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E24: Community Questions – Take 5

On the Show Today You’ll Learn

This month Ben and Heather addressed a wide array of family law questions from the community, touching on a number of common issues faced by people going through divorce and separation.

The questions included:

  1. Prenuptials:  My girlfriend is planning to move in with me and I want to protect the assets I have accumulated before I met her.  What can I do?
  2. Grandparents rights: My son is only able to see our grandchildren under supervision.  As grandparents is there some way we can get the right to have the children visit us regularly?
  3. Facebook threats:  My ex has made threatening posts on Facebook.  Can I go to court and get his account cancelled or make him stop?
  4. Child support: My ex has stopped paying child support.  What can I do?
  5. Parenting plans: How fixed is a parenting plan?  If my situation changes can things be renegotiated?
  6. Superannuation: Am I entitle to half of my partner’s superannuation after 35 years of marriage?

Links & Resources Mentioned in This Episode

Thorne v Kennedy: a case in which a pre-nuptial agreement was overturned because the judge found it had been made under duress.

Social Media and Family Law: this podcast episode featuring barrister Rhys O’Brien provides some insights into how social media activity can impact the attitude and decisions of the court.

Child Focussed Parenting Arrangements: this podcast episode covers the key issues in parenting plans and child support.


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Full Episode Transcript

Welcome! Community questions – take 5.

Benjamin Bryant: Welcome to Episode 24 of The Family Matters Show, which means we have been running this podcast for two whole years now. I’m your host Benjamin Bryant from Brian McKinnon Lawyers. And to celebrate our second birthday, we’re doing my favourite type of show: community questions. I’m here with my partner in crime and family law specialist Heather McKinnon, who is going to help me answer the quite complex questions that we have received from all of our wonderful listeners. We’re recording bright and early this morning because we’ve both got a heavy court day. Heather, I hope you got a lot of sleep last night. Are you ready to answer some tough questions and head to court?

Heather McKinnon: I don’t know about the tough questions, but I’m here.  So… I did get up early.

Benjamin Bryant: Excellent, great work, Heather. The whole point of The Family Matters Show is to help people in our community get the information they need to be empowered through their divorce or separation. So there’s no doubt these community questions episodes are so important.

Benjamin Bryant:  Before we start answering today’s questions, I just want to remind everyone that you can send us questions in confidence at any time to familymatters@bryantmckinnon.com.au or message us on Facebook. And please do share this show with any friends or family who might be starting out on the rather scary journey of separation. The earlier we can be there to provide answers, the better. On with this episode. Are you ready to give our listeners some answers Heather?

Heather McKinnon: Yep, the coffee’s kicked in Ben, so we’re right to go.

Prenuptial agreements: how do I protect the assets I accumulated before we met?

Benjamin Bryant: The first question, Heather, is I’ve heard that prenuptial agreements aren’t worth the paper they are printed on. Is this true? My girlfriend is planning to move in with me and I want to protect the assets I have accumulated before I met her. What can I do?

Heather McKinnon: So Ben, as you know, I’m on the philosophical side of the argument that believes that prenups (or what we call them in Australia: binding financial agreements) are documents that I wouldn’t really bet on. I don’t think they do give you the insurance policy. There are plenty of lawyers who are still prepared to do them and take money off people. But I want to explore today why I think they are a dangerous thing to rely on. When we look at contracts in law, that is where people document in writing what the terms of their relationship are, we’re used to having those documents upheld by the court. So if you’re going to build a house, you enter into a building contract. If you’re going to have your teeth whitened at the dentist, the dentist sets out what he or she’s going to do and sets the price in the contract. The reason that that’s difficult when you’re looking at personal relationships between intimate partners is that we often have a power imbalance. The reason being that when you enter into a relationship with somebody that you love, you are making the decision based on, not a commercial transaction, but a whole other series of things. And so if we look at this person who’s writing in here, it’s a young man who’s starting out in life and he wants to take the risk of moving in with his girlfriend, but he’s looking at what happens to my assets.

Heather McKinnon: The thing that I want the listeners to understand is that the Family Law Act was introduced into Australia in 1975 and it’s been working well now for over nearly 50 years, we’re coming up to the anniversary of it. It sets out how we look at what happens when a relationship ends. So in this case, what’s important for the young guy to know is that if he’s got a list of his assets, what they’re worth and what his liabilities are, he’s pretty well protected under the Family Law Act going forward. The problem with a prenup is if his girlfriend comes in with no assets and in two or three years’ time, they have a child and something happens where either the mother or the child develops a disability or an illness, or somebody descends into a serious mental health issue and they can’t earn income, then the court’s stuck with, when they’re looking at enforcing a prenup: is this right? Could this couple have foreseen at the time they entered into those arrangements what was going to happen with their life journey? So we call it the vicissitudes of life. It’s really impossible to know. And that’s why the Family Law Act has been successful, because it allows us to be flexible in looking at what are the contributions that people make and what are their future needs. So the short answer is, I’d be very wary of anyone entering into a prenup. There has been a very important high court decision in a case called Thorne v Kennedy, which confirms my side of the fence. That is, it’s very hard to have equality in a contractual sense, in an intimate relationship. And so it’s very unlikely that people have equal bargaining positions when they enter into these things, which means that they’re pretty easy to unpick. So that’s my answer.

Benjamin Bryant: And I don’t think Heather honestly, we can improve on that answer. What I would just add to this listener to the question, I guess, is when people come to me with binding financial agreements or with the intention of wanting to do one, I always ask them, what is your intention? What are we actually here for? Are you here to ensure that if you were to separate in the fairness of that separation, you want acknowledgement that you had greater assets at the start? You don’t need to do anything. You’ve already got that under the Family Law Act. But if your intention is to say, to hell with fairness, I just want to isolate my assets as they are now, that is something different. And if I’m speaking to someone that has been presented with a financial agreement or being asked to enter into one, the question that I love is: What if you do not enter into the agreement? What are the consequences? And I think that really plays into how you open the nature of the relationship and getting into the depths of it. That it’s really hard to have a commercial transaction on an intimate relationship.

Heather McKinnon: Exactly.

Grandparents: what are my child custody “rights”?

Benjamin Bryant: So good luck to that listener. The second question is: my son and daughter-in-law divorced last year. My son has had some trouble with the law and as a result, my daughter in law has been given custody of the children and my son is only able to see them under supervision. But my husband and I are good people who have never been in trouble and who love our grandchildren. Is there some way that we can get the right to have the children visit us every other weekend or something like that?

Heather McKinnon: Ben this is a really common question, as you know, now in the area that we are work in. Increasingly there are cases where either of the parents for some reason hasn’t got the capacity to see their children without risk. So the sorts of things that present are parents being imprisoned, abandoning children, having a long term drug addiction that is serious, mental ill health. So we see it every day.

Heather McKinnon: So the question that these grandparents ask is framed in the wrong way, in that they are asking the court to give them a right because they are good people. But what we actually look at in cases like this is: Are the children going to benefit from a long-term relationship with their paternal grandparents? And that’s a question for social scientists. So if you listen to podcast episodes that we’ve done in the past, you’ll hear the judges and child psychiatrists talk about the needs of children to know they’re loved and to have intimate relationships, not just with their parents, but with other people in their circle that they rely on. So here, the Family Law Act allows the grandparents to apply to the court to seek orders that they spend time with their grandchildren, as they’ve indicated, maybe every second weekend or part of the school holidays. So they’ve got that ability.

Heather McKinnon: The next step then is an analysis by the court appointed consultants as to whether these children would benefit from having that ongoing relationship with the grandparents. So in those social science assessments, what we sometimes see is that the young mother here may be traumatised by something that’s happened during the relationship with their son and that if the grandparents are let into the children’s lives, she may become very anxious and not be able to parent properly. On the other hand, it might be that under observation, it’s very clear that these grandparents have been a safety backup for the kids. And it’s a very clear on observation that they dearly love the grandparents and need them in their lives. Every case is different. I would say in this case that it is relatively economically affordable to make an application and get that expert report. That will determine then, whether or not the kids would benefit from seeing the grandparents. And that’s how you make your decision. But before that report, no lawyer could tell you whether you’d get over the line. And we don’t know anything about that relationship. And so you need that report before you can really give a strong indication one way or other as to whether to proceed.

Benjamin Bryant: And I guess we also don’t know in this question about how naughty the son has been, being in trouble with the law, and what the future parenting arrangements or the future relationship might look like between the children and their father. So, of course, the grandparents are eligible people, under section 65C of the Family Law Act and taking into account a child’s relationship with their grandparent is something that the court takes into account in Section 60CC.3.b.2. But could the grandparents be at conflict with their own son? He could be in jail or could be off the scene. With the supervised time: How long that’s going to be in place for? In the event that the supervision is just a moment in time and that the father does address perhaps the issues and he does start to spend significant and substantial time, the grandparents will need to make a choice, whether they just spend time with their grandchildren when their son does, or whether they want to put their hand in the ring as well and try and get some formal time with the children. But of course, that’s difficult because it’s difficult for courts to split the children across two parents, let alone three parents essentially, with only 24 hours in a day, seven days in a week. So that can be difficult as well.

Heather McKinnon: And I think you’re right Ben that what we see is grandparent applications more successful if their child isn’t seeing the children in any way so that the identity needs of the children to identify with that side of the family are best met by the grandparents. So, yeah, good luck to the grandparents and I hope it works out.

Facebook: can I stop my ex making threatening posts?

Benjamin Bryant: The third question, Heather, is really interesting. My ex has been making threatening posts on Facebook. Of course, he says they’re a joke, but they are making me nervous and I’m worried that the kids will see them. Is it possible for me to go to court and have his Facebook account cancelled or somehow make him stop?

Heather McKinnon: Yeah, the scourge of the modern age. So we’re seeing the legal system starting to finally react to this sort of bullying on social media There are a lot of changes happening. So what we would say to clients first is contact Facebook. Facebook now have a legislative responsibility to make sure that there are no criminal activities happening, if you like, online. The second place to go obviously, is straight to the police, because often these social media sorts of commentaries are part of an overwhelming sense that this person’s trying to intimidate.

Benjamin Bryant: Coerce and control.

Heather McKinnon: And so as we move more towards an understanding of coercion and control, you’ll see more and more legislative backup for the police to be able to take action against the person to prevent it. But we were only in court two weeks ago, as you’re aware, in a case where a Family Court judge in Sydney made a series of orders to make sure that all of these posts were removed from Facebook. And so the courts will act if they are asked to. But my experience is that Facebook will normally be just one of many actions that are being taken and the police are pretty responsive. Someone that will be publicly prepared to do those sorts of posts is usually doing a whole lot of other things that are inappropriate.

Benjamin Bryant: And look, in terms of the Family Law Act, Heather there are powers of the judge, as you just mentioned, to grant injunctions for the protection of persons, and that would be an assessment on a case-to-case basis. So can we get the account canceled? Likely not. And like you said, what is that going to do? They’re just going to use Instagram or something else. But somehow make him stop? Yeah, that’s difficult. But I also know that sometimes it’s really hard to prove coercion and controlling behaviour because it happens behind closed doors. But what this person is doing is publicly putting information out there. And so if you end up being in parenting proceedings there’s your evidence. There is your evidence about why you feeling nervous is a real thing and why that’s important in the overall assessment of the matter.

Heather McKinnon: Absolutely. And I would recommend to people that have been a victim of this behaviour to make sure that when you do contact the police in your local area, that you ask to have an appointment with one of the specially trained domestic violence teams, who are right up to speed on this. And their ability to interview and find out what else is happening is what’s amazing. Because this can be the presenting issue and then when they drill down, you find out there’s a whole lot more bad behaviour that the victim wasn’t even really conscious of it being inappropriate.

Child support: what happens when my ex stops paying?

Benjamin Bryant: The next question, Heather, is: My ex has suddenly stopped paying child support. He paid monthly for about 18 months, but for the last three months he has paid nothing. He says he’s having temporary financial difficulties and will have the money soon. But I can’t afford to pay the mortgage if he doesn’t pay me soon. What can I do?

Heather McKinnon: The age-old problem. So firstly, it’s very rare that a bank will take into account child support income as part of a mortgage application precisely because there’s no way of guaranteeing that it’ll continue. So if you are in the position where you’ve been relying on child support for your mortgage, you need to let your financial institution know that you may need a period of 90 days grace, so that you keep the bank informed on what’s happening.

Heather McKinnon: What we don’t know with this question is whether the person who is asking for child support has had an arrangement directly with the paying parent or whether they’ve gone through the agency. I would recommend that if this case is not with the child support agency, that the parent immediately apply for them to collect and enforce. The system in Australia with child support works that the debt is actually a debt to the Commonwealth, like the Tax Office debt. And so I’ve got clients whose youngest children might now be in their 20s or 30s, but they’re still receiving old arrears of child support, where the debt was accumulated when the children were under 18. And the agency never forgets. They will keep onto the paying parent to get the money. But that doesn’t help you in the short term, because in this case, in the pandemic, with the chaos happening in the economy, it may well be that the parent who has, up till now, had a steady income has for some reason got some financial stress on them. So the agency negotiates between both parents to give relief, but make sure that the debt’s recorded and still is accruing and isn’t forgotten.  So I hope that answers the question. But it sounds to me Ben that this is probably up to now been a private arrangement. And so the parent who’s been getting it needs to realise life has all sorts of twists and turns and you can’t always rely on that income.

Benjamin Bryant: Absolutely. And even if you are doing a private arrangement, because there are some advantages to doing a private arrangement, but even if you are doing a private arrangement, at least go online, check out the child support calculator, the estimator that’s on there, that’s free. You just punch in your details and it’ll use a very complex formula to tell you how much you need to pay or be paid depending on the care arrangements for your children. So at least know what the assessment would be like, so you can weigh that up against what the arrangement you have with your ex. Yeah, but of course, that doesn’t help with the enforcement …collecting it.

Parenting plans: how flexible can they be?

Benjamin Bryant: The next question, Heather, is: My ex-husband and I are working out how the children will divide their time. And basically, I’m happy with what we’ve been discussing for now, but I’m not so sure it’ll work in the future. Let’s say if I started a new relationship. What I want to know is how fixed the parenting plan has to be. If my situation changes in the future, am I stuck with whatever we agree now or can things be renegotiated as we go along?

Heather McKinnon: So obviously, we really encourage clients to remain flexible in parenting throughout the children’s lives. Because we know from longitudinal studies that when a judge makes an order about where children spend time, within a year or so of the case being over, the parents are doing something completely different.

Benjamin Bryant: No one’s reading the orders.

Heather McKinnon: Yeah. So it is all about realising that the best parents are the flexible parents: the parents who can adapt to changes in their children’s lives. This listener already identifies that the first change when people separate usually occurs when one parent re-partners. Because often children don’t react to the new step parent, or there’s a blending situation where both the new partners have got other kids. And that’s very hard territory to navigate. So remain aware of your children’s emotional health. Keep flexible, keep communicating. And, if you need to, go back into some high quality parenting counselling, if you need to navigate changes to arrangements. If you have a court order, you can change it at any time just by agreement. But if you have got stuck with a rigid parent who is strictly wanting to apply the judge-made orders, then you may have to go back to court for review. For example, if the court order provides that when children were in year 3 and 4, there was a week-on, week-off arrangement and the kid’s now in year 8 and doesn’t want to keep doing that, there’s a need to change it, because if you try and push a child of that age into something that doesn’t fit with where they’re at, all hell breaks loose. So flexibility: number one. The court is always open to review arrangements if there’s a major change in circumstances, and that is things like moving geographically, changes in the financial makeup of the household, a child’s maturity and wishes now being paramount in terms of their mental health going forward. So the short answer is good luck.

Benjamin Bryant: As you were speaking, Heather, I like what a lawyer’s nightmare, trying to enforce flexibility. A bit of an oxymoron. But you are right in the sense that obviously flexibility is best and just being able to communicate because things change. The other thing that I would say, Heather, is this listener should probably consider getting legal advice specific to their problem. Because you and I talk about the positives and the negatives of parenting plans and consent orders every day. So my advice would be probably go off and get some legal advice specific to their problem, just so you can have a great discussion about what are the positives and negatives of either a parenting plan or a court order.

Superannuation: am I entitled to a share of my ex’s super?

Benjamin Bryant: And Heather, our final question. I’ve been married for thirty five years and we’ve recently decided to separate. My husband has a pretty substantial superannuation fund. Am I entitled to half of that fund.

Heather McKinnon: So this is one of the common questions in long marriages. I’ve got one at the moment where a public servant who is in their 60s has a superannuation fund that’s valued at just over a million dollars and is trying to negotiate that his spouse of 30 something years, doesn’t get it. And you think, how in 2021 would people think that superannuation isn’t an asset of the parties, but it happens every day. So superannuation is a form of savings that the couple make during the relationship. It’s just like their house, their car, their bank accounts. The two biggest myths in the family law jurisdiction are that if an asset is in one party’s name, it doesn’t go into the pool or that superannuation doesn’t go in the pool. So everybody needs to help their family and friends by giving them this message. Superannuation isn’t a magical asset. It’s just money that the two of you have worked for nearly four decades to accumulate. The fact that that cash is in one person’s name, doesn’t mean that it hasn’t been worked for by both of you. So don’t even go there. It is usually, after thirty five years, separated in the division on the same percentage that the overall case is assessed at. So in this case, for example, if one of the parties has recently inherited a million dollars, then the division on separation mightn’t be 50/50. It might be that you add up all the assets, take away the liabilities, and then there might be a division 35/65 because we’ve had this big inheritance come in. So the facts have to be analysed by a family law practitioner. But in the main, after thirty-five years, the starting point is a division of everything down the middle.

Benjamin Bryant: Heather, I thought you were going to answer it in one word. But look, I, I agree with you obviously thirty five years is a long time. Superannuation goes as an item on the balance sheet. We can’t ignore it, although a lot of people do. But having said that, I think the question is, do you want half of the fund? Super has all these strings attached to it. It’s highly regulated? Why would you want some of that? So maybe the question should be, do you want half of the fund? Sure. You will still get 50 percent of the overall pool, but let him have his super.

Goodbye for now….

Benjamin Bryant: Thank you for providing such excellent answers to the questions.

Heather McKinnon: You’re welcome Ben. And now I can have breakfast

Benjamin Bryant: A big thank you also to everyone who sent in the questions. We really appreciate the opportunity to provide a little bit of perspective and hopefully make your choices easier. We are happy to answer your questions whenever possible. So please feel free to message or email the show at any time, and we’ll do our best to get some answers on the podcast.

Benjamin Bryant: Next month, we’re going to talk about financial planning during and after separation. You’ve got the rest of your life ahead of you. So it’s important that you plan to thrive. We will be talking to Brett Martin from Penny Lane Financial Services, formerly known as Bridges Financial Services. Brett is going to help us deal with some of the financial questions people face both before and after separation, and give us some tips on how to move forward financially. This show is going to be really valuable to all of our listeners. Smart financial decisions and strategies make a huge difference to anyone going through separation.

Benjamin Bryant: If you’ve got a story or a question about financial planning through divorce or separation, then please either send us a message on Facebook or email us on familymatters@bryantmckinnon.com.au. Before we go, one final reminder to share this show with your friends who need it. Also, you’ll find links to any resources mentioned, plus a full transcript of today’s show in the show notes on our website. Goodbye for now and we hope you’ll be listening again next month.


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