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.

Separation, Divorce and Re-birth. What can Peter Greste and Reese Witherspoon's movie, "Wild", teach us?

Journalist, Peter Greste, has revealed that he is dealing with a kind of re-birth experience in the light of his release from an Egyptian jail.


He is processing mixed feelings which no doubt include immense personal relief and gratitude as well as  a version of "survivor guilt" for being free whilst his two colleagues remain incarcerated. 


Although he is not saying as much, it is probably also likely that, as an adaptable person, he had adjusted to the restrictions of life behind bars and that freedom will demand debriefing and re-adjustment so he can fully resume executive responsibility for his own life.


Peter Greste's experiences have common features with those of Cheryl Strayed as depicted in her biographical, Wild: From Lost to Found on the Pacific Crest Trail and played by Reese Witherspoon in the movie, Wild, currently in Australian cinemas.


Strayed wrote about her epic journey - essentially alone and on foot - across the PCT (the 1000 mile Pacific Crest Trail  which is closely aligned with the Sierra Nevada and Cascade mountain ranges and runs between the US border with Mexico and that with Canada through the states of California, Oregon and Washington). This was her self prescribed healing process after losing her mother prematurely and reacting with self abuse through drugs and promiscuity with the result that she also lost herself. 


Strayed dared to ask the questions: "What if I could forgive myself?" "What if all those things I did were the things that got me here?"  In walking, she was trying to find the girl her mother always believed she was when she advised her to, "Find your best self and when you do, hold onto it forever". In Strayed's words, "After I lost myself in the wilderness of my grief, I found my own way out of the woods". 


This was Cheryl Strayed's re-birthing experience.  Peter Greste is also experiencing a re-birth subsequent to 400 days in his own "wilderness".  Both experiences are powerful and positive and neither would have been possible without a prolonged period of deprivation, self-discipline and extension of personal limits.


How do you plan to re-birth after you come out of the tunnel of grief and adjustment associated with separation and divorce?

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!

There's no such thing as "A Happy Divorce". Or is there?

Separation and divorce are so often referred to in negative terms - a "failed marriage", betrayal of trust", "loss of the dream", "a broken family".

How much less often do we talk of learning from a relationship and separation experience, having another chance, the benefits of the experience to new relationships, or being freed to pursue more personal goals? It can and often does transpire that in time a relationship breakdown is viewed positively - by not just one but by both parties.

"That's all very well for some",  you might say.  "But what about the unfaithfulness, the lies, the breach of trust? What about my broken heart, the years wasted, the dreadful pain of rejection?"

Each separation experience is unique. Each separation experience is personal. Most are painful. Most trigger a grief process of variable duration and intensity and a recovery and adjustment period which is equally unpredictable in nature.
Separation,

How well separated adults recover and "move on", to use a colloquialism, is dependent on a wide range of factors: personality, the capacity to make a positive out of a negative, level of social and emotional support, and the quality and orientation of advice - to name a few.

The dismantling of an intimate relationship represents a loss and as with other grief experiences, can be likened to travelling through a tunnel. It is a process and the only way out is to go through it. It is helpful to keep a look out for that tiny glimmer of light at the end of the tunnel and continue to do whatever brings it closer. The journey is about recovery from the loss. The destination is a brighter, happier and more enlightened life experience.