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E10: Community family law questions – take 3

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This month Benjamin and Heather fielded questions about family matters from the community. Here are the questions addressed in this podcast:
  1. My ex-partner and I have shared custody of our two children (ages 8 and 11). I want to take the kids back to the UK to visit with my parents and my ex is refusing to sign the passport applications and says it’s a breach of our custody agreement. What can I do?
  2. I’m separating from my husband and would like to move to another town to have more job opportunities and be closer to family, but my husband doesn’t agree with me taking the kids. Do you think it’s worth going to court, or is there no chance to get a judge to support my case?
  3. I’ve been living with my partner for 15 years. We have no children and we’ve already agreed how to split our assets (which aren’t much). I’ve just moved out of the rented house we’ve been sharing and am pretty much just getting on with my life. I read somewhere that it costs $900 to get a divorce. Do I actually have to bother with this since we were never officially married?
  4. I’ve been abused verbally by my husband for many years but I don’t want to use that argument in the court as I don’t want people to know about my private life. Does it make a big difference to mention these incidents in my court case when I file for divorce, to get more time with my kids?
  5. I’ve been separated for over 2 years and recently filed for a divorce. To my complete surprise my ex-wife now says she opposes the divorce and has filed a document with the court saying she’s against it. What happens now? Does this mean I won’t be able to get a divorce?

Links & Resources Mentioned in This Episode

Family Relationships Centres were mentioned as a resource for mediation.  They also provide a range of other service.  This link will take you to their web page so you can explore further.

Impacts of Domestic Violence this episode of The Family Matters Show featured an interview with psychiatrist, Dr. Doug Andrews and specifically addressed the impacts of violence on families.

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Full Episode Transcript

Benjamin Bryant: Welcome to The Family Matters Show. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers and I’m here today with my partner, Heather McKinnon. Hello Heather. It’s community questions today and I see we’ve got some real challenging ones. Are you up for it.

Heather McKinnon: Hi Ben.  Always up for community questions. These are some of my favourite shows because it gives people the chance to get their questions answered. Particularly people who are just struggling with family breakdown and don’t want to go public. So it’s a great way to be anonymous and get some good advice?

Benjamin Bryant: Agreed. And I was fortunate enough to be on holiday for the last show, but I certainly listened in and Gemma did a great job standing in for me as host. And you gave some really great tips on how to keep the costs of divorce from escalating. I think that show’s going to help a lot of people.

Heather McKinnon: I certainly hope so Ben. We missed you on the day that I think Gemma and I held our own. And as we said on the show, no one wants a divorce that gets out of hand. Not even the lawyers want that. So we’re always happy to chat to people about how to keep their legal fees in check.

Benjamin Bryant: And what I’ve got from the show I have personally. was how accessible this podcast is and this goes back to an intention of trying to give everyday people access to information in such a complex system, in such a critical time in their lives. And so I think I was laying on a beach in Lorne somewhere or something with my iPhone and accessing and listening to the show. So that was really powerful for me to be able to do that.

Benjamin Bryant: And for anyone who is worried about legal fees during divorce, which I imagine is just about everyone going through the process, I commend last month’s show to you. You’ll find it on our website or by searching for The Family Matters Show wherever you get your podcasts.

Benjamin Bryant: And now let’s move on to this month’s show where we’ll focus on some great questions that have come from the community. A big shout out to all of you have sent in your questions. We really appreciate you. And for all our listeners out there, you should feel free to send us your questions anytime on Facebook Messenger or e-mail us at familymatters@bryantmckinnon.com.au Okay. Let’s get started with our first question. Are you ready Heather?

Heather McKinnon: Okay. It sounds like I’m in some sort of school competition here, but see how we go.

Benjamin Bryant: Question one, my ex-partner and I have shared custody of our two children who were aged 8: and 11. I want to take the kids back to the UK to visit with my parents. And my ex is refusing to sign the passport application and says it’s a breach of our custody agreement. What can I do?

Heather McKinnon: Ben, as you know, this comes up a lot in family law matters. People are nervous about children leaving Australia to go overseas. But what the court does in these matters is look at what’s best for children in every circumstance. So in Australia, in the modern era, most children of middle class families get to travel overseas during their primary and high school years. But in this case, we’ve also got that issue of giving children a sense of identity and making sure that they spend time with the grandparents. So unless there was some reason that the court thought it wasn’t in the kids’ best interests, it would normally be the case that a judge would say, “Look, this is going to be fantastic for these children and they need to know the grandparents and they need to experience overseas travel.”

Heather McKinnon: So what we normally suggest is that, if you’re the parent who wants to take the kids overseas, you start with a mediation. The mediation services, the family relationships centre, they used to helping parents work out the conditions of overseas travel. So the usual sorts of things we’d look at are: how will the time be agreed? So, if you’re going to spend the money on airfares to the UK, then you’re probably looking at a four to six week trip. So there might be some negotiation around Dad having make up time when the kids come back, if he’d lost some of the holidays. The sort of things that have to be agreed upon are, how do the itineraries get exchanged? How do the children contact the parent who’s remaining in Australia? And what sort of conditions are imposed in terms of the passports being released so the trip can happen? And also where the passports are held when the children get back.

Heather McKinnon: As you know Ben, the main thing that the courts are concerned about is if the trip’s got some sort of sinister purpose. For example, we have this thing called the Hague Convention, which is a convention under the powers of the United Nations that countries voluntarily sign up to.  In the main, most Western countries as signatories. What that means is if these little ones went to the UK and the mum didn’t bring them back, the two governments, the Australian government and the UK government, in signing the convention agree that the kids will be brought back.  So if people are looking to go to countries that are not signatories to that convention, the court gets much more circumspect about making sure the trip’s for a genuine purpose, because if the kids do leave, say they go to Middle Eastern country or there’s been some famous examples of them going to places like Malaysia, our government can’t get them back. So you’ve got in this case, UK: well and truly a country that abides by the UN convention. Assuming that there’s nothing sinister, if this dad won’t agree to allow the kids to go and the matter does go to court, it’s likely that he’ll face a cost application because the court would see it as bloody mindedness. All offer things being equal.

Heather McKinnon: And that’s on the basis that this parent would like the children to have passports to visit the UK as opposed to visit and stay in the UK. That’s a totally different question. And I suppose, Heather, it’s important on a practical level to advise our listeners that there are delays in the court system. So, for example, if you have plans or there’s a party, grandparents birthday or something, on in June this year, you’re going to have to act quick. If you were to go to court, in Coffs Harbour at least, if you were to file documents today, you’d ordinarily get a date in May or something. So because the court is so under-resourced, you’ve really got to make sure that you get in quick if you have to get in.

Heather McKinnon:  My advice to people is if they’ve got a trip planned, you need to start work on agreements at least a year before. Because if the other side does get into some sort of fight mode, you need to well and truly know early on that you need the help of the Court.

Benjamin Bryant: And Heather, the next question that we have also deals with some geography and a bit of relocation.  I’m separating from my husband and I would like to move to another town to have more job opportunities and to be closer to family. But my husband doesn’t agree with me taking the kids. Do you think it’s worth going to court or is there no chance to get a judge to support my case?

Heather McKinnon:  So Ben, as you know, this is one of the main sort of areas that you and I are litigating. These cases are broadly called relocation cases, where one parent wants to take the children to another area, either in Australia or overseas. And the other parent thinks that’s not in the kid’s best interests. So again, for those viewers who are used to listening to the podcast, the test is what’s in the kids’ best interests. So relocation cases are fascinating. I know you did one last year where one of the famous quotes from the judge was that the mother was like a butterfly pinned to the wall. There are all sorts of reasons that kids will be allowed to relocate with a parent. But there’s just as many reasons where the court says it’s not in the children’s interests. We can’t really tell you what’s going to happen unless there is an expert report. At the time the court looks at the issues, the competing claims between the parents, we can start to give an objective overview as to whether it’s worth spending the money to litigate. Up until that stage, it’s almost impossible to tell.

Heather McKinnon:  The sorts of things that regularly appear are, as in this case, job transfers because of an unusual profession where, for example, in the case you ran last year, we had a nurse unit manager and there was only one position available at her level in a regional area, whereas in the city she would have the opportunity to keep maintaining a high level income in a specialised field. That’s got to be looked at with things like are the kids settled and stable in their school communities, in their general communities. And does the parent wanting to move really want to move for the best interests of the kids or just because they want to go. So they’re really complex cases. Everyone’s different. But my advice is start in that mediation process.  Talking through the issues with your ex partner about why you want to go. It’s amazing what happens in those mediations. Sometimes the parents agree they’ll both move to the city. So you never know what’s going to happen until you start talking.

Benjamin Bryant:  And with relocation matters Heather, I think it’s a good reminder that, like you said, the paramount concern is the best interests of children, not of the parents or the convenience or necessarily even the employment opportunities of the parents. It’s about the best interests of the children.

Benjamin Bryant: And to also remind us that family law, by its nature is discretionary. Each matter is different. There is no one size fits all. There is nothing in the legislation that says “if your children are 7 and 9 and you intend to relocate 250 kilometres away, then you’ll be permitted to leave”. There is nothing like that. Unfortunately, it’s all discretionary.

Benjamin Bryant: Question three. I’ve been living with my partner for fifteen years. We have no children and we’ve already agreed on how to split our assets, which aren’t that much. I’ve just moved out of the rented house we’ve been sharing and I’m pretty much just getting on with my life. I have read somewhere that it costs $900 to get a divorce. Do I actually have to bother with this since we were never officially married?

Heather McKinnon: Classic question. Thanks to the person who sent it in. First thing you need to understand is divorce just ends a marriage. So it’s the court process that deals with ending the marriage. It doesn’t have anything to do with finance. And as this person has rightly pointed out, if you’re not married, you don’t need to get a divorce.

Heather McKinnon: So the question’s actually about, when do you need to get a formal property settlement? So in a case where you’ve been together, you’ve rented and you just want to divide the furniture and vehicles and get on with it, you might weigh up that it’s not worth formalising a settlement. So the sorts of issues that we need to talk about are when might that not be a the safe thing to do – that is a handshake deal and we get on with it.

Heather McKinnon: You must remember that if you get a lot of money after you separate, but before you’ve done the property settlement, through something like an inheritance or significant gift or a personal injury claim…

Benjamin Bryant: Lotto win.

Heather McKinnon: Lotto win… even if you’ve separated that still gets considered. So that might be in a case like this, an outside risk. But certainly if you’ve got an inheritance that you might get because you’ve got elderly relatives, it might be worthwhile securing a line in the sand by getting a property settlement done. The big thing that most Australians fail to assess is superannuation. So if you’ve put all the money into super and you don’t have real estate, it’s really important when you separate that you get a lawyer to assess what the superannuation split would be if a judge was looking at it. Sometimes these people have hundreds of thousands in super and in fact, one might have hundreds of thousands and the other one has hardly anything. So I would say they’re the two big things you’ve got to think about, super and whether or not one of you could get something,  before you take the risk of not doing a settlement.

Benjamin Bryant: What I would tell this listener also is that even if you don’t do a formal property settlement, and you mightn’t need a lawyer, you should get legal advice. You should get the information, because you making a decision to do nothing is you still making a decision. And you should make that decision with all the information before you. Last year we resolved a matter where parties separated. They sold the house and the net proceeds were divided equally. And that was absolutely just and equitable. But they didn’t do anything with the superannuation. They said, We don’t need lawyers. We’re doing it ourselves. We’ll just walk away with our own superannuation. They never divorce. And then she came to us some 10, 15 years after separation in which he’s making an application to the court for a part of her superannuation.

Heather McKinnon: And I think it is the benefit of staying in a community like I have for nearly 40 years and seeing how often that happens. People separate when they’ve got little kids, dad agrees that mum stays in the house and they don’t do a deal. The last child leaves home 20 years later and suddenly we’ve got this almighty dispute on because dad’s come back for his share of the capital. So get advice. It might cost you a couple of hundred dollars, but it’s really one of those things where you’ve got to make assessments based on knowledge, not just what you think might happen.

Benjamin Bryant: And for this listener, they mention the fee of $900. That figure is not actually plucked out of the air. There is a filing fee of $900 that the Federal Circuit Court currently uses for divorce. So if you are to make an application for divorce, it would cost you $900 to make that application unless you or if it’s a joint application, you and your husband or wife eligible for a discount, with an income tested pension or something like that. So that’s where the $900 comes from. It’s a filing fee for an application for a divorce.

Heather McKinnon: Which only ends the marriage, has nothing to do with property settlement.

Benjamin Bryant: And I might add that this podcast was recorded in February 2020. That fate will no doubt go up.

Benjamin Bryant: The next question Heather. I’ve been abused verbally by my husband for many years, but I don’t want to use that argument in the court as I don’t want people to know about my private life. Does it make a big difference to mention these incidents in my court case when I file for divorce to get more time with my kids?

Heather McKinnon: So here’s probably the most complex issue facing judges making decisions about kids. We’ve done podcasts before talking about family violence and the impact of family violence on children. In a case where children grow up in a household, even where the family violence is intimidation or verbal aggression, there will be impact on the children. So in a case where a person’s looking at making arrangements for children, but they don’t want to raise the issue of family violence, it’s my strong view that you need to go to a social scientist who is skilled in helping people who’ve lived in that environment assess what the impact has been on the children and whether moving forward authorities need to assess whether the parent who is perpetrating violence has a risk to the kids, not just the ex-partner. Invariably, that silence, that failure to deal with what actually happened in the household has huge ramifications for the kids later on. My view is bring it out into the open by at least discussing it with a mental health social worker or a psychologist before you make the decision to let the kids continue to go and spend time with the other partner without knowing what that impact’s likely to be. For example, a dad who constantly yells at children will have profound impact on their self-worth moving forward. You need to get an education about why people who are aggressive to their children do long term damage.

Benjamin Bryant: And to address the listener’s concerns, who actually hears the dirty laundry in the court room?

Heather McKinnon: So in our system, most of the evidence is obtained by a family report writer, who’s a court consultant. He’s a psychologist.  They will initially be doing the assessment on how severe the family violence has been and how it impacts on the kids. You only proceed in litigation if those initial preliminary assessments suggest that the kids do need someone to look at giving them some protections. So initially it’s all done in confidential counselling. It’s done away from prying eyes. And you’re only going to raise the issue if counsellors tell you that the level of violence is outside a range that the children can deal with without some protections.

Benjamin Bryant: And as you mentioned before, we’ve actually tackled domestic violence and family violence square on its own show previously. So I’d recommend to our listeners to check out the podcast that we did with Dr. Andrews in respect of that issue specifically.

Benjamin Bryant: And there’s a similar question. and that was this question: When we separated my ex-wife and I agreed that we wanted equal shared time with our children. But now we are constantly fighting about it. She always wants to change the days of the way that she has the kids. And yet when I want to go away for the weekend, she refuses to change her dates. It is so frustrating. Should I consider getting a court order that stipulates the custody rules? In your experience, will that stop the fighting?

Heather McKinnon: So what we know from longitudinal studies, the most important thing post-separation is that parents get a civilised method of communication. This case looks like even though you’ve successfully separated, you’re still having issues with flexibility, with communication, with how you manage the day to day life issues that arise the complex structures of families. So the first step is, you’ve done your best, but it looks like you need professional intervention. So we would say: off to the family relationship centre or a private family therapist to see if you can renegotiate the rules.

Heather McKinnon: We have two sorts of post-separation families. Those that are able to create a flexible environment that allows for changes in routines. So if kids have got a rep basketball tournament on in Townsville one weekend, that’s mum’s weekend, dad says, look, I’ll take them and we’ll swap the weekends. That’s what sensible parents do.

Heather McKinnon: The other sort of families we have are those where the toxicity between the parents never abates. And so then out job is to create what we call parallel parenting orders, which is what this person’s alluding to. That is, dad has week one, mum has week two and never will there be any flexibility. The only way to stop the kids being exposed to conflict is to have black and white rules. And if your brother’s wedding is on when your wife’s got the children’s, tough the kids can’t go.

Heather McKinnon: So the assessment we make post-separation in that first six to twelve months is, are you going to be in the 80 percent of families that create a flexible environment for the children post-separation or are you going to be one of these toxic families that need what we call parallel parenting orders. It takes about six months post-separation for the dust to settle in most households. If there’s still ongoing angst after six months, then our view would be there needs to be a level of professional intervention to look at which style you’re going to have long term: parallel parenting, or flexible parenting.

Heather McKinnon: And I think it’s fair to say that there are some real benefits of having court orders in place, but they are also real limitations. of course, a court order cannot change someone’s personality. And it also doesn’t give parents insight. Orders can’t give parents insight or education or communication skills. That’s something that happens separate to the court orders. But in my experience, they can be really good still at addressing any power imbalances.

Heather McKinnon:  if you have a primary carer and then you have the weekend mum or dad there is automatically a power imbalance, even though that would no doubt have you could share parental responsibility or joint parental responsibility and they have equal say for the children. The fact that one parents a primary carer seems like to have more say.  So orders are really good at addressing power imbalances like that, but they’re not so good at the personality transplant.

Heather McKinnon: And the other message I’d give is, I’ve seen it for years, people assume that when they separate kids development stops. So if you  separate when your kids are in infants primary and you’re not acknowledging the growth in the children, when they hit high school you’re absolutely blown over by the fact that kids start to be the third party in the arrangement/ negotiation. “I don’t want to go to mum’s this weekend because me and Sam are going to a rock concert in Brisbane with David’s mother, who’s taking us up there.” These things happen. Life gets complex.  Best this is stay flexible.That’s what I’d love to see for every family.

Benjamin Bryant: Because as we’ve over the years ourselves, children are really good at adapting and doing rock concerts with different people  or new partners, new houses, new schools, those things, but they’re not good at dealing with conflict. That is what damages children. Even though these parents might be thinking they are doing what’s good on paper, they’re sharing their time, the conflict could be still causing children damage or trauma.

Heather McKinnon: Absolutely.

Benjamin Bryant:  I’ve been separated for over two years and recently filed for a divorce. To my complete surprise, my ex-wife now says she opposes the divorce and has filed a document with the court saying she’s against it. What happens now? Does this mean I won’t be able to get divorced?

Heather McKinnon: Really interesting. People adjust to separation in all different ways. And we do get a small percentage who do try and stop the divorce. So in Australia, when a judge is deciding whether to give you a divorce, firstly they look at were you married, then they look at have you been separated for twelve months. Then they say  if those two things are met and there’s proper arrangements in place for kids, all over red rover, the divorce goes through.

Heather McKinnon: So you do get really sad cases of people turning up with Bibles under their arms, arguing with the judge that the Bible says they can’t get divorced or turning up with a witness to say that they can’t get divorced because she still loves him and they’re really tragic cases. But the short answer is, as long as you’ve been separated for 12 months, it’s very rare that a court won’t grant a divorce.

Benjamin Bryant: Thank you again for those questions. And thank you, Heather. We really love being able to provide answers to help you through what can sometimes be difficult times. 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: Next month, we will be talking to family law barrister Rhys O’Brien about social media and family law. Rhys spends a great deal of time in the family law courts and has seen firsthand how a casual Facebook or Instagram post can affect a family law case. Social media has changed just about everything when it comes to relationships. But as Rhys will be the able to tell us, it has also changed how relationship breakdowns play out in the family court system. If you’ve got a story about how social media is affecting your separation or divorce or a specific question about social media and Family Court, then please send us a message on Facebook or e-mail us on familymatters@bryantmckinnon.com.au.

Benjamin Bryant: Before we go, one final reminder that links to any resources mentioned, plus a full transcript of 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.

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