Home > Podcast

E42: Community Questions – Take 6

Watch the Facebook Live recording of this podcast.

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. Starting out: I’m thinking about separating but haven’t yet spoken to my partner about it. Is there anything you recommend I do before I speak to my partner?
  2. Property settlement timing (myth busting): I don’t think I can wait until the 12-month separation period is up to apply for divorce. What can I do?
  3. Parenting decisions:  Can my husband force my kids into boarding school?
  4. Property division: My partner moved into my house six years ago.  Is she now entitled to a 50/50 split?
  5. Child custody adolescents: My 15-year-old son has indicated he wants to live with me full time and my ex refuses.  What can I do?
  6. Parenting Orders: Do we have to have a Parenting Order, or can we just figure out our own custody arrangements?
  7. Child Support:  Can I stop child support payments now that my ex is marrying someone wealthy?

Links & Resources Mentioned in This Episode

Should I Stay or Should I Go – this podcast episode featuring Elisabeth Shaw, CEO of Relationships Australia NSW was referenced in relation to the question about what to do before speaking to your partner about separation.

Subscribe to The Family Matters Show


Full Episode Transcript

Welcome! Community Questions Take 6

Benjamin Bryant: Welcome to episode 42 of The Family Matters Show. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers. And today we are returning to one of my favourite topics: community questions. I’m here with my partner in crime and family law specialist Heather McKinnon, who is going to help me answer the complex questions that we’ve received from all of you wonderful listeners. Heather, we’ve had so many amazing guests recently from all over Australia and the world, but it’s good to get back to answering questions from the local community.

Heather McKinnon: It sure is. The reason we do the show is to help everyone get the facts. They need to be empowered to make right decisions. And this show gives quality advice. So you know that the people that we have on the show are going to give you accurate information.

Benjamin Bryant: You’re so right Heather. And these community question episodes are really valuable and I’m feeling a little bit remiss that we’ve left it for so long this time. I want to get on to it right away. But just before we do, 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 and family who might be starting out on the rather scary journey of separation. The earlier we can be there to provide the answers, the better. Okay. On with the show. Are you ready to give our listeners some answers Heather?

Heather McKinnon: Yes, absolutely Ben.

Having that first conversation about separation.

Benjamin Bryant:  Question one: I’m thinking about separating but haven’t yet spoken to my partner about it. Is there anything you recommend I do before I speak to my partner? And do you have any tips on how to handle the conversation?

Heather McKinnon: Ben, this is one of the most common questions that people ask us when they’re coming to assess what they’re going to do. The first and only advice that we really have is: assess whether you are at risk. Separation is the most important time for risk assessment, because we know that that’s when things are likely to go wrong. So if you have any concerns about the way your partner’s going to react, it is important that you get some backup. For example, if there have been incidences of violence in the past, it’s probably better to communicate that you are separating by writing a letter after you’ve left the property. If it’s a civilised separation where it’s been coming for a long time, then you’re probably able to say, Well, look, we’ve come to the end of the road. There’s lots of resources available on the podcast series, particularly people like Elizabeth from Relationships Australia who did a whole show on how to separate.

Benjamin Bryant: Should I stay or should I go?

Heather McKinnon: Yeah, thanks. And what I would say is if you’ve really got concerns and you don’t know how it’s going to go, go to a counsellor or a psychologist before you communicate, just to get someone else’s view on whether or not you’re in one of those cases that could go wrong. Otherwise, there’s hundreds of ways of doing it, isn’t there?

Benjamin Bryant: And Heather, we get this question all the time, and it’s not really a family law question. On a daily basis I say, it’s very difficult to get your ducks in a row. Family law, by its nature, is more reactionary than precautionary. That is, it normally has to hit the fan and then we figure out how it’s going to happen. Not many people can pull off a conscious uncoupling like Gwyneth Paltrow. There is an element of walking off the precipice. And I say to people, it’s more important to get the non-legal support at that stage. Like you said, the risk assessment, what’s it going to look like? Am I or my property or my children are going to be at risk of harm if this was to happen? And, your brothers and sisters, your neighbours, your friends, helping you with that because you will have to walk off the precipice and your lawyer does not do that with you.

Heather McKinnon: Yeah, very good advice. what we do is really say to you, go and get that support structure in place and then we’ll see you once the deed is done.

Do I have to wait 12-months to finalise my property settlement?

Benjamin Bryant: Yeah. The next question. Heather is: My partner and I separated four months ago. I moved out and she is still in the family home with our two kids who are aged four and seven. I’m struggling to pay the rent in my new apartment. I really need to get access to my share of the value of the house, and I don’t think I can wait until the 12-month separation period is up to apply for divorce. What can I do? We’re starting with a misconception, aren’t we?

Heather McKinnon: So these timeframes that people hear about often lead to confusion. If you’ve been married and you separate, the usual time to start negotiating property settlements is usually six weeks or so after you’ve gone because finances need to be organised pretty quickly for most Australian families. The 12-month from divorce rule says that if you’ve done nothing and the first thing you do is lodge a divorce, you then have to do a settlement within 12 months of that date. But it is really important to understand that you can start negotiations for property settlement as soon as you separate. And the usual time frame, Ben I would think probably, most people are done and dusted within 3 to 6 months of separation.

Benjamin Bryant:  If you become divorced, that’s when you’re 12 months apply. You either can sort it out with your ex or you have to go to court. That’s the 12 months that you have to wait for. But in terms of the property settlement, no, you don’t have to wait to be divorced to do your property settlement. Like you said, six weeks. Some people have been planning this for ages. They’ve already got it sorted before they do the deed. There is a 12-month rule that applies, but you don’t have to wait for it in terms of property settlement. I think that’s a really big misconception that we get all the time that we have to bust through.

Benjamin Bryant:  in this particular scenario there are children four and seven and you’ve got this balance of, the best interests of children over financial imperative or responsibility, and it can be a really hard balance. I think it’s important to realise that when it comes to an assessment of children’s best interests, what we find is that children are pretty resilient., they can deal with the selling of the family home or a change of a new school and things like that. They’re pretty resilient like that. So don’t put so much pressure on yourself that this is what you have to do. It should be a decision, a family decision as to what’s best for the children in the sense of what’s practicable. If it’s not practical, it’s not workable.

Heather McKinnon: Yeah. And I think also it’s important to understand that the role of your family lawyer is to help with those interim financial decisions. How do we survive until we sell the house or one of us buys the other one out and the final settlement? So, don’t fret too much about how it’s all going to work because we’ve had years of helping people look at how do you work out immediate issues, and how do you work out long-term issues.

Benjamin Bryant: Can I take money from the joint account, all these things

Can my husband force my kids into boarding school?

Benjamin Bryant: Third question Heather. My husband and I have been divorced for six years, and up until recently, we have had an amicable relationship. We’ve got two kids, 12 and 14 and share custody in a week-on, week-off arrangement. But now my husband wants to send the kids to boarding school on the Gold Coast. I can’t afford the fees and I want to keep my kids at home. What should I do? Can my husband force my kids into boarding school?

Heather McKinnon: The age-old question. So go back to first principles, parents are the people who make decisions about children’s education. That is the case whether you’re together in an intact family or you’re separated. So, in this scenario, if you look at the options that may be available to the family, the sort of things we see on a daily basis are: we may have talented children. Dad may know that both children are likely to be selected for Australian sporting teams. And so, his view is that they should go to the Gold Coast where there’s expert coaching. Mum may be someone who is suffering from anxiety and can’t separate the children’s best interests from her own needs. Or it may be that the children and Mum are really content here and Dad just can’t handle the week-on-week-off. So his way of dealing is, well, I’ll buy someone to look after the kids. Hundreds of different situations arise in these cases. So, what you do initially as parents is if you get to a stalemate, you bring in a mediator or a child expert who can look at all of the different options available for the family.

Heather McKinnon: I always remember a little Coffs Harbour kid who became an Olympian. Her parents were together, but at 11 years of age she said, I’m going to the AIS and you can’t stop me. And they had to make the decision. Neither of them wanted it to happen. That kid made the Olympics. There are really complex decisions around education. The cost is a big thing. I’m in a case at the moment where a father is prepared to pay for high-school-aged children to go to one of the elite Sydney schools. Now, the educational advantages to those children going to those schools are obvious, but you’ve got to weigh that up against, what are the risks if they’re out of the home in that critical adolescent period. They’re value judgements, all parents face them. If you can’t sort through the options together, get an expert in who can help you really look at what do these two kids need? And as parents, what do we have to do to meet those needs appropriately?

Benjamin Bryant: That’s right. And these are high-school-aged kids too. So I think we probably need to hear from the kids what their particular views are. And you’re right, Heather, this issue looks different for every family. I have a matter where the family’s actually out west and the kids are going to a primary school and the oldest, there are three children, the eldest is starting high school next year. And the parties agree that the secondary school available for the children where they live is not appropriate, but they don’t agree on the solution. It’s very nuanced, what it can look like. But also, I’d say to this listener, is the Gold Coast the issue, is the boarding school the issue, as well as the fees? Is there some other alternative that can work?

Heather McKinnon:  And it’s really interesting, isn’t it, that we have this concept called joint parental responsibility. And when I’m talking to parents, I indicate, well, look, there’s three things that that involves: religion, education and medical. For most families, it’s education decisions that are going to be the ones that really impact post-separation regularly.

Is the property division always 50/50?

Benjamin Bryant: Heather we’re up to question number four. My partner and I lived together for six years but never married. When we got together, she moved into the house that I had owned for ten years and had fully furnished. In the time we were together she did contribute to the mortgage, but obviously hasn’t paid even close to half. She now says that because we’ve been together for so long, she is eligible for a 50/50 split on everything, including the house. Is that correct?

Heather McKinnon: That’s how we make our living Ben. So in assessing property settlement, the contribution is critical. But in these, what we call short relationships, financial contribution becomes very important. So clearly, if you come into a relationship with significant capital that the other partner doesn’t have, you’re not going to be able to take half of that capital after six years. So, everyone always says, but how do you know what the range is? Well, that’s because you and I, between us, have been sitting here for sixty years weighing up thousands of cases. So, you can be assured that family law specialists will help you identify a range that’s pretty accurate pretty quickly. But in this case, after six years, you’re not going to get the other person’s hard-earned capital.

Benjamin Bryant: And I think it’s important to put a disclaimer on that, Heather, we don’t know what else is happening in this matter. Perhaps this listener is quite choosy in the information that they’re giving us. And so, when we talk about 50/50 split, it’s 50/50 split of what. If you go back to other podcasts or if you have an appointment with Heather and I, you realise there’s a four-step process essentially that the court takes. The first one is, making an assessment as to just and equitable, a Court or the Federal Law Act would not make a division that is not just and equitable in the circumstances. The second step is assessing the pool. What’s up for grabs, the assets, the debt? The second is the contributions, who did what and when to the assets that are up for grabs. So, the third step is future needs. So, what does the future look like for each other? So it may be that this listener is right and 50/50 on a contribution, base assessment is outrageous after six years. But what about the future needs? Is there an age disparity? Are there young children? Are they paying child support? Does someone have any health needs? Is someone unemployed and the other person’s a doctor and on a high income or something like that? And it may well be that a 50/50 split is appropriate overall, but certainly not on the contributions is what you highlighted. So, it’s really important to get advice, tell the whole story, and get specific advice for your circumstances.

Heather McKinnon: Absolutely.

My adolescent wants to live with me full-time and my wife disagrees.  What can I do?

Benjamin Bryant:  My ex-wife and I share custody of our 15-year-old son. Last week, he confided in me that he would like to live with me full-time. I approached my ex and she point-blank refuses to even consider the option. Is there anything I can do that doesn’t involve making my son go to court?

Heather McKinnon: So it’s a really good question. Children never go to court. In our system, the only time children are seen is by a court child consultant, an expert in child psych, or by an independent children’s lawyer who is specially trained to look at what’s best for children, particularly adolescents. My opening remarks in relation to a case like this are: You’re joking. A 15-year-old can leave school and start work. It becomes quite a shock to parents to realise that 15-year-olds are pretty good at determining what they want to do with their time. So, I always say, Look, you guys, these are not toddlers. They’re not little ones in primary school. Shut your eyes and remember what you were doing in year ten and then tell me that your son or daughter doesn’t have an absolute inalienable right to tell you both, frankly, what they want to do. Now, that’s coloured by things like kids who have intellectual disabilities or high needs. Like any other human, if they’ve got an incapacity, they may need help with decision-making.

Heather McKinnon: But you will rue the day if you try and force a 15-year-old to, bend to your will. They are in the conversation. They have more rights than either parent to determine their life. So as parents, you’ve got to take a deep breath, and catch up about where your child’s developmental stage is. And again, get a child expert in the middle of the three of you to nut out where that person’s at. It absolutely floors me how many people I see in a year that have a child in year 11, and they’re trying to work out how they’re going to live. And I’m thinking they’re about to leave and go to uni in Sydney. And sex, drugs and rock and roll are what they’re up for. And the parents are treating them like they’re still in primary school. So big shout out. Young Australian adolescents are well-educated, and well-informed. Most of them have a very good sense of how they want to manage their complex lives between their peer group, their family commitments and their school. So they have a big say.

Benjamin Bryant: And I think sometimes the answer is to do nothing. It’s not that this person needs to jump on the front foot and try and impose your sage advice onto the ex-wife. It may well be that he has to let it play out. He has to let the 15-year-old develop their voice and tell their mother and perhaps what you said with the input of a child expert the 15-year-old may be able to inappropriately and safely have their voice in that circumstance.

Do I have to have a Parenting Order?

Benjamin Bryant: The next question, Heather, is: My husband and I have recently separated. We have two children aged five and six. We’ve agreed that they will share custody with my husband having the kids on Monday and Tuesday and every other weekend. But my neighbour says we can’t just agree between the two of us. We have to get some legal document called a parenting order. Is this right? And if so, how do we go about getting this?

Heather McKinnon: So our first advice to all parents is you parent from cradle to grave. You make decisions about your child, and you don’t need bits of paper setting out, like a dog ownership certificate, who owns the kids on what days. Those bits of documents are reserved to those parents who cannot make agreements between themselves. The vast majority of Australians who separate, happily get on with parenting without any need to have any intervention by the legal system. And certainly, all the long-term research shows, if you’re lucky enough to be able to do that, your kids will be forever grateful. Because children who discover in adulthood that their parents had to get bits of paper setting out who owned them on which days react very badly to that. So the first step is: try and sort out arrangements yourselves. The second step is: if you’ve got a bit of argy bargy, get into some family dispute resolution with a properly qualified person. And finally, if all that fails, you may need the legal system.

Benjamin Bryant: And in terms of the stats, Heather, by memory, I think it’s about 3% of people that actually need a decision or a piece of paper from the judge at the end of the day. So you’re right, most people do this without a court order. So, dear listener, your neighbour is wrong.

Can I stop child support payments once my partner remarries?

Benjamin Bryant: Final question, Heather, before I let you go. I’ve been separated from my ex-wife for five years. We have one son who I see every other weekend, and I’ve been paying child support to my ex. I’ve recently found out that my ex is about to marry this guy who’s really loaded. Lucky. I struggle to make the child support payments, and now that she really isn’t going to need the money, is it possible for me to reduce or even stop the child support payments?

Heather McKinnon: Classic question. So when you have children, you have a commitment to raise and support those children until they’re 18 to the extent of your capacity. When I came into practice 40 years ago, we didn’t have the child support agency. So every time a family separated, the mum and dad had to have this complex negotiation about how and what level of child maintenance would be paid. We’ve moved on and many, many years ago now we legislated through Parliament the Child Support Collection and Assessment Act. It’s a statutory formula that is updated regularly with the cost-of-living adjustments and it allows families to get a certain answer on how much child support should be changing between households. The fact that either parent re-partners doesn’t mean that you suddenly don’t have responsibility for your children. It’s not the case that other adults are responsible to raise your kids. It’s the parents who pay for their children until they’re independent. The child support assessment will factor in your respective incomes, not your partner’s income, and you will pay according to capacity. So a lot of the old arguments are gone. Everybody can go on to the calculator on the Child Support Agency website and work out how much should be changing hands. But it is a big myth. You don’t take on responsibility for someone else’s children when you marry somebody who’s got kids. Parents pay for kids, not step-parents.

Benjamin Bryant: Well, Heather, I’m so glad that I wasn’t around before the Child Support Agency. We’re both on Law Society committees and we know that it seems that the legal system is going back to the future, and there’s the idea that child support comes back under the Family Law Act. So, stay tuned for that.

Goodbye for now….

Benjamin Bryant: Well, Heather, that was fun. I love a good round of community questions.

Heather McKinnon: It’s really important that we keep these shows going regularly and we really want to engage with the community and find out what you want to know.

Benjamin Bryant: Agreed Heather. Next month we have Dr. Atina Manvelian as our guest. She had to postpone our recording this month for personal reasons. So, Heather and I have everything crossed that she’ll be able to join us next month. Dr. Manvelian is a psychologist and clinical scientist at Stony Brook University in New York and Stanford University in California. She has a speciality in adjustment after divorce or break-Up and will talk to us about how to have a successful separation. I know that’s something all separated couples want, so I’m sure you’ll join me in looking forward to that episode.

Benjamin Bryant:  If you have specific questions for Dr. Manvelian, please send them to familymatters@bryantmckinnon.com.au or message us on Facebook and we will try to get the answers for you on the show. We’ll put links to any resources mentioned in today’s show and a full transcript in the show notes on our website. And don’t forget, please share this show with family and friends who may benefit. We hope to have your ears again next month.

© 2024 Bryant McKinnon Lawyers
List now to The Family Matters Show, a Bryant McKinnon Lawyers Podcast