On 1 January 2013 the fee to apply for a divorce will jump a massive 39% from the current fee of $577 to $800.
Leaving your Divorce Application until the new year will add significantly to the cost.
Australia has a 'no fault' system of Divorce.
There is only one ground for Divorce in Australia:
Irretrievable breakdown of marriage evidenced by having lived separately and apart (which can include periods living under the same roof) for a total period of 12 months.
Divorce is distinct from property settlement, parenting, child support and maintenance - it is the legal end to a marriage.
If you want to avoid the increase in filing fee, contact me urgently to discuss filing your Divorce.
Monday 17 December 2012
Wednesday 5 December 2012
The 10 Biggest mistakes made by witnesses in Family Courts
1. Lie
2. Try to second guess what you are being asked
Lawyers are generally very smart. Their sole objective is to unravel your case. Some of the biggest train wrecks I have seen in Court have been where a witness tries to second guess where the lawyer is going with the line of questioning. The results are usually disastrous.
3. Acting smug or rudely to the lawyer acting for your former spouse
If your former spouse’s lawyer is trying to paint a picture of you that you are not a particularly nice/trustworthy/honourable person, getting angry or smug when giving evidence is only going to help them build that case. Be polite, maintain eye contact and answer the question that is being asked of you.
4. Argue
Argument is for the lawyers to take care of when there is a point of evidence or when closing submissions are being made. If you are representing yourself, that is when you make your arguments. Arguing with the lawyer who is questioning you does nothing to assist your case and in fact, is likely only to assist the case of your former spouse.
5. Answering a question when you don’t actually know the answer or understand the question
It is perfectly acceptable for you to ask for a question to be clarified if you genuinely do not understand it. Sometimes lawyers go off on a tangent in the middle of asking a question so that even the other lawyers in the room don’t understand the specific question being asked.
If the Judge or another lawyer interjects, be quiet and wait for the question to be asked again. This does not mean be difficult and deliberately evade every question. But it does mean making sure that you actually understand the question that is being asked of you. If you are able to answer it, do so. If you don’t know the answer, say “I am sorry, I don’t know”.
6. Ignore the question that is being asked of you and use it as an opportunity to tell your story
The time for telling your story is in the affidavit of evidence-in-chief that you put before the court. That is the point at which your case is at its highest. Sitting in court in the witness box is not an opportunity to tell your story again or add to it. It is the point at which your former spouse’s lawyer tries to unravel your story.
7. Give lengthy answers explaining yourself
The right answer to questions under cross-examination is the
Sometimes that will be a mere “Yes”. Sometimes it will be more. Beware saying too much as the more you say the more opportunity there is for you to be tripped up.
8. Don’t worry about what you wear
The clothes you wear to court should be your “Sunday Best”. Hats should be removed. Mobile phones must be switched off. Airport security is in place and no recording is allowed.
9. Have a bunch of people come and sit in the back of the courtroom as your cheer squad
It is usually unhelpful to have a large number of supporters in the court room. The Judge will look at those people and their behaviour can adversely impact on your case.
If anyone does come into court with you, they have to be able to control themselves and maintain a “poker face”. If they cannot do that, they should stay out.
If they will be giving evidence in your case, they cannot come into court until after they give evidence.
10. Avoid eye contact or look only at your lawyer
You should address your answers to the person asking you the question. That may be your former spouse’s lawyer, your lawyer or the Judge. Turn to look at the person when you answer the question and show respect toward them.
You do not have to like any of the other people in the court room but you will go a long way if you act in a respectful manner.
Summary
Hopefully this gives you an indication of just how stressful being in court can be. It is not pleasant. Most lawyers would hate to be cross-examined!
There are alternatives to litigation such as mediation and Collaborative Practice. Before heading towards the courtroom door, talk to a Collaborative lawyer or mediator.
If you would like more information about Collaborative Practice, please contact me.
2. Try to second guess what you are being asked
Lawyers are generally very smart. Their sole objective is to unravel your case. Some of the biggest train wrecks I have seen in Court have been where a witness tries to second guess where the lawyer is going with the line of questioning. The results are usually disastrous.
3. Acting smug or rudely to the lawyer acting for your former spouse
If your former spouse’s lawyer is trying to paint a picture of you that you are not a particularly nice/trustworthy/honourable person, getting angry or smug when giving evidence is only going to help them build that case. Be polite, maintain eye contact and answer the question that is being asked of you.
4. Argue
Argument is for the lawyers to take care of when there is a point of evidence or when closing submissions are being made. If you are representing yourself, that is when you make your arguments. Arguing with the lawyer who is questioning you does nothing to assist your case and in fact, is likely only to assist the case of your former spouse.
5. Answering a question when you don’t actually know the answer or understand the question
It is perfectly acceptable for you to ask for a question to be clarified if you genuinely do not understand it. Sometimes lawyers go off on a tangent in the middle of asking a question so that even the other lawyers in the room don’t understand the specific question being asked.
If the Judge or another lawyer interjects, be quiet and wait for the question to be asked again. This does not mean be difficult and deliberately evade every question. But it does mean making sure that you actually understand the question that is being asked of you. If you are able to answer it, do so. If you don’t know the answer, say “I am sorry, I don’t know”.
6. Ignore the question that is being asked of you and use it as an opportunity to tell your story
The time for telling your story is in the affidavit of evidence-in-chief that you put before the court. That is the point at which your case is at its highest. Sitting in court in the witness box is not an opportunity to tell your story again or add to it. It is the point at which your former spouse’s lawyer tries to unravel your story.
7. Give lengthy answers explaining yourself
The right answer to questions under cross-examination is the
- best
- simple
- honest
Sometimes that will be a mere “Yes”. Sometimes it will be more. Beware saying too much as the more you say the more opportunity there is for you to be tripped up.
8. Don’t worry about what you wear
The clothes you wear to court should be your “Sunday Best”. Hats should be removed. Mobile phones must be switched off. Airport security is in place and no recording is allowed.
9. Have a bunch of people come and sit in the back of the courtroom as your cheer squad
It is usually unhelpful to have a large number of supporters in the court room. The Judge will look at those people and their behaviour can adversely impact on your case.
If anyone does come into court with you, they have to be able to control themselves and maintain a “poker face”. If they cannot do that, they should stay out.
If they will be giving evidence in your case, they cannot come into court until after they give evidence.
10. Avoid eye contact or look only at your lawyer
You should address your answers to the person asking you the question. That may be your former spouse’s lawyer, your lawyer or the Judge. Turn to look at the person when you answer the question and show respect toward them.
You do not have to like any of the other people in the court room but you will go a long way if you act in a respectful manner.
Summary
Hopefully this gives you an indication of just how stressful being in court can be. It is not pleasant. Most lawyers would hate to be cross-examined!
There are alternatives to litigation such as mediation and Collaborative Practice. Before heading towards the courtroom door, talk to a Collaborative lawyer or mediator.
If you would like more information about Collaborative Practice, please contact me.
Wednesday 6 June 2012
Judge writes to the children about his tough custody decision
In a recent custody decision, of Gaylard and Cain a Federal Magistrate has taken the rare step of writing a letter to the children explaining his decision.
After allegations of sexual abuse by the Mother, the court ordered the Father will only have contact with his children via letters, cards and gifts - even though he did not believe the abuse had occurred.
This is the letter he wrote:
"Dear X and Y,
After your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably won’t read it for many years.
The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you.
At the time I had to decide the case your mum believed in her heart that your dad hurt you. My job is to look at all the information, and listen very carefully to what everybody says including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a person’s heart.
At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him. I don’t think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.
I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this.
By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this, and help you to make it happen. Please remember that both your mum and dad love you very much, even if they love you in different ways.
Yours faithfully,
Federal Magistrate Altobelli"
Cases involving allegations of sexual abuse or other forms of family violence are some of the hardest decisions court have to make. So are relocation cases. This case involved both.
On one hand there is the risk to the child of being exposed to violence. On the other is the risk associated with them not having a relationship with both of their parents.
Federal Magistrate Altobelli expressed the difficulty of the decision in these terms:
I"n a case where there are only poor alternatives, the children will be exposed to inevitable change. The focus of this consideration is the likely effect of change on the children, particularly but not limited to separation from parents and other significant persons in their lives. On the father’s proposals the change for the children is manifold and intense. They would be removed from their primary carer, and placed in the care of a parent they want nothing to do with. This is physical and psychological change of monumental proportions. In order to cope with this they would need to be supported in this change by both parents, but neither are capable of doing this. The father could not explain to me a considered strategy for coping with this sort of change. I fear the mother would neither accept nor cope with such a decision. All the therapy in the world would not be enough, in my opinion, to support the children and their parents through this change."
It is intereting to note, in the context of the recent case of Garning (discussed here) where there have been cries for the children's wishes to be followed, due to the children in this case being "alienated" from their father, the Federal Magistrate expressly gave no weight to their wishes:
This is another example of the cases that the Family Law Courts have to decide daily. There are options to resolve cases out of court. Contact me to find out more about settling divorce or custody out of court
After allegations of sexual abuse by the Mother, the court ordered the Father will only have contact with his children via letters, cards and gifts - even though he did not believe the abuse had occurred.
This is the letter he wrote:
"Dear X and Y,
After your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably won’t read it for many years.
The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you.
At the time I had to decide the case your mum believed in her heart that your dad hurt you. My job is to look at all the information, and listen very carefully to what everybody says including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a person’s heart.
At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him. I don’t think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.
I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this.
By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this, and help you to make it happen. Please remember that both your mum and dad love you very much, even if they love you in different ways.
Yours faithfully,
Federal Magistrate Altobelli"
Cases involving allegations of sexual abuse or other forms of family violence are some of the hardest decisions court have to make. So are relocation cases. This case involved both.
On one hand there is the risk to the child of being exposed to violence. On the other is the risk associated with them not having a relationship with both of their parents.
Federal Magistrate Altobelli expressed the difficulty of the decision in these terms:
I"n a case where there are only poor alternatives, the children will be exposed to inevitable change. The focus of this consideration is the likely effect of change on the children, particularly but not limited to separation from parents and other significant persons in their lives. On the father’s proposals the change for the children is manifold and intense. They would be removed from their primary carer, and placed in the care of a parent they want nothing to do with. This is physical and psychological change of monumental proportions. In order to cope with this they would need to be supported in this change by both parents, but neither are capable of doing this. The father could not explain to me a considered strategy for coping with this sort of change. I fear the mother would neither accept nor cope with such a decision. All the therapy in the world would not be enough, in my opinion, to support the children and their parents through this change."
It is intereting to note, in the context of the recent case of Garning (discussed here) where there have been cries for the children's wishes to be followed, due to the children in this case being "alienated" from their father, the Federal Magistrate expressly gave no weight to their wishes:
"The children have expressed views in strident terms. They
want to spend no time with their father, and want no communication with him. As
Dr K. acknowledged in his oral evidence, their views need to be understood in
the context of their alienation from their father. He explained that one day
their views might change. Whilst I accept that, at the present time, the
children want nothing to do with their father, I do not decide this case because
of these views. In the circumstances of this case, in view of the alienation
that I find has occurred, there are factors that predicate no weight being given
to these views."
This is another example of the cases that the Family Law Courts have to decide daily. There are options to resolve cases out of court. Contact me to find out more about settling divorce or custody out of court
Monday 28 May 2012
Should children have a voice in Family Law custody cases?
Over the last few weeks, people have perked up when they meet me and ask what I do. Family Law in Australia is suddenly interesting (well - at least news or gossipworthy) and it seems everyone has an opinion.
Since the 'Italian sisters' gained a reprieve and are able to stay in Australia at least until the High Court sits in August, a new development has emerged...
A suggestion...an argument... that children should be able to have their voices heard in Court.
This is then conveyed to the Court either directly or through an Independent Children's Lawyer, normally via what is referred to as a 'Family Report'. In some custody cases a Child Consultant employed by the Court comes into Court and speaks to the Judge.
Dr Michelle Fernando (University of South Australia) surveyed Family Law Judges and Federal Magistrates and concluded very few meet children whose custody they are deciding.
Does this lead to children feeling "helpless, unheard and powerless"?
Article 12.2 of the United Nations Convention on the Rights of the Child states:
I have never been involved in a custody case where a Judge or Federal Magistrate has met the children.
This is usually the role of the Independent Children's Lawyer (ICL) or a professional they appoint to meet with the children.
Importantly:
To find out more about collaborative law and other ways to work out custody and finances without going to court, contact me.
Since the 'Italian sisters' gained a reprieve and are able to stay in Australia at least until the High Court sits in August, a new development has emerged...
A suggestion...an argument... that children should be able to have their voices heard in Court.
How are children's wishes currently heard in custody cases?
Currently our family law system operates so that children are interviewed by an experienced psychologist or social worker, in child appropriate languages and concepts to try to ascertain their level of maturity and any wishes they might express.This is then conveyed to the Court either directly or through an Independent Children's Lawyer, normally via what is referred to as a 'Family Report'. In some custody cases a Child Consultant employed by the Court comes into Court and speaks to the Judge.
Dr Michelle Fernando (University of South Australia) surveyed Family Law Judges and Federal Magistrates and concluded very few meet children whose custody they are deciding.
Does this lead to children feeling "helpless, unheard and powerless"?
Article 12.2 of the United Nations Convention on the Rights of the Child states:
"the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body consistent with the procedural rules of national law."
I have never been involved in a custody case where a Judge or Federal Magistrate has met the children.
This is usually the role of the Independent Children's Lawyer (ICL) or a professional they appoint to meet with the children.
Independent Children's Lawyers
The Family Court has set out guidelines for ICLs to follow. Interestingly they note:
"The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities."
Importantly:
"The ICL does not take instructions from the child but is required to ensure the Court is fully informed of the child's views, in an admissible form where possible." (my emphasis)
Significantly the guidelines also state:
"Despite the inability to guarantee the child a confidential relationship, the ICL should, however, strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including:
how the child can have a say and make his/her views known during the process;
that where a child of sufficient maturity wishes to have a direct representative who will act on the child's instructions, the ICL should inform the child of the possibility of applying to become a party to the proceedings;" (my emphasis)
The guidelines also provide that:
"The ICL is to ensure that any views expressed by the child are fully put before the Court and so far as possible, are in admissible form. This includes views that the ICL may consider trivial but the child considers important.
The ICL is to also arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child's wishes."
However The ICL is permitted to make submissions contrary to the child's wishes "If the ICL considers that the evidence indicates that the best interests of the child will be promoted by orders which are contrary to the child's views."
The future
On 25 May 2012 the Federal Attorney-General announced a review into "whether Independent Children’s Lawyers are effective when representing children in family law cases". The timing cannot be purely coincidental...
Alternatives to custody battles
Custody does not have to be a war fought in the court system. Not everyone can work out their parenting arrangements around the kitchen table. But there are options to help people who want a civil, respectful resolution which protects their children and ensures that their voices are heard.To find out more about collaborative law and other ways to work out custody and finances without going to court, contact me.
Tuesday 15 May 2012
International Child Abduction
Unless you have not been online, seen a TV or read a
newspaper this week, you would be aware of the case of the ‘Garning’ family.
The purpose of this post is not to argue the rights or
wrongs of either side of the argument, but to explain in simple terms the legal
aspects of the case.
Australia is a signatory to the Hague Convention on
International Child Abduction (the Hague
Convention). The convention has a
mandatory requirement that if a child is removed to or retained in a convention
country, without the consent of the other parent, then the child must be returned to the country they
were living in before the removal or retention.
Australia does not enter into a convention arrangement with
signatories to the Hague Convention until satisfied that the other signatory
has appropriate domestic laws to deal with ‘custody’ cases. Currently there are 8 signatories Australia
does not yet have arrangements with – one of those is Singapore. Here is a list of the countries we have the
convention in force with. Note that Malaysia is not one of them. Hence Jacqueline Gillespie (now Pascarl) was not able to use the convention to force the return of her children when they were abducted by their Malaysian Prince father.There are some limited exceptions to the mandatory return requirement. It is a hard hurdle to overcome. It is designed to prevent child abduction and ensure that parents use the courts of the country they are living in, to determine ‘custody’ issues.
In the Garning case, it has been said that the Australian
Government helped the Mother and 4 children flee from Italy. The judgment simply does not support that
contention. The Mother tendered
hundreds of pages of documents from the Department of Foreign Affairs and Trade
(DFAT). The court was satisfied that the documents
show that DFAT assisted the Mother to confirm the children’s Australian
citizenship and obtain passports, but made it clear that she needed the Father’s
consent to take the children from Italy.
This was no cloak and dagger operation by the government to smuggle them
out of the country.
Where the Mother’s case really fell down was here:She said the Father consented to the children moving permanently to Australia and that he later simply changed his mind.
She said she had a witness who was a very dear friend who
would give evidence that she witnessed him sign the passports and say that the children
could go.
However, there was no affidavit produced of that witness –
at the hearing or the Appeal.
The Mother also gave a media interview after she moved to
the Sunshine Coast. In that interview
she described how she had told the Father they were going on a holiday only, so
that she could get out of the country.
The weight of evidence stacked up against her.There are circumstances where children’s wishes can be taken into account. The Garning children were interviewed by an independent report writer and their views placed before the Court. Those views were not found to be sufficient to justify them remaining in Australia. It is important to note that in domestic family law cases, children’s wishes do not determine the issue – they are only one of a range of factors the court takes into account.
The next avenue of appeal is for Ms Garning to seek leave to
appeal to the High Court of Australia.
There is no automatic ‘right’ to an appeal to the High Court – the court
has to be satisfied that the matter is important and significant enough for
them to hear it. There are a lot of
knockbacks.
Unless she is successful, the children will have to return
to Italy (note: to Italy, not to the Father...) and the Italian courts will
determine the appropriate arrangements for them.
Sunday 13 May 2012
Facebook or Face facts?
The advent of social media has added a new element to 'custody' disputes in family law courts in Australia and - judging by articles from commentators in other countries - in many other regions.
As this article discusses, the value of so called 'evidence' gathered from Facebook is questionable. And for those who think it is a good idea to get a friend to friend your ex on Facebook to gather sordid details to put before the court - this is generally not going to win you brownie points.
Why?
Well, for the same reason that the court doesn't have much sympathy for a spouse who claims that their ex must be earning more than they say they are from the (former) family business because "we always took cash under the table when we were together."
Or the person who claims an asset it only worth $500,000 yet their statement of position to the bank when they applied for a loan declared it at $3million...
When parties cannot agree on what is best for their children or how they should divide their property, unfortunately the court has to decide for them.
If it comes to that stage, if you and your ex disagree about facts, you want to have real evidence to prove it. As a judge of the Family Court used to say to clients when he was a barrister "if you want something in life you have to tender the right currency - and the currency of the Court is 'evidence'."
I have a very simple analogy I use to explain this:
If you say the cow is brown and he says it is black and white, the only way to prove to the judge what colour the cow is (short of bringing it to court - which would not 'moo-ve' the judge in the right direction!) is to produce a photo of the cow that you both agree is the cow. The judge can then see the colour of the cow.
If you don't produce a photo of the cow, then it is your ex's word against yours.
You may think that you have a strong case but beware - your case is at its strongest before you step into the witness box to be cross examined by your ex's lawyer (who can be best described as a pit bull hoping to tear your case to shreds. If you think it will be a walk in the park, ask a room full of lawyers how many of THEM would like to be cross examined!)
If you have at any stage stretched the truth, elaborated a little or acted less than honestly, be assured your ex's lawyer will latch onto that (even if it is irrelevant to the issue being decided) to try to persuade the court that you are 'less than truthful' and therefore if it is your word against your ex's, to believe your ex.
The title of this blog is 'Brisbane Collaborative Law' for a reason: because there is a way to resolve disputes without the stress and warfare that litigation often generates.
But if you are unfortunate enough to already be embroiled in litigation, remember that honesty is valued by the court.
As this article discusses, the value of so called 'evidence' gathered from Facebook is questionable. And for those who think it is a good idea to get a friend to friend your ex on Facebook to gather sordid details to put before the court - this is generally not going to win you brownie points.
Why?
Well, for the same reason that the court doesn't have much sympathy for a spouse who claims that their ex must be earning more than they say they are from the (former) family business because "we always took cash under the table when we were together."
Or the person who claims an asset it only worth $500,000 yet their statement of position to the bank when they applied for a loan declared it at $3million...
When parties cannot agree on what is best for their children or how they should divide their property, unfortunately the court has to decide for them.
If it comes to that stage, if you and your ex disagree about facts, you want to have real evidence to prove it. As a judge of the Family Court used to say to clients when he was a barrister "if you want something in life you have to tender the right currency - and the currency of the Court is 'evidence'."
I have a very simple analogy I use to explain this:
If you say the cow is brown and he says it is black and white, the only way to prove to the judge what colour the cow is (short of bringing it to court - which would not 'moo-ve' the judge in the right direction!) is to produce a photo of the cow that you both agree is the cow. The judge can then see the colour of the cow.
If you don't produce a photo of the cow, then it is your ex's word against yours.
You may think that you have a strong case but beware - your case is at its strongest before you step into the witness box to be cross examined by your ex's lawyer (who can be best described as a pit bull hoping to tear your case to shreds. If you think it will be a walk in the park, ask a room full of lawyers how many of THEM would like to be cross examined!)
If you have at any stage stretched the truth, elaborated a little or acted less than honestly, be assured your ex's lawyer will latch onto that (even if it is irrelevant to the issue being decided) to try to persuade the court that you are 'less than truthful' and therefore if it is your word against your ex's, to believe your ex.
The title of this blog is 'Brisbane Collaborative Law' for a reason: because there is a way to resolve disputes without the stress and warfare that litigation often generates.
But if you are unfortunate enough to already be embroiled in litigation, remember that honesty is valued by the court.
Tuesday 27 March 2012
When IVF ends up in Court
Currently there is a case before the Family Court concerning a millionaire businessman who donated sperm to a former girlfriend to enable her to conceive a child.
The dispute surrounds whether or not the father should have "access" to the child.
The case is awaiting final hearing. In the interim period, it is reported that the child will see his father for two hours, twice per week.
This case reminds me of one I had in my pre-collaborative days. A male couple agreed to assist a female couple to conceive a child and sperm was donated by one of the males. Unfortunately, the relationships between parties broke down. My client came to me wanting to take her son overseas to see family, but was unable to do so without the sperm donor's permission as he was listed on the birth certificate. Litigation was commenced...
I can't help but wonder how these two cases might have had difference outcomes if a collaborative process was adopted.
In both instances, the donors and mothers were friends (hence the donation!) As a result of their dispute, any hope of friendship is likely lost. The child may be faced with acrimony between the mother and the donor for years to come (let's face it - litigation rarely fosters better relationships between parties....)
Had they engaged in a collaborative process, they could have approached this in a way that was respectful to each other and worked towards the best outcome for all of them - first and foremost, the child.
Perhaps a child specialist, working as part of the collaborative team, in private, could have been the one to tell the parties of the psychological damage the child could suffer and help them work towards a solution, rather than that evidence being aired in a courtroom and reported for the world to read.
Perhaps they might all still be friends - or at least have a co-operative or civil relationship....
The dispute surrounds whether or not the father should have "access" to the child.
The case is awaiting final hearing. In the interim period, it is reported that the child will see his father for two hours, twice per week.
This case reminds me of one I had in my pre-collaborative days. A male couple agreed to assist a female couple to conceive a child and sperm was donated by one of the males. Unfortunately, the relationships between parties broke down. My client came to me wanting to take her son overseas to see family, but was unable to do so without the sperm donor's permission as he was listed on the birth certificate. Litigation was commenced...
I can't help but wonder how these two cases might have had difference outcomes if a collaborative process was adopted.
In both instances, the donors and mothers were friends (hence the donation!) As a result of their dispute, any hope of friendship is likely lost. The child may be faced with acrimony between the mother and the donor for years to come (let's face it - litigation rarely fosters better relationships between parties....)
Had they engaged in a collaborative process, they could have approached this in a way that was respectful to each other and worked towards the best outcome for all of them - first and foremost, the child.
Perhaps a child specialist, working as part of the collaborative team, in private, could have been the one to tell the parties of the psychological damage the child could suffer and help them work towards a solution, rather than that evidence being aired in a courtroom and reported for the world to read.
Perhaps they might all still be friends - or at least have a co-operative or civil relationship....
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