This month accredited family law specialists Benjamin Bryant and Heather McKinnon fielded questions about family matters from the community. Here are the questions addressed in this podcast.
The following sections of the Family Law Act 1975 were referenced in this podcast:
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Benjamin: Hi, everyone, and welcome to Episode 7 of The Family Matters Show podcast. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers. And I’m here with my partner Heather McKinnon. Can you believe that we’re already recording Episode 7?
Heather: It’s so exciting that the show has really got some street cred now. We’ve had some amazing experts on and it just keeps getting better and better as more people accept that they want to share their knowledge. And we’re really excited about the credibility that the program’s now got.
Benjamin: And on our last show, speaking of experts, I thought our last show was one of the best yet. And for anyone who missed it, we had Dr Doug Andrews from Coffs Harbour’s Baringa Hospital as our guest, talking about the impacts of domestic violence. Domestic violence is never a nice topic, but Doug’s insights were really valuable. And I think there are plenty of people out there in our community who will benefit from Doug’s advice, whether those people are going through domestic violence themselves or someone they know and love are going through it.
Heather: Look, it’s really important to have his knowledge and to have it recorded. Domestic violence is one of the toughest things that we have to deal with in practice. And I’m glad that we now have those back copies of episodes that people can enjoy and learn from when they’re ready.
Benjamin: And for anyone who missed it, if you want to access the show with Dr Doug Andrews, you will find the episode on the impacts of domestic violence on our website or wherever you get your podcasts.
Benjamin: Now, moving on to this month’s show. Once again, we have opened the episode to questions from our community and thank you to all who have sent in your questions. We got some great ones. And just before we dive in, I want to say that your questions are welcome at any time. If you’ve got a burning question, just send it on Facebook Messenger or e-mail us at familymatters@bryantmckinnon.com.au. Our producer, will come to you fairly quickly to let you know when we can feature your question on the show.
Benjamin: Now let’s have a look at those questions that came in this month. Our first one Heather actually came in in response to last month’s episode.
Benjamin: What questions are there for a mother if she takes the children and restricts access to the father, thus harming the children, for many months before the court takes control? And if the father were to do the same, do you think the situation would play out the same?
Heather: It’s a really telling problem in the community that often when separation occurs, people will lash out and use kids as some sort of a bargaining tool. The role that the court has, is always to look at what’s best for the children. But because of the resource problems with the court at the moment, it is true that it can take some time to get a matter before a judge.
Heather: So the viewer asks, what’s the consequences if a parent holds little kids and won’t let them see the other parent? Every case is different. There are very good reasons why a parent may withhold children and they’re usually around an assessment of risk. So every day in practice, we will come across cases where a parent who is functioning, says that the parent that has been away from the children has a deteriorating problem, in that they’ve got a mental health issue, drug and alcohol issue, they’ve got a violence issue or there’s allegations that they’ve abused children. So the court’s got to be very careful that they listen to both sides of why parents are involved in what we would call “snatch and grab” and make sure that the children are safe and that they are able to have an ongoing relationship with both parents. If a person is malicious and is just holding the children with no earthly reason, other than to get back at the other parent, that does have serious long term consequences. Because ultimately when the court expert interviews the family, if they find that a parent has not been able to put aside their needs for revenge or harm and has used the children as sort of pawns in a power play, it would show that the long term parenting capacity is impaired. So it does have serious consequences.
Heather: As a family lawyer, our problem is we have to keep the parent who’s doing the right thing calm while the court process starts. So there’s often a period of time where your client will be getting increasingly anxious that they’re not able to see the children, while the court takes the process through to the hearing stage. So it’s very complex. It’s hard. Every case involves a careful assessment of, are there risks to the children or are the parents playing some sort of game with the kids.
Heather: The other thing that the question’s about is, is there a difference in the way mothers and fathers are treated in the court? There is no difference. Every longitudinal study shows that parental capacity is assessed equally whether the parent is a mother or a father. The problem is that when you’re in the situation and you’re the one feeling aggrieved, you will think that the court’s against Mums or the court’s against Dads. The stats show that’s just simply not borne out. The court is very even-handed in assessing what’s best for kids. And there’s no indication at all that judges will make decisions based on the sex of the parent.
Benjamin: So I guess what you’re saying Heather is, it’s a real balance. You know, under the Family Law Act, Section 60cc sets out the criteria that the court must adhere to when making an assessment as to what’s in a child’s best interests. And the two paramount considerations are, of course, keeping a child safe, so the risk assessment that you said, and also ensuring or having the child have the benefit of a meaningful relationship with both of their parents. So it is trying to strike that balance.
Benjamin: I know that we had a judge in Coffs Harbour a few years ago, and I was sitting as a young lawyer back in court. And I heard the judge say words to the effect of, “If you have withheld this child without reasonable excuse or without a good reason, your actions are tantamount to child abuse.” So that was quite a strong view taken by that particular judge. But on the other hand, as well, the Family Law Act can’t be implemented in a way where parents who may have good reason to withhold their child would be fearful that the court is going to make an order against them.
Heather: Yeah, I think the message is, if you’re in one of these situations, you’ve really got to get into the court as quickly as possible and set out why you’ve made certain decisions to hold children or if you’re in the other situation where kids are clearly being withheld, and you’ve tried mediation, and it hasn’t worked, you need to get your application to the court promptly.
Benjamin: And what I say to clients as well, Heather, is that if they’re not withholding children for good reason, all that other parent is going to get is time. You will walk away out of the proceedings with a meaningful relationship with your child if there are no risk factors. And sometimes what you’re doing is allowing the other party or the other parent essentially to create a noose. Because what they’re doing is they’re demonstrating that they don’t have the ability to facilitate a relationship between the child and you, whereas perhaps your past actions can.
Heather: And so that’s what people have got to be very mindful of when they take things into their own hands.
Benjamin: The next question, Heather, we are going abroad. I need to divorce my husband but he is in Ghana and I’m not sure if I can get papers to him. Can the papers be emailed to him to be formally served?
Heather: A very common question in Australia because we have such a multi-cultural society. Often when relationships break down, one person, who may not have been born here, will leave and go back to their families. So in terms of serving divorce papers, the law says that if someone’s overseas they’ve to to get those papers and have them for 42 days before the judge can make a divorce. But the balance that the court makes in terms of having the requirement to serve personally, which is what you have to do in most divorces, has to be weighed up against the practicalities, including the expense.
Heather: So in this case, Ghana is unlikely to have a modern process serving community where you can just pay a couple of hundred bucks and the documents will be served. So in practice what we do, is we make an application at the same time that the divorce is filed, seeking orders to substitute service in a way other than serving personally. So as this writer has alluded to, you would seek an order that you’re dispensed with the requirement to get someone to get on a motorbike and go to Ghana and find someone in that place, but rather that you have an email and Facebook address for the person you’re trying to serve. The judge will then say, “Look, we accept that that’s a practical way of doing it.” And the judge will make an order that you can serve the person by e-mail or Facebook, and that will be deemed to be as good as personal service.
Heather: If the country that the person had gone to was a western country like Canada or the UK or the US, it’s harder to get one of those dispensation of service orders because the judge will say, “Just get a process server in Manchester and they’ll find them.” But in cases where you’re looking at third world countries that haven’t got developed systems, they’re much more likely to say, “Look, we’re happy to grant you the right to serve by email.”
Benjamin: And Heather, this viewer has an email address. What if you don’t have an email address? You might not have contacted them for years and years and you don’t know where they are. What about that circumstance?
Heather: So one of the things that we see in Coffs Harbour is we’re a high resettlement area for refugees. And so over the years, this has been a common problem for people who ,say were married before their country descended into chaos, they were separated and lived in U.N. camps for years, and then one party to that marriage was repatriated to Australia. The whole system breaks down because where they came from is destroyed. There’s no government records. They don’t even know what happened once their spouse was separated from them in the UN camps. So what the system says is, put all that evidence to us. We’re not going to make you stay married to somebody in those sort of extreme circumstances.
Heather: And so it’s really about getting your story before the court, “This is why it’s not practicable for me to find where my ex is.” The other obvious time that we see that is in cases where there’s been a long history of extreme violence, where the triggering of the divorce being served may expose the person to further risk of violence. So there’s ways to do things. It’s just a matter of assessing each case on its merits.
Benjamin: The next question Heather is: My son is 44 years old and we have just located his father for the first time since my son was born. Is it possible for me to claim that child support for all of the years when I had to look after the son on my own?
Heather: This is an age old story in Australia. We only really got a modern child support system in the early 90s. And so for many people who have children who are now adults in their 40s, they raised the children, not only without child support, but there wasn’t even child endowment. In a case where you’re seeking arrears of child support, basically the rules in Australia are you have to have registered for collection. So in this case, if, while the child was still under 18, the mother had registered for collection, there is certainly the prospect that the agency will seek to recover arrears, even though the child is now well and truly an adult. Unfortunately though, because this adult is now 44, it would probably be the case that those laws which apply now didn’t exist when that person was a child. So arrears are really only available if you registered with the agency while the child was under 18.
Benjamin: And Heather the next question is: My wife and I agreed it was time to separate a few months ago and I moved out to my own apartment. We are young and don’t have much in the way of assets and no children. So we’ve pretty much sorted out the money side of things on our own. I want to move on with my life. So I’ve completed all the paperwork to file for divorce, but my wife now refuses to sign. What should I do?
Heather: So Ben, another very common question. For those who are watching who are interested in filing for divorce, even in cases where our clients are multi-millionaires, Ben and I suggest they have a go at doing their own divorce. And in this case, this person has obviously done the divorce, but they are under the misapprehension that their ex-partner has to sign.
Heather: There are two sorts of divorces. One of them is a single applicant. So you apply for the divorce even if your ex doesn’t want it. And the other form is a joint application for divorce. It looks as though this person has done the joint application. But the very nature of a joint application means that you’re doing it together. So this person has to go back now and file a single application for divorce. And then the only process they’ve got to complete is having that served on their partner. And there are process servers in every region that are very good at doing the documents to serve and they’re very modestly priced. So I would suggest this guy lodges his application, rings a process server, delivers the sealed documents to the process server and the process server will then get the documents served in a lawful way and the divorce will go through, even though the ex-partner may not want it to occur.
Benjamin: I think that’s sage advice, Heather, because invariably when people come to us saying “I’ve tried to get my own divorce”, there’s an issue with service. If there’s going to be something wrong, it’s likely to be in respect of service.
If you make a sole application, as you mentioned, Heather, there’s two ways you can essentially effect service. One is you can effect service by sending it in the mail, but that requires your partner to sign acknowledgement of service and sending it back to you. So there is still some cooperation involved if you service documents through the post. Or, like you’ve just said, you can arrange for a personal service, whereby you just give it to a professional, a process server, and they effect service.
Benjamin: Something that I would say to this particular listener, they only separated a few months ago, is what he said, and of course he’s talking about divorce. But we know that a requirement for divorce under Section 48 of the Family Law Act is you have to be separated for twelve months. So that’s a requirement.
Benjamin: Another thing that also came to my mind, is they said they were a young couple, so I wondered if they’d been married for less than two years. So if they’ve been married for less than two years, Section 44 of the Family Law Act says that you have to try counselling first and get a certificate from a registered counsellor.
Benjamin: Heather, if they don’t get a divorce, they say it’s all just too hard, what can be the consequences of not getting a divorce?
Heather: One of the really positive things to say to your ex-partner is, “Let’s do this together because we need to draw a line in the sand so that we have certainty going forward.” So the reason that people really need to face the end of the relationship and do the divorce is so that moving forward they have a very clean break and they can get on with their lives without that hanging over the head of “I’m still married.” “If I get killed in an accident, what happens to my Will?” There’s lots of reasons why it’s good after a couple of years of separation to tidy up loose ends and actually face getting a divorce.
Benjamin: So any intention of having the financial ties severed is achieved, nothing hanging over your head later on.
Benjamin: And Heather, our final question today is a common question, but a very important question. My husband and I married almost 10 years ago, and at that time he was a widower with a two year old daughter. That child is now twelve. And from my point of view, she is my daughter, since I’ve raised her for most of her life. We have since had two more children who obviously think of her as a sister. My husband and I are now planning to separate. And I’m wondering what rights I have with regard to custody or visitation for my 12 year old daughter. Will she be separated from our other two children?
Heather: So in the general public we think about parentage in the main being a biological thing. But in fact, as family lawyers, what we’re interesting in is psychological parenting. Where are the children’s attachments. So in this case, this child only knows the viewer as the mother. And so the child’s relationship with the mother is going to be dealt with the same as with the siblings. There is no doubt in this case that the family court would consider this person to be the mother of the child, even though she does not have that biological relationship.
Heather: It’s critically important that people understand in the work that we do that attachments that children have to adults have nothing to do, in the main, with biology. So we deal with people who are raising children who might be nieces and nephews. They might be grandchildren. They might be children from reproductive technology. What we’ve got to do is look at what’s best for that child. Who are the carers that provide the emotional and psychological needs for this child.
Heather: So in this case, the twelve year old, in any sort of assessment will say that Mum is Mum, even though that child’s biologically unrelated to that person. So you’re really saying to clients in this position, you’re in the same boat as any adoptive parent is. You’re legally, for all intents and purposes, the parent and the court will proceed to assess all the children, the three of them, as to how they spend time with each of their parents. Obviously the emerging adolescence of this twelve-year-old is a complicating factor but I think for this viewer, what you need to know is that the system looks at the attachment, not the biology of how the child came to be.
Benjamin: And I think it’s also important to reassure this listener that under the Family Law Act, she has just as much entitlement to commence proceedings, in respect to her 12-year-old daughter, as well as the other daughters. So as someone that has a genuine interest in the care, welfare and development for the twelve-year-old daughter, she absolutely can apply for parenting orders just as much as the other children or any other mother. So I think it’s very, very important to reassure this listener that absolutely the Family Law Act does cover her in that sense.
Benjamin: Thank you again for all your questions. Divorce, separation, family transitions. These things are really difficult and there will always be questions. So please feel free to message or e-mail the show at any time and we will do our best to make sure your questions get answered.
Benjamin: Next month we have a very special guest and I’m really excited about this, Heather. Miranda Montrone is a psychologist, family therapist and infertility counsellor based in Sydney. She is going to come on the show to talk about assisted reproduction. She has over 30 years experience dealing with the complexities of IVF and surrogacy and provided advice to parliament when they were drafting the New South Wales Surrogacy Act. So she’s a genuine expert in this area and we’re really looking forward to having her on the show. If you have any questions about surrogacy or IVF that you would like us to put to Miranda, then please either send us a message on Facebook or email us on familymatters@bryantmckinnon.com.au.
Benjamin: Before we go, one final reminder that links to any resources mentioned on today’s show will be available in the show notes on our website. Goodbye for now and we hope you’ll be listening again next month.