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Family Law On The Gold Coast

Hooper Mill Family Lawyers has now set up our office in Coolangatta, Gold Coast. Family law covers a broad range of areas. We aim to bring our clients much needed advice and, if need be, representation in Court.

 

  • Consultations

Few people wake up one day and decide to separate. There’s different circumstances that lead to this decision. It’s important to approach such a significant life event with all the information you can obtain and thus it’s equally important to speak with an expert before making life changing decisions. Making an appointment with one of our team is the best first step to take. Consultations are on average 1 ½ hours. You will obtain the best legal advice that applies to your situation.

When you make an appointment with the Gold Coast office, make sure to fill out an initial attendance instruction sheet so your solicitor understands the background to your situation before we meet you.

 

  • Divorce and separation

If married parties have been separated for 12 months, this is evidence of irreconcilable differences allowing a divorce application to be made. Hopefully before reaching this point efforts have been made to engage in marriage/relationship counselling, unfortunately not always successfully. Our Hooper Mill Family Lawyers Gold Coast office can assist you with advice.

 

  • Mediation

Hooper Mill Family Lawyers also provide mediation services on the Gold Coast. Many family law cases are settled at mediation which means court involvement is not required. A mediator is a neutral third party who facilitates disputing parties to reach their own parenting or property settlement agreements. In parenting matters this is sometimes known as FDR or Family Dispute Resolution. Peter Hooper is an Accredited Family Dispute Resolution Practitioner able to provide private FDR in parenting disputes.

The main benefits of mediation are self-determination of the dispute, reduced costs, less delay and hopefully better relationship moving forward where children are involved.

 

  • Property settlement

There is no presumption of a 50/50 property split in Australia. There are a number of different factors taken into account by the Court in determining how property is divided between separating couples. If there are complex structures surrounding assets such as trusts or corporate structures or there is a business, it is very important to obtain expert advice early on.

 

  • Custody and parenting plans

Custody arrangements and parenting plans can be resolved at mediation. In some mediations the mediator might suggest a “child inclusive process”. Child-inclusive mediation via a specially trained expert, able to meet with the children, and report to the parties as to how the dispute might be impacting the children and assist the parties to place greater focus on the best interests of their children. Research indicates this helps in creating more amicable, longer lasting parenting plans and custody recommendations, with greater satisfaction for the parties.

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Coolangatta Office

Accredited Specialist Family Lawyers Gold Coast and Coolangatta

Hooper Mill Family Lawyers is making a sea change…of sorts…we’re staying in the Brisbane Bayside (we love it here) however we now also have a branch office on Griffith Street, Coolangatta.

We will be offering specialised Family Law advice to the Gold Coast and Northern NSW regions including:

  • Family law advice;
  • Consent orders;
  • Parenting Plans and child custody matters;
  • Mediation;
  • Property settlement;
  • Spousal maintenance;
  • Domestic Violence protection;
  • All other aspects of de facto and family law legal and Court representation.

Our office in Coolangatta is situated within walking distance to the Magistrates Court at Coolangatta, and we will be providing representation in the Federal Circuit Courts at Lismore and Southport, as well as representation in the Brisbane Family and Federal Circuit Courts.

For us this is an exciting opportunity to grow our firm, forge new relationships, and provide our expert family law services on the Gold Coast and Northern NSW.

Our mediation services via “Decide Mediation” will also be available from the Gold Coast office, and we are available to travel for mediation from Brisbane to Coolangatta and Northern NSW.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost effective manner. Please contact our Coolangatta office on 1800 891 878 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://hooperandmillfamilylawyers.com.au/

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6 common questions about mediation, answered

Mediation is when two conflicting parties in an argument come together with an impartial mediator, whose role is to impartially facilitate discussion and negotiation. The aim is to find a resolution for their dispute and avoid costly, lengthy and emotionally taxing litigation and Court proceedings.

Family Dispute Resolution (or FDR) is defined in section 10F Family Law Act 1975 as:

“A process (other than a judicial process) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process”

A Family Dispute Resolution Practitioner (FDRP) is a mediator, accredited with the Attorney General Department after undergoing additional and specific training.

People looking at their options for mediation have lots of questions about what a mediator does and how the FDRP process works. Some of these questions are listed below.

 

  • Mediation vs divorce lawyer – What’s the difference?

Your lawyer is your advocate retained to represent your interests in a Family Law matter or Divorce proceeding. They work in your best interest to get you the best outcome possible. Your ex-partner’s Divorce lawyer will do the same for them. Lawyers are required in litigation before the Court which can be a consuming process, both emotionally and financially.

Mediation empowers separated couples to find an outcome themselves, with or without lawyers being involved. Discussions in mediation are ‘without prejudice’ and cannot be used as evidence in Court if an agreement isn’t reached.

Mediators provide a structure/process for discussions to occur. They address:

  • power imbalances between the opposing sides through interventions
  • assist the parties to better understand the interests and concerns of the other party
  • facilitate negotiation

Most importantly, the mediator is impartial while a Divorce Lawyer represents only one side in the dispute.

 

  • Are the mediation sessions confidential?

Divorce litigation, where the matter goes to court, are confidential and protected by confidentiality provisions in the Family Law Act 1975.

Mediation and FDR is also confidential, and the discussions are “without prejudice” which means the proceedings can’t be used in evidence. There are exceptions to confidentiality though, such as:

  • if a party makes threats to commit a criminal offense
  • information regarding commission of a crime comes to light
  • there’s information regarding risk to a child

The mediator or FDRP is required by the Regulations to report in the above circumstances.

 

  • I don’t feel safe, what should I do?

Mediation or FDR may not be appropriate if there’s family violence or other power imbalances that affect a party’s ability to participate effectively in the process.

Prior to mediation your mediator or FDRP will usually contact you with a series of questions as part of a screening process. The screening process will allow the mediator or FDRP to decide whether the mediation should proceed.

If there’s family violence but the mediator thinks mediation can proceed, the process can be conducted by way of ‘shuttle’ with the parties kept separately and the mediator acting as a go between.

 

  • What happens if we can’t agree?

Sometimes parties can’t resolve their differences with the assistance of mediation. Sometimes couples, despite their good intentions, just can’t agree. Hopefully some issues can be narrowed or better understood via the process and in parenting matters the Family Dispute Resolution Practitioner can issue a Section 60I Certificate allowing the parties to file in Court. The Certificate will indicate to the Court one of the following from the FDR:

  • The parties attended and made a genuine effort to resolve the dispute;
  • The parties attended but one or both did not make a genuine effort to resolve the dispute;
  • Mediation didn’t proceed because one party didn’t attend after being invited by the FDRP;
  • Mediation wasn’t appropriate.

 

  • But what happens when we do agree?

Depending on the dispute there are different potential outcomes if the parties agree.

For property settlement disputes, heads of agreement can be reached and signed which set out the basis for a Consent Order, or Binding Financial Agreement, to be produced.

In parenting disputes, a Parenting Plan will record the agreement which may or may not be made into a Consent Order at a later date. Whether there is a Consent Order, or the agreement remains as a Parenting Plan is a matter for the parties.

 

  • What will mediation do for me?

Mediation empowers the parties to make their own decisions. This tends to create a greater likelihood for satisfaction with respect to outcomes (particularly as an alternative to having a Judge impose an Order).

Experienced Family Lawyers will understand that very often neither party walks away satisfied from “having their day in Court”. Mediation can significantly reduce costs of litigation, the delays often experienced with the process and the animosity created by the opposing side.

Particularly in parenting matters where child focus is important, mediation can assist the parties to move away from entrenched positions. FDR allows them to closely explore each other’s interests and the best interests of the children in the dispute.

 

I once heard a Judge tell a mother and father, “I don’t know your children, or love your children – why do you want me to make these important decisions for them”.

 

Need more information? Read these:

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The Family Report

The family report has significant weight in parenting proceedings and to assist with parenting arrangements post separation. It is often very helpful to have a family report prepared prior to mediation or family dispute resolution to assist separated parents. It is important to understand what the report entails, who writes it, and how it affects custody arrangements. 

Who writes it?

The court appoints a specialist family report writer to write the family report. The family report writer is an independent expert and can be appointed privately by the parties or as Court appointed “family consultant”. Strictly speaking the report writer has the status of being a Court Expert (Federal Circuit Court Rules) or Single Expert witness (Family Court Rules). This means the family report writer is not a witness for either party and may be cross examined by either party. The specialist normally has a background in psychology and/or social work.

How is the report written?

Once the court appoints the report writer or consultant they begin the interview and observation process. They will interview both parents and people close to the family and often observe the children in an informal interview, observe transition between adults, and see how they interact with the adults. The children have the option to speak with the family report writer or consultant but can choose not to.

What factors are considered?

In a custody matters, the aim is to ensure the best interests of children are met. Interviews with family members assist to determine issues in the custody matter that need to be addressed and provide recommendations as to the best interests of the children:

  • The nature of the existing parenting arrangements and important relationships in the lives of the children (parental and other)
  • Examination of allegations of unacceptable risk of harm (physical, psychological or sexual)
  • The responsibility parents have shown towards obligations as parents
  • The parent’s capacity to care for their children
  • The views of the children in the case

To keep in mind

It is important to make sure you attend the interview process. Failing to attend may cause delay, potentially cause costs against you, or that the family report is admitted into evidence without your input. Your divorce lawyer should provide you with date, time and other necessary information in advance. 

The report is only one piece of evidence in the case but the judge usually places a fair degree of weight on the opinion of the independent expert. The report writer or consultant makes recommendations about custody and access to children but the court isn’t obliged to follow them. If there’s an argument about the report, there’s an opportunity to cross-examine the consultant and the family members they interviewed.

Lastly, there’s no such a thing as off the record in a meeting with the report writer or consultant. They’re obliged to write a thorough report. Anything they’re told either goes in writing or sent to the court.

Family Consultant FAQs

What is a family report?

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Child Focused and Child Inclusive Mediation: What To Expect

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46; McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

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Choosing A Family Lawyer

The shock of divorce is tough; finding a qualified lawyer or solicitor is crucial to help deal with all the challenges you’ll face on the way. Thanks to the emotional strain of separation, it’s difficult to deal with matters like child custody, splitting property and dividing assets. Having the right representation will make dealing with these much easier. But the question at the front of people’s minds is; how do I choose a family lawyer?

  • Google. A Lot.

In this day and age anyone can find anything on the internet. Going to a legal authority such as the Queensland Law Society will help you narrow down your search.

If you know someone who’s gone through a similar experience, it’s good to ask them for advice. They might even recommend the solicitor who represented them. Word of mouth is just as good as a five-star review, but both combined together are signs of a great practice.

When you’re searching the web, check a lawyer’s qualifications. Lawyers have to learn new things constantly so that they’re up to date with the latest legal developments in their speciality. They should also have recognition from a state legal society and bar association.

  • They make you feel comfortable

The family lawyer will be representing you during one of the toughest times in your life. When you sit down with them, it’s important to feel at ease. Entering a meeting and feeling your guard go up with no signs of going down isn’t a good place to start. There’s no shame in saying the solicitor you met with isn’t right for you. Sometimes people want to work with someone their own age or their own gender.

  • They tell it like it is

Your lawyer is on your side but that doesn’t mean they’re supposed to agree with everything you say. Family lawyers act in the best interests of who they represent and they’ll try to fulfil wishes to the best of their ability. Sometimes though, some desires just aren’t achievable and a good lawyer will actively work towards a compromise.

A good family lawyer also communicates with their client regularly in terms of fees and settlements. In the legal area there’s no need to put people through any more stress that they can otherwise avoid.  

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Child Inclusive Mediation: Facts and Stats

The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)

What’s the child inclusive mediation method?

Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):

  • The session with the children must be supportive and appropriate as to the dispute and separation
  • Decision making shouldn’t be a burden the children carry
  • A therapeutic element is needed to help children with coping, providing information and validating their experiences
  • Assisting parents to hear and reflect upon the children’s experiences to better understand the children’s needs

Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.

The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.

Does this method work?

In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:

  • 82% of CI cases felt this method had improved the way their dispute was handled
  • 61% of children reported better outcomes for the family

In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)

For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).

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Christmas, Parenting Orders and Family Law

It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.

Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.

The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.

This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.

The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.

However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:

  1. Children have rights; while parents have responsibilities;
  2. Parenting arrangements ought to be in the best interests of the children.

From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.

In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:

  • Making Christmas time a happy childhood memory. One of the most important issues for children’s mental health is to not be exposed to disputes between their parents. Studies have shown witnessing family violence generates similar response in children as having violence directed towards them; and some writers argue “exposing a child to domestic violence is a form of abuse in itself, regardless of whether the child is the target of such violence or not.”
  • Would the children be excited to see both of their parents, grandparents and other people who are important to them on Christmas Day? Is splitting Christmas Day in half what the children would likely prefer? Or would they be happier not to travel on Christmas Day; instead spending Christmas with one parent one year, and with the other the next;
  • If one parent has issues affecting the children’s safety, such as drug or alcohol problems, is there someone trusted who might supervise the time?
  • Will you let them take some of the gifts to the other parents home? Sometimes an item can represent a connection to the home they are not in;
  • Can they give a gift to the other parent?
  • Have you made planned holiday activities and outings, and taken time off work etc.

These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.

One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.

If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.

Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.

If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.

Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.

 

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Parenting – Can I get equal time? Or shared care week about time?

Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.

In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.

Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:

1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.

Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.

As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.

Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:

2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:

a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.

Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.

The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.

Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).

An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households. Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  •  Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  •  Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.

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