Section 60I Certificate-Hardly a Win!

Under the Family Law Act 1975, before you can make an application to the court for a parenting order, or to change an existing parenting order, you need to try family dispute resolution.There are exceptions to this set out in the legislation.If the dispute can't be resolved using family dispute resolution, you need a certificate from the family dispute resolution practitioner who helped you before going to court. The requisite certificate is a Section 60I certificate.

It is a source of constant amazement to me that parties seem to regard the issue of a Section 60I certificate as some sort of prize.

In fact all the certificate does is mark the mediation as a failure and give parties an entree to commence court action.

Court proceedings are characterised by costs, stress and delays with the outcome often an unknown.

How can anyone realistically regard the achievement of a certificate authorizing the commencement of court proceedings as a win?

As a mediator, it is a common occurrence for parties to wrangle over whether or not a certificate should issue.

Surely parties could better direct their energy at trying to get the other party to mediation or analysing why the mediation failed or whether there is some benefit in convening further mediation rather than collecting their certificate and rushing off to court with the consequences that will inevitably flow.

Referral to Forensic Accountant - Onus Maynes

Over my many years of family law practice, I have often had the need to engage an experienced and competent forensic accountant and have enjoyed close contact with many who have met those criteria.

One forensic accountant whom I have had the pleasure of being associated with is Onus Maynes.
Not only have I found Onus to be competent, reliable and well prepared but I have always valued his hands-on approach and his accessibility if called upon at any time.

Onus has until recently held the position of Executive Director of Forensic Services at BDO but has now joined the Brisbane office of Nexia Australia as a Director of Forensic Accounting and Litigation Support Services.

I am happy to recommend Onus for engagement, as either an Independent Court Appointed or Shadow Expert on financial and accounting matters. Young practitioners particularly would benefit greatly from Onus' experience and commonsense approach to valuation and forensic issues.

Onus can be contacted by phone on 07) 32292022 or by email at omaynes@nexiabrisbane.com.au

Brexit and Other Matters!

One of the little pleasures of travelling is the opportunity to read the newspapers of a destination country over a coffee (or two)

Recent happenings in the UK have made for very interesting reading. Every day the papers have provided new angles and reactions to the Brexit crisis and the turmoil presently engulfing both major political parties. The only thing that is crystal clear is that the fallout will continue as the nation comes to grip with an outcome which it seems even the strongest advocates of the Leave campaign were not expecting.

Life outside politics goes on however and while perusing The Times this morning, I came across this little piece which may be of interest to family lawyers back home:

" Divorce lawyer warns of spouses on spending sprees

Older people going through divorce have been warned of a growing tendency of one spouse to go on a spending spree.

James Skinner, of Simpson Millar solicitors,said that several clients had complained  about the sudden reckless spending habits of their spouse.  People should guard joint bank accounts in the early stages of divorce in case one party squanders shared funds on " fast women, slow horses and expensive holidays".

Last year a judge told a wife divorcing after 40 years that she should have known her husband's flawed character and kept a closer eye on their finances, Mr Skinner said. " Once the money is gone, it's gone. That's the position of the family courts. Some might see that as a green light to squander shared fortunes. "

Sound advice indeed from Mr Skinner!

Family and Relationships Mediation

Separation is never easy.   

Talking to your ex is especially difficult when you first split up. 

If you have kids there are lots of things to sort out. Both of you will want to stay close to the children and have a lot of involvement in their day to day lives, but it is often difficult to reach agreement because of all the hurt, pain and anger that is normal at the time of separation.

Even if you and your partner got along fairly well in the past, conversations about the kids and money can result in arguments.  In some cases, communication can completely break down, making it seem impossible to move forward. 

Mediation can help. 

What is Mediation?

At it’s simplest, mediation is a chat assisted by a neutral, independent and professional mediator - about the children, splitting up the assets and how you and the kids are going to manage financially.   

Mediators work with couples involved in family breakdown to help them communicate and agree on arrangements.

Mediators can help you reach agreement about how much time you are each going to have with the kids, how the assets are going to be split and lots of other things as well.

Mediation is designed to save you the cost and distress of having to go to Court.  The court process is expensive with long delays.   It is also highly stressful.  Naturally, it is to be avoided if at all possible. 

How does Mediation work?

Usually one member of the separating couple will decide he / she wants to mediate and their chosen mediation service can then invite the other person to mediate.

Each of you will first up attend an introductory session with the mediator to help you feel comfortable with the mediator and the process.  This session also helps the mediator to understand both sides of the story. 

Each intake normally takes one hour and the mediation itself will usually takes at least half a day.

Mediation provides an opportunity for each of you to put forward your point of view and to be heard by each other in a safe environment. Mediation can help you express feelings without this leading  to arguments, as the mediator will encourage both of you to listen quietly whilst the other is speaking.

The mediator  may, according to his or her training and experience, explain legal principles and possible court outcomes as well as the benefits or disadvantages of various options.

At the end of the mediation, if agreement is reached, the mediator will help you write up a document reflecting the agreement, or if lawyers are present, the lawyers will normally do this.

It is always your right at the end of a mediation to ask to receive legal advice (if your lawyer is not present) before you sign.  Most people who attend mediation do not, however, request this.

Mediation  is the preferred option to use when you split up as it encourages and enables you to maintain amicable relationships with each other into the future.  This is especially important when you have children to consider. After all, they will be your babies as long as you are alive! They want the two of you to be able to get along - at least to the extent needed to make them feel comfortable when they are around you both.

Contact us at Brisbane Mediations

EMAIL resolve@brisbanemediations.com.au

PHONE 07 3839 7400

Where do I go when I am in dispute with someone?

For a long time the answer to this question has usually been to engage a lawyer and file court proceedings. This often results in a dubious outcome, obtained after long delays and very substantial costs that disputing parties can't afford. Relationships are further harmed and if the dispute is one between parents, children are often caught in the crossfire.

Some disputes need a court solution, but many, particularly in the area of relationships are better dealt with without the delays and costs of court proceedings.

Brisbane Mediations offers a new way of resolving disputes in a cost effective, timely and above all respectful way.

Brisbane Mediations is only a phone call away and has the expertise to guide you through the dispute without the disadvantages of court proceedings. In fact, our aim is to keep you out of court and to help you find constructive, cost effective solutions.

Call us- you will be glad you did!

New Arrangements

For some years now, my primary role has been mediating disputes through Brisbane Mediations of which I am a co-principal.

As part of my role as a mediator and to provide a better service to mediating parties, I have always taken the view that it is important to remain in close contact with legal practice.

Up until recently I have retained such contact as a consultant with Emerson Family Law, This consultancy ended in December 2015.

I continue to believe it important to retain some involvement with legal practice and for this reason have accepted a consultancy role with Reardon Family Lawyers of Southport in 2016.

Although a part time role, I will have the flexibility to meet and fit in with client needs as they arise.

I look forward to assisting clients requiring specialist advice from a solicitor with long experience in all aspects of family law.

I can be contacted by email at Reardon Family Lawyers at mike@reardonlawyers.com.au

and my mobile 0417 622619 will remain unchanged.

I believe that Reardon Family Lawyers is a firm with a strong client focus and look forward to being part of their team.

Family Law in Crisis.

According to The Australian of 11 December 2015, independent Senators John Madigan and David Leyonhjelm are among a group of senators who have called for a "root-and-branch review" of the family law system. Senator Madigan has been pushing for a radical overview of the system to make it less adversarial in nature, arguing the current system is causing "inexcusable damage" to children.

Senator Madigan urged the government to "adequately resource the court to deal with things in a more expedient manner and have people in it who are properly trained".

He said "the court needs to be better resourced than what it is and people operating in the area of family law need to be trained in this area".

Senator Madigan also wanted to see the court operate in a way that brought families together , rather than "blew them apart".

Senator Leyonhjelm said: "You can't expect a court system to operate for the benefit of the public if they have to wait extended periods of time because there aren't enough judges. That's a no -brainer."

Clearly the court has a resource problem.However good steps in reducing the current pressure would be to refer more matters to mediation, particularly those with modest pools and to introduce compulsory mediation of property matters before parties are able to initiate court proceedings.

It will be interesting to see how far the independent senators get with their call for "root-and -branch review".

Travel to Mediation

It was pleasant yesterday to travel to Ipwich to conduct a mediation involving both property and children's issues.

Parties often don't realise that mediators are usually prepared to travel to suit the convenience of the parties.

In this case both parties lived in the vicinity of Ipswich and both legal representatives were based in Ipswich.

Sometimes depending on distance, some charge may be made for travelling time, however with the mediation being convened as close by as Ipswich, it was easy to make a decision to waive any charge for travelling time and mileage.

While it is always good to have the facilities on offer at our usual rooms on Wickham Terrace, in this instance a decision was made for the mediation to proceed at the chambers of local barristers and the rooms and facilities more than sufficed.

The gesture of chambers to provide lunch was greatly appreciated and the sandwiches both plentiful and well received by the parties, their representatives and of course the mediator.

At Brisbane Mediations we often travel to undertake mediation and are always happy to consider a request to do so.

Not only did the day provide a welcome change to our normal routine but I am pleased to report that with the help of both representatives, the parties were able to reach agreement on all issues.

As they say, in the usual parlance, a successful day was had by all.

The father's solicitor will now prepare consent orders which the representatives will jointly submit to the court for approval.

With the Court's approval almost guaranteed due to the reasonableness of the agreement reached, the parties are a long way in front in terms of legal costs and avoiding the long delays that are an everyday feature of a court system that is quite simply breaking under the load.

I look forward to the next opportunity to travel into the regions to assist parties to resolve their dispute.

Why not invite us out to your place for your next mediation.

One Barrister's Perspective on Settlement.

In recent days, while attending a function at the Family Court, I chatted with a barrister whom I knew well, about his work generally and the state of the list in the Brisbane Registry.

The barrister who enjoys a strong reputation in Family Law remarked that he hadn't done a trial in ages. " All of my matters seem to settle before trial, many of them at mediation ", he said.

When pressed further as to why this was so, the barrister volunteered that apart from the obvious issue of costs and parties not being able to afford to go to trial, it was the uncertainty of the outcome that was also a factor. Clients regularly ask me whether I can guarantee them a better outcome if they go to trial and inevitably the answer is " no I can't " he said.

The costs issue is self evident and this combined with the uncertainty of outcome, make up what lawyers and mediators refer to as the risk factor which in most cases is a strong deterrent to parties proceeding to trial.

Welcome news on Domestic Violence

Great to see that Malcolm Turnbull will make disturbingly high rates of violence against women his first order of business, declaring that the scourge had been overlooked for too long (SMH 24/9).

According to reports,duty lawyers will be employed at hospitals in domestic violence "hotspots"as part of a $40 million plus package fighting domestic violence.

$13.5 million will be spent over three years on "DV-alert"training for police,social workers,emergency department staff and community workers.

These are just some of the changes to be announced which would be welcomed by all concerned to halt the spread of domestic violence in the community.

Panellist Donna Cooper

One of the unique aspects of Brisbane Mediations is our ability to offer a panel of mediators with a wide range of experience and high level of competence.

One of our most experienced mediators is Donna Cooper who is well known as a Family Mediator and Trainer in Family Dispute Resolution.

Donna is a Nationally Accredited Mediator with previous experience as a Family Lawyer in private practice.

Donna currently teaches Family Dispute Resolution and Family Law in the QUT Law Faculty, publishing regularly in the Family Dispute Resolution area.

Donna is Co-author of the Family Law Text, A Harland et al, Family Law Principles ( Law Book Co; 2011 ) and regularly presents papers at Conferences in the Family Dispute area.

We are pleased to offer Donna's services as a highly respected member of the Brisbane Mediation's panel.

Please direct any enquiries to Brisbane Mediations at resolve@brisbanemediations.com.au or to our website www.brisbanemediations.com.au

Flexibility of Mediation

One of the many advantages of mediation is it's flexibility. In fact it can be convened anywhere and anytime and without the inevitable delays of the court process.

Earlier this week, we conducted a mediation where one of the parties attended by phone from Victoria. The same process applied with each party participating in a one hour confidential intake followed by a four hour mediation with capacity to extend.

The intake,whether by phone or in person,helps in establishing the necessary rapport and trust which are often the basis for a successful outcome.

It is not uncommon at Brisbane Mediations for one or both parties to attend by phone or Skype. While this is usually essential in International matters, it also helps reduce costs where a party is interstate or some distance from Brisbane.

In fact there is no reason why Queensland mediators can't offer the phone option to attract work from other capitals or outlying centres.

Our capable staff will be happy to respond to any enquiries at resolve@brisbanemediations.com.au. For further information see our website www.brisbanemediations.com.au

Landmark decision of Full Family Court in Fields & Smith

The much awaited decision of the Full Family Court in Fields & Smith [2015] FamCAFC 57 was handed down on 17 April 2015. https://jade.barnet.com.au/Jade.html#article=389655

In holding that there should be an equal distribution of the parties’ assets, the Court confirmed that there is no binding rule of “special contributions” and endorsed the view of the Full Court in Hoffman & Hoffman [2014] FamCAFC 92 where the Court said at paragraph 52:

“… we consider that the point being made is that there is no principle or guideline (or indeed anything else emerging from s 79), that renders the direct contribution of income or capital more important – or “special” – when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family…”

At paragraph 187 of Fields & Smith the Court said:

187. In this case, the contributions of both parties over a lengthy period were substantial and significant. The wife’s contributions to the welfare of the family are in themselves significantcontributions and s 79 does not suggest that one kind of contribution should be treated as less important or valuable than another.

Commenting on the case, in the Australian of 20 April 2015, well- known family lawyer Paul Doolan noted inter alia that:

“In cases involving high-net-wealth parties who built up their assets together, the fact that one party produced the income during the relationship is not to be seen as more important than the role played by the other in making contributions to the family.”

Brisbane Mediations-Current Availability

Denise Britton and I, the principals of Brisbane Mediations are currently travelling in South America and will be away from Brisbane until late March.

Over the past week, we have attended the South West Medico Legal conference in Beunos Aires.

Buenos Aires is an interesting city and perhaps aspects are the subject of another blog. The city like the whole of Argentina is facing serious economic problems and the threat of the currency collapsing.

While we are away the office of Brisbane Mediations continues to be staffed by our able assistants, Joanne McDonald and Krystina Jones who are available to handle enquiries and accept bookings.

Joanne and Krystina can accept bookings for after our return to Brisbane or direct enquiries to experienced Mediators on our panel.

Whatever the type of dispute we have mediators to handle it.

Some of our more experienced mediators include Tom Stodulka, James White, Donna Cooper, Gary Shepherd, Sue Waterman, Fran Conway. Of course there are many others and Joanne and Krystina can recommend a mediator to suit your particular dispute.

Anyone wishing to email me directly can do so at either mike@emfl.com.au or resolve@brisbanemediations.com.au

I am happy to discuss my availability for dates in April, as of course is Denise.

We both value your enquiries and support for our business and will respond as soon as possible.

Please check our website, www.brisbanemediations.com.au

We look forward to assisting you to resolve your dispute without the cost and delay of litigation.

Mike Emerson

"The Green Prince": There are (at least) two sides to every story OR It's all about your perspective

Have you heard of the movie, "The Green Prince"?  I hadn't until friends invited us to a Saturday showing at the Schonell Theatre yesterday.


The film is a scripted documentary.  The main "characters" are Palestinian, Mosab Hassan Yousef and Israeli, Gonen.  Mosab is the eldest and most dutiful son of a senior and influential figure in the zealously anti-Israeli Hamas.  Gonen, on the other hand, is an Israeli  secret service operative in the ruthless anti-Palestinian Shin Bet, with a background including psychology.


Under the carefully manipulative influence of Gonen, Mosab is transformed.  At 17 he is angry and hell bent on avenging what he perceives to be the unjust and cruel targeting and repetitive jailing of his much loved and respected father by Israeli forces. A stint in prison, however, showed him first hand how Hamas members in prison committed greater atrocities on their own with less justification in his view than the Israelis. Over time he came to see the basis of Hamas's terror tactics in Israel as flawed and even his father as one-eyed and not amenable to reason.


Not only did  Mosab become  a highly prized informant for the Israelis by virtue of his close association with his father as his trusted advisor and assistant, but he and Gonen developed a relationship based on genuine trust and affection - to the extent that they demonstrated extreme loyalty towards each other in the face of great risk of harm or even death at the hands of zealously single-minded individuals in both Shin Bet and Hamas.


Was Mosab a selfish person who worked for the Israelis to save his own skin or did he undergo a true moral awakening in the face of the deaths of so many Israeli citizens at the hands of suicide bombings and other violent tactics orchestrated by Hamas?


How is it he was able to betray (according to his upbringing and his nationality) his father and his kinsmen?  Was it in fact betrayal or did he believe that if he could help stop the violence perpetrated by Hamas then there might be a better world for Israeli and Palestinian alike?


What about Gonen?  Did he really connect with Mosab at a human level, or was Mosab no more than a much valued prize pawn in the fight against Hamas?


Talk about 50 shades of grey: I'm thinking that in this situation 50 might be an underestimation!


Are there any similarities or learnings here for us to take into dispute resolution for separating couples, disputing workers, extended families in crisis?


Methinks there is always more than one story to hear and that there are also many ways to view each story.  When in doubt, don't judge.  Listen, listen and keep listening and potential solutions will usually emerge under the guidance of a skilled and sensitive mediator.     

Trust pays Dividends in Mediation

As a lawyer practising in the family jurisdiction over many years, I have often explained to clients that "transparency means trust" when litigating. Failure to disclose or deliberate deceitfulness is likely to impact on the other party's ability or willingness to negotiate during settlement attempts.

Trust is also vitally important in mediation. As with litigation, transparency assists parties to negotiate and reach a resolution.

Parties to mediation must also trust the process and the mediator if resolution chances are to be optimised.

The mediation intake plays a most important role in developing trust - both in the process and the mediator.  It provides an opportunity for the mediator to explain his or her independence and neutrality and the mediator's role.

Most importantly, however, through careful listening, eye contact and a genuine interest in what parties say, mediators are able to establish rapport and develop trust. This rapport and trust Is an investment by the mediator which can produce big dividends in terms of results should the going gets tough later in the mediation.  

Clearly trust in it's many facets is important to mediation success.

A Spirit of Compromise in Mediation. Hindsight is a wonderful thing!

A spirit of compromise is essential in achieving an outcome in mediation.

Mediation has gained popularity because courts have failed to provide inexpensive and timely outcomes for disputing parties.

Mediation can be convened quickly, is less expensive (often vastly so), and enables parties to move on with their lives without undue delay.

Success at Mediation is greatly assisted by proper disclosure and transparent dealings.  A spirit of compromise - including willingness to listen to the other party's views and acknowledgment that court outcomes are discretionary and usually encompass a range of possible outcomes- improves prospects of resolution.

Some time ago we undertook a mediation intake for a party who chose not to proceed with the mediation but rather to embark on litigation, confident in his solicitor's advice that a particular favourable outcome would be achieved.

Later, on returning to mediation on a peripheral issue, the same party expressed considerable lament that he had not continued to mediate in the first instance. After he and the other party had each spent approximately $150,000, he had been told by the same solicitor 'at the door of the court' that, "Today is the day we compromise our position to try to achieve a settlement".

Whilst the solicitor was no doubt confident in his original advice, the client would have been better served by exploring a range of possible outcomes at mediation and compromising to achieve an outcome both parties could accept. They could then have moved on emotionally earlier and the money spent on litigation would have been available to fund the more wholesome needs of themselves and their children.

Hindsight is such a wonderful thing!

Good Advice for Separating Parties and All of Us

@BrisMediations: Great advice from Ruth Ostrow - not only for those going through separation and divorce, but for us all! http://t.co/4Odyiq1eh4

2015 has started with a bang at Brisbane Mediations

Like the fireworks most of us observed in person or electronically at midnight on the 1st of January, 2015 has started with a bang at Brisbane Mediations.


We have taken time out to look at what we did well in 2014 and what we may be able to improve or add to our services in 2015.  We're back on deck energised and ready to listen.


Judging by the people who have already rung Krystina or come through our door for intake discussions this week, at least some problem situations have not magically disappeared over the Christmas holiday period.


This year, as always, we intend to deliver non-judgmental, supportive and skilled conflict management to our clients.   


We must of course remain neutral and not "take sides" or lecture parties about what we believe is the best way to resolve their disputes.  We do, however, challenge and assist with reality testing of desired outcomes, helping our clients to realise that just as there are at least two sides to every story, there are at least two perspectives to every dispute.  The old saying, "It takes two to tango" could be modified to, "It takes at least two to create conflict".


Whether your dispute is the result of a relationship separation, entrenched tensions between extended family members, workplace disagreements or conflict over an estate you think has been unfairly apportioned, the Brisbane Mediations team is trained and equipped to assist.


It is our role to guide people in dispute to a resolution they can live with and that allows them to move on with their lives - if possible, without harbouring resentment. The team at Brisbane Mediations derive pleasure from seeing our clients relieved of the burden of emotionally draining and often financially expensive disputes. We've all seen enough of those in the Court system.


Life is short.  Let's all make the most of it.  At Brisbane Mediations we like to say, Things turn out best for the people who make the best out of the way things turn out.  Just because you've had bad luck with someone significant in your world, you don't have to live the rest of your life with conflict, stress and regret.  We aim to help our clients chalk it up to experience, let go of the bitterness and move on.


We know that the people who come to see us are usually hurting and feeling betrayed. Those feelings take time to heal, but we would love to start you off in a more positive direction with an agreement that, no matter how hard won,  all parties can at least tolerate. Over time, the conflict can become a blip on the horizon.


Come in and see us and make 2015 your best year yet!

It's NOT "The Most Wonderful Time of the Year" for some

It's NOT "The Most Wonderful Time of the Year" for some.

While most of us are caught up in last minute gift shopping and wrapping, planning food for Christmas Day and packing for time away at the beach or other haunts, others are doing it tough.


Some have been given notice that their jobs will not be continuing in the new year, some are feeling dread at the prospect of unimpeded time "relaxing" with a partner they scarcely have time to chat to most of the year and yet others are dealing with recent losses or reliving past ones.


At Brisbane Mediations, we know that all is not always as it seems in people's lives. In keeping with the generous spirit of Christmas, we should all spare a moment to check on the people next door, ring the relative who lives alone and has not been in touch for a while, reach out to friends and above all else appreciate and hug our loved ones.


We hope all our followers have a wonderful, safe and restorative Christmas and New Year and that you share your good things. If you are one of those who is struggling, hang in there.  In dark times, Christmas is like that moment just before the dawn.  If you see it out, a fresh new year will make things look very different and, with the right support, you can start making the changes needed in your life.


Merry Christmas!


Denise, Mike, Krystina, Joanne and the Mediation Team