How a Farmer’s Divorce has changed in the Courts
Starting out as a lawyer in the early 80’s in Toowoomba, I was exposed to cases involving the family farm from the start so farming and rural ownership of properties has been a part of my practice since the mid-eighties. A lot has changed in that time when it comes to farming settlements and divorce.
As accountants, you assist with structuring to minimise risk in relation to exposure to creditors and tax, however there are other considerations to keep in mind in the event of family members going through separation.
Back in the seventies and eighties, when people had farms, they were typically held in their own names with a trading partnership that owned, for example, all the cattle or grain that operated a business on the property.
Then, for example, if a son was brought into the business, they joined into the partnership often with a promise to receive the farm when their parents retired or on a gifting transfer prior their death.
The Court, to an extent, treated farming cases as a special sort of case. They would take into consideration the family history of the farm and give significant recognition to the person who contributed the family farm. In those days they would try to structure the final orders in a way that the property didn’t have to be sold.
However, those days are over. The Court now does not see rural cases differently from how any other business would be treated. So there is a much tougher approach to the sale of rural properties and it is important for your clients who may be potentially impacted, to have an understanding of this change of view that has occurred.
The intergenerational transfer of wealth is a consideration in which you as a farmer’s accountant are now much more involved. The typical problem now in dealing with rural cases is that no matter how sophisticated the structures are, rural cases are often asset rich and income poor, which can make it difficult for farmers to borrow money to pay out a separating partner.
We don’t often take these cases to trial because what typically happens is the party that is leaving gets paid out in installments so the farm does not need to be sold to meet the property settlement.
Divorce settlements and farmers – Bill and Mary’s story 
Tom and Jane are the parents of Bill. Bill tells his parents that he wants to get married to Mary. Tom and Jane are concerned as Bill is already part of the trading partnership and when they retire or die Bill will receive ownership of their farming property. In the event that Bill and Mary separate they don’t want to have a situation where the farm has to be sold. Tom and Jane see their commercial lawyer and that lawyer suggests they see me to do a binding financial agreement.
We do a lot of financial agreements for rural families in conjunction with their commercial lawyers. These are typically not agreements where Mary is left with nothing, but what they do often say is that we agree that in the event of a divorce, there is a formula on how Mary’s entitlement is calculated and then there is an acceptance that it will be paid out, for example, over a number of years.
The agreement might provide for an initial payment to purchase a house for Mary for an agreed amount, and whilst that house is in Mary’s name it is mortgaged which is being funded by the family farm. That then allows Mary and any children they might have set up properly and then there will be instalments paid annually so that it doesn’t ‘break’ the farm. It is, of course, still going to be a strain, but it is achievable.
Best case scenario and how Accountants can assist
Binding financial agreements should be considered very early in any relationship, when people are looking at bringing children into their business or when generational transfers are being contemplated.
Even so, I have also assisted in doing binding financial agreements later in relationships. For example, I have drawn up financial agreements where the farming family’s son has been married for 25 years and his parents are now looking at transferring the property to him. They are living out of town but are looking to move to a retirement village. They want to pass the farm down to their son but want their daughter-in-law to sign a financial agreement that specifies if some time down the track their son and daughter in law split up, there is going to be a structured way to pay out the daughter in-law’s entitlement.
That sort of generational wealth transfer often comes up when people are getting into their 60’s and the next generation is pressing to get ownership. The parents are wanting to structure it so in case of separation they do not lose the family farm.
The key take away as an accountant, to a farming family is that you would be better off doing structuring before your clients separate. If you cannot do that and you have a couple who are separating, then it is a matter of getting people to sit down and look at it as a commercial venture, and do your best to keep their personal emotions out of it.
In terms of structuring, as an accountant you can assist getting the company and trust ownership sorted. But then the addition of binding financial agreements are an additional piece on top of these designed to limit the damage. It is important to accept that if there is a separation, the party who is leaving will have an entitlement. But how that is to be paid should be structured in a fashion that is not going to cripple the business and farm and lead to liquidation.
Overall the best-case scenario is always a negotiated settlement with the solid foundations put in place first for the right business structures and agreements.
If you found this article helpful, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Divorce and the family farm: assisting your farming clients prepare for divorce appeared first on Phillips Family Law.

If you are reading this, you are likely considering separation or you are already separated and you have some degree of concern about what to expect from the separation process.
It is wise to consider your next steps. We know that it is in your interest to be aware and alert to potential issues that could affect you and your children if you have them. It is for this reason that we have compiled a series of these articles as a resource.
We regularly write articles to help explain concepts and issues surrounding the separation and divorce process. We hope you find these articles helpful.
For when you are about to separate…
Before you separate: What to ask a lawyer and common mistakes explained
Should I move out?
How will I afford to live if we separate?
Will I get to see my children?
These are some typical questions that are commonly asked of a lawyer when someone has just separated or they are considering separation.
This article answers those questions along with some other helpful tips to minimise risk and stress.
Find the article here
 
How to get the most out of your first appointment with a family lawyer
Knowing what questions to ask and how to prepare for your first meeting with a family lawyer can prove daunting for many.
Regardless of whether an initial meeting with a family lawyer is on the phone or via an online meeting, it is good to know what to do to ensure you get the most out of your first meeting.
Find the article here
 
Why you may need to be cautious of the ‘amicable’ separation
Often in the most amicable of separations, people can come to an impasse about a certain issue.
This article details the three key reasons amicable separations don’t always unfold as intended and what you can do instead.
Find the article here
 
Why you don’t need to wait 12 months to divorce – the process of divorce
There is a misconception that people can only organise their financial settlement 12 months after separation. This article explains exactly what the ‘12 month rule’ does and doesn’t apply to.
This article also unpacks the important considerations that will help you be more informed before you act.
Find the article here
 
Facing separation or divorce in your retirement years
In our work as Family Lawyers, we see people seeking advice about separation and divorce in their retirement years because one or both people in the relationship have come to a realisation that they no longer wish to spend their retirement years with the other person. It can come as a big surprise, not only to the person on the receiving end of the news, but often the instigator as well in terms of the impact on their retirement lifestyle.
This article explores what we have seen happen when divorce comes in retirement.
Find the article here
 
How a friend’s divorce advice could cost you
Your family and friends are an important support system and have your best interests at heart but their experiences, however similar they seem, are not necessarily the same as yours.
Making decisions based on others’ experiences can result in additional and unnecessary stress. This article explains why you should take heed of these considerations.
Find the article here
 
About to separate? 5 key considerations you need to know
The five key considerations for people contemplating separation are these:
Financial, property, communications, privacy and parenting.
How you manage these areas of your life now can significantly impact your future and the future of those you love.
Find the article here
 
Can you avoid Court when separating? 
Separating and thinking of writing up a property agreement and having a Justice of the Peace sign it? Or trying to avoid Court and ‘bringing the lawyers into it’?
While it might seem like a logical way to do things, read this article which explains how this approach can be problematic.
Find the article here
 
Dispelling the myths – what you must know when separating
Perhaps you’ve seen separation or divorce portrayed on television that shapes what you think may happen when you or those close to you separate.
Perhaps you have heard some stories about other people’s’ relationship breakdowns? There are some common myths that we see come up from time to time. This article explains what is fact and what is fiction.
Find the article here
 
New Year, New Beginnings
We’ve all heard of divorces that take years to finalise but this need not be the case. Learn from our experience of working with thousands of people who have been through divorce.
This article explains what to do first and what to expect from the process of divorce.
Find the article here
 
You are welcome to download and save this article in PDF form. To locate it, click here.
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you or your clients are in the decision making process, we can make you aware of the options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here. 
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post A Resource for Clients Facing Separation and Divorce appeared first on Phillips Family Law.

Due to the emotional toll that separation and divorce brings, Christmas and other holidays can be a very challenging time. The feeling of sadness, loneliness, even anger is a normal response for people who will be spending Christmas alone for the first time or experiencing a significant change to their Christmas traditions due to their separation or divorce.
Christmas is a special time for children and parents alike, and for most it is to be spent with your family and loved ones. However, due to the challenges of being separated or divorced, people may find themselves spending the holidays away from their families.
It is important that your family understand that post-divorce, Christmas may not be the same as previous holiday seasons, but it may not be as challenging as you imagined. Even if you are a divorced parent, it does not mean that you cannot enjoy Christmas. 
This article outlines some helpful tips to help you navigate this Christmas season as a separated or divorced parent.
Acknowledging this as a milestone
Acknowledging separation or divorce as a major milestone in your life can help you survive the holiday season. Being separated or divorced is new territory that you can explore, and this is a milestone in itself. While the traditions that you normally follow during the holiday season might change this year, it does not mean that Christmas cannot be celebrated.
While the hardest part of being divorced is spending time away from your children, you can see this as an opportunity to create new traditions guided by frameworks and arrangements that you set with your former partner. 
But what about the issue of determining who will have the children on particular days during the festive season?
Plan early
If you want to spend time with your children during the holiday season, I recommend you plan early. This is a key step to avoid the anxiety caused by having arrangements left unresolved. When planning for the holidays, taking into account the traditions and other family events you or your former partner might have, is key. Not all traditions and rituals can be upheld, where children may be dividing their time between two homes, so it is important to come to a realistic expectation of what can be maintained and how much time you can spend with your children. 
When planning, it is also important to remember that there is no ‘one-size-fits-all’ approach and that the arrangements should be child-focused and accommodate the needs of the children based on their ages and specific needs.  Different families have different needs, so make sure to communicate with the other parent to preempt potential issues wherever possible.
Setting a tone that fosters calm communications with your partner wherever possible is key to this process. Coming in with a list of reasonable ‘wants’ is fine but understanding that they may not be achievable is important to recognise from the outset. If both of you approach this planning with the intention to come to an agreement, this is the very first step in minimising stress and conflict and will help you manage your first Christmas as a separated or divorced parent.
In many separated families, it may not be possible for both of you to have time with your children on Christmas Day, particularly where distance or significant travel is involved.  Many times one parent will not see their children on Christmas Day and instead allocate another day as their Christmas together. This is often the case to ensure that children do not spend significant amounts of time on Christmas Day travelling to and from destinations, and instead enjoy the celebrations. Understandably people can get quite emotional about arrangements but it is important to keep in mind that not being present for that one day is not going to impact on relationships you share with your children in the longer term.  It is important to keep perspective about that and take other opportunities to create special moments with your children where available. 
Taking care of yourself
The emotional fallout following a divorce can be exhausting and there are people who find prioritising their own self care overwhelming. 
If this will be your first time spending the holiday season away from your children, it is important to focus on taking care of yourself and avoiding overthinking your situation. Whilst this is easier said than done, it is important to make some plans for yourself and try to keep busy.
Consider your children first
As a parent planning for this first Christmas as separated parents, it should always be your priority to think about the needs of your children first and ensure they are separate from your own wishes. Even though you want to spend extended time with them during the holidays, always put your children’s desires ahead of your own and support them during this change of rituals and traditions. When you do have time with them, even though it may not be on ‘the day’ continuing some of the rituals will be helpful.  
Arrangements are not always about how much time you want to spend with your children. It is about maximising every chance that you have with them and making the most of the holiday season with them. If you and the other parent cannot come to an agreement, consider getting specialist advice early on in the process so you can access help in sorting out arrangements through negotiation or dispute resolution. Or if need be, speak to a family law specialist to explore if there is room to make an assisted agreement.
As much as possible, avoid making assumptions about what the other parent wants and make arrangements through proper communication. Ideally, you will want to formalise your arrangements through a parenting plan or Parenting Order to avoid any potential disputes and have a guide about how any future arrangements will work.
In the end, the key to surviving the Christmas season after divorce is to plan ahead, ensure good communication with the other parent about arrangements and to keep your expectations realistic.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post How to survive Christmas after separation or divorce appeared first on Phillips Family Law.

As we know, the COVID-19 pandemic has not just hit us with a virus but with an overwhelming amount of indefinite uncertainty too. It is safe to say, no one can tell you where the world will be in a month from now, let alone a year. Our minds are constantly having to readapt to new realities, seeking any information on what to do or where to go from here.
For Lawyers, Accountants and Financial Advisors, our jobs are now more than ever crucial to a society facing a global economic crisis. Unfortunately added financial pressure can at times lead to divorce as well as issues surrounding child support. In these unprecedented times, what we are starting to see is adaptive outcomes beginning to happen within the Court.
If you are a Lawyer, Accountant or Financial Advisor, here’s what you need to know.
Child support agreement set aside due to impacts of COVID-19
In general, the setting aside of a child support agreement is notoriously difficult to achieve. But in recent times, a case came before the Court where a father was able to have the Binding Child Support Agreement set aside due to financial hardship as a result of COVID-19.
The case was Martyn & Martyn [2020] FamCA 526 and the father sought to set aside a Binding Child Support Agreement and extinguish arrears payable as a result of his business being significantly impacted by the effects of the pandemic.
The original agreement was made in 2012 and required him to pay $1,350 each month which increased by 2% every year. Then in 2016, he had advised his business was failing and as a result, he reduced the child support he was paying and fell into arrears.
When he made this application this year to set aside the agreement, he already had outstanding arrears because he had been paying a reduced amount. So pre-COVID, he was wanting those arrears to be extinguished.
His business had reduced by 90% as a result of the pandemic and the impact on international trade. Unless the international trade borders reopened by September 2020, he said that he would have to liquidate his business and declare bankruptcy.
As a result of his application to the Court, the Judge was not prepared to accept the extinguishing of arrears pre-pandemic. But the Judge did conclude that the impact of COVID-19 on his business was enough to justify the setting aside of the agreement because his personal income had been reduced to such a level where he was no longer able to pay child support. Assisting in this judgment was the fact that there was no evidence as to how long the pandemic was likely to continue for.
The Court did not terminate any of the arrears accumulated pre-COVID-19, but they did set aside his agreement going forward. In this particular case, the Court said the impact of the pandemic on the father’s business was an exceptional circumstance.
What to consider if about to embark on the divorce process
When embarking on the divorce process there are many things to consider in terms of child support agreements. The age of your client’s children and whether or not they are in private schools are considerable factors. Now with the uncertainty brought about as a result of the pandemic, the stability of your client’s job or business is now increasingly important factors when it comes to the child support paid.
While many separating parents opt to go with periodic child support payments that are collected by Services Australia, some parents agree to enter into their own Binding Child Support Agreement. If this is the path your clients choose to take then it is crucial the parent paying child support is confident they will be able to pay whatever it is they agree upon. Because once an agreement has been made, it’s extremely difficult to set it aside.
To prevent disputes around setting aside or reducing child support payments, your client should look to lawyers to negotiate clauses in their Binding Child Support Agreement to detail how the agreement will change for a temporary period of time if someone loses a job or their income drops below a certain level. An option can be a clause where the agreement will terminate or be suspended if this was to occur. In either case, both parties will need to agree to any clauses that have been made but it will provide more certainty in today’s world.
What to do if COVID-19 has impacted child support
If you’re a financial planner or accountant and you’re likely to be one of the most informed people when it comes to understanding the impact COVID-19 has had on your client’s finances.
If your client has had the pandemic impact their ability to pay or receive child support, then they should look to get legal advice. If you have a client paying child support as assessed by the Department and they have had a major drop in income, they need to make sure they contact the Department to let them know.
If the person is paying child support through a private agreement with their former spouse, then they should be contacting their former spouse and give them as much detail as possible. This will help to justify why your client has to change what you are doing. Depending on the nature of the relationship this exchange may best be done through family lawyers or through you as their accountant or financial planner.
If your client is paying child support pursuant to a Binding Child Support Agreement, they should obtain legal advice as to their options.
It’s important to remember that every case is different, and the Court is going to approach each case differently. In the past, we would be advising clients that there is a very limited prospect of trying to set aside a Child Support Agreement, but the recent case has shown that these unprecedented times will be taken into account. For your client to be successful in setting aside an agreement they would need to be significantly impacted financially as a result of COVID-19.
Given the uncertainty for many in business, presenting these insights to your clients who have children and are facing separation and divorce will be helpful.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Olivia Phillips, Associate, Phillips Family Law
 
The post COVID-19 and changes to child support agreements appeared first on Phillips Family Law.

When you file for divorce, there is a fair chance that you just want to get over with it as quickly as you can and get on with your life. There are cases where divorce settlements are resolved in a matter of a few months, while some families take a year or two to settle their family law disputes.
However, there are some instances when a divorce settlement can stall. In this article, we will explore some of the main reasons why a divorce settlement stalls, the role that family lawyers play in divorce settlements, and how to get the settlement process back on track.
Why divorce settlements stall
We do a fair bit of ‘second opinion’ work. When people come to me for second opinions, these concerns are usually in two categories. The first is that the divorce settlement is taking too long, and the second is usually that they have been in mediation and they are disappointed with the performance of their lawyer during that process. 
There are a significant number of people who come to us for a second opinion. They are disappointed because either they haven’t been given realistic advice or they haven’t been provided information about how much time parts of the process will take.
There are also some cases when the separated living arrangements do not suit one party. An example of this is when a father moves out of the family home and leaves the mother in the house with the children. The mother might realise that by delaying the process, the longer that she stalls the property settlement, the longer that she will be able to stay in the family home, rather than it being sold sooner. 
Property settlement timeframes
As lawyers, it is our job to help our clients when it comes to timeframes and sorting out a property during a divorce settlement. There is a process called financial disclosure which is essentially a ‘show and tell’ about what assets they have individually, separately and together. As part of that process, we identify what needs to be valued and discuss this with our client. This process takes, at a minimum, a number of weeks and the exact time frame depends on the complexity of the financial circumstances of the parties. For example, where there are trading businesses or companies and Trusts involved, the process is usually far more involved. 
We as family lawyers need to communicate to our clients what we are required to do in our role and how long it may take, conditional upon the other parties response time. For example, if we brought a proposed agreement to your former spouse and they write back to us, we should be in a position where we have an understanding of the asset pool and what needs to be gathered. Going into a mediation, we wait for the other party to respond to the initial questions and exchange information. What happens often is that this process can become like a game of tennis wherein the lawyer prepares the response and sends responses to the other party for months, but the settlement has not really progressed. That is where people complain that the settlement is not proceeding. If your lawyer makes you aware that this can occur as part of the settlement process, then you will be more prepared when it does take some time. Often other approaches, such as proposing mediation or occasionally, filing an application in Court for the sole purpose of eliciting a response so that the negotiations can progress, are tools which can be helpful to assist to break this cycle.
What can be done to get the settlement on track?
What we often see is that the other party will have a lawyer who is strategically seeking additional financial disclosure such as requesting bank statements from years ago and they are doing everything they can to delay committing to a mediation date.
This is where filing an application for settlement with the Court can be helpful. Clients can become sensibly scared to get involved with the Court because of the costs and the lack of control over their case. But we can take this step to keep the settlement moving forward, provided the client is happy to do that. We understand that people are reluctant to take this step, because they fear that going to Court will be like stepping onto a runaway train, and that they will be heading towards a Judge who will tell them what will happen across all elements of their divorce. 
In reality, the Court and a Judge does not want to hear from you until you have been through the entire mediation process so taking this step is not an indication that you will end up in Court and a Judge deciding anything for you. The Family Court system is focused on people finding solutions through mediation before time is allocated for Judges to make final decisions. By filing an application for settlement the ‘stalling time frame’ can be lessened because the Judge will provide a timeline for you and your former partner to complete your disclosure and evaluations, and they set a date that your mediation must be completed by. When it comes to property matters, mediation is compulsory, and it is very difficult to get a Court to waive the requirement for mediation.
Next steps to get your property settlement back on track
To avoid concerns about your property settlement stalling, communicate with your lawyer early on about time frames. Good communication both ways is key so you have clear expectations. You may know that your lawyer has written to the other party about a matter and believe that it will have been sorted out however, it might take a couple of months to identify the pool and schedule a date for mediation. Good mediators are often booked a couple of months ahead so if you aren’t in their queue for a mediation, the delay is not unreasonable.
When we talk with the clients and provide them with second opinions, we analyse the other party’s requests and determine if they are reasonable requests or if they are an attempt to avoid the settlement progressing. Sometimes it may require us to look for solutions.
Where we tend to find that we take on a client who has come to us for a second opinion, it is where their lawyer is more of a generalist lawyer who offers family law but does not specialise in family law or have the depth of knowledge and experience in this area of law or their has been a communication breakdown between the lawyer and the client. For this reason we recommend you seek specialist family law advice to minimise the likelihood of a protracted settlement. 
Related: Mediation – working together to find a solution after divorce
Finalising your property settlement – avoid buyer’s remorse
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Has your divorce settlement stalled? How to get it back on track appeared first on Phillips Family Law.

Often there is a misconception by financial advisors and accountants that in a divorce, a Trust is going to be treated differently, or excluded from the asset pool in their client’s property settlement.  If you have this misconception it may be because trusts are typically set up to protect assets or as part of a tax effective strategy of dealing with assets. However, in Family Law, the key is to understand who controls the Trust. If the Trust is controlled by the people in the relationship or marriage, then it does form part of their property pool. 
This article explains both the financial disclosure process, which assists to identify the pool of assets, liabilities and superannuation to be divided when couples separate and when completing that process, how Trusts are treated. 
The Financial Disclosure process
The disclosure process is one element of the financial settlement process that can begin immediately upon separation. It requires complete transparency by an exchange of documents about income, liabilities, assets, contributions made during the relationship and the future factors that impact both parties. Each person is required to produce documentation that verifies the nature and extent of the asset pool and the nature and extent of the contributions made during the relationship. This obligation includes the time during which they have been separated up until a settlement occurs.   
Related: What is financial disclosure in divorce and how can I manage it?
Are trusts considered assets available for division?
Where people have a family Trust, which may have been set up as an investment vehicle or to operate a business, that Trust will be relevant in the property settlement component of the divorce process. This is because, in that circumstance, the Trust is likely to be controlled by one or both parties. The greater control someone has over the trust, the more likely it will be considered an asset and therefore considered in the property pool for distribution. 
However there are different ways that trusts can be treated depending on the circumstances and who has control of it. If it is not considered an asset, it might be looked upon as what is called a financial resource.  
How else can Trusts be treated? 
For example, wealthy parents who have a Discretionary Family Trust, might have their children (ie. a husband or wife, who then separate) as a beneficiary of that Trust. From time to time, the parents might think to distribute the money by way of a gift. This is a very different scenario to a trust that the husband and wife set up themselves and hold assets in its entirety under their control.  
Where the decision making relating to the Trust is not controlled by them, but rather, is entirely at the discretion of somebody else to decide whether distributions are made from it or what occurs with its assets, it is more likely to be taken into account as a financial resource in a family law context, if it is taken into account at all. However there is a  very clear and regular pattern of distributions being received by the parties, then it is more likely to be given weight as a financial resource rather than not at all even if it is not controlled by the Husband or the Wife.  
When there are large amounts of money involved, people will have arguments around how the Trust may be treated. This typically occurs where one party is an adult child of a wealthy family and the parties that are divorcing do not have many assets that they own or control themselves. If there has been significant financial support provided by the Trust or a regular pattern of distributions to them (rather than more infrequent in nature) their former partner will often try to argue that the assets of the family trust is included in the pool. 
Arguments may also arise in the case of a family business where the parents have a senior management role, or still have control of the business. There can sometimes be arguments about whether the parents are actually in control or whether in fact, control has been handed over to the son or daughter who is running things. If evidence is available that it is the husband or the wife actually in control, then the Trust may be more likely to be considered an asset than a financial resource. The impact of this is that it is included in the asset pool available for distribution.
However it is important to keep in mind that each scenario will depend on its own facts and such arguments are often complex.
What are the key takeaways? 
In Family Law, the Trust and its assets, where controlled by the parties, will form part of the property pool and the Court would consider it as part of the financial settlement. 
Ultimately, in the case of Trusts controlled by people other than the parties, if a party to the marriage does not want to be at risk of having a trust included in an asset pool at any point in the future, then they have to ensure that they are not receiving trust income or property during the marriage. The Trust will only be protected in Family Law if there is a wide group of beneficiaries that include not just spouses and children but also other companies, trust entities, or charities. If there is a history of distribution to these parties, the trust will most likely be outside of a property settlement claim.
If you are an accountant or advisor working with a family lawyer for the property settlement of your mutual client, it is vital to consider these factors when presenting information to us as family lawyers as part of the financial disclosure process.
Related: Accountants: How The Family Court Treats Discretionary Trusts
Trusts – Financial resource or property for division?
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Accountants and Financial Advisors: How are Trusts treated in a divorce? appeared first on Phillips Family Law.

In this day and age, even since the advent of COVID-19, it is much easier for people to reside outside of their country of origin. However, the ease of moving internationally poses a challenge for people who are separated or divorced from their former spouse and have children that they need to financially support. This support is commonly referred to as child support.
If you are in this situation, receiving or paying for child support is a complicated area due to varying arrangements and policies of different countries. However, you should know that there are laws in Australia that will help you get child support if you are the ‘receiving parent’ and if you are the ‘paying parent’, Services Australia (formerly known as the Child Support Agency) can help with the delivery of child support payments. This article will help you understand how child support works and what laws and policies are in place regarding child support if one parent lives outside of Australia. 
How child support works
There are four ways to determine who pays child support. The first is when parents apply for child support to Services Australia. Services Australia uses a formula and undertakes an assessment that takes into consideration matters such as the income of the parents, the ages of the children and the amount of time that the children will be in each parent’s care.
The second way to determine child support is for the parents to negotiate the child support amount themselves and put a Binding or Limited Child Support Agreement in place. This way, the parents can decide what kind of child support will be paid to one party and how it will be paid. 
The third way is to apply to the Court for either child support departure orders or child maintenance orders. Child support departure orders can only be made if special circumstances exist and child maintenance orders can only be made if the parents are not eligible to apply for a child support assessment to issue. As to the latter, this might occur if neither parent lives in Australia.
Alternatively, parents may already have child support arrangements in place from an overseas country. There are steps which parents may be able to take to have the overseas arrangement registered, enforced and varied in Australia, which will depend on which country the arrangement was made and the family’s particular circumstances.    
If a parent lives overseas
If one parent and the child/ren live in Australia and the other parent lives outside of Australia, you can contact Services Australia to apply for a child support assessment or if there is child support owing, register a maintenance liability. Then the Services Australia can set about organising the collection and transfer of the child support now and into the future, as long as the person is living in a reciprocating jurisdiction. That is, countries that the Australian Government has arrangements with, relating to child support.  
For people who are living outside of Australia, there are a number of ways that they can apply for a child support assessment. 

If you are the parent receiving the child support payments and you are outside of Australia, you can apply to Services Australia to get child support from the other parent who is living in Australia. Through this application, you can get the maintenance authority in your country to get an Australian child support assessment and to register and collect a maintenance liability made outside of Australia.
If you are a non-parent carer of the child and you live in a reciprocating jurisdiction, you can apply for child support if at least one of the parents lives in Australia.
If you are the paying parent, you can apply to pay child support in three ways: by using the International application for child support assessment form, by calling Services Australia’s international phone number or through the maintenance authority of the country where you live.
If you do not live in a reciprocating jurisdiction, you can apply directly to Services Australia only if the other parent is a resident of Australia and the child is an Australian citizen, lives in Australia on the day that you apply for the assessment and normally resides there.

When Services Australia issue a child support assessment, there are two ways you can be paid. First, you can enter a private collection agreement with the other parent which means that you will handle the payment of child support between yourselves and Services Australia will not be involved in the collection of any of the payments.
Alternatively, you can ask Services Australia to handle the collection of the payments on your behalf. If the paying parent agrees, the Agency can make arrangements for both parties to make regular payments through them. To make or receive payments outside of Australia, then ideally, the paying and receiving parent should be in reciprocating jurisdictions.
As set out above, if parents are not eligible to apply for a child support assessment or they have reached agreement between themselves regarding the level of child support to be paid, they should seek legal advice from an experienced family law practitioner about what options might be available to them to address the financial assistance for their children. 
What happens if the parent living overseas does not pay child support?
If a parent does not agree with the child support assessment or does not want to make any payments, Services Australia has some arrangements in place with reciprocating jurisdictions where they can ask that country to collect the child support payment on behalf of Services Australia.
Services Australia can recover any child support debt by taking money from the paying parent’s tax returns or making salary deductions. The problem with collecting child support payments from paying parents who are living outside Australia is that the reciprocating jurisdiction of the country where they live might not have the same ability to collect payments as compared to Services Australia.
If the paying parent has a child support debt and visits the child in Australia, Services Australia has the power to make a departure prohibition order that will prevent them from leaving Australia until their debt is paid.
There may also be options available to parties to apply through the Court if a parent is not paying any child support and these options will depend on the particular circumstances of the case. 
How family lawyers can assist with international child support issues
Successful outcomes for determining child support starts with professional advice. International child support issues can be complicated and having the expertise of a family lawyer who has experience in handling international family law issues is essential in overcoming the difficult situation in the most effective manner.
Related: ‘I just want what is fair!’ Parenting arrangements and the law. 
I pay child support so why can’t I see my kids?
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Stephanie Wilkinson, Associate, Phillips Family Law
The post Living overseas with children in Australia – what financial support do I need to provide? appeared first on Phillips Family Law.

One of the good things about being a family lawyer is the diversity in matters that I deal with to help clients through what can be a difficult time in their lives. While no two days are the same, there are a few little routines I have developed over the past eight years as a family lawyer and today I am sharing with you what a typical day might look like for me. 
Setting up the day for success
I tend to arrive at the office around 8 am each morning.  Sometimes I’ll go to the gym or for a run or walk before work (but probably not as often as I should).
I’m only in Court maybe a few times every couple of months, so most of my time is spent in the office assisting to progress matters and negotiate settlements out of Court. 
When I start my day I try and set my priorities by determining which work is the highest priority. This might be for example because there is a Court ordered deadline. Over time you tend to develop a sense of what needs to be done when. As a lawyer, time management is a big part of my job because there are often things that have competing priorities so it’s important that I use my time wisely.
In my job, I deal with a mix of parenting and property matters. In many matters, both of these are an issue. With property there is a bit of a process to follow which often leads to a resolution fairly quickly, whereas parenting matters don’t follow a set process as such and you’re dealing with more human factors like the personalities of parties and changing needs of children.
A wealth of knowledge within the firm
As Phillips Family Law is a specialist family law firm, working here carries some advantages. It’s great to have my colleagues to call on for advice and help or to just get their take on a case if I think it would be beneficial. Lawyers who don’t specialise in family law don’t always have a good understanding of the aspects that are unique to family law matters. As I work with other family lawyers, they understand what they’re talking about and recognise the complexity of it too.
Focused on delivering fair outcomes
When clients come to me they are often quite emotional and might have been facing challenges for some time. I get a lot of satisfaction with helping people to get a good resolution so they can feel like they can get out of the sense of limbo they are in and move on with their lives.
One particular example comes to mind in relation to a parenting matter for a father. The mother was self-acting and quite difficult to communicate with. My client had lots of hurdles to get over to be able to spend time with his kids. His ex-partner had moved the children to a different state and quite a bit of time had passed before he sought legal advice. I had to manage his expectations and be realistic with him about the outcomes I was going to be likely to be able to achieve for him. In the end, parenting orders were made where the children would travel up to spend time with him and he would go down there and spend time with them in their new home state during school holidays and at other times. I’m sure that if he had not obtained legal assistance, he would not have a meaningful relationship with his kids. He was patient, persistent, took advice and stuck to the process and he got there in the end.
Professional development
I often go to events to continue my professional develop and network with professionals in related fields. The Family Law Practitioners Association of Queensland and other experts we work with such as accountants often host such events. Before the pandemic there was usually an event on every week or every couple of weeks, however now these are being held online.
Outside of work
I like to watch movies and TV shows and there is always lots of discussion within the firm about movies and TV shows that people are watching. I also enjoy reading books and listening to podcasts when I can. My colleague Olivia Phillips recommended the podcast ‘The Drop Out’ to me, which is about Elizabeth Holmes (the founder and CEO of blood-testing company Theranos who is now facing fraud charges). This was a good listen. Other podcasts I like are:

Revisionist History;
The High Low;
How to Fail with Elizabeth Day; and
The Adam Buxton Podcast.

Revisionist History, which is written and hosted by Malcolm Gladwell, is always well-researched and presented. One I recall was on the admission test for law schools in America which are called the LSATs. The basic premise was that these exams favour “hare -like” people who can work extremely quickly as opposed to tortoises. He interviewed a number of lawyers who were really high achievers and were self-confessed tortoises, so he was basically positing that the profession benefits from having both tortoises and hares. 
How I came to join the Phillips Family Law team
I didn’t necessarily always want to be a lawyer but I was interested in english and social sciences and humanities and my dad is a lawyer and I also have two sisters who are lawyers.
Growing up I was interested in social sciences and humanities like history. I liked reading and writing so I think that contributed a lot to me deciding to pursue a career in law. The first job I worked in as a graduate solicitor was in a family law role and I liked the human aspect of it and feeling a sense of contribution in helping someone through what can be a very challenging time in their life. I know that going through a separation or divorce is one of the most stressful things that people can go through.
I have had quite a bit of client contact since I started in the profession. This has helped contribute to the sense of satisfaction of finalising a separation for people, because most clients are happy and relieved once things are finished and they can move on to the next chapter of their life.
At Phillips Family Law it’s great to be surrounded by people who you can bounce ideas off and who understand the unique challenges that come along with family law cases. What’s most important to me is doing meaningful work with colleagues I enjoy working with and clients who are appreciative of the great effort and care we put into their matters.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Charlotte Paterson, Lawyer, Phillips Family Law
The post My day as a family lawyer – Charlotte Paterson appeared first on Phillips Family Law.

There is no doubt that going through a separation or divorce can be an incredibly stressful experience. It is particularly hard for those parents who are not able to spend as much time as they would like with their children. The type of comment that we often hear from parents who are involved in a difficult parenting matter is “I want what is fair”.
As family lawyers, you are coming to us for legal advice and unfortunately the way parenting arrangements are determined according to the law does not always align with what a parent considers “fair”.
What we have to explain to parents in that position is that parenting arrangements are not about what is “fair” for parents, it is all about determining what is in the best interests of the children.
What the law says about parenting arrangements
The Family Law Act provides that the paramount consideration when determining parenting arrangements is the best interests of the child.
In determining what is in a child’s best interests, the law provides that two primary factors must be considered:

Firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents; and
 
Second, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Source: Family Law Act (search for Section 60CC)

There are a number of “additional considerations” that the Court has regard to in determining the best interests of a child and they are set out in s 60CC of the Act. This includes things like:

any views expressed by the child (and this will be considered in the context of the child’s age, maturity and level of understanding);
the nature of the child’s relationships with each of the parents and other persons, including grandparents, half siblings etc;
the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues and spend time and communicate with the child;
the capacity of the parents to provide for the needs of the child (including emotional and intellectual needs);
the maturity, sex, lifestyle and background (including culture and traditions) of the child and either of the child’s parents;
any other facts or circumstance that the Court considers relevant.

The Family Law Act does not reference parents’ having “rights” when it comes to their children. It talks about the parents’ having “responsibilities” to their children, so as lawyers we help shift a person’s mindset from what they consider is “fair” between the parents and focus on the needs of their children and their responsibilities as parents.
It is an extremely discretionary area of the law as every family is unique and no one family’s circumstances are the same. For example, children with special needs or mental health challenges may not cope with continually moving between households. It may be that these children need more stability and routine than others. It is extremely important that you step back and really consider how the parenting arrangements that you propose will impact your individual child or children, rather than thinking about what might be most convenient for you or the other parent. 
Going through a process of having parenting issues determined can be extremely difficult because what one parent genuinely considers to be in the best interests of their child can oftentimes be at odds with the other parent’s perception. Each parent comes to the table with their different views, perspectives and motivations. Our role is to listen to your situation and your views and provide advice and reality testing about how the parenting arrangements are likely to be determined according to the law. 
It is important to remember this if you are discussing your parenting matters with people who are not experienced in family law. What may have been considered to be in the best interests of the children in one family, may not be the case in yours and there may be various reasons for this. While our family and friends are important support networks during these difficult times, it is important to speak with a lawyer who understands the nuances of the family law system and has experience in the way the discretion is exercised.  A specialist lawyer can work with you to come up with realistic expectations for resolving your parenting matter. It is important to get this advice as early as possible because the decisions you make and the approach you take at the outset of your matter, sets the tone for how your matter will resolve.
Determining parenting arrangements
There are essentially three options for parents when it comes to formalising parenting arrangements:

Parenting Plan: this is a written agreement signed by both parties setting out what the parenting arrangements will be moving forward. The limitation with this however, is that it is not strictly enforceable if a parent does not comply;
  
Court Order by consent: this is an Order that both parties agree for the Court to make. If one parent does not comply with the Order, it can be enforced through the Court;
 
Court Order: this is where a Judge or Registrar decides what the parenting arrangements should be after consideration of all of the evidence presented by the parents. It can be enforced if a parent breaches the Order.

Some parents may end up agreeing to parenting arrangements which they are not completely satisfied with. This may be for various reasons. Sometimes it is because the costs or emotional burden of continuing the matter are too high. For others, they consider it more important to put an end to the conflict for the sake of their children and want to move on with their life and make compromises to get an agreement both can live with. 
The risk if parents cannot agree, and they require a Court to determine the arrangements is that they are handing the decision making to a Judge to make the call about what is best for their children. They are giving up control and asking a Judge, who has never met their children and does not know their family, to decide what is in their children’s best interests.
It is important to listen to the advice you receive from your family lawyer as they are best placed to advise you about how the Court is likely to decide your case if the matter came before a Judge. If you do not take that advice on board, and are unable to reach an agreement with the other parent, you may end up in Court only to get a decision that you (and potentially the other parent) are both not happy with.
The way the Courts are currently operating, it can take up to two years before your matter can be determined by a Judge on a final basis. This can be a very costly, time consuming and emotionally draining experience and something that should be avoided if possible.
How to cope when things aren’t going your way
It is really important to have perspective when you are navigating your way through a parenting matter. You are often making these decisions at the height of one of the most challenging times of your life and emotions are running high.
The reality for some parents is that there may come a day where you are unhappy and dissatisfied with the parenting arrangements that are in place, whether they be on an interim or final basis and whether you agreed to them or not.
In these times, it is important to take a step back and consider the bigger picture.
Firstly, these parenting arrangements will not be in place forever. Before you know it, your children will be teenagers and no matter what anyone says, they will largely dictate their parenting arrangements and who they choose to spend their time with. It is for this reason that Courts are reluctant to make parenting Orders for older children who are closer to 15 or 16 years of age. The relationship that you will have with your children when they are adults, is far longer than the relationship you will have with them as children. 
The point is that in these extremely stressful and trying times it is important to have this perspective. Never underestimate the effect that parenting conflict has on a child. Some people do not always appreciate that while they may not directly be discussing parenting matters with their child, that children are impressionable and are taking everything in. They pick up on all of the stress in their home in addition to the behaviours and attitudes of their parents to one another and other members of their families. All of this stress and pressure impacts the child not only in their daily life (for example, their ability to concentrate at school) but it is also the example that they see of adult relationships and will affect the way they form their own relationships in the future.  
The best thing that you can do as a parent in this situation is to protect your children from conflict. You may not get short term rewards for being the bigger person when tensions are running high, and it is most certainly something that is easier said than done, but you owe it to your children to step up and give them the best chance at a happy and carefree childhood. 
There will come a time when your children will look back on their parents’ separation and the impact it had on their lives. If you directly involve your children in conflict or make decisions that increase the conflict with the other parent making life hard, your children are likely to remember this in their adult life and it may affect your (or your former partner’s) future relationship with them. 
If you are someone who ends up having less time with your children than you’d hoped, my advice is not to focus on the time you wish you could have had. Instead make your focus be the time you do have with your children and the quality of the relationship. This will set you up to have strong and happy relationships with your children (and hopefully grandchildren) in their adult lives.
Take advantage of the time the children are not in your care to do things to better yourself and get on top of life. For example, you might start exercising more, reconnecting with old friends or family, take up new hobbies, or get on top of your to do list. After all, you’ve been dealing with a lot of stress and pressure in your life and need to look after yourself. Then, when the time comes to spend time with your children, you will be in a better headspace and you will be able to just focus on your children and spend quality time with them.
Your relationship with your children will benefit from you:

not getting bogged down in the stress of conflict; 
being the best version of yourself as a parent; and 
spending quality time with your children when they are in your care.

Always look to the bigger picture
Before going down the complicated path of parenting disputes, ask these questions of yourself: 
What is worth fighting over?
How will this impact my relationship with my children in the long term?
It might be hard to imagine the bigger picture of how life is going to be for you and your children, especially if you have just separated. But consider the ultimate goals you have for your relationships and for your family. When you imagine your children’s milestones and special occasions in the future, what do you want those days to look like?
Related: Don’t press send! How to communicate when going through separation and divorce
I pay child support so why can’t I see my kids? How child support works.
Can you avoid Court when separating?
Thinking of relocating with children after separation? Things to know before you start packing
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Anna Hede, Lawyer, Phillips Family Law
The post ‘I just want what is fair!’ Parenting arrangements and the law. appeared first on Phillips Family Law.

When a couple chooses to divorce it can be an emotional and complicated time. Add in business ownership and it can make the separation incredibly trying for the couple. As a family lawyer, where there is a situation of business ownership and a separation, it is important for me to get a good understanding from the start of how the business runs and that includes working with their accountant.
There are a couple of different circumstances that are common when it comes to business ownership. Firstly, there is often a situation where the husband and wife are in business together, be that a company or a partnership and they are the only people that own the business. Then there is the situation where the husband and wife are involved in a business with third parties. These third parties may include their extended family members, their children or independent third parties.  
In these differing ownership structures, we often find that most financial separations have what I call a disadvantaged party and an advantaged party.
What is a disadvantaged party?
It’s not uncommon, particularly with older couples, that their marriage has worked along traditional lines. That is, the husband runs the business and the wife has been at home in a parenting role. So while the two of them might be the owners of the business (or the two of them are participants in a business with third parties), the wife has had little to do with the day to day running of the business. So one is mostly unaware as to how the business works, as well as its financing and profitability.  
When I am acting for someone in these circumstances, the disadvantaged position, there can often be a reluctance for the husband to hand over business information. Additionally, the couple’s business accountant and banking relationship might lie predominantly with the husband too, which can mean getting a good handle on the financial situation can take time. 
Understanding the business’ financial position
When a business is involved as part of a separation I work with the client, and often their accountant, to understand how they got to their current business financial position. As well I want to know the level of debt is, how that is being serviced, when finance is due to be rolled over, and what guarantees are in place. These guarantees are particularly relevant for older loans as the disadvantaged party may have been asked to sign the document without having a good understanding of what it entailed. 
During a separation, and without legal support, it can be difficult to keep the lines of communication open about the family business. For example, the disadvantaged party will want to be regularly informed about the financial health of the business including sales figures, profit and loss and bank balances. If this is something that has always been in the domain of one partner, then tensions can arise. 
Added complexity with third parties
The above issues can all exist within the confines of a ‘husband and wife business’. However, there is an added degree of complexity when they are in business with third parties. At no time can we assume that every stakeholder will be comfortable with every step in the process. Say, for example, you wanted to look to liquidate some assets, that is not just their decision as they need to get the agreement of the third parties too.  
There are also added complexities as to how owners of the business are paid. Let’s say you have a partnership and the husband gets paid a wage and tax is then paid on this wage, that is quite a clean way of doing it. But it is often the case where people simply draw money out of the business, so then there is an expectation that has been debited against each party’s partnership account.
Which again is all well and good when it’s just a husband and wife partnership, but if the partnership involves third parties who are not husband and wife then all of the current accounts are relevant in working out what the value of the marital interest in the partnership is.  
Understanding how money is taken out of the company
For example, if people own a business together as a company, there are only three ways they can get money out of the company:

They can be paid a wage by the company on which they pay tax
They can take money out via a loan account which also has tax consequences
They can take money out as a dividend and if franked still involves further tax.

Depending on what approach has been taken, when I see people in a separation situation, sometimes I will have to make them aware that they have a substantial loan account with this company and they are not aware of how it works. They are not across the fact that everything that has been drawn out of the company over the last few years gets debited against a loan account. 
In a post-separation environment, accountants are very cautious about debiting things equally. When there is no separation, they debit things in a method that sensibly is entirely motivated by minimising overall tax for the group. So they can end up with some balances that might make sense from a tax standpoint but end up disadvantaging one party in the couple.
Information gathering is key 
The core focus when it comes to separation and business ownership is that very early on in the process, especially when acting for the disadvantaged party, a family lawyer will have to go on an information-gathering exercise with the client’s accountants and banks. The purpose of that exercise is so we can fully understand the nature of what the business is, the extent of the husband and wife’s interests in the business and get an understanding about what the options are in terms of how it’s value can be accessed.
 Related: How do you work out what the family business is worth?
When acting for the advantaged party, we have a duty to assist the other party in getting an understanding of how it all works and providing disclosure on a regular basis. Often this is something that the person who predominantly works in the business is not used to.  
The role of accountants
In circumstances where there might be a reluctance to share information, litigation often results. As a family lawyer who has dealt with these cases before, I sometimes need to get a shadow accountant involved, as it is not a lawyer’s role to review business finances. A shadow accountant will act as a scrutiniser, so to speak. Reviewing the monthly figures and ensuring the business seems to be trading properly and is consistent with normal figures. 
The value of the right team 
This just goes to show that when you are separating and business is involved, having the expertise of the right team to do the information-gathering is essential. Especially if you are the disadvantaged party. You want to ensure you have advice as to how best to protect yourself from any implications from the business operations.
My role as a lawyer isn’t to find the tax and accounting solutions, but it is to spot potential problems.  A good family lawyer has the capacity to know there could be a problem and refer it to the accountant for advice.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you or your clients are in the decision making process, we can make you aware of the options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Business ownership and divorce – your clients need the right team appeared first on Phillips Family Law.

What is a family report?
When you are separating from your partner, and if you have children together, you may hear about something called a family report. In this article we share with you what a family report is, as well as when it is required and how the process works. 
A family report is a document written by a family consultant. They meet in person with all parties involved, parents and children, and sometimes other carers to ask questions about the children and their everyday lives. These family consultants are independent and are qualified to give their recommendations because they are either a psychologist or a social worker and have a great deal of experience with families going through separation.  
A family report is written to help parties come to an agreement about what kind of parenting arrangements may be in the best interests of the children. The Court can also order parents to get a family report to help the Court come to an interim or final decision about care arrangements.
Who is involved in a Family Report?
In most cases it would just be the report writer (family consultant), the parents or primary carers, and the children of the separating couple. However, children are really only interviewed if they are old enough and if it is appropriate based on the particular child’s circumstances. 
The family consultant writing the report will interview the participants, and then observe the child/ren with the parents, and other people who are significantly involved in caring for the children such as grandparents, aunties, uncles and/or close family friends. Generally, they would only be included in the report if they are someone the children will be spending a considerable amount of time with and on a frequent basis.
When is a Family Report required?
In some instances, both parents agree to seek a family report following their separation. This is often very helpful and can assist parents to reach an agreement as to care arrangements for their child/ren, without having to litigate. 
If the separating parents want different outcomes, and court proceedings are initiated, the Judge will most likely require a family report, to provide expert recommendations regarding what is in the child/ren’s best interests. This is because the Judge will want an independent qualified person to give recommendations about what should happen regarding the children’s care arrangements. The Judge can then take those recommendations into consideration when determining what arrangements may be in the child’s best interests. The Judge can either order a Family Report on their own volition, or a party can ask the Judge to make the order for a family report.  
What is in a family report?
The report is a detailed and lengthy document. In the report the family consultant details the history of the parenting matter and the parents’’ competing proposals. It will include any issues that have arisen, for example, safety issues, allegations of risk of harm, as well as what care arrangements may be in the child’s best interests, which can include with whom the child should reside. 
To complete the report, the family consultant will arrange an agreed date where everyone attends an interview with the report writer. This will involve the mother, father and any important people in the child or children’s life such as grandparents.
Usually, all participants will attend on the same day, but sometimes that is not possible, and so the interviews may be spread out over a few days. If there is a legitimate reason parents cannot see or be around each other on the day, the writer will make sure they come in at times where they will not have to bump into each other.
Generally though, the family consultant will want to observe the way parents interact with each other on the changeover. For example, the mother and child might have just finished their interviewing session together, they will then come out, or the father might come into the room, and the mother will hand over the child to the father. The report writer observes this and will write down their observations of the interaction between the two parents. This is important where there are allegations, for example, that the parents’ relationship is hostile and they are unable to coparent. 
The family consultant will also conduct observation sessions between the child/ren and each of the relevant adults. This is needed for the family consultant to form a comprehensive understanding of the dynamics of the child’s care relationships.
Sometimes parents may have a joint interview, but that is not always the case as it is very dependent on the approach of the individual report writer. Some will seek to interview parents together to see if they can get some common ground between them. Others prefer to interview separately. If there is a domestic violence order, a combined interview will not be possible. 
How to be prepared for your family report
The family consultant will ask you or your lawyer for your history. This will include an overview of what is going on regarding the separation and what the issues are. If Court proceedings have been commenced, the family consultant will request copies of the parents’ court material, and copies of any subpoenaed material. 
Both parties can either agree to provide one letter to the family consultant, explaining what the matter is about. However, if an agreement cannot be reached on what has happened in the relationship, then you can each send the report writer your own overview. You and your lawyer will want to make sure the other side is copied into any communications so all can see what you have shared with the report writer. 
Bring lunch, snacks and toys for your children because it can be a long day. It is important to keep this in mind, along with your appearance, because the report writer will make a note of all observations. It is important to present well as, if you appear disorganized or dishevelled, this will be noted in the report.  In the days leading up to the interview, we also recommend that you re-read all material submitted so you are familiar with the content, have an understanding of the proposals you have made and so that what you say during the interview is congruent with what you have submitted. 
The day can be long and potentially stressful for some, so being prepared will help.
Children’s involvement in family reports
It is important to not talk to your children about the report interview. If you have care of your children in the lead up to the interview, unless they are asking you about it, be very careful about what you say to them. This is because sometimes parents can get a little swept up in the emotion of the process and either intentionally or unintentionally coach their children into giving a particular response to the report writer. A family consultant will normally be able to pick up on when a child has been coached to give certain responses. 
What the report writer needs to do is see whether or not the children have their own views about what is happening and what they want. The child is not obligated, and they cannot be forced to give their view, but the report writer will give the child/ren the opportunity to express their thoughts if age-appropriate. 
When separating with children and coming to a resolution requires a family report to be completed, it is always a good idea to try to do this privately and agree on the terms together. If this is not possible the Court will most likely order you to get a Family Report, to assist the Court in coming to a decision about your matter. 
Family reports can be of great assistance in resolving parenting disputes, and our team of family lawyers can help assist you through the family report process.
Family reports can be of great assistance in resolving parenting disputes, and our team of family lawyers can help assist you through the family report process. If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
 
Written by Aleena Mills, Associate, Phillips Family Law
The post What is a family report? | When is a family report required? appeared first on Phillips Family Law.

As an accountant, you may find yourself in a situation where one party to a divorce is your client and they run a business in a company, trust or other structure. This will need to be considered as part of the property settlement asset pool so you will likely be contacted by a family lawyer who is seeking to pull this information together.
When there is a degree of structuring in the financial set up of a family this can add complexities. Typically business structures are not really designed around family law. Instead, they focus on asset protection and tax minimisation, which is why you as the couple’s accountant often have the best understanding of what it is that constitutes the asset pool.
Types of asset pools 
It is not uncommon for business owners, or those with a level of significant wealth, to have their accountant set up their business to limit the individuals’ liability. It is also common for trusts to be used to distribute income and minimise tax. These are what would often be considered complex assets when it comes to understanding the asset pool. 
One of the first steps involved in negotiating any property settlement is identifying the property to be divided. As a family lawyer, clients come into a meeting with me and they can have misconceptions about what falls into the pool of property to be divided. A wife might come in and say that her husband’s business is in a company name so that is not something that forms part of the asset pool. Or they might think that because a property is in a family trust, is not theirs either. So I always say to clients the basic rule is that if it is in your name, your ex-partner’s name, joint names, companies, trusts or entities that either of you control, then that is something that needs to be considered in the asset pool.  
When acting for the person or persons who operate the business they typically have a pretty good understanding of how it is structured.  However, if one party has not been involved in the business then you could be in a situation where they might not even know there is a company or trust involved.  
Often during the initial gathering-of-information process, we will seek information from the party’s accountant so we can get an understanding of how they are structured and set up. Then we seek to get financial statements for those entities and look at what things are worth.  
Business types and complexity
Business assets in a family law asset pool are further complicated in that these entities tend to fall into two categories – asset-holding entities and trading businesses – and occasionally there can be a mix of the two.  
With an asset-holding entity, for example, someone with rental shops in a company, the company may only receive rent, pay its mortgages and expenses and has a surplus income. Valuing that entity is relatively simple. A market valuation of the piece of real estate is undertaken and the balance sheet is updated with market values rather than historical or depreciated values. We also look at the tax that might be involved if it were to be sold. 
For a trading business, however, this is where problems and disputes in family law arise, because this is where people argue whether or not there is goodwill in a business. In most cases, it is a situation where lawyers will appoint a single expert accountant to do a valuation of the business and determine if any goodwill can be attributed.
Related: How do you work out what the family business is worth?
This process involves the expert valuing accountant firstly reviewing the relevant financial statements and then having a meeting with the husband and wife’s accountant where they raise any questions they have.  So the role of the separating couple’s accountant is invaluable because they are providing a lot of the source information for the experts to do the evaluation. 
Occasionally there will be cases with less issues where the parties say they do not think they need to get an independent expert in because of the costs involved. In those instances they will sometimes get their accountant who knows their business to do the valuation. This is mainly seen in cases where both parties of the couple have had a relationship with the family accountant. As it can be very subjective  working out goodwill, as an accountant it may be in your best interests to suggest getting somebody independent involved.  
How accountants can help
As an accountant who might be brought into a family law case, you need to think about how you go about representing both parties. Say for example a family lawyer contacts you on behalf of the wife of a business owner to get the financial information about a business. What I suggest you do is provide the information with a written summary and then they copy in the husband and their lawyer. This way everyone is clear about what is being provided and there is less chance of being seen as taking sides. 
Another area where the accountant’s role is crucial is what I call evidence of historical transactions, for example, in a family trust where there are beneficiary loan accounts. It is this kind of information family lawyers would typically seek from accountants to verify what the loans are and what the liabilities and assets are because it might be the case that someone has drawn more out of the trust than they were distributed, in which case they actually owe money to the trust or vice versa.
The other area where accountants play a valuable role for lawyers in family law matters is that on the balance sheet for companies there will sometimes be loan accounts and it is important to understand how money is taken out of the business. 
So when a family law situation arises you will likely be called on to provide financial information to be used in valuing the asset pool. It is up to you whether you want to be the one who values a business, but in our time as family lawyers we have found a lot of accountants are happy to provide the information but have an independent expert do the valuation. This can often help in maintaining a good relationship with both of your clients into the future.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Identifying & valuing the asset pool. How accountants can help. appeared first on Phillips Family Law.

Team Announcement

We are pleased to announce the recent promotion of Charlotte Paterson and Gareth Walters to Associates of the firm.
 
 
 
 
 
 
 

Both Charlotte and Gareth are exceptional members of our team and these appointments are well deserved in recognition of all of  their efforts. Congratulations Charlotte and Gareth.
We also welcome Aleena Mills to the Phillips Family Law team. 

Aleena has recently joined us as an Associate of the firm and brings vast experience within the field. 
Tony Phillips & Fiona Caulley
Managing Director & Director

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For parents who are unable to see their children, or do not have as much access to their children as they would like, and yet pay child support, there is often much confusion as to why this may be the case.This article will explain how child support is determined, why it might change, or why a parent may not see their child as much as they may like.
Care arrangements and child support are often confused as one and the same. Child support and care arrangements are connected although they are two very different concepts. Child support is the financial contribution for raising your children and is usually assessed by the Child Support Agency. It is largely determined by using a formula, based on income, age of the child/ren, and the amount of time your child is in your care. Care arrangements on the other hand are determined by the Family Law Act. When it comes to care arrangements, who the child/ren spend more time with, or are in the care of, is determined based on what is ‘in the child’s best interests’. 
How child support payments work
Initially when determining child support there are two ways this can be calculated, either by the Child Support Agency or by an agreement negotiated between the parents. The first option is for an administrative assessment to be done resulting in a parent’s application to the Agency which uses a strict formula that takes into account the parent’s income, the children’s ages and the respective parent’s level of care for the children. By way of example, where one parent may have more time with their child, if the child is an infant and still being breastfed, the parent who has less care of the child will be the one to pay the other parent child support. 
After this initial assessment, the Agency then has the ability to amend an assessment if the level of care changes between the parties. This means for example, that if at any time one parent is withholding access to a child, that parent may have the ability to approach the Child Support Agency for a reassessment of the other party’s child support obligations. 
The other option is to put in place a Binding or Limited Child Support Agreement which has been negotiated between the parties. The parents decide what kind of child support is going to be paid to whom and how it is going to be paid. These types of agreements should ideally include a degree of flexibility so if the care percentage changes significantly, there is room to move in the Agreement. If the person receiving child support has less than 35% care however, the agreement terminates unless the Agreement itself provides for a period of suspension of the Agreement during that period of change of care.
How are the ‘best interests of a child’ determined?
There are two primary considerations when looking at the best interests of a child. The first is the benefit to the child of having a meaningful relationship with each parent. The second consideration is the need to protect the child from risk of harm.  
Where there is an allegation of risk of harm, the law says the Judge must prioritise the need to protect the child over and above the benefit to the child of having a meaningful relationship with the parents. This might mean that in order to protect a child, but still maintain a relationship with a parent, contact will be allowed but it will be supervised either with an agreed supervisor, or at a supervised contact centre. Where there is an allegation of risk of harm, the Court may make a supervised contact Order on an interim basis until the evidence about the risk of harm is determined by the Court on a final basis. 
The parent who is having access to their child withheld is able to request an urgent Court listing date if they have not seen their child for some time and they believe the absence is damaging the child’s relationship with them. Whether or not they are allocated an urgent date, however, is determined by the Court.  
When access may be impacted by the Court 
One situation of how access can be impacted, for example, may be that there is a father who is not getting much time with his children. He is paying child support in accordance with obligations however there has been an allegation by the mother that there is some risk of harm to the children. 
The Court, irrespective of the fact that he is paying child support and paying it properly, has to look at the risk of harm element in the parenting matter. It is weighed up in terms of the child’s best interests to be spending time with the father and what that time should look like.  
This is not to say child support obligations are inconsequential in Court. When it comes to a parenting matter, the Judge can look at whether or not a parent is paying child support and may draw a negative inference about a parent who is not fulfilling their obligations to maintain the child and how that may reflect their attitude to parenting responsibilities. 
A failure to maintain the child properly can be just one of many factors taken into account when a Judge is determining the best interest for the child. However, it is not something significant enough to be the deciding factor in what determines the case in either parties’ favour.
Generally speaking, recovery orders, where one parent has taken a child away, are given top priority followed by other parenting-related matters. Matters relating to parenting are also are typically prioritised over property matters in the Family and Federal Circuit Courts. 
In cases where alleged sexual abuse may be involved, the Federal Circuit Court is the first point of call for most applications and they can sometimes be transferred to the Family Court. There is a special list in the Family Courts called the Magellan list, and that list prioritises sexual assault matters and it can hear them faster than through the Federal Circuit Court. The goal of the Magellan List is to get results within a few months, which is generally much faster than the average 12 – 18 months you would be looking at for a parenting matter to be resolved in Court under normal circumstances.  
So while there is some connection between child support and parenting care arrangements, they are determined in different ways. Paying child support obligations alone is not enough of a factor for access or visitation to be given, if it is not deemed to be in the best interests of the child.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
 
Written by Aleena Mills, Associate, Phillips Family Law
The post I pay child support so why can’t I see my kids? How child support works. appeared first on Phillips Family Law.

As a family lawyer, I see accountants, financial planners and commercial lawyers as playing key support roles when negotiating an outcome for clients who are separating. Accountants and planners often have long standing relationships with the parties involved, so are well-positioned to be able to give instructions to lawyers about an asset pool. They are also in a good place to reality test the client’s position and provide a realistic expectation about the how the pool can be split.
Understanding the types of negotiation 
When it comes to negotiation in family law matters there are typically  three stages when negotiations occur. These include initial discussions, structured negotiations in the form of mediation and negotiations that occur just prior to the case being dealt with by a court. 
The less formal negotiations between the lawyers from each party are the starting point in most cases. This is often where a lawyer is looking to see what the attitude of the other party is, particularly as to whether they have realistic or unrealistic expectations.
Following this, there are more structured negotiations, often progressing to mediation. In about 80% of the cases I see, the matter is resolved by the mediation stage. Of the remaining 20% that go beyond mediation, less than 1 in 20 actually require a determination by a judge. This is because a large number of cases settle on what we call, ‘the door of the court’. 
Providing certainty around the outcome 
The most significant benefit in negotiating an outcome, aside from the obvious savings in legal fees is the certainty of outcome. As soon as you go into the Court, the judge provides the outcome and it might not be what either party hoped for or expected. 
Since a Judge is only there to determine an outcome, they are limited by a process about the pool and division of the assets. So they will typically not take into account things such as tax planning and structuring – which could be considered when a lawyer works together with a client’s accountant or financial planner to settle outside of the Court. 
For example, if a matter goes to Court, a husband who owns a business might be ordered to pay the wife $1m within a 90 day period. However, when negotiating an outcome, it might be acceptable to say the husband could pay $300,000 within 30 days and then $100,000 each quarter, plus interest, for the next six quarters (with some security). Meaning, in this case, the husband could avoid needing to have a ‘fire sale’ on his business to fulfil the settlement orders. 
Stressing the benefits of certainty of outcome and a tailor made solution is where accountants, commercial lawyers and financial planners can assist their mutual clients. 
How trusted advisors can make all the difference
When two parties have heightened emotions following a breakup, concerns around honesty and integrity in negotiation arise. For example, both parties might consider that the expected outcome of a property division might be in the range of a 60-65% split of the pool to one party, but in their opening offer, they might come asking for 80%. This offer is based on the thinking that their opening offer gives them more leeway to make concessions to move to say, 70%. But in reality, even 70% may never be considered in the range. In this instance, they have started the negotiation from an ambit position which typically leads to positional bargaining. 
Related: Why can’t you give me a precise answer about my property entitlement?
It is ideal that negotiations start off with an understanding of a realistic range of outcomes. This way the person who is in receipt of the offer can properly assess the genuineness of the other party’s offer. 
Honesty and integrity around this can be helped by the approach of the accountants, planners and lawyers who are advising the client. When you are a trusted advisor who has been working with the party for say, 15 years, you have the opportunity of knowing the long history with the client so can be a voice of reason. This may involve ringing the lawyer acting for your client and asking them how you can assist with the lawyer providing realistic advice about the range of outcomes. 
Risk analysis in negotiation 
A good lawyer going into a negotiation, typically a mediation, will provide a client with a risk analysis. The lawyer will advise that they think the range of likely outcomes as a percentage of the total asset pool based on the information that their client says is correct and the pool as the client sees it. The lawyer should also look at providing advice based on the the information that the other side says is correct and the pool as the opposing client sees it. 
As a family lawyer, I find it is important that my client understands what the percentage difference in the outcomes means in dollar terms. Often clients will go to mediation set on a percentage but they really don’t understand what the difference is in finances. The risk analysis gives the client a cost vs benefit insight. 
There are no winners and losers 
When it comes to family law, typically there is no winner and no loser in a negotiated outcome. You are negotiating towards an outcome you can live with, which usually will not be the best outcome or the worst outcome. Rarely would a client walk away saying ‘I have won’. Instead, they walk away with an outcome that is complete and allows them to get on with their life and not having to deal with lawyers for the long term.
In the risk analysis, we talk about the non-financial costs of going further with a matter, which includes the fact that ongoing property litigation will affect all your other relationships. While there are people who thrive on litigation, in 35 years as a lawyer, I have never had a trial conclude where a Judge made the decision and have that client say ‘that was great, let’s do it again’. 
If a client believes that litigation is a good idea because their ex-partner will be put before the Court detailing all the wrongs in the relationship – think again. It is a difficult process and one that if it can be avoided through mediation, then that would be encouraged.  
I am finally going to get my day in court  
Just because you have been allocated a date for a final property hearing that it will be finished on that day. Courts have a system called ‘over-listing’ as they know many matters will resolve often just before entering the Courtroom. A Judge might have three listings on the same day because there is a likelihood some of them will not go ahead. If you have property only trial, it is quite common to turn up and one of the other matters listed is a parenting matter, which is automatically given priority over any property litigation matters. If there were three property matters listed for the one day, all three matters will not be able to be heard on that day so the Judge will adjourn those that cannot be heard on that day, to come back again in six months. 
I had this recently with a case and the parties resolved that day because despite waiting two years in the system, they were faced with a six month adjournment. If they hadn’t resolved that day, they would have been facing additional costs to update the trial material, as well as further barrister fees. It was in their best interests to come to an agreement and a satisfactory conclusion. 
As a family lawyer, I’ve quite often met a client only a few weeks or months prior to providing them advice. When I am sharing information with them and they are not entirely happy with the advice because they thought they could have entitled to a larger share of the pool. However, when they can turn to their accountant who they have trusted for years, who can give them more assurance around the best way to approach the separation of assets, with an understanding of how property settlements tend to play out, they may be more accepting  of our advice. If you as accountants or financial planners can be an informed supporter in the process, then our mutual clients have the best opportunity to resolve their matter most effectively.
Related: Resources for our Professional Network of Accountants, Financial Planners and more
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Tony Phillips, Accredited Family Law Specialist, Director, Phillips Family Law
The post Negotiating a financial agreement: The processes in our toolkit appeared first on Phillips Family Law.

The Christmas break and school holidays can be emotionally and mentally exhausting for any parent, but when you are considering separating or you have recently started the process of separating, it is not uncommon to want to start the new year with fresh beginnings.  As a family lawyer, I’ve found we see an increase in […]

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We regularly write articles to help our clients and professional network so they can better understand concepts and issues surrounding the separation and divorce process.  We know that it is in our interests, and yours, for you to be aware and alert to potential issues that could affect our mutual clients. It is for this […]

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How to communicate when going through a divorce
Ineffective communication can be a significant factor in a couple separating. So it is not too surprising that communicating well with an ex-partner can be difficult when going through a divorce. Add in the current challenges we face with COVID-19, including working from home, schooling kids and the impact of the uncertainty many are currently feeling, tensions may be higher than usual. 
It is important to be mindful of how you are communicating, especially when going through a divorce. To ensure a beneficial dialogue with your former spouse, you need to aim to have responsive communication rather than be reactive. We explore in this article how you can try to improve your communication to ensure the best outcomes for your separation. 
Establish a clear strategy early on
Issues tend to escalate when people react, often by responding quickly without thinking about how their response could be received by the other person. Often when things are said in anger, it can escalate the situation very quickly, and create a vicious cycle. 
Sometimes when people respond straight away, there will be an angry chain of emails or text messages shared with their ex-partner. Most of the time it is about an insignificant issue, but it is easy to get caught up in emotions and feel the need to react. This reaction can be exacerbated if the communication has been received at a time when you are already under pressure or angry.  If you can take the time to put a pause on the communication and give yourself some time to reply then you are more likely to take a responsive approach rather than a reactive one.
You need to start thinking early on, what means of communication and what mode of communication you are most comfortable communicating with the other person. It could be through text messages, emails, calling or even face to face meetings. It is important you consider the limitations of each way of communicating.  Choose the way of communicating that is most appropriate for what it is you are trying to get across.
The timing of when you are going to communicate and how you are going to communicate should also be considered. By proactively providing information or keeping the other person updated, you can start the exchange of dialogue more positively. For example,  if you are wanting to be kept informed and receive information, then providing appropriate information yourself may also encourage the other person to also share. Start the process with your end goal in mind. 
Setting boundaries
Setting boundaries around how you will communicate and how often you respond to the other person is important. Especially if the other person is sending what you would consider an excessive amount of messages. Ask yourself, if it is reasonable for the person to be sending you multiple emails a day? Unless there are urgent matters that need to be addressed, the answer is probably not. Set realistic boundaries in timeframes to respond.
You could receive a number of emails a week, which you might acknowledge and respond to once or twice a week, depending on the issues involved. Do not feel the pressure of a constant cycle of needing to respond to everything immediately. This is an easy trap to fall into given the instant nature of communication today. 
You can say to the other person that you have received their emails and will respond to them by the end of the week. By acknowledging you have received the email and you are progressing it, will hopefully stop them from emailing you asking why you have not replied. It will give you time to think about how you are going to respond. By setting these boundaries it will help to prevent any disputes that could break out. 
Putting yourself in the other person’s shoes and appreciating they may be, rightly or wrongly, overly anxious about it, you know what you need to do to minimise a dispute escalating.
If you have good communication it will help reduce legal costs, keep things moving forward and allow you to conserve emotional energy. This will minimise the impact on the whole family.
Focus on the present 
Try to avoid rehashing the issues of a past hurt or why you have separated in the first place. It is likely there will be a pattern of communication you and your former spouse have adopted over many years. 
If you can, it is best not going down the same path again, although we appreciate it is much easier said than done. If you are conscious of where you have gone wrong in the past and you can focus on the present issues, it will make the process a lot easier. This will require a conscious effort, but awareness is the key to moving forward.
If you get to a point where you feel like you are doing all those things but the other person is continuing to rehash past issues, you then may need to consider limiting communication about those issues. You can only control what you are doing and hope that over time it is going to improve.
If you adjust the way you communicate but feel it will never be reciprocated by the other person,  you just need to convey the essential things to them. Set boundaries and accept that there will be limitations on what you receive back. 
Resist the urge to respond immediately
Responding straight away to messages can often lead to communicating in anger. Once this occurs and you have already pressed “send” it can’t be undone. This will only escalate disputes and most of the time what is being argued about is only a minor issue. It is immediate responses mixed with elevated emotions that lead people to communicate in anger.
Give yourself time to think about how you are going to respond and how your response is going to be proactive. Don’t send a message you wouldn’t want anyone else to read, particularly your lawyer or a Judge. Think it over, because if you would be embarrassed by somebody else reading the messages then it is probably best not send it. It might feel good to write it, but resist the temptation to press send.
If the only purpose of writing it is to make you feel better, then that is not a good enough reason to send. Every action has a reaction and you need to ask yourself if your reaction is going to help you reach your end goal.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
If you require assistance with communication during your separation or divorce our experienced family lawyers are here to help. During the COVID-19 pandemic, we have the contingencies in place to support you and our team to do so. The Phillips Family Law team has processes and procedures in place to allow our team to work remotely to enable us to continue to provide you with a high level of client service. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
 
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Don’t press send! How to communicate when going through separation and divorce appeared first on Phillips Family Law.

Mediation is the process where a mediator, usually an experienced family lawyer, barrister or former Judge, assists people in dispute to negotiate a mutually satisfactory resolution and avoid Court. We know that separating from your partner is an emotional time for many and it is not uncommon to feel anxious about attending mediation with your ex-partner. This is a normal feeling as you have likely never taken part in this type of process before. 
What is important for you to know is that the mediator does not take sides in the dispute or make a decision about which party is right or wrong.  Instead they work with you and the other party, along with your lawyers, to come to an agreeable solution as part of your separation. 
With the current situation of the spread of COVID-19 around the world, you may be wondering how the mediation process will work given social distancing restrictions. We want to ensure that anyone taking part in a mediation process has a full understanding of the processes involved.
Upcoming mediations can operate remotely through technology. It is important to us, to continue to assist you in your mediation process, and we have put systems and technology in place to make this possible.
The Mediation
There is no one fixed mediation process as different mediators use different processes, have different skill sets and adopt varied styles.  Your lawyer will assist you to select and engage the right mediator to assist given the issues involved, the dynamic with the other party (and their advisor) and the complexity of your situation. It is not a case of one mediator fits all. 
Depending on the mediator selected, the mediator may then choose to meet with both parties separately for an ‘intake session’ to discuss any concerns and what each of your desired outcomes might be. In current times, these meetings are being done by telephone or video conferencing.  
The information discussed in these conversations will be used by the mediator to help determine how they will conduct the discussion and negotiation. 
Both parties’ legal representatives may then be asked by the mediator to make opening statements on behalf of their clients. The focus at this time is to work out what the main issues are and narrow them down into what both parties are in agreement about already and what issues there is disagreement about. 
The mediator will usually then ask each party to consider options for settlement. They may also ask one party to make an offer to the other. These offers are typically exchanged until an agreement is reached.  Negotiations can take place either in a joint session or separately, currently using video conferencing or telephone conferencing to accommodate the COVID-19 related restrictions. 
If you choose to do the mediation separately (which is most often the case for separating couples working through family law issues)  the mediator will convey the offers back and forwards between the parties and may make suggestions on the framing of offers. This is an approach that is seen to be most effective in family law because typically each spouse may not feel comfortable, are emotional or may fearful of the other person so do not want to be on the same call as the other party. This allows each spouse to be best placed to make decisions without pressure and with the assistance of their legal advisor. 
In previous times, each party would be in a different room with their lawyer and the mediator would go back and forth. However, with current limitations this process is now able to be replicated via technology during would be separate phone calls or video calls between the parties and the mediator. 
Am I Allowed to Bring a Support Person?
Yes, you are welcome to bring a friend or family member with you to the mediation if you believe it will help you on the day. However this is something best discussed with your lawyer beforehand so that they can While social distancing is still required they would be with you on the telephone or in a video discussion. If you choose to bring someone with you, they must not inflame the dispute or obstruct the prospects of a settlement. Because of this, we recommend that you discuss the name and relationship of the person you wish to bring with you, before the mediation with your lawyer.
What is the Role of the Lawyer?
The mediation process is very different from the Court process as the aim of the day is to reach a mutual consensus. Therefore, your lawyer will act differently to how they would in Court. It is more likely they will calmly discuss the case with other practitioners, rather than advocate in the same way they do in Court. During times of mediation an aggressive approach will more often than not minimise the prospects of settlement rather than increase it, so your lawyer will be there to guide you through the process respectfully and work with the mediator and the other lawyer to positively problem solve. 
What is My Role in the Mediation Process?
It is your role to consider any offers of settlement, with the assistance of your mediator and lawyer so you can make the best informed decisions about whether to reject or accept those offers. You will need to instruct the mediator on whether you wish to accept or reject any offer and if required consider what counter-offer you might like to bring to the table. Your lawyer plays an integral role in managing the negotiation process, taking into account their knowledge of the mediator and other lawyers involved and their experience. 
The mediator will advise you of any offers and counter-offers from the other party, but the final decision is up to you. At no point during the process should you feel any pressure to come to an agreement if you do not feel comfortable with what you have been offered. 
If at any point during the mediation process you begin to feel uncomfortable, you should let the mediator know so they can address the problem and resolve your concerns. You should especially tell them if you are feeling fearful, overly anxious or overwhelmed. In these situations, you are allowed to take a break. Taking breaks can be beneficial to the mediation as it will allow you to clear your head, calm down or refocus.
It is important to remember that the aim of this process is to resolve the issues in dispute. Coming to an agreement often requires both parties to compromise.
Reaching an Agreement
Once an agreement has been reached at the mediation, the terms of the agreement will then be set out in writing and signed. Once the documents have been formalised, usually in the days immediately following the mediation, these will be signed and then lodged with the Court to become an Order.  It is important to keep in mind that the agreement is not final until the Order is made. 
Agreement Not Reached
If at the mediation, both parties do not come to an agreement, your lawyer will discuss the next steps with you. Both parties will then need to work with their lawyers to determine their strategies going forward which may include making further offers, or a determination by the Court. 
As your family lawyer, we are there to prepare you for and support you through the mediation process.  Preparation and obtaining all the necessary information needed for you to make informed decisions and negotiate the issues is key to the success of the mediation. We will work with you prior to the mediation to be prepared for the process and the different variables that may arise so you are well prepared and know what to expect. Despite the challenges currently required around social distancing our lawyers as well as available mediators are using the technology available to conduct the process via video conferencing and telephone. This can give you peace of mind that property settlement negotiations and achieving finality, can still continue during these unprecedented times.
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post What to Expect in a Mediation appeared first on Phillips Family Law.

In the midst of this pandemic and change to life-as-we-knew-it, some of your clients were already going through significant change of their own. They had either recently separated or were part way through their plans to divorce. 
Considering the current economy it is likely that many will think it is wise to hold off on moving forward with their financial settlement. The question in their minds is likely to be….
Could our combined asset pool be worth less right now and potentially recover or could it diminish over the coming months?
People in this situation need to be aware that in Family Law the asset pool is to be looked at the time they finalise a property settlement not as and when a couple separates. That being said, our immediate advice is to not put things on hold without seeking family law advice first. Given the uncertainties and depending on what their specific situation is and what particular assets they may wish to retain as part of a settlement, pausing any proceedings without first obtaining advice may well be detrimental in the long term. 
There are pros and cons to pausing depending on how each person is positioned and what they wish to keep. The very first discussion people in this position should have is with a specialist family lawyer. We work closely with our clients’ accountants and financial planners to determine the most effective strategies given their situation and the current climate. 
An asset pool can be made up of so many components – superannuation, stocks, trusts, property, trading businesses etc., there are many variables. By working together with accountants and financial planners like yourselves, and negotiating with their former spouse or their lawyer, where a lawyer is engaged, we can structure a settlement that is tailored to client needs and the current climate. Right now we are structuring financial settlements for our clients that are taking into account the possible fluctuations in assets that may result in the coming months. We have been able to structure settlements that shares risk between the two people.
Naturally your clients in this position may not wish to sell any assets in the current market. Continuing and finalising a financial settlement does not mean that they need to sell assets immediately.  Conditions and longer time frames for sale can be considered and included in any financial settlement to create a win/win scenario where possible. It is still possible to negotiate and formalise a property settlement but not necessarily crystalise any potential losses immediately – by implementing aspects of their agreement at a later time when it may be mutually advantageous for them to do so.  
What we want to avoid wherever possible for our clients and yours is to have their combined asset pool diminish significantly or to crystalise those losses if it can be avoided. This requires thinking outside the box and positive problem solving by all their advisers, working together to achieve mutually beneficial outcomes. The risks for some affected industries may be long term so we encourage your clients who are in this position to seek specialist advice in family law.
The reality is that as time progresses and depending on the issues affecting any individuals or businesses, for some, the situation may change further or there may be little to divide if a financial settlement is delayed which could have been avoided had one spouse had achieved a ‘clean break’ financially from the other earlier. 
These are highly complex times and seeking advice to be able to make the best informed decisions based on your own circumstances and asset pool, rather than holding off may well be their best pathway to future certainty. As always, when seeking professional advice our family law clients are in control. Seeking initial advice to support their decision making does not mean they need to proceed but with family law advice, they can be confident that their actions will be informed ones, assessing the possible risks for them and result greater certainty for them in the long term. 
For you as professionals with clients who are separated, we encourage you to communicate the importance of not holding off on these conversations assuming that it’s not the right time to consider their options and the pros and cons which arise. Now is the time for them to enlist the help of specialists and together we can provide certainty in times where many things are inherently uncertain. 
Related: Accountants, Financial Planners & Family Lawyers: Working together for the optimal client outcome
Managing a relationship breakdown – what every accountant needs to know about family law
Accountants: How The Family Court Treats Discretionary Trusts
If you found this article interesting, leave a comment or share it with your team, colleagues and clients. 
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.
Written by Fiona Caulley, Accredited Family Law Specialist, Director, Phillips Family Law
The post Separation and divorce in a declining market appeared first on Phillips Family Law.