When separated parents re-partner, their children react in a range of ways -
some healthy and others destructive.
Each child's unique grief reaction
and adjustment to their parents' separation should be considered before
introducing them to even the idea of new partners.
After separation, it
is most important to maintain open communication between children and parents.
Whilst being as honest as possible with them, however, parents should not expect
their children to instantly applaud or even accept a decision to re-partner,
especially if the other parent sees the new partner as responsible for the end
of the relationship. Similarly, children should not be expected to immediately
treat a parent's new partner as a parent.
If expected to cope with such
a major change prematurely, there is a risk that children will recoil from or
even refuse a relationship with the re-parenting parent and that they will align
themselves - sometimes exclusively - with the other parent.
The good news
is that given time and sensitive support children can adapt to new parenting
situations, including quite complex blended families in more than one household.
The key to success is to introduce such changes at the child's pace, with
support, and with sensitivity.
As children are treated with respect by
new partners, trust can grow and relationships independent of either parent will
hopefully develop. This process cannot be forced and relies on the maturity and
patience of the re-parenting parent, step-parent and, of course, the other
parent.
Denise Britton - Co-Principal, Brisbane
Mediations
Tuesday, October 30, 2012
Thursday, October 18, 2012
Emerson Family Law Blog: Recovery of Text Messages
Emerson Family Law Blog: Recovery of Text Messages: Lawyers are increasingly confronted with situations where text messages provide telling evidence or reveal patterns of conduct that may impa...
Tuesday, October 16, 2012
Gifts/Loans During Relationship
Issues often arise as to how gifts or loans made to the parties during a
relationship are to be treated on separation.
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
Saturday, October 13, 2012
Interest rates
There is a telling article on interest rates in the Weekend Australian Financial Review of October 13-14, 2012.
Apparently fixed-term home loans have been cut to the lowest levels since the early 1990's recession.
Some variable rates have been reduced to their lowest level (5.46 per cent) in 44 years.According to the article, the last time that variable interest rates were this low, Johnny Farnham's "Sadie" was the No.1 record in Australia.That is certainly a long time ago.
In the same edition, there is a report that "After several false starts, many are predicting the beginning of a housing recovery.........".
Hopefully the latest interest cut, which may possibly be followed by more, will lead to some sustained movement in the housing market.
The problems created by a stagnant and over recent years declining housing market, are ever present as we mediate property issues between separating couples.
It is hard enough to divide the assets of one household into two ( when each tries to hold on to a commensurate lifestyle) without the separating couples assets declining in value as the dispute proceeds.Valuations are a particular problem, as with delays in the court process, combining with declining asset values, it has often been necessary for couples to revalue assets a number of times,
adding to the costs of proceedings.
Of course, if the market starts to move then it is important that couples resolve their disputes in a timely manner as delays in the process can lead to one or both parties missing out on the opportunity to get back into the market before prices move out of reach.
Mediation provides separating parties with the opportunity to resolve their dispute in a timely manner and without the costs and delays associated with the court process.Providing proper disclosure is given and current valuations obtained, parties can resolve their dispute with the help of an experienced mediator, as soon as they are ready to sit around the table, rather than have to depend on a court to allocate a hearing date.
If the market begins to move, then clearly it is even more important that parties take advantage of the opportunity that mediation offers to resolve their dispute.
The vagaries of the market are always uncertain, however this is not the case with delays and court costs which seem an inevitable part of the litigation as distinct from the Mediation pathway.
Apparently fixed-term home loans have been cut to the lowest levels since the early 1990's recession.
Some variable rates have been reduced to their lowest level (5.46 per cent) in 44 years.According to the article, the last time that variable interest rates were this low, Johnny Farnham's "Sadie" was the No.1 record in Australia.That is certainly a long time ago.
In the same edition, there is a report that "After several false starts, many are predicting the beginning of a housing recovery.........".
Hopefully the latest interest cut, which may possibly be followed by more, will lead to some sustained movement in the housing market.
The problems created by a stagnant and over recent years declining housing market, are ever present as we mediate property issues between separating couples.
It is hard enough to divide the assets of one household into two ( when each tries to hold on to a commensurate lifestyle) without the separating couples assets declining in value as the dispute proceeds.Valuations are a particular problem, as with delays in the court process, combining with declining asset values, it has often been necessary for couples to revalue assets a number of times,
adding to the costs of proceedings.
Of course, if the market starts to move then it is important that couples resolve their disputes in a timely manner as delays in the process can lead to one or both parties missing out on the opportunity to get back into the market before prices move out of reach.
Mediation provides separating parties with the opportunity to resolve their dispute in a timely manner and without the costs and delays associated with the court process.Providing proper disclosure is given and current valuations obtained, parties can resolve their dispute with the help of an experienced mediator, as soon as they are ready to sit around the table, rather than have to depend on a court to allocate a hearing date.
If the market begins to move, then clearly it is even more important that parties take advantage of the opportunity that mediation offers to resolve their dispute.
The vagaries of the market are always uncertain, however this is not the case with delays and court costs which seem an inevitable part of the litigation as distinct from the Mediation pathway.
Friday, October 12, 2012
Don't involve your adolescents in your post separation disputes
Separated and disputing parents of adolescent children need to guard against
imparting any (even unintentional) encouragement to their children to take their
side against the other parent. Teenagers already have their own developmental
issues to deal with - for example, finding a way to individuate from parents
whilst still maintaining close attachments, pursuing serious educational and career goals,
developing adult type relationships and establishing their own identity in the
world. They should be relieved of any explicit or implicit onus to align
themselves with one parent or the other. Parents who alienate their adolescents
against the other parent do so at both their children's and their own peril.
There is a risk to the mental health of the adolescent and to the later
relationship between the alienating parent and the alienated child.
Denise Britton, Co-Principal Brisbane
Mediations
Tuesday, October 9, 2012
Managing Grief and Loss in the Context of Family Breakdown
The rite of passage from a marriage or marital type relationship to being single
and the mythical journey across the River Stix after death are similar in many
ways. The five stages of grief in Elizabeth Kubler-Ross’s seminal 1969 work, “On
Grief and Dying”, are still helpful in understanding the grief and loss
associated with marital and family breakdown. “Denial” gives time to adjust to
the initial shock. “Anger” is normal and can provide much needed energy for the
growth process triggered by the relationship ending. “Bargaining” in one way or
another is part of desperate last ditch attempts to reverse the process of loss.
“Depression” occurs when the loss appears inevitable and sadness threatens to
engulf the grieving person. “Acceptance” heralds the end of the journey and is
accompanied by neither positive nor negative emotion, but rather by letting go
and seeking an end to the pain. Grieving a loss is not a linear process and
those who grieve will go in and out of the above five stages until they are
ready to move forward. For those moving on after separation and divorce and
those who have lost partners to death, there is hope of a new and better life -
much like the believer’s afterlife. They will, however, have the best outcomes
if during recovery they are supported and advised by professionals sensitive to
their unique progression through the grieving process. Denise Britton B Soc Wk,
M Litt (Psych), MAPsS, MAASW Partner Brisbane Mediations http://bit.ly/er6rqb
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