Whilst Christmas is a time many reflect on and are thankful for the things in their lives that matter most, it is oftentimes a difficult period for those of us who are without our loved ones or are hurting from broken relationships or ongoing conflict.  It is a time of year when most of us feel compelled to be with our families and if that is not possible, it hurts. 
So the day that is celebrated for peace and joy can be very painful and the lead-up, stressful. This is particularly so if you are in a separated family with children. What are the arrangements for Christmas this year? When will I be able to spend time with my children?  I don’t want to be alone. He/she had the kids for Christmas last year, so this year they should be with me. I just want to be a family unit again. These are all common thoughts we can have in the build-up to Christmas.
In the hope of alleviating any conflict and achieving a clear and communicated plan before Christmas, it is wise to start these discussions well-ahead.  If you have court orders or a written agreement with your ex (a parenting plan) then presumably you already have documented arrangements in place.
With Christmas now only a week away, if you have not reached an agreement, or have tried but none has been reached with the other parent, no doubt tensions will be high and you may feel anxious and even angry about things. You are entitled to feel how you feel. What you should not do, however, is in any way expose your children to the conflict.  Sure, vent to your family and friends about the situation (if that helps) but only when the children are not with you. It’s not a situation your children have created, and it is therefore not one they should be aware of or try to resolve.
If you are in this situation this Christmas, here are a few things you might like to consider:

Focus on your children’s happiness and doing what you can to make sure they have a happy and memorable Christmas.  It’s much easier said than done but try not to dwell on how the situation is affecting you, or how you feel. You are entitled to feel how you feel and it can be good to grieve (as opposed to trying to simply shut out your emotions), but if the situation is out of your control then brewing on such thoughts can often lead you to feel increasingly upset and despondent.
Plan a second Christmas for when the children are next in your care. They will be sure to enjoy another celebration!
Make plans for yourself and doing something that will bring you joy. This is an opportunity for you to start new traditions. 
Talk to people who have your best interests at heart and who will support you during this time. Don’t isolate yourself.

If you are having difficulties in making arrangements to spend time with your children, please contact us at DA Family Lawyers.
The post This Christmas appeared first on Family & Divorce Lawyers Brisbane.

A few weeks ago the Australian Bureau of Statistics released information regarding marriages and divorces in our country throughout 2018.  The results are interesting!
In 2018, there were

119,188 marriages; and
49,404 divorces.  

Of the total number of marriages, 6,538 were same-sex couples. In percentage terms, that’s 5.5% of all marriages. 
No surprise here; the most popular season to marry was Spring with a whopping 31.8% of all marriages occurring between 1 September to 30 November 2018. Saturday, 20 October 2018 hosted the highest number of marriages than any other day in 2018 with 1,993 nationwide. 
The statistics provide that the median length of marriages before the couples separated was 8.6 years and the median length of marriages before the couples officially divorced was 12.3 years. Whilst these statistics may seem a little sad, they have improved in the last 20 years. In 1998 the median length of marriages before the couples separated was 7.8 years and the median length of marriages before the couples officially divorced was 11.2 years.  So couples are staying together for longer, well, slightly longer.
 
The post Love is in the air…or is it? Recent Statistics on Marriages & Divorces in Australia appeared first on Family & Divorce Lawyers Brisbane.

Whilst Christmas is a time many reflect on and are thankful for the things in their lives that matter most, it is oftentimes a difficult period for those of us who are without our loved ones or are hurting from broken relationships or ongoing conflict.  It is a time of year when most of us feel compelled to be with our families and if that is not possible, it hurts. 
 
So the day that is celebrated for peace and joy can be very painful and the lead-up, stressful. This is particularly so if you are in a separated family with children. What are the arrangements for Christmas this year? When will I be able to spend time with my children?  I don’t want to be alone. He/she had the kids for Christmas last year, so this year they should be with me. I just want to be a family unit again. These are all common thoughts we can have in the build up to Christmas.
 
In the hope of alleviating any conflict and achieving a clear and communicated plan before Christmas, it is wise to start these discussions well-ahead.  If you have court orders or a written agreement with your ex (a parenting plan) then presumably you already have documented arrangements in place.
 
With Christmas now only a week away, if you have not reached agreement, or have tried but none has been reached with the other parent, no doubt tensions will be high and you may feel anxious and even angry about things. You are entitled to feel how you feel. What you should not do however, is in any way expose your children to the conflict.  Sure, vent to your family and friends about the situation (if that helps) but only when the children are not with you. It’s not a situation your children have created, and it is therefore not one they should be aware of or try to resolve.
 
If you are in this situation this Christmas, here are a few things you might like to consider:

Focus on your children’s happiness and doing what you can to make sure they have a happy and memorable Christmas.  It’s much easier said than done but try not to dwell on how the situation is affecting you, or how you feel. You are entitled to feel how you feel and it can be good to grieve (as opposed to trying to simply shut out your emotions), but if the situation is out of your control then brewing on such thoughts can often lead you to feel increasingly upset and despondent.

Plan a second Christmas for when the children are next in your care. They will be sure to enjoy another celebration!

Make plans for yourself and doing something that will bring you joy. This is an opportunity for you to start new traditions. 

Talk to people who have your best interests at heart and who will support you during this time. Don’t isolate yourself.

 
If you are having difficulties in making arrangements to spend time with your children, please contact us at DA Family Lawyers.
 
The post This Christmas appeared first on Family & Divorce Lawyers Brisbane .

Collaborative law relies on a level of trust between all of the parties involved in a matter.
There are, unfortunately, many matters that have to ultimately go to court, but when the team at DA Family Lawyers first meets with their clients, they try to exhaust all of the available options before even entertaining the idea of going to court. Court proceedings are an expensive process and can be emotionally very taxing. Additionally, court processes and outcomes can be very difficult to predict, so the team tries, as much as possible, to offer their clients alternative resolution options. Read on to find out more about collaborative law and when it works best…
Is collaborative law for everyone?
While collaborative law takes some of the formality out of resolving a matter, it is still a structured process. Because it involves preparing for and attending multiple meetings, it can be quite costly for clients. Also, clients don’t always feel comfortable within the formal collaborative process. While the team at DA Family Lawyers will employ many methods to try and make their clients feel comfortable, some people still don’t want to sit across the room from their former spouse and talk about what they want to achieve in a family law context.
Is it possible to collaborate informally?
The team at DA Family Lawyers collaborates with other family law firms a lot, but these collaborations do not necessarily always fall under the formal umbrella of collaborative law. In many cases, they will find a way to resolve a matter more informally, particularly when there is a level of trust between parties and it is possible to achieve a result that everyone will feel comfortable with.
In a recent collaboration between DA Family Lawyers and another local family law firm, the process started with conversations between the solicitors about their clients’ expectations. By avoiding minute-taking at meetings and formal letters, the process cost less than a formal collaboration. In fact, the process involved just one formal letter, while all other communication occurred as conservations between the solicitors with the consent of the clients. It is important to note that there was a level of trust between the parties, and both parties were willing to take each other at face value. While the clients occasionally became side-tracked, the solicitors worked to bring them back on track, reminding them what they hoped to achieve and why they had engaged in the process in the first place.
In the case of informal collaboration, it’s not only important for there to be trust between the parties — there has to be trust between the solicitors as well. Each solicitor needs to trust that if they put in an offer orally, for example, it’s going to be properly received and not used against them in future correspondence. Without this trust, the entire process would unravel, so it’s critical that there is a good and trusting working relationship between solicitors.
Why does the collaborative approach work so well?
As much as possible, the solicitors try and keep things as amicable as possible throughout the collaborative process. Although every matter has its difficulties, it is possible to navigate communication between parties without the use of formal letters, that may cause offence. The process tends to keep any animosity under control because the nuances of a matter can be discussed in conservation between the solicitors. When there is a good working relationship between the solicitors, each solicitor can trust that any information they share will be used to benefit both clients as much as possible. All information that is shared is, however, recorded and eventually formal documents are prepared to give effect to the agreement reached, so that it all falls within a legal framework.
One of the main benefits of the collaborative process is that it allows for open, frank communication. The result may not always be optimal, but in many cases the collaborative process allows relationships and trust to be preserved in way that court proceedings don’t always allow. In trying to give formality to a matter, there is often the risk of losing trust between parties. It is important to note, however, that not every matter is suited to an informal approach. The approach that is taken will depend on the parties involved — some people benefit from the involvement of a judge to be heard in a certain way, while others need to be held to account in a court proceeding.
 
In the first meeting with a client, the DA Family Lawyers team will identify whether a less formal but still collaborative approach is suited. If you would like to arrange a consultation with the DA Family Lawyers team, please don’t hesitate to get in touch.
The post What is collaborative law? | Part two appeared first on Family & Divorce Lawyers Brisbane .

By Amy Little
What happens in a cross-examination?
Cross-examination is when a witness is asked questions by the other person or lawyer in the case. One reason for cross-examination is to test the witness’ evidence. Another reason is to obtain evidence which the witness did not give and which may favour the other person.
Helpful guidelines if you are a witness
Being a witness can be a very stressful experience. Cross-examination is a process whereby your evidence is put to the test, to see whether you have been truthful.
Below are some guidelines to assist you in preparing for cross-examination.

Answer each question truthfully.
Listen carefully to the whole question. Think about the question and answer it by saying no more than what is necessary.
Answer only the question that is asked. Do not answer other questions that you think you might be asked and do not offer any opinions about the matter.
If you do not hear the whole question or are not sure that you did, ask for it to be repeated.
If you do not understand a question, say so, and the person or lawyer will re-phrase the question so it is easier for you to understand.
If you do not remember something, say so.
Never argue with or ask questions of the cross-examiner.
If you can answer a question by simply saying ‘yes’ or ‘no’, answer it in that way.
Speak slowly and clearly.
Do not bring any paperwork (i.e. your affidavit/statement) with you into the witness box. Only if the court permits are you allowed to read your affidavit to refresh your memory.
If you are feeling unwell or upset and require a short break, ask the Judge.
Your evidence is recorded through the microphone in front of you so always make sure to speak your answers, as gestures such as nodding or shaking your head can not be recorded.

DA Family Lawyers are highly experienced in representing clients at trials, either directly as solicitor advocates or by instructing a barrister.  If you want expert assistance, we are here to help.
The post Preparing for Cross-Examination appeared first on Family & Divorce Lawyers Brisbane .

When you’re in the midst of a parenting dispute and your ex is acting inappropriately at changeovers, you wouldn’t be the first person to be tempted to record this behaviour (either by video, audio or both). Likewise, when you know they are being inappropriate during telephone calls with the children, it may cross your mind to record these conversations. Then you’ll have proof to support what you have been saying all along and you will be able to show the court just how bad their behaviour is, right?
So what does the law say about recording others and bringing that evidence to court, and how do the family courts look upon parents who do this?
A recent case in the Federal Circuit Court of Australia dealt with this exact issue. In the matter of Coulter & Coulter (No. 2) [2019] FCCA 1290 (“Coulter”) Mr and Ms Coulter were engaged in parenting proceedings before the court concerning arrangements for their four children. The matter was heading towards a final hearing and Mr Coulter brought an application to exclude particular evidence sought to be presented by Ms Coulter. The evidence Ms Coulter wanted to present was two video recordings of changeovers and two audio recordings of telephone conversations between Mr Coulter and some of the children. All of these recordings were taken by Ms Coulter without the knowledge or consent of Mr Coulter.
The two video recordings (of changeovers) took place at Ms Coulter’s home where she set the camera up in the hallway facing the front door and hit ‘record’ before she went and opened the door to Mr Coulter. No explanation was provided by Ms Coulter as to how she recorded the two audio telephone conversations between Mr Coulter and some of the children.
In determining an application to exclude evidence such as this, the court relies upon sections 135 and 138 of the Evidence Act 1995 (Cth) in reaching their decision. Those sections say, in a nutshell:

S135: The court can refuse to admit evidence if its value is outweighed by the risk that it might be prejudicial to a party, misleading or confusing or create a waste of time.
S138: Evidence that has been obtained illegally or as a result of impropriety shall not be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in such a manner. Subsection 138(3) goes on to provide a list of matters the court must take into account in determining whether to admit such evidence.

Coulter was a matter that took place in South Australia, so in addition to the Evidence Act, the court had to consider the relevant state legislation.
In Queensland, the relevant legislation (as it pertains to audio recordings only) is the Invasion of Privacy Act 1971 (Qld). That legislation says it is ok to use a listening device to record, monitor or listen to a conversation provided however, that the person recording is an actual party to that conversation. In relation to visual recordings, section 227A of the Criminal Code 1899 (Qld) provides that it is an offence punishable by up to 3 years imprisonment to record another person without that person’s consent, in circumstances where a reasonable adult would expect to be afforded privacy (such as when that person is in a private place or is engaging in a private act).
In Coulter, the court found that the mother was acting in protection of her lawful interests by recording the two videos at changeovers due to her concern that the father would commit family violence and her need to record that conduct for the purpose of obtaining an intervention order. On the other hand, the court did not allow the audio recordings to be admitted into evidence and the presiding judge stated that the mother’s conduct in recording the conversations between the children and their father amounted to “a serious invasion of the father’s privacy and the rights of the children”. Even though some of the recordings captured the father engaging in improper discussions with the child, the court criticised the mother for covertly recording conversations between the children and their father and noted that such behaviour could significantly compromise the relationship between a parent and a child.
In our experience, it is not common for recordings to be useful and in fact, a lot of the time parents who think they have a great recording do not realise that their conduct as evidenced in the recording is actually detrimental to their position. For example, recordings of changeovers where one parent is being argumentative in front of the children, but the parent who is recording takes no steps to remove the children from the situation or de-escalate the conflict in the pursuit of capturing it in a recording.
If you or your children are fearful of or experiencing domestic violence, you should have changeovers facilitated by a third party, such as a supervised children’s contact centre. Alternatively, if the risk factor is not unacceptable, you could have changeovers in public, populated places with CCTV cameras in use, such as fast food restaurants or shopping centres. Such places record interactions that may be admitted as evidence in court proceedings. It can also sometimes be helpful to have a support person attend changeovers with you on the condition that person is known to the children and will not in any way incite conflict between the parents.
If you are uncertain of how to handle your particular situation, obtain legal advice from a family lawyer.
Reading the full judgment of Coulter is helpful to understanding the court’s interpretation of the relevant legislation and how it applies to parenting matters http://classic.austlii.edu.au/au/cases/cth/FCCA/2019/1290.html
The post Parenting Matters: Should I Record My Ex? appeared first on Family & Divorce Lawyers Brisbane .

Lisa Foley, managing director at DA Family Lawyers, practices in all aspects of family law, including parenting disputes, property settlement, child protection, domestic violence matters and international child abuse.
As a trained collaborative lawyer, Lisa works with other family law firms to resolve her client’s family law needs. She explains what collaborative law is, and what it means to her.
What is collaborative law, exactly?
Both parties need to agree to the collaborative process. It is a confidential process and involves full disclosure of all information between the participants. At DA Family Lawyers, the first step is to meet with the client individually to assess whether the process is suitable for them and then, if so, prepare them for a face-to-face meeting with the other party and their solicitor. If the parties agree, they will sign a collaborative agreement. That will be followed by identifying the interests and issues in the matter and then all the parties, including the solicitors, will work together to decide what steps need to be taken to advance the matter towards settlement.
Part of the collaborative contract involves an agreement by the parties and solicitors to say that if the matter does not resolve within the collaborative law process and requires court intervention, then the solicitors cannot be involved in the court proceedings. This adds pressure to resolve the matter within the collaborative process. The focus on the collaborative process is therefore on settlement, rather than on litigation.
How does the DA team practice collaborative law?
Lisa is a collaborative lawyer, and her view on collaborative law is that any good family lawyer is, in fact, a collaborative lawyer. What she tries to do in her own practice is, identify if the formal collaborative law approach is right for the client and if not, for whatever reason, identify where a formal but still collaborative approach is the right fit. If there is ever a matter where she can pick up the phone rather than write a letter, she tends to do that. “I feel like it takes the sting out of things because legal letters are formal by their very nature and other parties who receive letters from lawyers don’t often have a warm, fuzzy feeling after reading them — they can come across quite offensive,” explains Lisa.
Whenever it is possible to collaborate, Lisa and her team try to do so because that’s usually what is best for the client. “Just because the clients might be fighting or arguing, does not mean that their solicitors need to take that same approach, because it hasn’t worked for them. If the solicitors take the same approach and are arguing and are in conflict, how is that going to work towards a settlement?” she says.
For more information on collaborative law or to arrange a consultation, please get in touch.
The post What is collaborative law? | Part one appeared first on Family & Divorce Lawyers Brisbane .

The issue of what surname a child should be known as is often required to be considered in the Family Law Courts. Deborah Awyzio elaborates in this LinkedIn post: https://www.linkedin.com/pulse/childrens-surnames-family-law-disputes-deborah-awyzio/
The post Children’s surnames in family law disputes appeared first on Family & Divorce Lawyers Brisbane .

The legal ambit of the case was about constitutional law and about how State and Federal legislation operates. Essentially Victorian legislation provides that there is an irrebuttable presumption that if a woman has a child conceived through artificial insemination, the male who donates the sperm (provided it is not her husband) is presumed not to be the Father of the resulting child. The effect of the Federal legislation is that whether a person is regarded as a parent is, “a question of fact and degree to be determined according to the ordinary contemporary Australian understanding of parent”
Read the full article on Deborah Awyzio’s LinkedIn
The post Sperm donation – are you a parent? appeared first on Family & Divorce Lawyers Brisbane .

From 10 September 2019, new arrangements begin about the cross-examination of victims of domestic violence in the Family Court and Federal Circuit Courts of Australia.
This is relevant for parties who are self-represented in the Family Court and Federal Circuit Courts of Australia. If a person is acting on their own behalf without a lawyer at a trial, they are prevented from cross-examining the other party, in the following circumstances:

There is an allegation of family violence between the person wanting to cross-examine and the witness they are wanting to cross-examine.

And one of the following applies:

Either party has been convicted of, or is charged with, an offence involving violence or threat of violence to the other party

Or

A family violence order applies to both parties (final order only, not temporary or interim order)

Or

An injunction for personal protection of either party has been made under the Family Law Act

Or

The court at their discretion makes such an order

If a party finds themselves in this scenario they will have to engage a legal representative to undertake the cross-examination on their behalf. Legal Aid has been provided with further funding to provide assistance to parties, however, the funding from legal aid is still subject to the same merit and financial requirements as all other applications for legal aid.
It is important when advising clients involved in local court applications for domestic violence orders of the consequences of a final domestic violence protection order being made, if they are also involved in Family Court or Federal Circuit Court proceedings. The common practice of parties consenting to a final domestic violence protection order without admissions to resolve matters will need to be considered in light of this new legislation.
The post New protection at court for domestic violence victims appeared first on Family & Divorce Lawyers Brisbane .

As a family lawyer we often have clients who are trying to finalise property settlement with their former partner and have difficulty providing evidence about money that has been advanced by family members to them in the past. In family law matters, it is not unusual for a client to have been married for say […]

The post Family loans appeared first on Family & Divorce Lawyers Brisbane .

DA Family Lawyers specialise in family court representation that get the best results while retaining the utmost integrity throughout the proceedings Nobody is more aware of how trying a separation and divorce can be for all involved. This is why at DA Family Lawyers we offer a supportive, sensitive approach to all your family law […]

The post Family court and legal aid solutions from DA Family Lawyers appeared first on Family & Divorce Lawyers Brisbane .

DA Family Lawyers provide their Brisbane clients a no-fuss solution to complex family law and property disputes At DA Family Lawyers, we are passionate about finding the resolutions that benefit our Brisbane clients in the best manner possible. We are sensitive to the issues involved in all aspects of family law. Family Law Services from […]

The post Do You Need A Family Lawyer in Brisbane? appeared first on Family & Divorce Lawyers Brisbane .

In the recent case of Whent and Marbrand, the Full Court of the Family Court relying on the principles established by the High Court in Stanford and agreeing with the trial judge determined that in the particular case before them Section 79(2) of the Family Law Act operated with the result that it was not just and equitable […]

The post Being married does not automatically entitle you to a property settlement appeared first on Family & Divorce Lawyers Brisbane .

Parental dispute mediation is an important part of resolving issues between spouses without causing collateral damage At DA Family Lawyers in Brisbane, our aim is to do just that. As a parent, it is your duty to ensure that your children don’t suffer as a result of parental disputes. Lisa Foley and Deborah Awyzio are […]

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At DA Family Lawyers we know how to navigate the potential pitfalls and emotional hazards of divorce law. Any good family lawyer will tell you that there is no one correct way to handle a divorce. Every family’s situation is completely different from the next which means every family requires a unique approach. At DA […]

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The Supreme Court of Queensland today handed down judgement allowing the surviving partner of a man whom took his own life, to have possession and use of his sperm, which was removed posthumous. In the case of Creswell v. Attorney-General for the State of Queensland, Ms Creswell received the benefit of an order that enables her […]

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On ABC radio family law specialist Deborah Awyzio, psychologist Christine Bagley-Jones along with Comedian, YouTube Star & Host of the Funny Mummy’s Facebook page, Jenny Winter discuss the challenges of being in a blended family.   https://www.abc.net.au/radio/brisbane/programs/focus/focus-on-blended-families/10399344

The post Focus: There’s no one recipe when it comes to blending families appeared first on Family & Divorce Lawyers Brisbane .

I started my career as a Family Lawyer doing agency matters in the Family Court and the Federal Magistrates Court as it then was. That gave me a good grounding in how the Court system could be used effectively to change the power differential between separating parties. Those were times where specialist practitioners with Family […]

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