De Facto Relationships and Separate Houses

Courts are often called on to declare whether parties are in a de facto relationship for purposes of   determining entitlement to property settlement under the Family Law Act.

In deciding whether to make such a declaration, the court has to consider a range of criteria set out in the Family Law Act including, the duration of the relationship;the nature and extent of their common residence;whether a sexual relationship exists; the degree of financial dependence or interdependence,and any arrangements for financial support between them; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life;the care and support of children and the reputation and public aspects of their relationship.

The court has said that the definition of de facto relationship is a very broad one.

An interesting decision on the issue was a recent one of Kazama & Britton handed down on 15 January 2013, where Watts J held that the parties were in a de facto relationship, despite the fact that they maintained separate residences throughout their relationship.His Honour held that although they maintained separate residences, they spent significant time together, mainly at the male's residence and that he visited the female's home from time to time.

The fact that the parties maintained separate residences did not preclude the court finding that they were "living together as a couple on a genuine domestic basis".

The case is also of interest because the male party had made representations to the Department of Immigration that the parties were in a de facto relationship and in the circumstances, the court declined to accept evidence from him that contradicted those representations.

Flexibility in Mediation

The American Bar association has recognised "flexibility" as one of the factors defining high quality mediation practice.

The finding is one of the factors identified by the Association in it's published Final Report-Task Force on Improving Mediation Quality.

While it is good to have some recognizable steps or standardisation in mediation process, the mediator needs to be ever mindful of the range of approaches and tools in his or her skillset and try to identify what may or may not work in a particular dispute.

An example of this arose in an elder law mediation we undertook last week where an 80 plus lady was involved in a family dispute with allegations that one of her children had taken advantage of her to enrich himself.The parties were embroiled in District Court litigation over a jointly owned property of reasonably modest value and the prospect that if not resolved, the dispute would further lessen the net value of the property in dispute and accentuate the divisions in what was already a highly divided family.

During the shuttle discussions it became apparent that the son was prepared to compromise his claim  for compensation for work allegedly undertaken on the property, however his mother had reached a hard nosed position and was intent on taking all,despite the fact that this would involve a costly and messy trial with the possibility of no real winner.

Rather than follow the customary steps, a heavy emphasis and lots of time was spent in listening to and validating elderly mum's concerns and developing a rapport which proved invaluable in gently guiding her to what was clearly a sensible and commonsense solution of  a  complicated fact situation with various allegations and counter allegations many of which would be difficult to prove.

Whilst the path of the process was not clearly apparent when we set out and evolved as we moved through the dispute, I as the mediator, have no doubt that the armchair chat type approach and heavy investment in rapport and trust was the right one for this dispute and resulted in an outcome where the parties not only saved significant costs, but were able to take up the threads of communication in a manner suggesting at least some prospect however small, of family healing so that the elderly mother could possibly have some chance of finding harmony and peace in her twilight years.

PEACE TALKS - Life is for Living, not for Litigating

Are you allowing conflict to dominate your life?

When the wheels fall off our relationships, of course we all need time to adjust and to grieve what might have been as well as the loss of the best aspects of what was.

However, as our parents always told us when we were kids (and most of us didn't have a clue what they meant until we were of 'more mature years'), "Life's very short".

A popular fridge magnet in keeping with this theme states, "Life's too short for bad wine".  How true!

In Queensland we are lucky to live in one of the World's idyllic locations - geographically, socially, culturally and politically - no matter what our beliefs or political bent. 

After separation, the best favour you can do yourself and your children (if you are lucky enough to have them) is to find a timely and user friendly way to resolve issues with your ex so that you can move closer to enjoying the lifestyle you all deserve.

Don't waste a second more than you have to on pointless and expensive escalation of conflict.  Try mediation - with or without your lawyer present.  There is so much to experience in life and no time to lose.

PEACE TALKS - Mental Health issues and Family Separation

Family Law professionals often hear that one or both parents in a separated family are struggling with some sort of mental illness.

Family Report Writers, Psychologists and Psychiatrists  are expected to give opinions as to the likely impact of mental health issues on parenting capacity.

Family Dispute Resolution Practitioners may be faced with one parent's claims that the other presents a risk to the children and the retort is likely to not only be contradictory but to also point a finger towards the first parent's mental health.

Judicial officers often have the unenviable task of making decisions in the best interests of children when the mental health of Family Law litigants is in dispute.

Some signposts to consider in navigating these issues are:

• What is the medical / psychiatric history of both parties?
• What is the evidence, not just of any diagnoses, but also of  behaviours considered inconsistent with "good enough parenting"?
• When did the problem first emerge?
• Was the "breakdown" first noted at the time of separation (a time of high stress often associated with aberrant and "one-off" behaviours)?
• What evidence is there of concerning symptoms since separation?
• What actions has the alleged sufferer  taken to ameliorate symptoms and prevent relapse?
• To what extent was the alleged sufferer entrusted with care of children prior to separation?
• What has changed since separation?
• What is the range of possible factors motivating parties to express such concerns?

Children’s Adjustment to Repartnering of Parents

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 parent’s 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 parents’ relationship. Similarly, children should not be expected to immediately treat a parent’s new partner as a parental figure.

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-partnering parent and that they will align themselves-sometimes exclusively- with the other parent.

The good news is that given time and sensitive support, most children 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.  

Estate Mediations

Mediation Matters

Today I am at "Round the Table with Mike" which is a free service for people to call in and chat with a mediator about the process generally or to discuss any particular issues.

Round the Table with Mike takes place on the first and third Wednesdays of each month between 4pm and 6pm at the Brisbane Mediations Dispute Resolution Centre.

Patrick Wedge, one of our mediators has called in for a chat. Patrick was in a past life, the Deputy Public Trustee of Queensland and so, as one would expect, has considerable experience in Estate Mediation.

As well as being on our panel, Patrick conducts his own Mediation practice.

I asked Patrick for his opinion as to the cause of estate disputes and his reply was as follows:

" One of the principal reasons for disputes in deceased estates is that people's expectations have not been met. A person may have expected to receive a greater share in an estate or may have been left out completely. Where there is ill feeling with the other beneficiaries in settling the issue, a dispute arises".

I then said to Patrick: "At what stage should people seek to mediate?  Should they mediate as soon as the dispute arises or should they wait until some formal court process is initiated?

 Patrick replied:

"The sooner the parties involved have the opportunity to discuss the issues, the better off they will be emotionally and a solution can be negotiated at mediation".

I once heard estate litigation described as "Family Law from the Grave", and certainly estate disputes can often give rise to the same high level of emotions as Family Law. Mediation with a competent mediator such as Patrick, offers the opportunity for resolving the issues without the high costs and delay of litigation. If handled sensitively, mediation also offers the opportunity to repair the relationship between the disputing parties.

The important thing is to seek advice before everyone becomes too embroiled in the dispute.

Round the Table with Mike

Mediation Matters

Round the Table with Mike will be held again tomorrow 3 April 2013 at the Brisbane Mediations Dispute Resolution Centre, level 8, 225 Wickham Terrace Brisbane from 4pm to 6pm.

Round the Table with Mike provides an opportunity for individuals to meet and talk with a mediator about any aspect of mediation without any  charge or obligation.

Round the Table with Mike takes place on the first and third Wednesdays of each month.

The opportunity exists to meet with a mediator privately or as part of a group to learn more about the mediation process and the advantages of mediation.

More and more parties are learning about the benefits of mediation particularly in avoiding the cost and stress of litigation and the inevitable delays that are part of the court process.

Members of the public are encouraged to drop in anytime between 4pm and 6pm on Wednesday to chat informally with one of our mediators.

While there is no need to book, parties are encouraged to call our manager Joanne McDonald on 3839 7400 to notify of intention to come and to have any preliminary issues clarified.

Brisbane Mediations has over 30 panel members who are able to convene a mediation at short notice to resolve conflict in any field.

For more information we encourage you to look at our website  http://www.brisbanemediations.com.au

We look forward to answering your questions and assisting you.