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E5: Child-focussed parenting arrangements after divorce

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On the Show Today You’ll Learn

The thorniest family law questions in any divorce or separation often relate to the kids.  In the episode accredited family law specialists Heather McKinnon and Benjamin Bryant discuss child-focussed ways to handle financial and living arrangements to achieve the best outcomes for your children.

Specific topics discussed include:

  • Budgeting for the long term commitment to raising your children;
  • Child Support Agency assessments;
  • Managing changes in financial situation after divorce;
  • School fees and child support payments;
  • Capitalised child support;
  • Finding the best living arrangements depending on your child’s developmental stage;
  • Managing living arrangements for blended families;
  • Handling relocation of one parent;
  • Help available to work out optimum arrangements.


Links & Resources Mentioned in This Episode

Department of Human Resources – Child Support: this is the website for the department responsible for managing child support and has a wide range of information, tools and resources.

Parents Guide to Child Support:  this is a great guide to help parents understand how the child support system works.

Children Beyond Dispute:  this is a great website for working out age appropriate parenting arrangements and understanding the impacts of conflict on your children.  Particularly appropriate for parents of young children.

Family Relationship Centres: provide information, advice and counselling.

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Full Episode Transcript

Welcome to The Family Matters Show

Benjamin Bryant: Welcome to the Family Matters podcast, where we answer the tough questions about divorce and separation. Empowering you to make better decisions for yourself and your family.

Benjamin Bryant: Hello again, everyone. Welcome to episode five of the Family Matters show podcast in which we will tackle the really tough question of how to reach a reasonable and fair agreement about the kids. I’m your host, Benjamin Bryant, an accredited family law specialist with Bryant McKinnon Lawyers. And I’m joined today by my partner in crime, Heather McKinnon.

Heather McKinnon: Hi, Ben. It’s great to be back. It’s really important that we focus on what happens to children. And I’m really excited that this show’s going to talk about the impacts of the financial aspects of the breakdown of relationships for kids.

Benjamin Bryant: For those who may not already be aware, Heather is an accredited family law specialist and an independent children’s lawyer, which means she is qualified to represent children in court proceedings. So Heather is particularly attuned to the welfare and interests of children during separation and divorce. Today, we are going to zero in on two big issues that need to be sorted when it comes to the kids: financial support and the living arrangements after separation. For the purposes of this podcast, we are going to assume that all you listeners out there are interested in finding fair solutions that support your kids. So, if you’re just itching for a fight and are willing to sacrifice the children to get your way, this probably is not the podcast for you.

Heather McKinnon: Well said, Ben. Balance fairness and a focus on the kids is critical to getting post separation parenting right.

Financial arrangements that are fair to children

Benjamin Bryant: So, Heather, let’s start with the financial support for children. If I’m a parent who wants to do the right thing for my children, what do I need to consider when working out a fair financial arrangement after separation?

Heather McKinnon: What we know is that the worst thing for kids is conflict when their parents separate and the second worst thing is poverty. So, if you make financial decisions based on removing the kids from any conflict and making sure that their basic financial needs are met, you’re probably going to make the right decisions. So, you need to look at your capacity to contribute to kids and also what the kids needs are. Don’t make financial decisions based on emotion. Make them on the basis of a prudent planning process so that your kids can have the things they need to thrive.

Benjamin Bryant: So, what I find, Heather, when people come and discuss financial arrangements for children is that I need to remind them that the expenses for children are still there as the family unit as they are now when they’re separated. So, the costs of soccer and the school fees and things like that, they’re still there. And all that’s changed is the income stream, where the income comes from.

Heather McKinnon: Yeah, the biggest stress is obviously on people when they separate because they’ve got to set up the two households. But it is really important for parents to remember that in that period of high stress, all the bills to keep the kids reaching their potential continue unchanged. So that’s from basic stuff like their food, clothing, their sports stuff and all their extra curricular activities. That remains constant. So it’s important to focus on how you’re going to look at the combined family income, even though you’ve got two households, to make sure the kids can still reach their potential.

Benjamin Bryant: So, would you suggest to parents to prepare a budget?

Heather McKinnon: Yeah, I usually do that. I say, look, sit down together just before separation, if you if you’re actually mutually talking about how you’re going to do it, look at all the income sources that you’re going to have. So, you’ll have Dad’s income from work, Moms income from work. You’ll have the change in family tax benefit that will occur when you’ve got two households. So, there may be an increase there in Centrelink. You have to get an understanding of whether child support will go from one house to the other house. Once you’ve got all the income sorted, put it into a pool and then look at what the fixed expenses are going to be for both households. So, the person who remains in the house will have to look at what they contribute to the mortgage. The person who leaves the house will have rental payments and then from there you just work through who’s going to have what for food? What school expenses do we have? What kids extra curricular activities do we have? And work out how you’re going to make that combined income cover off the needs for both households.

Benjamin Bryant: I think it’s a great practical tip Heather to help people move forward. Look at it in a logical, arm’s length way. Because I find that when parties can see that monies are going towards their children, they’re on the same level, they’re on the same playing field. But it’s when they think that they’re funding the other party’s lifestyle or perhaps the new partner’s lifestyle, or something like that. That’s when the wheels fall off.

Heather McKinnon: Exactly, and that’s why it’s important to remember that getting your kids through to adulthood is a team effort. And that team effort has to continue whether you’re living together or separate. So, this management skill of looking at what the kids’ expenses are is something that I encourage all separated households to do, probably twice a year. So, you update, you know, Johnnie’s changed from Tai Kwondo to soccer this term. And our daughter’s gone from doing jazz ballet at one of the dance studios to wanting to do aerobics at one of the gyms. You’ve got to have that constant communication about the changing expenses that the kids are incurring. And the other really important thing to remember is they get more expensive the older they get. So the proportion of the income that parents are spending gets bigger on the kids as they move towards year 12. And that’s hard for people who separate when they have toddlers, because they often underestimate what the lifetime commitment to parenting costs. And you really need to get your head around that very early on.

Should you take future events into account in financial arrangements

Benjamin Bryant: When working out financial plans can you or should you take into account what is expected to happen into the future? For example, one partner is likely to receive a large inheritance or one partner currently has a low income, but is on a career path that is likely to mean that they will have a big salary in the future.

Heather McKinnon: Those things are really important to talk about if you can. Obviously, one of the things that often happens in families where there are grandparents with capital is that there’s an agreement that the best contribution the grandparents can make is to things like school fees. So you need to have that frank discussion with each other about whether you’re going to speak to the grandparents, about the fact that it is a mutual decision, that any help that can come from the grandparents should go to the grandkids rather than the adults. And that often eases the angst amongst everybody about how management of finances intergenerationally is going to occur when separation happens. It’s also important, as you’ve pointed out, to note that people who are parenting will often have different cycles in their career. So it may be that the Dad took time off to be a stay at home dad when the kids were little, on the basis that the Mom’s income at that time was higher. And it might be as parents move forward, that there’s a reverse in that, in that Dad’s income might go up and Mom’s may stay static. So it’s keeping live to the fact that it is a two decade, at least, commitment. And in that 20 years, you’ve got to try and keep the financial communication healthy so that you don’t revert to conflict and cruel the potential your kids have to really make the best stab in life that they can get by having adequate resources provided by their parents.

How to prepare for unexpected financial changes in the future

Benjamin Bryant: And so Heather how can parents best prepare for unexpected changes for something like when someone loses their job or perhaps one of them remarry?

Heather McKinnon: So these are those sorts of questions that financial planning is all about. Parents need to keep looking at things like income protection insurance and life insurance while they have dependent children, even though they’ve separated. So families, where there is a good level of communication post separation, will keep cross-insuring each other’s income and life insurance. Or when they’re doing that joint expenses exercise, they’ll acknowledge that even though one person may be getting the benefit of income protection insurance, it’s specifically because it’s their income that’s keeping the kids in private school, keeping the kids able to do their extra curricular activities and get things like tutorials for Maths and English or whatever the kids need. So you know, obviously keeping that level of communication takes maturity. But I’ve seen it work really well with people who focus on the kids, not on themselves.

How to work out child support payments 

Benjamin Bryant: And what happens when the other party doesn’t want to play fair? How do you work out support payments if you can’t agree?

Heather McKinnon: So we have a really well-developed government agency called the Child Support Agency who has a legislative framework to work within.  So the government’s got a formula in the Child Support Assessment Act which says how much money should go from one household to the other if there’s no other agreement.  So that gives parents a really good model on what money should be changing hands. If all else fails, the agency collect. If the level of conflict is so high that one parent’s welching on the deal, then the government steps in and collects the money from the recalcitrant parents pay.

Benjamin Bryant: And look parties do require a lot of information in respect to child support arrangements.  Because I know even with us when parties come and see us, there’s not much lawyers do these days in respect to child support. Family lawyers are really good at talking about the Family Law Act and of course, the parenting arrangements for children and the property settlement between the parents or even spousal maintenance. But when it comes to child support, that’s done under the Child Support Assessment Act 1989. And like you said, it’s with the agency or the Department of Human Services and they they make an assessment. So I would really encourage parties, or parents, that want more information to go to the child support website. Also, there’s a great guide on there at the Department of Social Services website about child support. There’s a lot of information which really help parties navigate a complex child support system and that complex formula.

Benjamin Bryant: Also, parties can enter into agreements. And again, there’s more information about this on the child support Web page, but it’s at least two types of agreements. One is a limited child support agreement. That is, parties can make an arrangement between themselves that is has to be at least equal to the assessment of what the formula would say. And that would that would stay in place for a period of three years, or unless there’s circumstances whereby there’s been an amendment in the circumstances or the formula of around 15 percent or more.

Benjamin Bryant: The other type is a binding child support agreement. It gives more finality or more security to parents because it’s valid essentially until a child is 18 or perhaps when they finish school. But there are some requirements. For example, you need independent legal advice and it has to be at least the value of the assessment and at least the amount of the assessment. So I think it’s a really great starting point for parents when they’re figuring out the child support agreement, to look at the website and to look into those agreements. But what happens when parents can’t agree?

Heather McKinnon: So we’ve got a number of scenarios that occur where child support becomes an issue. They’re really focused in two areas. One where separation occurs where there are children who are under school age and the parent wants to try and keep the children in the house. And the other one are very wealthy families who earn over say $250,000 a year combined income. Those two scenarios are the ones that family lawyers become involved in.

Heather McKinnon: So if we look at the first one, if a family separates when children are little and one parent is being at home, they have a real problem borrowing money to refinance a mortgage, because their earning capacity is shot until they’re able to go back into employment. But couples who are really child focused can enter into an agreement under the child support legislation to transfer what would have been the working spouse, usually the Dad’s, interest in the home to the mother in lieu of child support. So it’s called capitalised child support. It’s something that we don’t see a lot of, but it’s a very valuable thing to remember because it may be the difference between the children being able to remain in their known environment in those very early pre-school years or the mother having to sell up and go on the rental roundabout. So I would suggest to listeners that if they’re in that predicament, it is well worth talking to your financial advisors and your family lawyers about whether the family may benefit from that capitalised child support arrangement.

Heather McKinnon: In wealthy families that are earning big bucks, the kids are entitled to have a lifestyle that comes from having high net worth parents. And so the child support agreement is tailored to the very specific needs of the children. It’s not a formula. So it can include things that would be seen as luxuries by the normal Australian family. So overseas holidays, the cost of GPS school fees, the cost of very expensive extra curricular activities and involve equipment, like buying pianos and violins and things like that. We don’t see a lot of it in general practice, but there are families where tailoring child support agreements to meet the needs of the children in wealthy families are something that’s open to negotiation.

Are school fees be included in child support assessment

Benjamin Bryant: Then a question I get asked about child support all the time Heather…so I’m going to ask you now for the benefit of our listeners. School fees: is school fees included in a child support assessment or are they something separate?

Heather McKinnon: So the Child Support Agency assessment doesn’t take into account school fees for middle class families. So if the parent’s intention was always that the children would go to the local Anglican or Catholic school and in fact were enrolled at the school, then the Child Support Agency is able to depart from the administrative assessment to require parents to contribute the cost of those school fees. But again, it’s all about the actual capacity of the parents. But the rule of thumb is, if you could afford to send your children to schools other than public schools during the marriage, you’re expected to continue to send them to those schools after. And that comes from the really working knowledge that we need to disrupt children’s arrangements as little as possible and reefing them away from their known peer group and their knows school community at the same time as their parents separate is not good for kids. So, you know, if you’ve got that commitment that your kids will go to a certain private school while you’re together, you should budget to have that continue after separation.

What living arrangements work best for children after separation

Benjamin Bryant: And we might leave the financial arrangements for children after separation at this point and move on to the parenting arrangements for children after separation. We used to use the term “child custody”, but these days we talk about parenting arrangements to describe the many and varied ways that children end up dividing their time after separation. Heather, you’ve been helping people to make parenting arrangements for a very long time. Plus, you’ve represented children in court in these matters. Do you have a sense of what sort of living arrangements work best for children after separation?

Heather McKinnon: That’s a really complex question. It’s all about the developmental needs of each child at any given time. So there are broadly four developmental stages of kids that are distinctly different in terms of the needs of the kids. The first is babies under 36 months of age. These are the kids who are forming their primary attachments. And what we do know is that these children need absolute routine and certainty. And so it’s usual that in cases where parents separate with children under 36 months, that the court will look to primarily have them sleeping in the one bed every night. And it’s important that parents who aren’t able to stay together through that thirty six month period get some, in my view, input from child psychologists. I’ve seen over the years Ben many children develop serious problems because babies were put into situations that were not developmentally appropriate. So, you know, these horror stories of six week old babies doing seven days on, seven days off. Those things are catastrophic in many cases for children and parents in that category need to be very careful in how they make decisions.

Heather McKinnon: So we then move on to the next stage, which is that stage from when children start school at about five or six years of age through to early adolescence, around year 7 and 8. These are the main kids that the court deals with on a daily basis. And they need careful, thoughtful decisions made about how their time is shared. Certainly the longitudinal research says if parents are not in conflict, then a shared arrangement is ideal for this age group. So in every primary school in Australia you’ll see that change over on Friday afternoon, where kids go from Mom to Dad’s for the next week. Or you see an extended weekend, every second weekend the kids going for a block of five nights with the other parent. Those are the families where they’ve got good post separation communication and the kids have adapted to the shared routine.

Heather McKinnon: But underlying that, all the other sorts of families that we deal with. Cases where children may have some disabilities, they might be on the spectrum, so they need routine and they don’t like change. Those children may not cope with shared routines. Or we might have situations where the parents are geographically a long way apart. And so in those cases we try and look at children spending more of their school holidays with the parent that’s working away. There are myriad reasons why shared care doesn’t work for some families and each child needs to be examined to look at what’s best for that child.

Heather McKinnon: We then turn to that next stage of development, which is early adolescence, where the children are flexing their muscles and they want a say in what’s going on. So kids in year 7, 8 and 9. They still need parental supervision in terms of what they should be doing during the day, what they should be doing at night, but they’re certainly old enough to give some input into what they want to do. So they might say, look Mom, I want to spend school nights with you, but all my other free time at Dad’s place or some other arrangement.

Heather McKinnon: Then we get to the children whose parents separate from about year 9 to year 12. A hundred years ago, those kids were getting married and working. They are independent thinkers. They have a very complex life with their peer group and their parents. And it is absolutely critical that parents do not impose authoritative, dogmatic regimes on those children. They’re the children that are most prone to psychological distress if their parents separate. They need to be treated with kid gloves and they need to be given autonomy. The worst thing you can do with a child in Year 9 is lay down the law and say “you will do this”. It could have catastrophic impact. They must be brought into the conversation and they must have a voice in how the family is going to operate if the parents separate. So that gives a broad range of the different developmental stages. But obviously my preference always is to encourage parents to get input from child psychologists when making decisions about children, because what a parent may think is appropriate, may in fact not be what’s best for that child.

Benjamin Bryant: I think there was a great overview Heather. For parents with children under 4, I would really send them to Children Beyond Dispute. It’s a great website which talks about the impacts of conflict, but also for age appropriate parenting arrangements for a little ones like that.

Benjamin Bryant: And I really liked when you were talking about with the adolescents as well and having arrangements that really work with them and communicating with them what they want. Because I know it’s natural for teenagers, especially, to be aligned with one parent or to not be at home in the family unit or weekend. Because we have situations where parents wanting a whole weekend or a long weekend, like you said, and the resident parent’s like, “Man, I wish I could have him home for the whole weekend”. So I think parents really need to be conscious of what’s going to work for their family. In terms of the middle range Heather, I know there’s nothing in the Family Law Act about alternate weekends and half school holidays. So where does that come from?

Heather McKinnon: It’s come from the traditions established since the mid 70s when family separations became more normalised in Australia. And it’s a practical sort of arrangement whereby parents have come to this idea that you stick them in one house during the school week and then you can flip the weekends and share the holidays. It’s worked for generations of families in Australia, and it’s something that I think will always stay there. But remember, it’s not necessarily what’s right for your child. And that’s the trouble. One size fits all would be great, we wouldn’t need a Family Court, but there are reasons why for many children, there has to be very specific details gone into to look at how they are going to organise their time.

Managing blended families after separation

Benjamin Bryant: And you and I both know that there are almost always complications when it comes to sorting out living arrangements after separation. So, I’m going to mention some of the bigger complications, Heather, and I’d love it if you could give me your thoughts on how to find fair solutions when faced with these types of complications. Blended families with half full and step siblings.

Heather McKinnon: Yeah, these are really complex families. And warning to all the parents listening, the social scientists train Ben and I that the highest risk of the breakdown of a second relationship is step-parenting issues.  So, it’s very common for there to be big conflicts. Some parents work on the basis of having all the kids together on one weekend and a child free household on the other weekend. But that assumes that the respective exes are happy with that timetable. Where we get into real difficult situations is where you have people trying to stick to strict routines and not realising that you need great flexibility when you’re managing, for example, four households, which quite easily can occur in these situations.

Heather McKinnon: So, it’s stay patient, stay calm, look at the needs of the kids and the ages of the children. There’s a window of about six years where children form sibling relationships with step siblings. Two-year olds do not form step sibling relationships with 16 year olds. And so blended families often are not really blended unless the children are within the same developmental age group. And trying to impose relationships on children that have big age gaps is just going to lead to frustration. So again, you can get lots of help from Family Relationship Centres and from private psychologists and mental health social workers to look at what might be a permutation of the complexities of families that will work with the kids.  Make it for the kids, not for the convenience of adults.

Benjamin Bryant: And to reassure the listeners out there who are with blended families, I just want to note that the Family Law Act Section 60CC sets out the criteria for what a court must take into consideration when determining what’s in the best interests of a child. So, we hear a lot about what’s in the child’s best interests or what’s best for children, but that is just not an overarching or holistic view. That is actually set out by the Family Law Act, the particular criteria. And the nature of the relationships between children and their significant others, might be step parents, step siblings, might be grandparents, that is taken into account. Absolutely. As well as the effect of any order that the court is going to make, any change in circumstances.  The court is absolutely honing in on that. So, it’s a live issue that the court’s aware of.

Geographic complications post-separation: relocation and fly-in fly-out

Benjamin Bryant: What about relocation for work or fly in, fly out working arrangements.

Heather McKinnon: Relocation cases as some of the hardest that we have to deal with? So, Australia has one of the most mobile workforces. And if you’re trying to keep food on the table, it may be that you have to do a relocation. This causes huge angst for separated families. So, for example, you might have a very specialised medical professional who has to move for the needs of the workforce and if they don’t take the transfer, they won’t have a job. The courts then faced with: does that mean that the children go with the parent who’s moving or stay with the parent who doesn’t move? These cases require very detailed assessment of how the child’s going to be impacted by either moving or staying. And we really do rely, if the parents can’t sort it out, on expert input from family consultants. So many, many families work very well when a parent has to shift and you see very creative arrangements. For example, a person who’s had to move, having most of the school holidays and coming back to home to see the children during school term. So, the kids don’t travel during school term, they only travel on holidays. Or you see a situation where the parents might see the educational opportunities, for example, of a parent who goes to Europe or Hong Kong or somewhere like that to work. Parents do often suck it up and say, well, my kids are going to benefit from that international experience. So again, it’s about putting aside your hurt, your feeling of fear and loss and focusing on which way should we go with the child if we do have to move geographically?

Resources to help find solutions without going to court

Benjamin Bryant:  And if couples are struggling to work out living arrangements amicably, what resources are available to them to help find solutions without having to drag the kids to court?

Heather McKinnon: So, the whole system’s geared for people staying away from lawyers and getting early intervention from child experts. So, the Family Relationship Centres around Australia are funded by the Attorney-General’s Department to help all couples make decisions about their children at the time of separation. And then there are fantastic private providers, counsellors, psychologists, mental health social workers who are trained and skilled in helping parents navigate the decision-making process at separation. So we have a lot of those links on our website and we continue to upload more as we find them. It’s a really tough time for people but it’s a well trodden road. And the best thing now is that we have great longitudinal research on how best to protect your children from the damage of separation during their childhood.

Goodbye for now…

Benjamin Bryant: That’s our show for this month. Thank you, Heather, for your sage advice on these children’s matters. Thank you to our listeners for joining us again and most of all for being willing to put their focus on what’s best for children. We hope you found this podcast helpful. And as always, we will include a list of helpful resources in the show notes for Episode 5 on our website.

Benjamin Bryant: Next month we’ve got a special guest on the show to talk about a very difficult issue. Doug Andrews is a psychiatrist at Barringa Hospital in Coffs Harbour. And he is going to help us to understand the impacts of family violence and how to heal the emotional wounds family violence leave behind. It’s a really challenging subject and we’re very happy to have someone of Doug’s expertise tackle this subject with us. If you have specific questions you would like to see answered about family violence, please send them to us via Facebook Messenger or by emailing familymatters@bryantmckinnon.com.au.  Goodbye for now and we hope you’ll be listening again next month.

Benjamin Bryant: 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.

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