Hopefully, there is a solution
This could be one of the most traumatic experiences a family will face.
Separation can be devastating for everyone involved.
How well you handle a separation will impact on how well you and your family cope now and in the future.
There may be issues that cannot be resolved and the only solution is to remove yourself from the impact of not only on your life, but on the lives your children, your friends and associates. There may be no solution to such problems and a separation from the cause may be the only solution.
WOULD A RESOLUTION BE MORE BENEFICIAL IN THE LONG TERM THAN A DISRUPTION TO YOUR FAMILY, CHILDREN, FRIENDS AND ASSOCIATES?
Counselors can help you work through your problems. You can find qualified counselors in private practice as well as in government and community-based organisations.
Details of this are set out in the additional help information section of our A to Z of Family Law. This can be downloaded from our website.
Counselling works best if you and your partner attend sessions of your own free will.
However, if you and your partner go to the Family Court, you may be ordered to attend counselling before a decision is made by the Court.
If counselling does not prevent your relationship from breaking down, it can still help with resolving emotional issues that result from a separation. It is a good idea to shop around to find a counselor with whom you feel comfortable and confident. There are many counselling organizations available to you. There is a Google reference to many counselors and psychologists who engage in family counselling.
It is necessary to give consideration to the financial consequences of remaining in the relationship or separating from the relationship. Seek advice from a financial adviser. Work out a budget setting out the expenses you will need to cover and required for your day-to-day living and other expenses. There are expenses not only for yourself, but for your children, their schooling, medical and otherwise.
You will need to consider not only the financial needs for yourself, but the financial needs of your partner and children should you separate and live separately and apart. You will need to give consideration as to how you will provide for those needs.
Are you to remain in the relationship home with the children and is your partner willing to leave the premises? You must bear in mind that the Court will not force someone to leave their own home unless there are real issues involving the family where children and the parties themselves are being affected by the emotions and the stresses involved in living together.
The Court will only intervene if such emotional stresses reach a peak whereby the parties or the children are suffering depression and are receiving medical care. The Court will not force someone out of their own home unless it is in the best interests of all concerned that someone should leave.
The Court when giving consideration to this would ascertain who is the best person to leave the home. Who would be least affected by such move? If your partner does not move away from the home, are you in a position to move to other premises?
Do you have the financial means to meet the rent of renting other premises for yourself and if you wish the children to be with you?
Will the children be affected by the move if they move out of the home with you? If you cannot resolve these issues in counselling or if counselling is not available to you, seek legal advice and see what your legal position would be in such circumstances.
Many couples who separate can agree on what they wish to happen in relation to a distribution of their assets and, if there are children, the arrangements which they wish to make and put in place for the children’s future.
When couples are in agreement, the options for formalising the property settlement and arrangements for the children are:
In your negotiations with your partner in regard to property issues and children, it would be beneficial to seek legal advice from a solicitor who specialises in Family Law so that you are empowered and have knowledge of what is achievable in reaching the settlement. Once you are empowered with this knowledge, are you able to sit around the kitchen table and negotiate directly with your partner to resolve such issues.
If you can resolve such matters, then the agreement can be formalised in a manner which I have mentioned. Your legal adviser can assist you in drafting the necessary documents to formalise any agreement reached.
Many alternative dispute resolution processes are available. Alternative dispute resolution is available to help parties resolve the relationship issues if they are unable to do so by themselves.
Do you require assistance to negotiate these matters with your partner. If you are on a fairly good relationship basis with your partner, then the most effective means of assisting you in such negotiations is a new form of family law practice, which is Collaborative Practice or Collaborative Law. For Collaborative Practice to be successful, the solicitors engaged must be trained in this form of dispute resolution, a different mindset to the normal practice of Family Law.
The collaborative lawyers are trained to work together with both you and your partner to reach an amicable settlement that you can both live with and which best suits your needs. Collaborative Practice is a popular dispute resolution method developed in the United States in the early 1990s. It gained rapid popularity in the United States, the United Kingdom, Europe and Canada and is now a practice available to help people in Australia.
You have the benefit of being advised and supported by a lawyer at all times.
Even when there has been family violence in your relationship, collaborative practice may still be available. Your collaborative lawyer will assist you to determine whether this practice is available in such circumstances and if it could still be effective. Collaborative Practice allows other collaborative trained professionals such as psychologists and financial advisers (accountants) to be involved in the process. Financial advisers can be engaged where financial assistance is required, not only to assess the assets and their values, especially when there are companies and trusts, but also to advise if any of the resolutions reached are a viable resolution financially, and if resolutions would be more tax effective and more suitable.
The collaborative approach would enable you and your partner to resolve issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved and also to assist in your future involvement with your children. The practice emphasises reaching agreement rather than having to battle it out in Court. You and your partner and your lawyers will work together to share information in a series of meetings. They will be involved in the full process and none of decisions will take place outside your full knowledge.
Collaborative practice is different from going to Court. It involves meetings between yourself, your partner and involving your lawyers. Everyone works together towards a common goal resolving the dispute with emphasis on retaining your dignity and best interests.
You will have your collaborative lawyer advising and assisting you throughout your negotiations. The playing field will be more even between you and your partner because you and your partner will have your respective lawyers to support you as well as other professionals if necessary and with your consent.
If an agreement is reached in these collaborative meetings, then the agreement can be formalised in the manner I have described above.
What if collaborative practice is not suitable to you? Are there other means available?
Mediation is another form of alternative dispute negotiation which may be suitable for you. Again, it is a voluntary process. However, the Family Court may order mediation if you do instigate proceedings in the Court.
Normally, in mediation, you are represented by your own lawyers. The difficulty with mediation is that you will have one version of the dispute and your partner may have a different version to your own. The Mediator is only there to assist with you in negotiation. The difficulty is in bringing together the two opposing views given to your respective lawyers. The mediator’s role is to assist with communication between yourself and your partner so that you may have open discussions in negotiating a settlement.
The mediator’s aim is to facilitate the open discussions and communications between you and your partner so that you can identify the issues of the dispute, generate options to address such issues, and hopefully to agree upon ways to resolve the issues and to reach a settlement.
The mediator’s role is essentially a neutral one. The mediator will not take sides. The mediator will work with both you and your partner to help you negotiate your own decisions together and will not represent either of you in Court before or after mediation.
Both Collaborative Practice and mediation can be dealt with quickly, and because of this, the costs are limited. If these forms of alternative dispute resolution are not successful or are unavailable or cannot be agreed upon, then the only solution is litigation in the Family Court.
Proceedings in the Family Court should be avoided if at all possible to do so. It is emotionally and financially draining being involved in such a process. If all else fails, this is the final process to help you to resolve the issues arising from a separation. Embarking on this process, it is very important that you seek legal advice.
If you need help, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane.
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