10 Commandments of Family Law: what not to do

Here is my recent article "10 Commandments of Family Law: what not to do" as published in the October issue of B2B Magazine in Canberra. 

I can’t guarantee that your family law matter will be smooth sailing, but if you follow these 10 Commandments, you will be more likely to achieve the outcome you desire.

1. Thou shalt not take advice from friends

As much as you trust your friends, they are not the ones to rely on for family law advice. You need to get advice from a family law expert and get it early. Once you have the correct information, you will be in a better position to make important decisions about your matter.

2. Thou shalt not go straight to Court

This may sound strange coming from a lawyer, but Court is somewhere I want you to avoid if at all possible. Out of all of the options available to separating couples, Court is frequently the most expensive, time consuming and stressful. The best settlements are the ones that parties reach by agreement. Collaborative Law is one of the options available, and best of all, you control the process. Another option is mediation which is a good alternative if you feel comfortable negotiating directly with your ex and have had legal advice.

3. Thou shalt not be rude to your ex

After a break-up it is very tempting to take out your frustrations on your ex. This is particularly the case if you feel wronged by your ex. Try to keep in mind that your goal in your family law matter is to reach agreement as quickly as possible. The quicker the settlement, the less it costs and the sooner you can move on with your life.

4. Thou shalt not bad-mouth your ex to the children

If you and your ex have children together, your priority must be your children’s best interests, and those are not served by telling your children what a bad person their other parent is. To you, your ex may be the devil reincarnate, but to your child, your ex is part of them. Remember: the Court does not look kindly on parents abusing each other in front of their children. It is simple: do not do it.

5. Thou shalt not post online

Online material is becoming more common in family law disputes. If you are separated, and in particular if you are in Court, you should assume that everything you post online (including photos) will be scrutinised. All communications with or about your ex should be short and polite. Remember: if you cannot post anything nice, do not post anything at all.

6. Thou shalt not lie

This applies to your ex, your lawyer and most importantly the Court. If you are thinking about hiding assets from your ex, think again. Your goal should be a settlement that is final so you can move on with your life. Hide assets from your ex, and even years later the whole deal could be undone. Do you really want to be looking over your shoulder for the rest of your life?

7. Thou shalt not sweat the small stuff

Trust me – as much as you love that tea cup, it is not worth the thousands of dollars you will pay your lawyer fighting over it or the stress it will cause. Focus on the bigger picture: if you can reach agreement on the big ticket items such as the house and super, it might be worth letting go of some of the smaller items.

8. Thou shalt not be inflexible

If you approach your matter with an all-or-nothing approach, nothing is just what you might end up with! In property matters, fighting to keep the house could mean you end up selling it to pay the bills. This doesn't mean you simply give up and accept a bad settlement. Instead try to be creative with the options you are willing to consider. There might be some middle ground where you get some of what you want and your ex gets some of what they want.

9. Thou shalt not go it alone

Remember that you are not alone in this process. Support of friends and family can be important to help keep you sane after a separation. You may even want to seek counselling to help you through it. If you don’t know where to turn, ask for help.

10. Thou shalt not fail to formalise

If you fail to formalise your settlement, it is not binding. Once you reach an agreement it is vital that you document it in a legally enforceable form that is recognised by the Court. This is the time to see a family law expert to make sure you are protected. It will be money well spent. 

Raising money for charity

Only a few days left in October and I have reached my fundraising goal for Ocsober.

But every dollar counts, so please visit my page to donate: http://fundraise.ocsober.com.au/kasey_fox

Not all lawyers are evil...

Q: What do you have if three lawyers are buried up to their necks in cement?
        

A: Not enough cement.

When you choose to become a lawyer, you accept the fact that you will be the subject of many a one-liner! No matter how much I protest that most lawyers are good people, that many of us do volunteer work, and its only the minority that give us a bad name, the response is often "Isn't it a shame how 99% of the lawyers give the whole profession a bad name."

So, to show that not all lawyers are evil, I thought I'd volunteer to raise some money for charity.

I have signed up to Ocsober to raise money for Life Education Australia. Here is my fundraiser page: http://fundraise.ocsober.com.au/kasey_fox

So please sponsor me for this good cause and remember, not all lawyers are evil! :-)

Demonising the Family Court

I've been noticing a trend in the media lately, where decisions of the Family Court are deemed "outrageous" by the public.

As a family law solicitor, I , and certainly my clients, do not always agree with the decisions made in some Family Law cases. In fact, wherever possible I encourage my clients to reach agreement rather than resort to Court. However, reducing a family law matter to a headline, is certainly not helpful. 

Recently, the media reported on the Family Court case involving the Hague Convention. Many of the reports on that case focused only on one side of the story, but ignored many key considerations for the Court, such as the fact that the girls were interviewed by two different experts before the Judge ordered the mother to return them to Italy (their home), the Judge found that the mother had told the father they were simply coming on a holiday to Australia rather than relocating, and most disturbing: that the maternal grandmother in that case had reportedly threatened harm to the girls.

This week, the case in focus relates to property. The headlines read "Man's humiliation at digging up parents' ashes" and "Dust to dust-up: husband ordered to dig up parents' ashes in divorce row". However, if you actually read the judgement (here is a link to the judgement on Austlii) there were a number of factors the Court was required to consider in this case. If you don't want to read the whole case, some of the key paragraphs are explored on this blog of a barrister who practices in Family Law.

The media report that the wife got to keep the property that she "desperately wanted" but in fact, there was a lot more to it. In fact, the reference to the parents ashes is only briefly mentioned. For example, the Court found that:

• the property was purchased by the parties during the relationship
• the parties eventually moved to live at the property in about 2008
• the husband had voluntarily moved out of the property after separation and some 12 months prior to the hearing
• in the husband's initial application to the Court, he did not seek to retain the property 
• his parents ashes were in urns located on the property, not interred (and not needing to be "dug up")
• the wife had remained living on the property with one of the children and continued to run a business from the property which generated a small income (and her only source of support)
• the husband had employment which included a six figure salary and had admitted to spending more than $600,000 in the 2 years since separation
• the wife's "only realistic source of future income" was generated by the business she was operating on the property
• the wife would be unable to buy a similar property in the area

The Court had to consider all of these factors when making a decision and in the end, they weighed the wife's need to retain the property as greater.

Family Law matters can be complicated. If they were easy, we wouldn't need the Family Court to make decisions for parties when they cannot agree. Family Law matters are hard and are upsetting for everyone involved. Using these matters to create headlines does not help anyone, particularly when the media does not report all of the facts.

"Gay Marriage" and the politics of Canberra

Being a lawyer, I spend a lot of time arguing with people, or trying to negotiate an agreement between people who are arguing. So in my downtime, I tend to try and avoid dinner party debates about politics. But living in Canberra, sometimes politics is impossible to ignore. It is especially difficult when a political issue comes up that is related to my speciality of family law, or raises issues close to my heart. The "gathering" today at Parliament House did both.

According to media reports, there was a gathering of about 200 people at Parliament House in Canberra protesting against "Gay Marriage" (or as some people call it: Marriage). 

According to ninemsn reports: 

Addressing the National Marriage Day rally outside Parliament House in Canberra on Tuesday, a Pastor said homosexual relationships only led to destructive and self-centred acts. "I'm convinced that homosexuals (re)produces themselves by molesting children," he told the 200-strong crowd.

To say I was shocked to read this was an understatement. Do people really believe this??

The outdoor gathering was then followed by an event of about 500 people inside Parliament House's Great Hall. According to the SameSame and the Australian:

The event’s special keynote speaker from Washington DC, said if you allowed gay marriage, “anything’’ such as polygamy and marriage between paedophiles and children 'could be called marriage,” she asserted. It got worse. She said there was “no greater evil” than the forces who proposed to legalise gay marriage and that they were in a “war for the future of the human race.”

But it wasn't just the guest speakers who were supporting the anti-marriage movement, our members of parliament were also in attendance lending their support. And that is the most disappointing fact of all. People who are supposed to be the leaders of our nation, are supporting a group that is motivated by prejudice and fear.

It shocks and saddens me that in 2012, people out there in Australia (including our members of parliament) still have such homophobic views that they insist on imposing on everyone else. It also really annoys me that this happened in Canberra where I live.

Isn't marriage supposed to be about love? 

This photo has recently done the facebook rounds, and I think it is a nice, simple message about marriage:

I have friends and family members who are gay. Why should I be allowed to get married, but they cannot?

From a legal perspective, why shouldn't same sex couples get the same legal rights that come with marriage? Yes, in family law, same sex couples now have certain property rights as de facto couples (in most parts of Australia). But to make a de facto property claim, you need to first establish the existence of the de facto relationship as defined by the legislation. If you are married, this additional step is removed. Marriage also has an impact on a number of other areas including superannuation, wills, estate plans, family provision claims, medical decision making power and insurance. 

Why shouldn't all couples have the choice either to remain in a de facto relationship or make the commitment to marry, and take on the additional rights and responsibilities that comes with marriage? 

Making gay couples unequal under the law only further fosters discrimination. 

In 1958, in the context of the fight for black civil rights in America, Martin Luther King Jr declared, “When any society says that I cannot marry a certain person, that society has cut off a segment of my freedom.”

It has been 4 years since our Prime Minister said "sorry" for the hurt caused by discrimination against indigenous people. An apology would not have been needed if such discrimination was avoided in the first place. Parliament House should be a place for righting past wrongs, it should not be used to facilitate ongoing discrimination. Now is the opportunity to remedy this wrong in our legislation. 

The truth about lawyers...

I don't know who created this meme, but it is great!

And another reminder of why we are aiming toward the dream of a "paperless office"

Separation is like an orange...

Why a separation is like dividing an orange...

(as published in August 2012 B2B Canberra Magazine by Canberra Collaborative Family Lawyers)

It’s about understanding ‘why’ a person wants something not just ‘what they want’ or what they are ‘entitled to’. 

For example:

Two celebrity chefs are in a television cook-off.  Let’s call them Gary and Kylie.  Gary decides to make Orange Sorbet.  Kylie decides to make a tuna steaks with orange zest salsa.  Problem: there’s only one orange.

Gary takes this very seriously and calls his lawyer.  In retaliation Kylie calls her lawyer.  The lawyers write to each other arguing about who is entitled to the orange.  After a lengthy Court battle the Judge orders that the orange be cut in half.  Both end up with 50% but neither of them have enough to make their dish tasty.

If Gary and Kylie sat down to understand their interests, they would realise that Gary really only needs the juice for his recipe, and Kylie needs only the rind. If they had reached an agreement based on their interests, they would have both got what they needed.

Of course, not every case is that easy – but by focusing on understanding interests means your lawyer can tailor solutions that work for both parties, not just solutions that make each person equally unhappy.

This is the aim of Collaborative Law.

Stay tuned for more information on using Collaborative Law to resolve your family law matter and our group Canberra Collaborative Family Lawyers

The High Court on Family Law

Yesterday the High Court in Canberra heard the application in the now famous Hague case involving 4 girls from Italy. 

As expected (at least by most Family Lawyers) the application was dismissed.

I was hoping to make it down to watch the proceedings, but unfortunately I had another Court commitment in the morning, so by the time myself and another lawyer arrived at the High Court, it was only in time to see the gallery being vacated as the proceedings had concluded. 


So now I'll need to wait until the transcript and judgement are published to hear all the arguments that were put forward. In the meantime, I am forced to rely on what the media has reported, which unfortunately in this case, has not always been 100% accurate.

According to ABC News "Justice Virginia Bell told the court a key element of the family law regime is that the best interests of the child may not always accord with what the child wants." (http://www.abc.net.au/news/2012-08-07/high-court-custody/4182818) This approach is certainly not surprising to those of us who practice in family law on a daily basis.

Another interesting point to note is that although the Family Court made it very clear it expected the mother to comply with her undertakings to the Court not to encourage or facilitate the children being involved in the media regarding the case (see the June Judgement), shortly after the hearing finished, the twitter account called "Voiceless Kids" (which was apparently set up by or on behalf of the 4 girls) posted links to reports in the media about the High Court dismissal. Their facebook page had similar posts.

There are now claims that children are being "denied a voice" by the Courts, but the fact remains that the children DID have an opportunity in this case to be heard. Rather than attend the Court room and be involved in the "fight", they met with an appropriately trained Family Consultant, without their parents present, and were able to put forward their views and concerns. These WERE presented to the Court and considered before the decision was made (see the original Judgement) 

The Family Law Act,  the Family Court and the Hague Convention may not be perfect, but the system is there for a reason. If we did not follow the principles set out regarding "child abduction", then we could be faced with an influx of parents unilaterally removing children from countries without the other parent's consent.

If as Australians we expect that a child who was raised in Australia and then taken by one parent to another country without consent (to Italy for example) should be returned to Australia, then we need to acknowledge the same will occur when children are brought to our country in similar circumstances. 

about me

This is my first time using a blog, so I thought I'd start slowly by including some info about me and what I do.

Originally from Alice Springs, I moved to the big smoke (Canberra) in 2001 to obtain my degree.

My family include my mother, father, brother, sister, three nieces and a nephew who are located at various locations around Australia, but sadly not in Canberra.

Upon graduation, I joined Farrar Gesini Dunn and found it to be a professional and innovative firm offering intensive training and a work/life balance.

I chose Family Law because it offered an opportunity to work directly with clients rather than simply working with paper. I have found family law extremely rewarding. It gives me a great sense of achievement to feel that I am helping people through a very difficult time in their lives.

I have experience and training in litigation as well as collaborative practice.

I am committed to building trusting relationships with clients and I use my personal and engaged style to develop lasting solutions for clients. I endeavour to achieve out of court settlements where possible, but when necessary litigate to ensure my client’s rights are protected. 

My areas of practice include property settlement for both married and de facto couples, children’s matters and pre nuptial agreements. 

I have found family law to be exciting and challenging and I can’t imagine practicing in any other area.