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E3: Community family law questions

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On the Show Today You’ll Learn

In this episode accredited family law specialists Benjamin Bryant and Heather McKinnon addressed some specific family law questions submitted by people in the Coffs Coast community.  It is likely that these questions will be similar to those being asked by many listeners.

The five questions addressed were:

  1. When a couple separate, is ownership of cars automatically assumed to be the person who has the registration, regardless of who bought the vehicle?
  2. Do you have any suggestions on how to work out joint parental orders when one parent is Fly In Fly Out?
  3. I’m preparing myself to ask my husband for a divorce.  I’m really nervous because I don’t think he sees this coming and is likely to react really emotionally.  Do you have any recommendations on what I need to have prepared before I start the conversation?
  4. My wife has mental health problems – bipolar disorder specifically.  I am very worried about my children spending extended periods of time with her on their own.  Do you think it might be possible for me to get sole custody?
  5. My partner and I have been trying to manage our separation without getting lawyers involved.  We’ve been doing pretty well but have recently come up against disagreements on the value of the house and how to divide this asset.  Is it possible for me to engage a mediator to help us work this through, without have to involve a lawyer?

Links & Resources Mentioned in This Episode

Family Relationships Online is an Australia Government website.  As well as providing relationship information, the site also helps you to find local Family Relationship Centres, Counselling and other assistance.

Legal Aid NSW provides fact sheets, resources and free legal assistance.

Children Beyond Dispute is a resource and training hub that aims to provide child focussed pathways through divorce and separation.

Bryant McKinnon has a series of FAQ documents that will help answer your questions.  The FAQ documents referenced in today’s show are:

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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: Hi everyone thanks for listening in to episode three of the Family Matters Show podcast. I’m your host Benjamin Bryant from Bryant MacKinnon lawyers and I’m here with my partner Heather McKinnon Hi Heather.

Heather McKinnon: Hi Ben it’s great to be back.

Benjamin Bryant: In case you missed it, last month Heather shared her top tips on how to get a fair property settlement. Dividing up the assets is always one of the most emotional and stressful aspects to separation, isn’t it Heather.

Heather McKinnon: It sure is Ben. Even in the most amicable separations, once things get strained or when people start talking about money there’s difficulties. I really hope some of the tips we included in the last podcast will help people to take some of the heat out of their property settlement.

Benjamin Bryant: And for anyone who wants to access those tips you will find the episode on the property settlement on our website or wherever you get your podcasts.

Benjamin Bryant: Moving on to this month, we have opened up the show to questions from the community for this episode. Thank you for all of you that sent in your questions. And just as an aside, your questions are always welcome. Feel free to send them in on Facebook Messenger or via e-mail to familymatters@bryantmckinnon.com.au. Our producer Stephanie will let you know how quickly we can arrange to have your questions answered on the show.

Q1: On separation does car ownership automatically go to the registered owner

Benjamin Bryant: Now let’s have a look at the questions this month. And Heather, you won’t be surprised to learn that the first question is about property. Question 1: when a couple separate is ownership of the cars automatically assumed to be the person who has the registration regardless of who actually bought the vehicle.

Heather McKinnon: So really interesting question where we’re looking at a particular type of asset, a motor vehicle, which has registration. So obviously in Australia the state governments all have separate registration systems. Like blocks of land, there is central registry where the Government registers the name of who owns the land. In the family law system we don’t care whose name’s on the asset. And so when we’re trying to look at what are the assets of a relationship, it’s anything that’s owned by either of the partners to the relationship.

Benjamin Bryant: Regardless of whose name they’re in.

Heather McKinnon: Correct. And it can be company name. It could be held in a trust. It might be held by another member of the family. And when you look behind that you find out they’re holding it as a trustee for a super fund, something like that. So the legal ownership isn’t anything to do with how the family court determines ownership. So this question about motor vehicles is one that’s very common. Many people have a car registered in an entity that’s not the husband or wife’s name but, for example they’ve got a company and all the vehicles are in the company name. One of the spouses is driving a company vehicle. When we do the deal we’ve got to transfer the asset out of the company’s name into the person who’s going to take it under the orders. So the short answer is there’s no automatic ownership just because your name is the one that’s on the title to the asset. It all goes into the melting pot.

Benjamin Bryant: So registration doesn’t denote ownership. And I know that when you’re doing an application for a transfer with the RMS, RTA whatever they’re called today, Services New South Wales it’s a transfer of registration. It’s not a transfer of ownership. Other things might come into account as to who owns that particular vehicle. For example there might be secured finance attached to it or some kind of sale documentation to that person. But like what you were saying, does it really matter whose name the cars are in when it’s a relationship of 40 years. And I assume we’re not talking about Lamborghinis or any other significant asset like that, where perhaps it is the major asset in dispute or the major asset of the asset pool. I would think in most circumstances it’s not.

Heather McKinnon: Yeah. And so what we want people to get into the habit of understanding when they’re listening to the information we give them about property settlement is, the first step in assessing it is what are the assets, not whose name are they in, but what are the assets that either of them control in whatever way. So the vehicle will go into the balance sheet and to be dealt with like all the other assets and then when we come to look at who takes a vehicle that will go on to their side of the balance sheet. So for example often we see cars swapping ownership in the settlement because one person will decide, look I’ll have that vehicle rather than that antique table or whatever the deal is. So it is important to get your head around the fact that legal ownership to the outside world is not what ownership means under the Family Law Act.

Benjamin Bryant: And I think that’s a great point Heather that you raise in terms of any agreement reached, for example mom might get the Kia Carnival or the seven seater or whatever the case might be, if she is a primary carer for the children and it may be in her possession or transferred to her possession but registered in the father’s name. So perhaps it is in terms of the question when you’ve got an agreement you need to be careful of that assumption that even possession denotes ownership, because you have to be careful that when you’re in a property settlement, that if there is something that needs to be done (i.e. someone sign the transfer registration with the RMS or Services New South Wales) that it be included in the property settlement at that moment so you don’t get a situation where you think you’ve agreed to something but in the end actually you haven’t.

Heather McKinnon: And look it is so important with vehicles, often it’ll be the case that people do a handshake deal on settlement. They don’t go near lawyers. And when they get into real difficulty is two years down the track they’re driving on the highway and they get pulled over for unregistered vehicle because the rego renewals aren’t in their name and the spouse didn’t tell them when it came up. So there’s all sorts of reasons that you’ve got to check off that at the end of the day it comes on to your side of the ledger, it’s insured in your name and the rego information that’s required is going to come back to you not to your ex.

Benjamin Bryant: And we’re lucky in Coffs Harbour because of course we don’t have any road tolls but we do have to red light safety cameras now. I mean of course this is a common question that we get when people come and see us. And we’ve addressed some of the things that we’ve spoken about now in our property settlement fact sheets how much we’ve uploaded on our website and we’ll make sure they’re available after this podcast.

Heather McKinnon: Yeah. Just keep going back to those documents that you see on the website and that gives you that lay overview of how the whole thing works.

Q2: How to work out joint parental orders when one parent is fly in fly out.

Benjamin Bryant: Our next question Heather, is in relation to a parenting matter or parenting question. The question is, do you have any suggestions on how to work out joint parental orders when one parent is fly in fly out?

Heather McKinnon: So in the area where we work when the mining boom took off, anyone who went to the airport would see literally hundreds of fly in fly out workers. But if we step back further there’s always been a large contingent in Coffs Harbour of two particular FIFO workers. Airline employees, particularly people like the captains of different you know Qantas, Thai Airways and that’s credit to Coffs that those people want to live here. But their lives mean that they go in and out of their children’s lives differently to 9 to 5 workers. And the other big group that are used to this, are naval people and we have again a large population of naval employees with kids living here. That’s because it’s one of the most desirable locations. So we have a history of helping parents (long before the mining boom) work and what you do with little ones if one parent’s absenting themselves for weeks or months at a time.

Heather McKinnon: So the first sort of advice that we give all parents is: focus on the needs of your kids. Some little ones adapt really well to living with one parent for a couple of weeks and then when Dad or Mom are back from their work roster, they shift to that parent’s home for a week or whatever the deal is.  Other little ones find it almost impossible to deal with that absence-change-absence-change. A lot of that is to do with the age of the kids. So if you separate when you’ve got toddlers or babies, it’s really important that you get some social science input from a really good child psychologist who can help you both understand the developmental needs of a child. The last thing you want to do is develop in a very young child an attachment disorder, because in all good faith you thought that it was okay to have you know a little one going to Mum or Dad for a week after being with the other parent for three months. This  work is really complex. It’s difficult. It needs very personal attention to the needs of every child in the family. So my advice is access the Family Relationship Centre and good child psychologists to help you as a couple work out how we’re going to set up the pattern for the kids.

Heather McKinnon: We’ve seen every sort of example I suppose Ben. We’ve seen orders that provide that whenever the fly in fly out worker is onshore they will have the kids. We’ve seen others that just provide that when the other parent’s onshore they have the non-school days. Every family is different. You know you’ve got some good practical examples of what we’ve seen in terms of building attachment.

Benjamin Bryant: No. And I think one resource that I send clients to Heather is Children Beyond Dispute website, which I will make sure that’s in the show links. It’s a great resource to help, as you said, the social science, help parents with the social science of age appropriate arrangements for children and what is normal or what can be expected of children of particular ages to do. But at the same time I think we also encourage parents to have flexibility, especially with fly in fly out work because the roster can change. You can be laid off, you might change companies and that can all happen at short notice. And even though the fly in fly out work is great during the relationship: it means usually a high income means you get to live on the coast, different things. Like with any other issue, what you revel in or take joy in in the relationship becomes something nasty or becomes ammunition at the end. And it may well be that children can cope with spending time away from their primary carer and time with the fly in fly out workers separate from the primary carer because that’s what they were doing during their relationship. Perhaps the parent that has the primary care of the child also worked full time so it’s not unusual for them to be with someone else for a day, and they have really adaptive or resilient features. So I think flexibility is key. But also an important thing Heather is reasonable practicability in matters when a court’s assessing what’s in the child’s best interests. We know that usually the court is spending a lot of time on weighing up a child having a meaningful relationship with both their parents and a child being protected from risk of harm, serious or unacceptable risk of harm. That’s what’s taking up a lot of the court workload but in the fly in fly out situation there mightn’t be any allegations of family violence or child abuse or anything like that. There mightn’t be any allegations of parenting capacity or lack of relationship between a child and a parent. The question might come down to reasonable practicability, because a court can only ever make a parenting order that’s reasonably practical in the circumstances and that can be very difficult in the fly in fly out situation.

Heather McKinnon: Yeah and look I’d say that most couples that have been in that pattern for long periods of the children’s lives never end up in a big dispute because the very nature of the relationship meant that they’ve already had to learn how to live apart, how to communicate it distance and how to put the kids first. So in fact we see most FIFO families coming in and out of the system pretty quickly. And I think another part of that is there’s more money to go around and so the stresses aren’t as much as they may be in other families.

Benjamin Bryant: And I would encourage this viewer or this listener to touch base with some mediators as well to to really what are the benefit of a mediator is that they facilitate communication. Sometimes when you’re, most of the time when you’re separating, communication is not at its strongest and perhaps there’s no communication and this viewer or listener really does need communication with their ex with the other partner to really work with the roster and see what the children can and can’t do and how there might be a way forward. Notwithstanding this peculiar roster situation.

Heather McKinnon: Yeah definitely.

Q3: How to prepare when first asking for a divorce

Benjamin Bryant: Heather, question 3: I’m preparing myself to ask my husband for a divorce. I’m really nervous because I don’t think he sees this coming and is likely to react really emotionally. Do you have any recommendations on what I need to have prepared before I start the conversation.

Heather McKinnon: Excellent question because it is the thing that most people are worried about.  When people are thinking of separating, there’s usually one person who’s been planning for a long time often years and the other person is in complete denial about what happened. So the reason that this question is really important for everyone, is that that usually is the scenario. The one it’s brave enough to terminate the relationship, is often really worried about broaching it because they know that the ramifications can be serious in terms of the emotion in the other person. Obviously more importantly than that, is that’s the most dangerous time for any person. If you’re going to be killed in Australia, the most common time is by your spouse at separation. Not when you’re walking home from a nightclub in the middle of the night in Melbourne.  So there’s good reason for people to have that underlying unease, because when you terminate a relationship you don’t really know how the other one is going to react.

Benjamin Bryant: And of course for this listener or viewer if they at all feel for their safety, if to have safety concerns for themselves or their children, then of course they can make contact with the NSW Police or the Family and Community Services. So safety is always number one. But is there any practical tips as to how this viewer or listener can set up this conversation.

Heather McKinnon: So what I often suggest, because I know it sounds sexist but the people who terminate the relationship it’s huge it’s like 60 or 70 per cent are women. And we think that’s because men will live in quite dysfunctional things for a lot longer. So what I often will say to a woman who’s in this position, if she’s come to get preliminary advice, is look go to your counselor and role play what you’re going to do and how you’re going to do it. So, what words you’ll use and what safety plan you have in place in case it goes wrong. That will often be enough to give you courage to have the conversation. But more importantly, the whole purpose of the Family Relationship Centres in Australia is for couples who are looking at the quality of their relationship to go to counselling so that the counsellors at the Centre can help those spouses deal with the fallout if their relationship is going to end.

Heather McKinnon: So, if you like, I say to people, well this is the gutless way but it’s actually scientific and probably a pretty good thing to do. You say to your spouse, “Look I’ve got some concerns about how we’re going. Would you be prepared to come to counselling with me.” And often people who are worried about their relationship will jump at that chance because they’ll see counselling as a way to mend the problems and hopefully shore up their relationship. The counselling process then helps the couple to look at: is it dead in the water or are we going to separate? But it’s done over a bit longer period of time and both people come to acknowledge with the counsellors that they are going to go their separate ways.

Benjamin Bryant: And it’s done in a safe and controlled environment.

Heather McKinnon: Correct. So those are the techniques that I most commonly use, either go to your counsellor and get some role-play happening on how you’re going to communicate or ask a spouse to counselling. But you do still get extreme examples where people just leave a note on the table because they’re so concerned about what their spouse is going to do that they get out of the relationship and be physically removed from the property before the note’s lift.

Benjamin Bryant: And another thing I would say to this listener Heather is that this conversation is a leap of faith and it’s inevitable. People come to us all the time and we can help them separate bank accounts, we can help them discuss and talk through what will be the parenting arrangements for the children, all those practical things to try and get the ducks in a row as it were. But essentially, this conversation, we’re not there. So I think invariably there’s always that element of a leap of faith.

Heather McKinnon: It is the hardest day and people will always remember it as  usually the worst day of their lives, either receiving the news or communicating the news that a relationship’s over.

Heather McKinnon: What I can tell listeners, and I tell my clients every day, it will be the worst day and from then on you better.  So facing that day is the hardest step. And once you’re there you’re on the upward journey then. Assuming you’re the one that’s leaving. The one that’s got to take the news in will take some time to catch up.

Q4: Can I engage a mediation without involving a lawyer?

Benjamin Bryant: Heather our final question: My partner and I have been trying to manage our separation without getting lawyers involved. We’ve been doing pretty well but have recently come up against disagreements on the value of the house (that’s a common one) and how to manage the division of the asset. Is it possible for me to engage a mediator to help us work through this without having to involve a lawyer?

Heather McKinnon: Certainly is. And we lawyers are only involved in about half the cases where people separate.  About 50 percent of the population do it without going anywhere near lawyers. So it’s very common.

Heather McKinnon: Mediators are there is an alternative dispute resolution method. So they can help you try and work through the resolution of issues without legal advice. There are lots of resources online that can help you locate mediators. The Family Relationship Centres have programs for mediation where the asset pool is small, as do the Legal Aid Commissions of New South Wales. So this all depends upon how much money is for division. If it’s a modest pool, then Legal Aid and Family Relationships Centre have mediation programs. If there’s more money in the pool, there are private mediators that you can access who can help you try and work through a process. For example, how do we appoint a valuer? How do we agree on what we’ve got to divide? And what might we be able to divide at the end?

Heather McKinnon: So by all means, you can feel free to do that. Most mediators will tell you whether they think it’s one that’s appropriate for nominally a mediation or whether it’s one where they should be lawyers involved. And again it’s usually to do with the complexity of the asset pool.

Benjamin Bryant: And sometimes you might need legal representation. Perhaps you can use a mediator, reach an agreement with your ex and then see a lawyer to get legal advice on that. And two things that I wanted to say to this viewer Heather is that, one is the valuation issue. Of course, the house, the valuation issue, very common. I know we’ve addressed that in previous shows, so I encourage the viewer or listener to check out our previous shows. And I know that we’re going to cover valuation issues more specifically in future shows so I would encourage the listener to keep touching base with our website to check out what’s on because we absolutely will be talking about this issue some more.

Benjamin Bryant: The other thing I would say is in respect to the transfer of your property. It may be that parties can reach an agreement that someone’s going to retain the house and so it needs to go from joint names to the husband’s name or to the wife’s name. But of course if you don’t have orders in place by the court or a financial agreement, stamp duty may be payable in some circumstances. So it’s really important that at some stage I think parties get legal advice or financial advice or whatever the case may be before locking in their deal, to make sure that it is realising the intention that they have set out.

Heather McKinnon: Exactly. You know, we hope that they can do it without help but there are some times when you do need us unfortunately.

Goodbye for now…

Benjamin Bryant: Thank you again for all your questions. Family separation is a difficult and confusing time for everyone and there are always going to 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 Bryant: One area where we don’t get enough questions is self care. People tend to focus on property and children and lose sight of the impact that divorce is having on themselves. And actually your own health is absolutely critical when you are going through a separation. Let’s face it you are going to be negotiating agreements and making decisions that will affect the rest of your life. You want to be emotionally and physically well when you are making those decisions. So next month we are delighted to welcome Monica Joseph to the podcast to talk about self care during separation and divorce. Monica is a Medicare accredited social worker who provides counselling on a wide range of issues including relationship difficulties and breakdowns. Monica is a really practical person with training in mindfulness, relaxation techniques, assertive communication and other skills that will help you be your best through this difficult time in your life. I hope you will be listening because this is such an important topic that doesn’t get enough attention.

Benjamin Bryant: A final reminder that links to any resources mentioned in today’s show will be available on the show notes on our website. If you have any specific questions about self care for Monica Joseph please send them via Facebook Messenger or by emailing familymatters@bryantmckinnon.com.au. Goodbye for now and we’ll 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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