Articles written by Peter Hooper, Blog, Costs, Separation

What to Look for in a Family Lawyer

After the reality of the separation has set in, most people start thinking about how the future will look, and how they are going to finalise the current chapter of their lives.

Not surprisingly, for the first time ever it dawns on them they should probably speak to a solicitor and specifically a matrimonial lawyer or family lawyer. If you watch a lot of US drama programs the phrase “divorce lawyer” might be on your radar.

Having never been in this situation before, stressed and fearful about the future, and with the internet overflowing with options for lawyers of all shapes and sizes; the next question springing to mind is “which family lawyer should I choose?”

Here are 5 tips that I think might help you weed out the winners from the “wannabes”:

Firstly, make sure they know something about family law and the way the family law system operates. This might seem like a given, but take it from an accredited specialist family lawyer in Brisbane who deals with other Brisbane lawyers on a daily basis; there are plenty who dabble in this area without a high level of knowledge. Ideally your solicitor will specialise in family law and be a Law Society accredited family law specialist. Getting poor advice early on can set the stage for a protracted, unhappy and expensive litigation;
Secondly, find a lawyer who’s happy to speak to you frankly about costs. You have the right to negotiate the retainer and it is important that budgets are discussed before the work starts. Sometimes commercial considerations will need to shape the decisions you make; and failing to plan ahead can lead to disaster. The worst lawyer is the one who runs up a massive bill, and deserts you half way through a matter when the funds run dry. Your family lawyer should put your best interests ahead of their fees.
Thirdly, your family lawyer needs to be level headed and not seek to unnecessarily antagonise your ex-partner. Separation can be high conflict; however often relationship are ongoing, especially where children are involved. Ask your family lawyer about the FLPA “Best Practice Guidelines for Family Lawyers”. If they turn their head like a confused puppy you may be in trouble. Sometimes it becomes necessary to adopt an aggressive approach, however this should only occur after more amicable attempts at resolution have been exhausted; or in response to an ex-partner (or their lawyer) resorting to bully tactics.
Fourthly, you and your family law matter are unique and you need to be treated as such. As I heard one of our Judges say in the Federal Circuit Court in Brisbane recently, “…this is not a sausage factory”. People deal with the stress of separation in different ways and your lawyer needs to have the life experience and maturity to understand where you are at. Additionally, the advice you receive must be tailored to your particular circumstances and a case plan developed early on as to how your matter will be managed. The old business adage applies here, “those who fail to plan, plan to fail”. Having a plan also helps manage your budget; and remain focused on the important issues to be negotiated or determined.
Fifthly, find a lawyer you like. I’m not kidding, it’s important. You need to be able to trust this person with the most personal aspects of your family life and you need to respect the advice their giving you. If you like your lawyer chances are it’s because your gut is telling you they have your back and they’re trying hard to help you.

Hopefully the above will be helpful in finding the right lawyer for you, and take some of the stress out of separating; and moving forward with your life.

By Peter Hooper – Brisbane lawyer specialising in family law

Articles written by Peter Hooper, Blog, Separation

How can I separate amicably?

Contrary to popular belief, most family lawyers I’ve encountered prefer to resolve their matters early, and amicably, as opposed to after a long litigation and destructive trial.

The benefits of an early, amicable resolution are obvious:

Move on with your life more swiftly;
Spend less of your hard earned money on legal fees;
Avoid the emotional cost of a court battle;
Protect your children from the emotional trauma of parental conflict; and
Preserve a working relationship with your ex-partner that will provide stability for your children, and give them positive role models for their own relationships.

Some people might be tempted to say, “Yes, yes but what can I do, my ex is the problem”.

And this might also be true; however there are approaches to relationship breakdown that can be taken to give yourself the best shot at achieving an amicable separation without rolling over and allowing the ex to tickle your tummy.

Here is my humble opinion:

Look into your counselling options. First and foremost explore whether your relationship can be fixed, and look at what you can do to improve things. Prevention is always better than cure.
Accept that you can’t change or control your ex-partner, but you do have the ability to control your own situation. This relates to your entire outlook and includes perhaps not drinking so much, getting some exercise and not “mirroring” aggressive behaviour. You can each spend a lot of time focusing on what is wrong with each other; when what you really need to be doing is focusing on yourself.
If the relationship is too broken to fix, be respectful in implementing your exit strategy. Remember you once loved this person and maybe had children with them. If you’re grieving at the loss of your partner or hurt by their conduct, acting out maliciously might provide a short term reward, but in my experience the long term effects are all negative. Again counselling can be the key to managing the stress of separation.-In writing this I’m reminded of the old Chinese proverb: “He who seeks revenge must first dig two graves.”
Once you have decided or realised that the separation is final, get some advice from an accredited specialist family lawyer. There are two reasons why this is important; firstly, you can’t commence any proper negotiations until you know where you stand, and what the range of outcome or entitlement might be. Secondly, in consulting a family lawyer you will commence the process of managing your post separation communications and relationship;
Obviously when you’re hurting and angry you’re not going to be best friends with your ex. What you should be aiming for is establishing a businesslike approach to your communications. This means focusing on the issues at hand, and not the issues that may have led to the relationship breakdown. Speak to your ex the same way you might speak to someone you don’t know.
Try to engage in a cooperative rather than competitive negotiation. This means rather than arguing for every concession you feel entitled to, try and work out what your motivations and needs are, and try and understand what your ex-partners motivations and needs are.-This is illustrated by the “Orange Story”. The story goes; two sisters fight over an orange. They resolve the fight by agreeing to take half the orange each. One sister uses the rind to make a cake, and throws out the pulp, the other uses the pulp to make juice, and throws out the rind. The story is simplistic but demonstrates that it can be important to understand what underpins the other party’s position;
Be prepared to compromise and narrow the issues. Start your negotiations with the things you can easily agree to, and work towards the more difficult items. If you can tick off some areas of agreement early a positive momentum builds towards resolving all issues.
Factor in the costs of not agreeing. Litigation has a financial and emotional cost.

I tell all my client’s that there is only two ways disputes between parties can be resolved in a civilized society, that is, agreements between the disputing parties or orders from Judges. Following the above will give you the best shot at formulating an early agreement, and avoid setting foot inside a court room.

Peter Hooper is an accredited specialist family lawyer in Brisbane.

Blog, Guest Blog

The Road to Divorce Recovery by Helen Harrison

Helen Harrison from Power of Change Counselling & Coaching is a professional and accredited counselling practice and has been in private practice in Thornlands, Redlands City, Brisbane since 2008.

She seeks to provide all clients with a safe, caring and supportive environment in which they can explore and release their thoughts, feelings and emotions; thus, in turn allowing the individual to confidently move forward in a direction and manner that is appropriate for the individual.

Helen works with individuals and couples providing a neutral, nonjudgmental environment for people to work through the struggles and problems they are facing in their life.

People say that divorce is one of the most painful experiences that a person can go thru. It’s not only your marriage that you’re losing but also yourself.

The death of a marriage is not just a moment in time, but a process that is filled with many different feelings. Grief is not linear! In other words, you cannot just pass through the stages of shock, denial, anger, and acceptance in a well-defined order. Divorce, like grief, is chaotic and circular, with the stages changing daily or moment-to-moment.

It is normal for the initial stage and the first emotion to be one of shock. Psychological shock in response to an event or situation can cause great distress and disruption in our lives. People react differently to shock. Some turn inward and retreat socially, withdrawing from friends and social contacts. “Psychological runners”, as they are called, might have a difficult time acknowledging that this is really happening. Other people might reach out and spend time telling anyone who will listen every detail of how they have been hurt in their divorce. This becomes the “story” that they use to define them from this point forward while they are grieving. They might increase their social interactions and create even more chaos in order to numb the pain and reality of this experience. Combined with shock comes the denial and anger.

It is normal to experience depression during the initial stages of a divorce. A marriage is a support system that helps define us in the world. With the loss of a marriage, our world is suddenly smaller. We not only lose our partner, but also might find that our social system is shrinking. Loss of family members and friends can force us to redefine our sense of how we identify ourselves in the world. This “letting go” of the world we knew can have a profound influence on our sense of security. The inability to accept these sudden changes can challenge even the most positive individuals.

How long will the sadness last?

Since the grief experience is not linear, and there is no right way to grieve the loss of a marriage it is difficult to know how long the grief will last. I have heard that for every 10 years of marriage, it takes one year to recover.

Change involves letting go, and requires a psychological and physical “movement” in order to begin the healing process. When this stage occurs it depends on many factors, such as, who wanted the divorce, was there another party involved in the failed marriage, how much bitterness is there between the couple, are there children and custody issues, who get the dog, and the legal system.

The worst thing about a divorce is coming home to an empty house at the end of the day. Loneliness can intensify the depression and sadness. Even though most marriages were “broken” long before the time of the divorce, there was still the companionship of having the physical presence of your partner.

7 Action steps moving forward

Turn toward a renewed relationship with God, a higher power, or spirituality.
Find a few friends and familymembers to form an emotional support system.
Make a list of your challenges and resources.
Contact a lawyer to assist you through the legal process.
Find a counsellor to help you process your feelings.
Be kind to yourself and set aside time for journaling, deep-breathing exercises, or any practice that allows you to relax and collect our thoughts.
Remember that there is no right way to grief the loss of a marriage.

Finding a new identity is an important part of the healing process.

Learning to be alone, forming new friendships, and finding a new home can be both frightening and exciting. Some people go through this process quickly and others never make it. If the depression is not lifting and the grief is long lasting, you might be experiencing complicated grief it’s important to seek some professional support.

Helen Harrison

Power of Change Counselling & Coaching

Blog, Guest Blog, Guest Blog by Michael Featherstone from Phoenix Global, Parenting, Property

The use of Investigators during Family Disputes by Michael Featherstone

Separating from a spouse or partner can be a traumatic event and very emotional time.

Legal Practitioners working in this area of law often work in a high pressure environment, having to take immediate steps relating to care of children, home occupancy and assets, whilst taking instructions from clients who are often in a fair bit of emotional pain.

Quite often the pain is extended with the other side continuing to supply untruths relating to their situation.

Combining legal skills with our investigative strength often provides practitioners and their clients with a significant advantage over adversaries.

Generally, investigation will often ensure that you have a wealth of evidence to support your clients application.

Discovering information or evidence through investigation will often induce the other party to settle on your client’s terms, not their terms.

How often do Practitioners suspect that statements made by the other side are untruthful, but do not have the ability to disprove them. In some cases, their own clients can assist with this process, as well as general discovery. A key feature of Investigation however, is that it allows you as Practitioners to test the veracity of the other side’s contentions throughout the proceedings, undermining the other sides confidence and credibility at every opportunity.

Over the last 17 years we have assisted many practitioners with;

The enforcement & execution of orders, service of documents with supporting Affidavits, removal of or collection and or protection of property and your client’s security and safety;
Preparation of evidence of criminal offences, including stalking, violent and threatening conduct and engaging law enforcement;
Confirmation of the occurrence of separation, reconciliation or other significant events;
Identifying, locating and/or verifying property interests;
Substantiating negative contributions, including wasted expenditure; (i.e. Mistresses & gambling)
Identifying and verifying undisclosed income levels or potential for earning capacity;
Exposing fraud, shams, misrepresentations or non-disclosure, relevant to the outcome of proceedings; (e.g. non-payment of child support)
Discovering extramarital relationships and linking negative consequences;
Substantiating inappropriate behaviour by a parent or other caregivers;
Investigating child at risk issues;
Supervising contact or handovers.
Obtaining evidence substantiating a breach of orders or undertakings.
Conducting interviews, drafting statements or affidavits;
Proving or disproving de facto relationships;
Assisting in the execution of orders, including:
- Anton Pillar Orders;
- Recovery Orders.

Clients usually have a wealth of information about the other side, and any investigation should commence with an analysis of this information.
It can often be dangerous however to allow clients to carry out investigations on their own behalf, such investigations often exposing them to breaches of various legislation and courts later adopting an adverse opinion of them.

The benefit of using a competent investigator is that it will allow you to present the truth, whilst protecting your clients,

Michael Featherstone www.phoenixglobal.com.au

Blog, Parenting

Children’s Views

Children want greater say in Family Court cases – ABC News (Australian Broadcasting Corporation)

This is a very interesting article.

As was identified in the article, the most common method of ascertaining a child’s view is via the family report process.

A child’s view is a factor in determining the best interests of a child with age and level of maturity being relevant to weight. Further, in my experience often the recollections, opinion and/or attitude of a child is a good indicator of the nature and quality of the relationship of the child with both parents and relevant to the primary factor of the benefit to the child of maintaining a meaningful relationship with both parents. Arguably in the polarised world of family law litigation what the child has to say might often be the most honest account of what is really going on in a house hold.

A family report by an expert is generally considered to be the preferred method of facilitating communication between child and court. In my experience the main reason for this seems to be concern that children need to be shielded from the parental dispute, “systems abuse” may occur if a child is overly or unnecessarily exposed to forensic examination and lawyers are not qualified to engage with children in these types of interactions.

Interestingly when I attended the Independent Children’s Lawyer (“ICL”) course in Brisbane in 2012 it was discussed how infrequently ICL’s took the opportunity to speak with subject children even though the ability exists for them to do so.

Section 60CD(2)(c) provides the court has power, subject to the applicable rules of court, to inform itself of a child’s view by such other means as the court thinks appropriate, which includes the child communicating with the judge.

Children cannot be compelled to have their say but when they wish to do so, and express this strongly, perhaps ICL’s and judges have been unnecessarily gun shy in failing to facilitate the child becoming more involved. The essence of the parenting order process is giving paramountcy to the rights of the child and I wonder if a typical child would be too adversely affected by engaging with a judge (or ICL) as part of the process.

Of course it’s not as if Federal Circuit Court and Family Court judges have plenty of time on their hands to meet with, and hold discussions with children in all matters. The courts exercising jurisdiction under the Family Law Act are busy, and increasingly so. However in appropriate cases, where the necessity for judicial determination is likely, perhaps some greater consideration should be given to a more robust involvement of the subject child in the proceeding.

Peter Hooper – Hooper Mill Family Lawyers – We are family lawyers in Brisbane. Find us searching family lawyers Brisbane; divorce lawyers Brisbane; family lawyer Brisbane; Brisbane family lawyers; family law solicitors Brisbane; divorce lawyer Brisbane; family law lawyers Brisbane; divorce solicitors Brisbane; divorce lawyers in Brisbane; best divorce lawyer Brisbane.

Areas of Practice Menu