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Why I find Family Law professionally satisfying

Published June 21, 2017 by Ashlee T. Bowman

Joelene Seaton has chosen to exclusively practice in family law over the last 12 years and is a Senior Associate at Jones Mitchell Lawyers.

“I really enjoy the opportunity in family law to help people through a very challenging time in their lives.”

 

Here are Joelene’s top 5 reasons why she loves being a family lawyer at Jones Mitchell:

1. I like helping people move on, and even improve their lives.

2. I enjoy helping people to see there is usually a ‘better way’ to look at things.

3. Family law can encompass many different areas of law, so it’s a varied speciality area from a lawyers’ perspective.

4. Every case is unique and the diversity of cases keeps things fresh and interesting.

5. Getting the chance to practice in multi-disciplines including negotiations, mediation, arbitration and litigation.

“Being part of the team at Jones Mitchell brings great professional satisfaction as we are all focused on getting the best results for our clients, not just legally but holistically.”

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Did you know Grandparents can apply for parental responsibility of a Grandchild?

Published June 19, 2017 by Ashlee T. Bowman

Many Grandparents find their close relationship with their grandchildren abruptly disconnected in circumstances of their child’s relationship breaking down with the co-parent of their grandchildren or when their own relationship with their grandchild’s parent and/or parents breaks down.

It is often the situation that a Grandparent has had a key role in the parental responsibility of their grandchild for a period of time.  The law views parental responsibility as; all duties, powers, responsibilities and authority which parents have in relation to their children including long term decisions as determining a child’s religion, education and decisions about health.

According to Jones Mitchell Senior Associate, Joelene Seaton, family lawyers are regularly consulted by grandparents seeking to establish, or continue, a meaningful relationship with a grandchild.

Ms Seaton said under changes to the Family Law Act in 1995, grandparents can now seek parenting orders including orders that their grandchildren spend time and communicate with them regularly.

If the court views it to be in the best interests of the child a parental responsibility order can be made in favour of a child’s grandparent(s) or any other person concerned with the child’s care, welfare and development.  The best interests of the child are always paramount in the court’s decision making and a court will determine the amount of time a person is given parental responsibility for a child for example if it is sole parental responsibility or shared between parent/s and grandparent/s.

In extreme situations of absent parents, or those who are unable to provide for the needs of a child, grandparents have the power to seek orders that the child live with them.

Ms Seaton said grandparents were often the “forgotten victims” in a relationship breakdown who could offer their grandchildren additional avenues for emotional and financial support through life.

“Grandparents are often the ‘backstop’ for when a child’s own parents are unable to care for their child. In some cases grandparents have had their grandchild live with them for a period of time, when their child (the parent) has been absent, or when they have been supporting their child through issues of their own.

“In one case the grandparents had even purchased a house for their child and grandchild to live in, so that the child did not have to move school each time the mother was evicted from her accommodation. Grandparents can often provide stability to their grandchildren during difficult periods.

“The court recognises that grandparents play a significant part in the lives of their grandchildren and it can take steps to ensure that children continue to benefit from such relationships. Ms Seaton said.

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High Court Debut for Olivia Jennar-Bryant

Published June 6, 2017 by Ashlee T. Bowman

Jones Mitchell Lawyers’, Olivia Jennar-Bryant witnessed a momentous occasion at a sitting of the High Court of Australia in Brisbane recently.

Olivia had the privilege of being present for the official welcome of the Honourable Chief Justice Susan Kiefel, the first female appointed Chief Justice of the High Court and the Honourable Justice James Edelman, one of the youngest judicial officers ever appointed a Justice of the High Court, during their first sitting in Brisbane in their new respective roles in the High Court of Australia.

This was particularly poignant for Olivia as a woman and relatively young lawyer.  “The sense of being present in the highest court in this land, on such an important occasion, evoked awe. Members of the entire legal community, irrespective of age, rank or role came together to show their respect for two of the greatest legal minds and recognise some of their greatest legal achievements.

“I can genuinely say what I witnessed that morning was something I will always remember. I am grateful to practise in an industry where there are no barriers created by age or gender. Instead, collegiality is a common theme and support networks are strong,” Olivia said when reflecting on the experience.

 The day also marked an important occasion in Olivia’s career, Olivia was briefing Senior Counsel in the High Court of Australia for the first time, with Jones Mitchell’s Senior Partner, Warwick Jones.  It is generally a very rare occurrence in a lawyer’s career to have a matter in the High Court of Australia.

“I am particularly grateful for these experiences, to learn from them and to shape the way in which I practise as the years unfold,” Olivia said.

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Is arbitration a growing option to resolve family law disputes outside of court?

Published March 9, 2017 by Ashlee T. Bowman

With court resources in crisis and clients waiting three to five years in the family court system, many lawyers are seeking to offer alternative dispute resolution (ADR) methods to clients. Other ADR processes such as mediation may have been exhausted and collaborative law may or may not have been tried.

While a trial may seem like the only way to end a dispute, that is not always so.  For spouses who can’t agree on disputes, but both nevertheless want to ‘exit’ the Court system, they can consider arbitration to resolve a financial dispute.

What is arbitration?

Arbitration is essentially ‘decision-making for hire’ – clients pay to have a ‘private’ trial conducted. Clients and lawyers can choose an arbitrator to make a final decision in their case about property and financial issues.

The arbitrator is often a retired Family Court Judge, or senior family lawyer (barrister from the family law bar, or senior solicitor). Clients will jointly instruct that person to determine their case, and to issue a written decision to bring it to an end.

Jones Mitchell senior partner Warwick (Rick) Jones is one of few qualified arbitrators in Australia. He has completed specialist arbitration training and is an approved practitioner acknowledged by the Law Council of Australia.

Why is it emerging now?

And while arbitration has been taught in universities around as a resolution option for family law disputes, there has been few specialist arbitration course modules. This has meant that many practitioners (outside ADR specialists) may have little or no understanding of arbitration law and practice.

It is only now with the court system in crisis that it is emerging as a more popular dispute resolution option.

How do arbitrations work?

For arbitrations in complex matters, they usually run just like a trial would run in Court.  Written evidence is filed beforehand.  There is oral examination of the spouses, and their witnesses, under oath.  Parties are often represented by barristers, and their solicitor instructs the barrister at the arbitration.  The lawyers deliver their arguments to the arbitrator at the conclusion of the evidence.  The proceedings are tape recorded (so that a transcript can be prepared if necessary).

Some parties, in cases where the resources are limited, or where the issues in dispute are less complex, even decide to have the arbitrator determine the matter on the written evidence, and accompanying submissions, only, and without a formal trial.   Similarly, where parties have been able to agree on all aspects, save for 1 or 2 ‘sticking points’, they can have a limited arbitration, where the arbitrator determines the contentious issues only, allowing them to then move forward with their agreed outcome.

Once the arbitrator is selected, he or she will work with the family lawyers for each party to deal with the procedural matters necessary to prepare for the arbitration – what evidence will be required; how many witnesses there will be; whether there are any objections to evidence or other preliminary evidentiary matters; the length of the arbitration and the sequence of witnesses.   If the pre-arbitration steps run into difficulty, the arbitrator can conduct further hearings to get things back on track, and ensure that the case is ready to be arbitrated on the agreed day.

The Rules of Court specifically provide that, if the two parties are already engaged in litigation, they can effectively agree to suspend that litigation and participate in arbitration.  Further, once the arbitrator’s decision has been delivered, those Rules provide a mechanism for it to be registered in Court, so that it has the same effect as an Order of the Court, and is therefore binding on and enforceable by the parties.

Absent agreement in other terms, the costs of arbitration (the arbitrator’s fee, and the cost of hiring the venue for the arbitration) are shared between the parties, even if those fees are paid by one party in the first instance.  For an experienced arbitrator, the fee will depend on the time required to determine the arbitration and prepare written reasons.  However, that cost is usually significantly less than the cost of a trial, particularly when the ‘hidden’ costs of delay until the trial are taken into account.

For those who disagree with the arbitrator’s decision, it can be appealed in the same way as an Order made after a trial.  However, that appeal can only be filed on the basis that the arbitrator incorrectly applied the law (whereas Court Orders can additionally be appealed on the basis of asserted errors of fact).  Some see this as an advantage – the decision of an arbitrator is arguably harder to overturn than a decision of a Judge, making the arbitration process more ‘final’.

In all respects, therefore, the arbitration looks like a trial would, save that the clients have ‘hired’ the Judge (the arbitrator), and the trial is being conducted, and paid for, privately.

Many clients say “But my former partner will never go for it”.  Certainly, there will be cases when an adversary is immovable, and wants their day in Court, no matter what.  But most people are not like that – they are stressed by the litigation, they are worried about the impact of conflict on any children, and payment of the legal costs of the process is a subject keeping them up at night.  Even those who have not had to pay any legal costs to that point (because their lawyer has deferred their fees) will have in the back of their mind that their lawyer will require payment out of their ultimate settlement.

The best way to illuminate the real impact of arbitration is to extend an invitation to the other party to participate, setting out a table containing the following key information:

Est. time to hearing Est. time to publication of decision Legal costs
Litigation Not less than [22 months]* Approx. 6 months [$120,000]*
Arbitration Approx. 4 months Up to 2 weeks [$60,000]*

* THIS INFORMATION WILL NATRUALLY VARY FROM CASE TO CASE, AND IS FOR ILLUSTRATION ONLY

As the client’s family lawyer, you will be able to help with the data to be inserted into this table, but the difference between the two options is usually compelling.  There are not many people who can ignore such significant savings in time and money.  When cast in the following way to an adversary – youcould be out the other side of this dispute in less than five months from now – arbitration becomes an attractive proposition for most people.

For those litigants who are languishing in the system, their children getting older, their businesses under duress, and the stress of that situation eating away at them day after day, arbitration can be the breakthrough they have needed.  With the help of their family lawyer, they can get ready for, and have, arbitration, a decision of that arbitrator giving them a final outcome in a matter of months, and at a fraction of the cost of waiting for a trial.

If your client has reached the point of ‘break down or break through’, take hope.  Arbitration may be the ‘exit’ your client is looking for.

For more information about arbitration, visit our arbitration FAQs, read our published articles or contact us to speak with one of our experienced Jones Mitchell family lawyers.

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Jones Mitchell supports Robina Community Legal Centre, not imminent funding cuts

Published March 9, 2017 by Ashlee T. Bowman

For many years, family lawyers from Jones Mitchell have volunteered their time and expertise to help support people without the financial means but in desperate need of legal assistance.

Lawyers Orlena Moloney, Kate GrahamBelinda Peterson, and Olivia Jennar-Bryant volunteer regularly at the award winning Robina Community Legal Centre (recently awarded the Community Legal Centre Member of the Year at the Queensland Law Society’s Innovation in Law awards).

Many cases presenting to over 40 community legal centres across Queensland are family law related.

But many of these people will have nowhere to access urgent legal support within the next four months if planned cuts to funding go ahead.

Community Legal Centres across the country are facing a 30 per cent drop in funding as of July this year. The Queensland Government has publicly stated that it needs to ‘find savings’ of about $1.9m and that these cuts will be made in funding community legal centres.

Community Legal Centres Queensland Director James Farrell said the loss of the local legal advice outreach service would have a major impact on the most vulnerable in the community.

The National Association of Community Legal Centres is still hoping to convince the Federal Government to wind back the planned funding cuts.

According to Mr Farrell only half the people who contact a community legal centre will have access to the help they need.

“The remaining 50 per cent are turned away because we just don’t have the resources we need to provide help for everyone who qualifies,” he said.

‘In July this year the Commonwealth Government will cut almost 30 per cent of funding to community legal centres across Australia.

“Our organisation is calling on Malcolm Turnbull and George Brandis to reverse this decision to ensure people across Queensland get the legal help they need and the justice they deserve.”

Jones Mitchell Lawyers fully supports the wind back of the planned funding cuts to community legal centres and will continue to support the Robina Community Legal Centre in their quest to provide legal assistance to vulnerable families.

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Drew Riley joins the team

Published March 1, 2017 by Ashlee T. Bowman

With both parents practising lawyers and always interested in their profession, Drew had a strong chance of going into law. But practising in Australia and in family was not always on the cards.

After growing up in Los Angeles, Drew moved to Australia to study law and joins two other pre-eminent male practitioners at Jones Mitchell Lawyers.

With a major focus on settling matters out of court, Drew is enjoying working in a field where he genuinely helps clients move on with their lives as quickly as possible.

Drew has a Bachelor of Law from Bond University and a Graduate Diploma of Legal Practice from QUT, and completed his study in July 2015.

With men a relatively rare commodity in family law, Drew joins a team of well-respected male practitioners – Rick Jones and Dan Bottrell.

Drew chose family law because he loves people.

“Family law is the most personal area of law,” Drew said.

“One of my best professional attributes is that I can remain calm in difficult situations. I believe this is a valuable attribute in family law as it helps clients relax in what is otherwise a very difficult time in their lives.”

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The impact of divorce and separation on a developing brain

Published December 14, 2016 by Ashlee T. Bowman

shutterstock_138520637-smallA keen interest of mine has always been parenting proceedings and ensuring that any parenting arrangement that is put in to place is void where possible, of any risk to the children and also in their best interests.

It is for that reason that I attended a recent workshop on the Developing Brain, Brain Development and Strategies for Best Practice.  I was naïve going in to that process, having really no knowledge of neuroscience and its impact upon us.  I had anticipated out of that session that I might learn further about the effect separation might have on the development of a child’s brain and their overall emotional wellbeing.

I learnt however as part of that process that it is not quite as simple as that.  There was some discussion about the ideal parenting arrangements for a very young child where the parties separate when they are newborns or infants given that it is the first thousand days of brain development that are important to a child. 

I also learnt from a parenting perspective, the differences between the development of the female and male brain.

It is an area that I think as communicators we should all have some knowledge of and understanding about how neuroscience may assist us in communicating with our clients but also how separation, divorce and family breakdown may impact upon brain development.

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