Under the Family Law Act, a person has a responsibility to assist his or her former spouse or de facto partner financially if that other person can't meet his or her reasonable financial needs from their own income or assets.
Where an entitlement can be established, maintenance enables an adjustment to be made in favour of one or other party for any disparity that may exist between the income or the earning capacity of the parties based on their individual financial needs.
The Family Court and the Federal Magistrates Court are able to deal with spousal maintenance applications and parties can also reach an agreement on maintenance arrangements at mediation.You should try to resolve the dispute before going to court if at all possible as this will involve a saving not only financially but in terms of emotional stress.
Maintenance is not automatically awarded however and time limits apply, so it is best to seek legal advice.Your lawyer will be able to explain the circumstances in which you may be entitled to spouse maintenance and point out the various options for seeking a resolution.If you are the party from whom payment is sought, then your lawyer can explain the limits on your liability based on your capacity to pay. In selecting a mediator, you should ensure that your lawyer is able to come with you to mediation should you so desire as important legal issues are involved.
Mike Emerson Co-principal Brisbane Mediations.
Saturday, May 14, 2011
Family Mediation - One Size Doesn't Fit All
When there is conflict between separated couples over parenting and/or property, Mediation is a means of dispute resolution which can be adapted to the needs of the mediating parties and the nature of their dispute.
Sometimes, it is to the advantage of all concerned for a mediation to be conducted and completed over the course of one day, a comprehensive agreement being signed that same day.
In other cases because of: the personalities of the parties, the stage they have reached in respect of their emotional separation, the complexities of their dispute or the availability of the parties or their legal advisers, mediation might be best conducted over a period of time in smaller chunks.
The latter approach allows for parties struggling to adjust to their separation to deal with and adapt to changes in their lives one step at a time. For some, to attempt to make overarching decisions about financial or children's matters once and for all at their first mediation session is simply overwhelming and too daunting.
Time to consider and adapt is something that should never be denied to mediating parties if this is what they believe they need.
Most experienced mediators sensitive to their clients' needs know that some people need to discuss the options on the table with trusted advisers before signing off on an agreement.
Others like to trial the success of new arrangements (particularly in respect of children) before reviewing them and taking a further step. This is especially the case in matters involving very young children whose routines will be significantly altered by the proposed agreement.
Similarly, some parties will want their mediator to give them advice on what is best for their children or what is likely to happen should they not agree at mediation and go to court instead. Others want a mediator to only use their mediation skills to effect a resolution and would prefer to seek counsel from their own advisers.
Some want their children's views ascertained by a qualified child consultant who informs the mediation. Others see this as unduly stressful for their children.
If a mediation service has a "one size fits all" approach to mediation, then there is reason for concern. Mediation is about the needs of the parties, not those of the mediator.
Look for suitably qualified, experienced and flexible mediators willing to tailor their processes to the needs of their clients. Remember the old adage, "If all the workman has in his toolkit is a hammer, then every job he does will require a nail."
Denise Britton
Co-Principal and Psychologist
Brisbane Mediations
Sometimes, it is to the advantage of all concerned for a mediation to be conducted and completed over the course of one day, a comprehensive agreement being signed that same day.
In other cases because of: the personalities of the parties, the stage they have reached in respect of their emotional separation, the complexities of their dispute or the availability of the parties or their legal advisers, mediation might be best conducted over a period of time in smaller chunks.
The latter approach allows for parties struggling to adjust to their separation to deal with and adapt to changes in their lives one step at a time. For some, to attempt to make overarching decisions about financial or children's matters once and for all at their first mediation session is simply overwhelming and too daunting.
Time to consider and adapt is something that should never be denied to mediating parties if this is what they believe they need.
Most experienced mediators sensitive to their clients' needs know that some people need to discuss the options on the table with trusted advisers before signing off on an agreement.
Others like to trial the success of new arrangements (particularly in respect of children) before reviewing them and taking a further step. This is especially the case in matters involving very young children whose routines will be significantly altered by the proposed agreement.
Similarly, some parties will want their mediator to give them advice on what is best for their children or what is likely to happen should they not agree at mediation and go to court instead. Others want a mediator to only use their mediation skills to effect a resolution and would prefer to seek counsel from their own advisers.
Some want their children's views ascertained by a qualified child consultant who informs the mediation. Others see this as unduly stressful for their children.
If a mediation service has a "one size fits all" approach to mediation, then there is reason for concern. Mediation is about the needs of the parties, not those of the mediator.
Look for suitably qualified, experienced and flexible mediators willing to tailor their processes to the needs of their clients. Remember the old adage, "If all the workman has in his toolkit is a hammer, then every job he does will require a nail."
Denise Britton
Co-Principal and Psychologist
Brisbane Mediations
Thursday, May 12, 2011
Binding Financial Agreements
Latest developments in Binding Financial Agreements for marriages and de facto relationships. http://bit.ly/iokGOq
Tuesday, May 10, 2011
Binding Financial Agreements
Latest developments in Binding Financial Agreements for marriages and de facto relationships.
http://bit.ly/mAdWyA
http://bit.ly/mAdWyA
Why use Mediation
People often ask why they would consider using mediation to resolve conflict.The reasons are many and varied but generally include the following:
•It offers the opportunity for faster solutions;
•It is cheaper than litigation;
•You retain control rather than have others make decisions for you;
•It is less destructive of relationships;
•It is more informal than the court process;
•Parties can participate with or without their lawyers;
•It is confidential to the extent allowed by law;
•The process can be terminated or suspended at any time.
The point about being less destructive is particularly important where parties have to engage in an ongoing business relationship or separated parties have an ongoing responsibility to parent children.
Mike Emerson Co-principal Brisbane Mediations
•It offers the opportunity for faster solutions;
•It is cheaper than litigation;
•You retain control rather than have others make decisions for you;
•It is less destructive of relationships;
•It is more informal than the court process;
•Parties can participate with or without their lawyers;
•It is confidential to the extent allowed by law;
•The process can be terminated or suspended at any time.
The point about being less destructive is particularly important where parties have to engage in an ongoing business relationship or separated parties have an ongoing responsibility to parent children.
Mike Emerson Co-principal Brisbane Mediations
Sunday, May 8, 2011
Family and domestic violence: Will broadening the Family Law Act definition improve outcomes for children?
The Federal Government has proposed changes to the Family Law Act in the wake of the wide ranging 2006 amendments of the previous government.
Those of us "at the coalface" of family law disputes have seen dramatic changes in residential and childcare arrangements for separated families over the past ten to fifteen years.
The "standard" litigated outcome previously involved children living with their mothers and seeing fathers every second weekend and for two or three weeks of their school holidays. It is now so common as to represent something of a "new standard", for children to share their time between their parents on a much more equitable if not equal basis. Many large and small employers in both private and public sectors have moved with the times and made it possible for parents of both sexes to accommodate shared care through flexible work arrangements, the Courts took to the concept of "shared parental responsibility" as well as "equal shared care" with gusto and even parents with reservations about the advisability of such arrangements for their children decided they had best consider them.
For a large number of children these more equitable arrangements have improved their relationships with their fathers in particular and we would hope that they have benefited with improved self esteem and healthier psychological development more closely approximating that of children from intact families.
We are told, however, that others have in fact been exposed to unprecedented levels of conflict and even violence between their parents as a result of the greater need for these people to negotiate parenting issues and to attempt to cooperate in decision making regarding their children.
Despite the onus on judicial officers under the 2006 amendments to consider any claims of domestic and family violence before making parenting orders, advocates of the proposed amendments say there needs to be a broader definition which is expressed in terms of all activities which "coerce and control" and which cause children or parents to be fearful.
The proposed legislation is in line with research which distinguishes between various types of family and domestic violence. Coercive and Controlling violence (Kelly and Jackson, 2008; Stark, 2007) is seen as the most dangerous form for victims. This type of violence is most often used by males against females and involves intimidation through emotional, economic and physical abuse, isolation, use of children, asserting privilege and use of threats. When physical violence exists in this form of abuse, it is more severe and serious injury, death and/or sexual violence are more common than with other forms of violence.
The challenge for the lawmakers and the courts is to differentiate between the various forms of violence which too commonly occur in the context of intimate personal relationships between parents. Situational Couple Violence and Separation Instigated Violence, for instance, are less lethal, less likely to continue after separation, as likely to be instigated by females as males and more likely to be the result of acute frustration and tension around specific issues, including separation. Unlike Coercive Controlling Violence, they are thought to not be motivated by the overarching desire of one party to control the other and will most likely not involve escalating and potentially lethal tactics.(Kelly and Johnson, 2008)
If the proposed Family Law Act amendments are passed, are we likely to see an increase in false claims of family and domestic violence by parties looking to achieve ends such as relocation with children? Or will children and parents at the mercy of chronically coercive and controlling parties actually receive greater protection and if so, are errors in which innocent parents are denied time with their children just "collateral damage", necessary in order to protect those in real need?
No matter what legislation is passed, the question has to be asked, "Is there any better way of protecting children than considering every case on its merits?" It is argued here that The best interests of the child should remain the elusive driver for social scientist evaluators, independent children's lawyers, mediators and judicial officers alike as we all attempt to ensure that every child has the greatest chance possible of achieving their potential, whilst also remaining safe.
Denise Britton
Co-Principal Brisbane Mediations
References:
1.Kelly, J and Johnson, M (2008). Differentiation among different types of intimate partner violence. Family Court Review, vol 46, no 3, pp 476-499.
2.Stark, E (2007). Coercive control: The entrapment of women in personal life. New York: Oxford University Press.
Those of us "at the coalface" of family law disputes have seen dramatic changes in residential and childcare arrangements for separated families over the past ten to fifteen years.
The "standard" litigated outcome previously involved children living with their mothers and seeing fathers every second weekend and for two or three weeks of their school holidays. It is now so common as to represent something of a "new standard", for children to share their time between their parents on a much more equitable if not equal basis. Many large and small employers in both private and public sectors have moved with the times and made it possible for parents of both sexes to accommodate shared care through flexible work arrangements, the Courts took to the concept of "shared parental responsibility" as well as "equal shared care" with gusto and even parents with reservations about the advisability of such arrangements for their children decided they had best consider them.
For a large number of children these more equitable arrangements have improved their relationships with their fathers in particular and we would hope that they have benefited with improved self esteem and healthier psychological development more closely approximating that of children from intact families.
We are told, however, that others have in fact been exposed to unprecedented levels of conflict and even violence between their parents as a result of the greater need for these people to negotiate parenting issues and to attempt to cooperate in decision making regarding their children.
Despite the onus on judicial officers under the 2006 amendments to consider any claims of domestic and family violence before making parenting orders, advocates of the proposed amendments say there needs to be a broader definition which is expressed in terms of all activities which "coerce and control" and which cause children or parents to be fearful.
The proposed legislation is in line with research which distinguishes between various types of family and domestic violence. Coercive and Controlling violence (Kelly and Jackson, 2008; Stark, 2007) is seen as the most dangerous form for victims. This type of violence is most often used by males against females and involves intimidation through emotional, economic and physical abuse, isolation, use of children, asserting privilege and use of threats. When physical violence exists in this form of abuse, it is more severe and serious injury, death and/or sexual violence are more common than with other forms of violence.
The challenge for the lawmakers and the courts is to differentiate between the various forms of violence which too commonly occur in the context of intimate personal relationships between parents. Situational Couple Violence and Separation Instigated Violence, for instance, are less lethal, less likely to continue after separation, as likely to be instigated by females as males and more likely to be the result of acute frustration and tension around specific issues, including separation. Unlike Coercive Controlling Violence, they are thought to not be motivated by the overarching desire of one party to control the other and will most likely not involve escalating and potentially lethal tactics.(Kelly and Johnson, 2008)
If the proposed Family Law Act amendments are passed, are we likely to see an increase in false claims of family and domestic violence by parties looking to achieve ends such as relocation with children? Or will children and parents at the mercy of chronically coercive and controlling parties actually receive greater protection and if so, are errors in which innocent parents are denied time with their children just "collateral damage", necessary in order to protect those in real need?
No matter what legislation is passed, the question has to be asked, "Is there any better way of protecting children than considering every case on its merits?" It is argued here that The best interests of the child should remain the elusive driver for social scientist evaluators, independent children's lawyers, mediators and judicial officers alike as we all attempt to ensure that every child has the greatest chance possible of achieving their potential, whilst also remaining safe.
Denise Britton
Co-Principal Brisbane Mediations
References:
1.Kelly, J and Johnson, M (2008). Differentiation among different types of intimate partner violence. Family Court Review, vol 46, no 3, pp 476-499.
2.Stark, E (2007). Coercive control: The entrapment of women in personal life. New York: Oxford University Press.
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