Ben and Heather have their eighth session answering questions from the Coffs Coast community – and there were some good ones this time. Here are the topics covered:
Just Fund: This company provides financing for family law cases.
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Benjamin Bryant: Hello everyone. So glad you could join me for episode 56 of our podcast.
I’m your host Benjamin Bryant from Bryant McKinnon Lawyers and today we are returning to one of my favourite topics: community questions. These are the shows where we answer questions sent directly to us from the Coffs Coast community.
As always, I am joined by my partner and family law specialist Heather McKinnon and together we will be taking on some tricky questions from our listeners.
Before we get started, a reminder to please share this podcast with any family and friends who are starting out on the rather scary journey of separation. We now have a library of over 50 podcasts that will provide the answers people need to feel less fearful and make more informed decisions.
And now, on with the show.
Benjamin Bryant: Thanks, Heather. Are you ready to answer some questions from the community?
Heather McKinnon: Absolutely. It’s always our favourite show.
Benjamin Bryant: Yes, indeed. And here’s the first one.
Benjamin Bryant: My partner and I got married in India 12 years ago and moved to Australia ten years ago. We are now both Australian citizens. We have decided to separate and I’m wondering if we will be able to divorce in Australia or if we must go back to India.
Heather McKinnon: Great question, because in our area we have people from all around the world and we often get clients in this situation. So under the Family Law Act in Australia, to be able to apply for a divorce here, you have to be ordinarily resident in Australia for a year before you apply So, we recognise that once you’ve lived in Australia for a period of time, you’re able to access our court system here. All you have to do is establish that you were married in India. And that’s really the only complex part of these sorts of cases. So in Coffs, we’re a refugee resettlement area. So we have people often coming here from war zones. So I remember the first wave of refugees that came into Coffs came from Honduras, and a lot of war-torn countries, like Sudan. and now the people coming in from Syria, have a situation where the people who arrive here have no way of establishing that they are actually married, in their country of origin, because there weren’t advanced systems of central registration or because of a war all those systems were destroyed. So we have to take evidence from the person about when they were married, where the ceremony was, the Imam was in this village, and this is who attended on the day. So the judge then establishes that they were married using things other than what we do, which in Australia, normally if you’re married here, you get a marriage certificate. But I think now we have people from over 120 nations living in Coffs. So that’s the most complex part, is actually proving you are married, if you’ve come from somewhere that doesn’t have centralised registration systems.
Benjamin Bryant: And sometimes it can be about when did you separate? I remember a case when I was a younger lawyer, they separated back in their home country. but they were forced to migrate to Australia as a family. So it was really, really interesting. And of course, in Australia there’s two requirements for a divorce. One is you’re actually married. And the second one is you’ve been separated for 12 months or more. section 39, it is of the Family Law Act, which tells you who can apply for a divorce in Australia. And I have it here. “If you regard Australia as your home and intend to live in Australia indefinitely, or an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately prior to filing for divorce.” So section 39.
Heather McKinnon: Excellent. I got the time right Ben.
Benjamin Bryant: Question two Heather. I started living with my same sex partner ten years ago, but we were just roommates in those days. I’d say that we became life partners about two years later. We got married in 2018, not long after gay marriage became legal. We have now decided to separate. Our financial positions have changed substantially over the last decade. When it comes to dividing our assets, what date counts as the start of our relationship
Heather McKinnon: Yeah. you’re in a de facto relationship, even if you’re in a same sex relationship, it’s de facto. So what we have to do is look at when did your relationship tip over from being a casual dating situation to become a marriage like relationship? And boy, have we done years and days in court with people arguing about when did it tip over into a marriage-like relationship? So in this case, our member of the community says in his mind or her mind, it was two years, after they started dating. But it would be interesting to find out what their ex-partner says. Because you get very differing views of when that commitment starts. So those cases we hate, because we’ve got to go through photos of weddings, 21st, find out when they started introducing each other to the family, when they bought their first furniture together. It gets down into that real minutia when there’s a dispute on.
Benjamin Bryant: Having Christmas lunch together, as famously mentioned in a recent case of ours. And we’re still not quite sure when the relationship started or relationship ended, notwithstanding two appeals later.
Benjamin Bryant: Question three Heather. After many months, my ex and I are unable to agree on our property settlement. I can’t afford to let her get her way, but I also can’t afford to take it to court. Is there some way to get finance for the court costs?
Heather McKinnon: Yeah. Look, there’s lots of ways of, starting to tackle how you do a property settlement if the two of you can’t do it by direct negotiation. If the asset pool is modest, the government has now extended property mediation to the relationship centres or to places like Interrelate. So if it’s what we call a house and garden case where you’ve just got house, bit of super, cars, which is what most Australians have, and you can’t work out how to do it, you can start with mediation at a community mediation centre. If the asset pool is a bit bigger, then you might want to get lawyer mediators involved. As soon as, you get to that stage, you’re going to start to need $5 to 10,000. I think you would say that’s about the right budget. If you need that, you can either, go and get a credit card, get a personal loan in your own name, go to your family. They’re the sort of things we see people doing. But there is also, specialist lenders called, litigation lenders. And if you have significant, real property assets and it’s clear that you’ll get a significant share of those, then those lenders may provide you with what is essentially a personal loan. So don’t, for goodness’ sake, sit there and think, I’ve just got to take what I’m offered because I can’t afford legal fees. Go and talk to a lawyer about the varying ways of getting the case sorted, and they’ll take you through the various ways of getting finance if you need to get legal advice.
Benjamin Bryant: Yeah. That’s right. And I think for people to make the assessment whether they can or cannot afford it, they need to speak to us about what the future looks like. What stages of work may be required, and how much the estimated costs would be, so they can make those informed decisions. We talk about ideas of how they can come up with the funds. And I think what we might do Heather: there’s a recent funder that we’ve partnered with, Just Fund, we might put a link to their website on the show notes so they can look at litigation, lending funding. Which is quite unique, I guess, in family law because as anyone in the system knows, it’s a grey area, it’s discretionary. So it’s a bit of a risk for the lenders to come in and say, look, we’ll give you money on the on the idea that we get paid at the end. They kind of have to make a punt that you’re going to get something at the end. I’m glad that they’re making it available to even the playing field. Because there’s traditionally, a disparity in income earning capacities or financial positions. So I think it is really making it more fair.
Benjamin Bryant: Heather, my partner and I agreed to separate about six months ago. We’re still living together while we sort things out financially, but as far as I’m concerned, we are no longer together. My mum is very ill and not expected to last much longer. I’m an only child so I would expect to get a sizeable inheritance when she goes. Seeing as we’ve already agreed to separate, can my partner claim part of my inheritance?
Heather McKinnon: Yeah, it’s more and more common the longer we live and the bigger the inheritance gets that we get these sorts of problems. So separation is defined as when one partner clearly communicates to the other that the relationship is over. In this case, it may or may not be the view of the other spouse that you’ve separated because you’re still in the one house. So there has to be a little bit of evidence gathering about why people say the relationship is finished. In this field, we have a thing called prospective inheritances. So if you have a parent who is diagnosed terminally ill or who has reached their life expectancy and has a condition such as dementia, where they can’t change their Will, the Family Court will take into account that inheritance as part of their deliberations in property settlement. So we have at any one time in our practice, Ben, probably 4 or 5 cases where people have separated, and an inheritance has come in before the settlement has been agreed. So it is more and more common and the court deals with this quite regularly. So in this case, it is very important that the person receiving the inheritance really tries to get a settlement done as quickly as possible. Certainly, the fact that it hasn’t crystallised gives it a short window. But depending on how good the legal team is on the other side, they may move to get a copy of the mother’s Will and some medical reports to actually try and look at how far into the future it’s likely that this person is going to receive a sum. And, you know, people think we’re moral, bloody, reprehensible people because we have to look at these questions. But in the main, these people usually have lived together for 25, 30, 40 years. So the inheritance that’s coming is going to set that spouse up for a much more secure future than the one who’s not getting it. So please don’t shoot the messengers. Our job is to actually look at all of those things when we’re advising clients.
Benjamin Bryant: That’s right. And it’s not our not our job to say you should be doing something. We’re just saying how the four-step process really applies, and you guys can agree to what you want. You can choose not to go for the inheritance. That’s fine. But you know, this is ultimately what the Family Law Act says about the issue. And that’s what I wanted to say. Heather it’s not making a claim on part of the inheritance per se. If the inheritance has already been received, then we go back to that step one: what are the assets and what are the liabilities of the parties? It’s not ignored. And then the question really comes to the next stage, the contribution stage as to the assets that are up for grabs, how to get there. And so there will be adjustments. So if it’s already been received, the court will absolutely take that into account. If it hasn’t been received, of course it’s not on the asset pool. It’s not on the balance sheet. But when you get to the third step about when we’re looking at the future, the future might be very different for someone that’s just about to inherit $1.5 million to the other party that’s not. Also we get a lot of questions on fairness, because people don’t die at the same time. We have one spouse’s inheritance that’s received during the relationship and that’s used to buy the matrimonial home and all these different things. And the other side is yet to get their inheritance. Then how is it fair that they get to go off and get their inheritance, but I had to share mine. So very interesting, very complex.
Heather McKinnon: It is.
Benjamin Bryant: Heather. The next one is: my partner came home last month and told me he wanted a divorce. Once I picked myself up off the floor, I went looking for a divorce lawyer. I live in a regional city and somehow my partner has been able to get his name down with every decent family lawyer in the area, so no one will take me on. Is that legal and can he block me from every lawyer in town?
Heather McKinnon: Ah the wonders of social media. We see this, obviously, all the time. There’s only a handful of really senior accredited specialists outside the capital cities. It is a tactic. But what I’d say in modern day practice is that your lawyer can come from anywhere. I mean, if it does happen to you, don’t panic. Just go online and look for someone out of the area that he hasn’t been to who’s properly qualified. Problem that we have is once we see a client and we take a history of a relationship, even if they never come back, we’re not able to act for that person because we’ve been given access to critical information. That’s the reason that, for instance, we make you pay for your hourly visit, because we may never see you again. We’re not in the habit of allowing people to tire kick for free and try and set up a situation where their ex is put out of getting local help. But what is interesting, and what I’m waiting to see, is the Family Law Act has just been amended to say that in situations where a spouse is acting in a way that is unfair or intentional, to try and affect the financial outcome, that the court may step in to address that now,
Benjamin Bryant: Like an abuse of process.
Heather McKinnon: An abuse of process. And in this case, it could be that you could argue that if you have evidence of lawyer shopping, where someone has gone to 5 or 6 lawyers so that you can’t get advice, a judge may in fact find that it was an intentional abuse of process. But look, my view is don’t even go down that track. You can ring us and say, look, we’re being put out, if you like, of the race, but who would we suggest? And certainly most lawyers have good contacts in cities close or will give you a Sydney or Brisbane firm that are happy to work by Zoom.
Benjamin Bryant: And what I would say Heather to reassure our dear listener, is that it takes more than just putting your name down. People do try it. People do try it all the time, and they even go to make an appointment with one of us and never show up. But we can assure our listener that if they don’t show up, they are removed essentially from our system, so they can ring up later on. And we also warn the person as well that that’s going to happen if they don’t show up, so they’re aware of it. So it’s a little bit more than putting your name down. It’s more, as you were talking about, once you pass on that critical information or information that we otherwise wouldn’t be privy to, had we’ve not seen them and got the history. that’s when we’re out of the race, as you say.
Benjamin Bryant: Heather, my ex is being completely unreasonable in his demands, which means our property settlement is going to have to go to court. My lawyer has made several really reasonable offers, (of course), and he just keeps saying, I’ll see you in court. This is going to cost me a fortune. All because he’s being pigheaded. Is there any way that the court will see this and force him to pay my legal costs?
Heather McKinnon: As you’ll hear in other podcasts, the separation process is about people being at the same stage of the grief journey. Most property settlement conflict comes because somebody has had their head in the sand and just doesn’t want to accept that it’s over. So they use these sorts of techniques of saying, I’ll just fold my arms and not do anything. The court certainly, now moves very quickly to get people to mediation. And mediation settles probably about 95%, I think the current stats are. So even if you have to file in the court, what that means is that you’ll be ordered into mediation. And at that stage, the person who’s being pigheaded usually starts to see that that behaviour is not going to be productive. And it’s not going to be productive for them and it’s going to cost them money. But if somebody, is unwilling to negotiate and you’re forced to a hearing and one spouse is completely unreasonable and outside the range when they’re seeking orders, then the court will certainly look to either order that that person contributes to your legal costs or will start to even up the pool by making adjustments for that unreasonable behaviour. I must say Ben, I think it is very rare. It’s common that that denial phase starts, but once people get to mediation, there’s very few that don’t see that they’ve got to start to be reasonable.
Benjamin Bryant: It is rare. And I think also why it’s rare is because there’s section 117 of the Family Law Act, Heather, which talks about how costs are dealt with, if the court was going to make an assessment or an order in respect to costs. And the first rule, the default position, I guess we could say, is that each party bear their own costs. Which is a little different to other jurisdictions. People are used to hearing about the winner gets their legal costs paid for and things like that. As we know, and we’ve discussed in many other episodes, there’s likely no winners in the family law courts. and so there’s a presumption that each party will pay their own costs. There is some discretion. 117 says if the court is satisfied that it is just to make a cost order, then it will do so and will take into account things like the financial circumstances of the parties, the conduct of the parties, perhaps this is where the pigheadedness comes in, whether one party was wholly successful, and if there’s been any previous offers made and rejected and things like that. So they’re the things that the court will take into account. And I must say, people when they talk about costs, they think costs on an indemnity basis or like a dollar for dollar. If I’ve paid $10,000 for a lawyer, then you’ll pay $10,000 to me. Doesn’t quite work that way either. There’s a scale of costs on the back of the Family Law Act, and it’s not as much as what you think. There are some extreme circumstances where the court will do a dollar-for-dollar indemnity basis, but it’s very rare.
Heather McKinnon: The one thing that just came to mind there is we have a regime that’s in place that at every step of the proceedings both parties have to tell the judge what they’ve paid to date and what they expect to pay in the future and exchange that. So the judge is aware at every step as to what the economic cost is to the parties of continuing the dispute, and the mediators and the judges constantly refer to those cost notices. Do you realise if you keep going it’s going to cost you $50,000 or whatever it is? And that’s where people start to really get out of denial, because the costs of litigation for average Australian workers after mediation is just not a good investment.
Benjamin Bryant: And that’s my comment. There’s not always a winner.
Benjamin Bryant: Heather, the next one’s a complex one, but a common one that we get. My children are currently attending a public school, but my ex-partner, their father, insists that they should go to a private school once they reach high school. We never talked about this when we were married, and I can’t afford to pay for a private school. Do I have to agree to send my kids to private school? And if I do agree, do I have to contribute?
Heather McKinnon: Yeah, quite a common dispute between parents. So the first thing is that these decisions are made on the basis of what’s best for the child. That does not mean that judges determine which schools are best. What they look at is which parent is best able to make appropriate decisions about education. So if there’s a real conflict, there won’t be a decision about which school the child goes to, but there’ll be a decision about which parent can decide that question. The general rule of thumb in Australia is that if parents had enrolled children during the relationship at a public school, that’s where they will go. If one parent is prepared to pay the costs of a private school, the court has to determine whether the parent is making that decision in the best interests of the child, or whether the other parent is the person that should make that decision. So, for example, we’ll often get a dispute about children going from their peer group established in year five and six to a different school. Rather than go through the feeder school to the high school that their friends are going to. So one of the things that, as court psychologists will look at, is how important is the peer group to the child? Is there any reason the child should move? There are examples of where moving a child from the public system to the private system could be argued. For example, if they have, certain particular needs, either they’re very talented children who are looking to go to Australian sports teams or they have a learning disability where a particular school caters for that particular child. That sort of evidence could be led. But in the main, the judge will just say, look either I’ll rule mum makes a decision or I’ll rule dad makes the decision. They won’t go into which school is better for the kid.
Benjamin Bryant: That’s right. And as you were talking about Heather, this is an issue of parental responsibility. And at the time of recording this episode there’s been recent changes to the Family Law Act, which essentially remove a presumption that the parents have equal shared parental responsibility and that the court will essentially allocate parental responsibility, if at all, on a case-to-case basis. So it’ll be interesting to watch this space to see if there’s going to lead to more or less conflict about schooling.
Heather McKinnon: And one thing I would say about this is that the courts don’t want to get involved in the political debate about the divide that’s happening in the Australian education system. It’s not their role. So, trying to prove that one school is better than the other is not something any judge will enter into. They’re not there to make policy decisions about education.
Benjamin Bryant: And Heather, final question. My partner and I separated a couple of months ago. My partner has moved into a flat a couple of blocks away, and I’m living in the family home for now. My ex still has a key and thinks it’s okay to show up whenever he wants. Is it legal for me to change the locks even though the house still belongs to both of us?
Heather McKinnon: Let’s do the easy bit first. You can change the locks on your own house whenever you like.
Benjamin Bryant: Just like he can.
Heather McKinnon: Yeah, you can pay thousands of dollars for locksmiths. But guess what? Your ex can just come and smash a window or get a key and go in, because he owns half the house. This sort of question happens in almost every case where people separate. So let’s get to the practical way that we deal with these issues. When people need to separate, the psychologists tell us, it’s critical usually that you try and give each other private space. It’s really not sensible to try and keep living in the one house if your relationship is over. It’s particularly toxic for little ones who are there with mum and dad sitting at the breakfast table not speaking to each other. So this couple have done a really sensible thing in that one of them has said, okay, I’ll go and rent. Most people once that’s done, in my experience, never, ever invade the other’s privacy. So most people, when they’ve done that are respectful. They send a text. Can I come get my golf clubs on Saturday? Or can you water the plants while I’m away or whatever is going on? But there are a small percentage that want to keep control of the space by never, ever allowing that privacy. And they will constantly come in. So we have a series of measures that can be taken. If you can’t negotiate privacy, then, I would say, go to mediation to try and get the mediators to negotiate privacy. If the behaviour becomes more intense and it’s stressful and it’s a form of psychological abuse, make an appointment to talk to the domestic violence team at the police station, because often this behaviour is the tip of the iceberg when someone’s debriefed. So you’ll find that, there’s control over a whole lot of things that they’ve never shared with anyone.
Benjamin Bryant: It might not just be situational.
Heather McKinnon: Yeah, yeah, yeah. So go and get that help. But in the main, when you separate, before you’re able to do the settlement and the house is sold or the other partner buys the house from the other partner, there’s this period, a holding pattern where you’ve got to set ground rules for entering and leaving each other’s properties. And it is really important that you abide by any agreement that’s reached and give each other the dignity and respect of privacy, which is critical to every human. Everyone needs to feel safe when they go to sleep at night, and there’s nothing worse than being in a home when you can’t sleep. So I would encourage people, if you’re finding that topic difficult to navigate, get to mediation. Because it’s a common thing, and there are lots of practical suggestions as to how you can arrange that. But don’t change locks. It costs a lot of money, and it sends the other partner off the Richter for no reason. You both own the house. Your capital’s not going anywhere. You’ve just got to work out, how do we manage this for 6 to 12 months until we get the house sold? In saying that, I think we are moving into an economic cycle where properties will be held a lot longer. Both because refinance is difficult and may take many months longer than it did in the boom. And if the house does have to sell, people have to bed down. we could have properties on the market for more than a year in this economic climate. So it is something that is determined by the economic cycle we’re in. So be sensible. Do your best. Give each other privacy and chat with someone that can help you if you’re finding it difficult to do it yourselves.
Benjamin Bryant: And I think Heather, all I would add is I agree that mediation for most people is really appropriate. But sometimes it is not appropriate to do mediation, especially if safety is a concern. So I would say, particularly for this listener, it is true to say that both parties have a right to enter the premises. It’s their name on the title. They can change the lock. It’s not break and enter or trespass into your own home. But no party has the right to make the other party feel fearful, intimidated, harassed, or stalked. Okay. So if that is an issue, if you have concerns for your immediate safety, that is a matter for the police, that is a matter for that, as you mentioned, the domestic violence liaison officer at the police. That’s where you need to get your information. Once the parties are safe, mediate and try and get it sorted.
Heather McKinnon: Excellent.
Benjamin Bryant: All right. Thank you. Heather. I agree with you. Community questions are my favourite type of show. Thank you so much.
Heather McKinnon: Thanks, Ben.
Benjamin Bryant: Thank you for listening to this episode of community questions. We hope the show has helped with some of your own questions.
There are so many questions when you’re going through a separation and that’s why we created this podcast. We now have an extensive library of episodes on different topics, featuring different experts. So make sure to review our growing library to find the answers you need.
Have a look at our website (bryantmckinnon.com.au) where we have categorised the episodes to make it easier to find the information you are looking for.
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The information provided on this podcast is general in nature and not a substitute for personal legal advice. We recommend you consult an accredited family law specialist.