suggestion you are a danger to that relationship very seriously. It typically considers harm to the relationship is harm to the child. So, a child’s matter often hinges on the question “Will this person assist the child’s relationship with the other parent, or will they hinder that relationship?”
The wrong answer can have devastating, determinative, impacts on your outcome and your child’s outcome.
Speaking badly about your ex to your child can be a terrible experience for the child. The psychological and family reports we see frequently discuss a child feeling they need to take sides to survive the separation. Your child loves both their parents, it usually distresses them to hear their parent spoken badly of. They’re often bad at reporting these feelings to you, if they think appearing to agree with your view will make you happy.
Generally, we find parents can be reminded that their ex is also their child’s mother or father. Your child’s relationship with their parent isn’t your relationship with that person. Taking a step back from their feelings about their ex, most parents see the harm they cause their child by undermining the other parental relationship.
Still, some parents don’t get how to protect the relationship for their child. Others, frankly, need to fake it till they make it.
The heart of it is simple, you live by two principles:
My child needs a relationship with their dad/mum and I am going to help them have it; and
My child needs to be protected from adult problems they don’t understand yet.
Practicing these principles can be tricky. You do not have to be perfect. You just need to try, and appear to try, to live by these principles as much as you can.
Children can have difficult questions when their home life is disrupted by relationship breakdown. Parents with the best intentions frequently do things they need to explain later.
It is better not to expose your children to the nuance of adult conflict or issues. It is generally considered to be harmful. In extreme cases, it can appear that one parent is coaching the child to dislike the other or is leaning on the child for emotional support they are developmentally not able to provide.
Some discussions cannot be avoided; your children are going to notice if a parent moves out. Try to be as neutral, or positive, as you can in these conversations. Avoid blaming the other parent for problems when speaking to your child, even if you blame them in your own mind. Not “your mother/father has left us” but “your mother/father isn’t going to be living here anymore.” Not “your mother/father won’t let me see you as much as you need” but “we’re still figuring things out”.
Obviously, every parent needs to figure out how to speak to their own children. Older, or more mature, children might press for a more complete answer. It is a difficult issue and it can be worthwhile engaging counsellors or psychologists to help navigate it.
We are often exposed to mental-health experts who specialise in the area and we are always happy to be contacted for a referral.
We are sometimes asked whether there is any way of seeking compensation from a former partner because that person cheated during the relationship or otherwise acted in a way inconsistent with how an intact relationship should, in their view, operate. Where does infidelity fit within family law?
As Australia is a “no-fault divorce” jurisdiction, emotionally distressing conduct during or at the end of relationship (such as adultery) is unlikely to have any impact in an Australian Court’s decision about the overall financial division of property.
The Court will not be more favourable to one party or another in property settlement proceedings on the basis that they were the faithful spouse or had acted in a way that they considered to be consistent with maintaining the relationship while the other was unfaithful and/or acted inappropriately. There is also no way to “sue” someone for breaking up a marriage or breaking off a relationship or engagement in Australia.
Now, in Australia, the only things that need to be proved to obtain a divorce are:
· That there was a valid marriage;
· That the parties to that marriage have been separated for at least 12 months; and
· That any children of the marriage are appropriately cared for by the parents.
Importantly, a divorce and a property settlement following the breakdown of a relationship are two very different things in Australia and can be dealt with separately and have different requirements and relevant factors, unlike in some countries where the two go hand in hand.
There are also other jurisdictions where there are grounds to take action against a third party who engages in adultery with a party to a marriage, such as some states of the United States of America, however this is not the case in Australia.
If adultery or another distressing or traumatic event was the catalyst for the breakdown of your relationship we recommend working with a psychologist or counsellor to assist you in working through the emotional damage and grief arising out of that event. There are a number of excellent professionals who we work with and are happy to refer you to that could assist in this situation.
This is general advice only and If you would like further advice specific to your situation, please do not hesitate to get in touch with us to make an appointment. You can contact us via email admin@feeneyfamilylaw.com.au
Nobody wants to need a family lawyer. A family law problem is always an obstacle between you and your goals for yourself and your family. Our goal is to get you back to pursuing your goals as soon as possible.
Part of our process is to build a safe, calm, and respectful rapport with you so we can fully understand your issues and your expectations. Whether it is about the formation of a relationship or a relationship breakdown, your best outcome needs to be understood in the full context.
We discuss legal principles in the context of what you want to achieve, both now and in the future. Our advice is not just technical, but practical. We help you see beyond your family law issue. We help our clients recognise they still have options in their careers and their personal life.
Clients involve us when relationships are beginning and when they are ending. Both will be moments of change in your life. We aim to make sure these changes are as positive as possible and to ensure your goals remain within reach.
To achieve that, we cannot be yes-men. Our duties include challenging counter-productive mindsets. That means challenging both the opposing party and you, our clients. Our role is to walk (or run) you through a time of enormous change with an eye on your wellbeing and resources. We must give you our genuine opinion of your best interests, we cannot simply parrot back your views to you. When we disagree with you, we do it with your wellbeing and best outcomes in mind. We offer advice based on years of experience and knowledge in these matters.
It is also our duty to encourage you to be decisive and take responsibility for your decisions. We empower and encourage you to retain or retake a sense of control. Our job is to guide you, not take decisions away from you. They are your decisions, your goals, and your life. Ultimately, you have control throughout the process.
We acknowledge and understand that you have many roles in life and being a partner is not the only one. You must ensure you can continue to meet your other obligations and fulfil your other roles. There is only one you – a parent, a professional, a person who has to get up every morning even when the world you get up into has changed.
Our goal as your family lawyer is to deliver you to a new normality without the burdens of family law issues hanging over your head.
How will you and your partner ensure the well-being of your children when you are newly separated?
It is usual for one person to be further along the process of grief and acceptance than the other at the time of separation. Even if one person initiates the separation, they will feel loss and grief. This is particularly the case when you have children together.
Similarly, children feel enormous loss and are anxious about what their lives will be like in their “new normal”. It might be difficult for both parents to successfully talk to children together, but it is important that you show a united front to help your children through this difficult period of adjustment.
It has been proven that children are harmed by exposure to family violence and parental conflict. This trauma impacts on their cognitive development. Not just exposure to physical and verbal abuse, but the more insidious behaviours that parents too often display when they are in conflict. Children that are exposed to parental conflict and family violence are less likely to be able to hold down a job when they grow up and are more prone to developing mental health issues including anxiety, depression and mood and personality disorders.
Some advice on how to manage this process:
Be mindful of little ears – You might not realise that your children are around when you are having conversations with other adults. Be mindful of ensuring your children do not overhear you talking about the other parent in a derogatory way.
Understand that your children love you both – Children often don’t understand the situation and love both their parents. Don’t take it personally that they want to spend time with the other parent and love you both. Let your children love the other parent without concern that will diminish their love for you.
Seek support – If your self-esteem needs support seek advice and don’t ask your children to pick you over the other parent. That is not fair on them and often they will not understand why you are doing this.
Children perceive time differently – Your child may say they want to spend time with you, but they may not understand that will be at the expense of time with the other parent. Developmental differences change a child’s capacity to understand time.
Expect that it will feel odd – Initially, the time that your children spend with the other parent without you will feel confronting and odd. It is an adjustment for you all and your children will be experiencing similar oddities. Accept this and talk to the other parent and your children about it to help them feel comfortable with the change.
When parties separate it is usual for a property adjustment to be made between the parties although it need not always be so: Stanford & Stanford[1].
Family lawyers are consulted to assist. It is the lawyer’s role to identify the pool and provide advice. The Family Law Act 1975 (the Act) s 79(4) and Stanford stipulate that adjustments made to the property pool are to be just and equitable.
Parties can have any number of connections to property and companies. A party may be a shareholder, director, beneficiary, member, an appointor, trustee, a guardian or a spouse without an identifiable other interest. They may be debtors to legal firms or other lenders. They may be creditors with a right to recover funds. There may also be contingent interests that have crystallised but not vested. There can still be life tenancies in real property.
While companies will be discussed later in this presentation, there can be different classes of shares and different shareholder rights just as there can be different categories of beneficiaries with different beneficiary rights. The property may also be held in structures.
The structures available to parties usually include a combination of companies, trusts, partnerships, unit trusts, interests in superannuation, intergenerational superannuation or entitlements under a will.
An example of a structure chart is set out below.
Property is defined in the Act in s4.
“property” means:
(a) in relation to the parties to a marriage or either of them-means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or
(b) in relation to the parties to a de facto relationship or either of them-means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
Again, it is of paramount importance that enquiry identifies and divides the property of the parties, held individually or jointly, to produce a just and equitable result.
What might be in the property pool?
Inheritances
Financial Resources
Family Loans/Debts
Ownership
Company
Resulting and Constructive Trusts
In many cases being a spouse has a sufficient connection to property to establish a claim. Stanford & Stanford[1] reminds us that before any adjustments are considered or made, there has to be an assessment of what a party owns at law and what equitable interests are held. It is important to enquire as to the appropriateness of resulting adjustments.
Impact of Self-managed super funds on your children when divorcing
Self-managed super funds provide families with the opportunity for generational holdings, with children having member accounts in funds established by their parents. These opportunities can give rise to uncertainty and concern if a marriage ends. The implications are different depending on which generation ends the marriage.
Superannuation funds need not be liquid. They frequently own rent producing property or property that can be used for primary production. If the member accounts that need to be rolled out of the fund are substantial, there may be the need to sell a property that had been intended to be a long term source of income. It may mean the disruption of careful financial plans at a time when people feel financially vulnerable.
If the parents are separating, then the discussion about protecting their children’s member interests and ensuring their payment, may not be entirely problematic, as there is likely to be a common interest in ensuring the children’s welfare. This becomes more problematic, if there is a rift in the family, as a result of the end of the marriage and adult children adopt the role of emotional stakeholders with one or other parent.
If children are separating and the child of the fund holder is the only member, then there may be costs of valuation, but the integrity of the fund may again be able to be protected, as the family work together to ensure the best outcome.
There is again greater risk if the non-family member has a member interest.
For Family Lawyers these are day to day issues that can be resolved by the process of valuation and negotiation, but for family members, particularly retired parents with funds that are not liquid, the uncertainty produced by the process can cause additional stress and concern.
It may be wise to enter into a Binding Financial Agreement that deals only with a parental super fund, before entering into cross generational investment. Such an agreement, could protect that single asset class in the vent of the breakdown of a marriage.
How does litigation help to resolve family law matters?
How does litigation work?
Litigation is a word that many people have heard of without fully understanding until they are involved with some sort of legal issue.
Litigation describes the process of bringing a problem to the court and asking a judge to decide the outcome. How does litigation work?
The process is controlled by the court and people must comply with the court’s rules. That means producing evidence, making arguments, and, ultimately, complying with the judge’s decision.
The three most common events at court are mentions, interim hearings and trials.
Mentions are generally procedural. The parties tell the court the issues and the court makes orders to manage the matter towards trial. Usually, the court does not schedule enough time for argument for mentions.
Interim hearings are where the parties have time to argue over temporary issues. For instance, how the children will be cared for leading up to trial, or whether one person should be stopped from selling assets before trial. Interim hearings produce temporary decisions designed to preserve or progress the matter to trial.
Trials are where the parties present and scrutinise one another’s final evidence before the court. Trials allow a judge to make a final decision on the issues.
“Litigation is neither good nor bad – it is a tool that helps to guarantee a finish line”
Litigation is neither good nor bad – it is a tool that helps to guarantee a finish line. It is the most formal process for resolving disagreements.
Is litigation for me?
Some people thrive in litigation. It requires a particular mindset that suits the decisive and goal driven.
Litigation is adversarial. Both parties present their interpretation of the facts and law. The most persuasive party, depending on the difficulty of their position, achieves the best outcome. It has a winner and a loser.
While equally resourced parties should achieve equality of process, parties are rarely equally resourced.
Because its rules and procedures are strict, litigation is punishing of those who do not fully engage with it. It also tends to be destructive for parties who have struggled to have some personal agency during a relationship. Often either they have the authority they are not used to and use it unwisely, or they are unable to confront the other party with autonomy in an adversarial setting.
Litigation’s rules are not always accessible to the untrained. It is a process developed by lawyers in which lawyers are trained to operate. We think the unrepresented are at risk.
If you have a matter you would like to discuss, contact our office to arrange a time to speak with one of our team. admin@feeneyfamilylaw.com.au and 07 3876 5516.
