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:
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Benjamin Bryant: Welcome to episode 51 of the Family Matters Show. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers, and I’m here with my partner and family law specialist Heather McKinnon. And today we are returning to one of my favourite topics: community questions. Over four years ago, we started this podcast to help empower our local community when it comes to family law. So, when we get a chance to answer questions directly from our local community, it feels important. Wouldn’t you agree, Heather?
Heather McKinnon: Absolutely. Ben. You and I have been family lawyers for years, in my case 40 years, but don’t remind me. So, it’s easy for us to forget the questions that run through people’s heads when they contemplate separation. These shows really focus our attention back to basics, which is really important for our clients.
Benjamin Bryant: Yeah, I feel the same. We’ve got a lot of questions to cover today, so I want to get going. But just before we do, I need 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. We now have a library of over 50 podcasts that will provide answers people need to feel less fearful and more empowered. Okay, on with the show. Are you ready to give our listeners some answers, Heather?
Heather McKinnon: Yeah, let’s do it.
Benjamin Bryant: All right. Question one I am a father of two teenage children. I recently received final court orders giving me sole parental responsibility for all medical matters. I gave the orders to the medical centre, but was told that they don’t really do anything, as the orders are between myself and the mother. My ex has taken my son four times to the GP this week and medication has been prescribed. Do the orders mean nothing, Heather?
Heather McKinnon: Yeah look, this is a really common problem as you know, Ben. It’s really hard for medical practitioners to be across family law. I mean, the orders go to medical records, and they should be implemented. But we’re asking a really stretched system to get their head around another system, that is the legal system. What I generally suggest that clients do is make a time to go and meet with the GP with the orders and see whether the GP can then talk to the medical practice administrator, who’s really the one that runs the paperwork, to see whether you can get some sort of recognition on the IT system for the practice as to what’s going on. There are ways you can take the matter further, but if you go to the Medical Complaints Tribunal or you try to get some sort of cut through that way, you’re likely to alienate the practice. What tends to happen, I’m sure you’ve seen, is these families that are in conflict at the level where the courts become involved, have real problems with lots of agencies, because if you’re a stretched practice and you’ve got thousands of people knocking on the door trying to get on your books, if you’ve got problematic families, often they’ll just say, go away. We’re not going to see you anymore. So, it’s a real delicate balance. My top tip is if you’re in this situation, get to the GP or get someone to assist you with the communication, like a social worker or a psychologist. They often will get through to the doctor when you won’t because they’re in the allied health profession and they may have working relationships with that doctor. My experience is GPs, if you focus it in on, the child, will be able to implement the boundaries. But all I can say is I understand both sides. I understand how stretched those practices are. And it is really about communication.
Benjamin Bryant: And look, when I consider this question myself, Heather, it operates on two levels, doesn’t it? One is the level that you were speaking about, the non-legal side: How can you essentially get the medical practice on board? But there’s also the other layer of getting the ex off board. If we can extend the metaphor What steps can be taken? Because in my experience, sole parental responsibility a pretty heavy thing for a court to decide, if that’s what this court did, to give someone sole parental responsibility for a particular matter. There must have been something on foot for that order to be made. So, it could be very problematic and sometimes very dangerous for a parent to be, acting in contravention of the orders. So, I would also seek to get some family law advice, in particular, about perhaps possible remedies in addition to the remedies that you’ve been speaking about, which is probably the most direct and the most cost effective and the most timely. But also, if that doesn’t happen, what steps could maybe be taken? Because do the orders mean nothing? No, they absolutely mean something. And so, we need to take steps to make them mean something to this person.
Heather McKinnon: And I think you’ve raised something that we should talk about. Giving background is important. So usually in these extreme cases there will be expert reports. And you can ask your lawyer to make an application to the judge to get the expert report released to the child’s GP, so that the GP gets a sense as to why the order has been made and why it’s serious. So that’s another tip that really does help.
Benjamin Bryant: And of course, you’re referring to section 121 of the Family Law Act, Heather.
Heather McKinnon: Glad you know.
Benjamin Bryant: Question number two. I want to take my four-year-old son overseas on a holiday. My ex and I have been sharing custody relatively amicably, and we do not have court orders in place. My ex sees our son every second weekend and now refuses to sign his passport application. What should I do, and do I need a lawyer?
Heather McKinnon: A very common problem, particularly in middle class families, about what happens when you want to take a child overseas. So thankfully, we have a system in Australia where if parents are in conflict over any issue to do with parenting, you can’t go to court until you’ve tried to go to counselling. So, the first step in a case like this is to ring your local relationship centre. In Coffs Harbour that would be Interrelate. Or if you’re in another area, you’ll find a list as to the agencies that can provide help to parents to negotiate this area. But we might expand a bit Ben about our experience of why this question arises. And it can be some years after separation. The first thing is that when one party has the capacity to take a child overseas, like what we see here is families who want to go to Fiji or Bali in the school holidays, and the other parent doesn’t have the financial resources to do that. The green-eyed monster often raises its head, and they want to deny the child the opportunity more out of their own feelings. But there are some important things. In this case, we’re looking at a four-year-old child. Now generally social science would say a little one of that age probably shouldn’t be away from either parent for any really big length of time. So, a lot of these cases are about people wanting to take children on long overseas holidays, for example, to see family in the UK. Those cases are very difficult to determine. You might add some commentary about the cases you’ve had before the court, but certainly once kids are in high school, my experience is the Family Court will promote overseas travel as an educational experience for the child. Under that age, every case is different and it’s really trying to get the other parent on board. But if you can’t, ultimately then the court will get some expert evidence about, is it in this child’s interest? So, if it’s for a holiday for a four-year-old, they’re probably not going to be too keen to bend over backwards to allow it. But if it’s to engage with close family like grandparents or culture, then the courts going to be really looking seriously at allowing that experience.
Benjamin Bryant: I think in my experience, Heather, it’s fair to say I think the court does probably prioritise, freedom of movement and allow children, and indirectly their parents, to travel abroad to expose themselves to different language and cultures and different things. I think universally it’s a very enriching experience and I think the courts are keen to promote that. But like you said, it’s always about the best interests of children. I would ask the listener about where the refusal is coming from. Like you said, there’s sometimes, jealousy or perhaps they’re going with a new partner or perhaps the child is too young, like you said, and perhaps 6 or 8 weeks away is far too long for a four-year-old to miss out on spending time with their other parent. But sometimes it can also be the fault, if I could say that word, or perhaps the lack of awareness on the parent that’s wanting to travel. For example, if my child was going to leave the country, I would want to know the flight details. I want to know the insurance details. I want to know where they’re staying when they’re there. I want the contact details. I want to make sure that the Wednesday phone calls could still happen, or something like that, if the time zones allowed for it. So, I think it’s fair to say that although the courts promote freedom of movement and give that a lot of priority, there’s some standard things that the court requires the travelling parent to put in place to try and minimise, the impact or to maximise, the child’s relationship with the non-travelling parent at the same time.
Heather McKinnon: Yeah, really important and I think it is all about how good the communication is between the parents.
Benjamin Bryant: Yeah, absolutely. Next one Heather I’ve had a parenting order in place for many years through the Federal Circuit Court. I’ve just found out that my ex has gone to jail and not sure when he will be released. Am I within my rights to find out what his crimes are and if they’re serious, can I prevent future visitation for our children?
Heather McKinnon: Well, this is a long question with a lot of twists and turns.
Benjamin Bryant: Of much time have you got?
Heather McKinnon: Yeah. So, let’s go back to that basic principle that we talk about in the podcast, nearly every episode. It’s all about what’s best for the child. So, if I put my practical hat on and think back, over the years, 11:01 I’ve had a number of children, in cases I’m involved in, who have visited their parent in prison. So, people always think, oh, if someone goes to jail, that’s the end of the relationship. But clearly that’s not the case. So, in this case, yes, you definitely would need to investigate why the term of imprisonment. Because if it’s related to the safety of your children, absolutely you’ll want to know what’s going on. But as to how that impacts on your children then it is all about: is it a crime that can lead to some sort of risk to your child, or is it an unrelated matter that wouldn’t impact on the children? And again, you start with counselling. There are social workers in the prison system that can coordinate phone mediation between the parents to have a frank discussion about what this change in circumstances means for the family
Benjamin Bryant: And as you said before, Heather, a lot of the times we’ve spoken on this podcast already, what the court in deciding what’s in a child’s best interest is always balancing risk and relationships. So obviously the crime or the jail term means there’s an element of risk there that the court needs to investigate. And as you were talking about in your example, where there are some children that do visit their parent in jail, it doesn’t necessarily cut off the relationship side. But as always, it’s the risk versus relationship assessment. What I wanted to do is share a little story, Heather. It’s not actually about a parenting matter, it’s a recent divorce matter I’ve done. I acted for a wife who was wanting to get a divorce. She hadn’t spoken to her husband for many, many, many years. And of course, if you’re obtaining a divorce in Australia, you need to be able to serve your divorce application on your husband or your other spouse to affect procedural fairness. She had no idea where he was. What she did was actually she found out by listening to a true crime podcast that you can actually write to the New South Wales or the Queensland incarceration system, essentially to find out whether your spouse is, in fact, in one of their facilities. And that’s what she did. We found him, we served him, and we got a divorce. So interesting.
Heather McKinnon: Yeah, kids who come from families where imprisonments happened, often thrive in having that ongoing relationship with the other parent. And prisons aren’t what people think. If they’re low risk, medium security prisons, they will have playgrounds where parents can have barbecues with their kids when they visit, all sorts of things to try and maintain the relationship between the little one and their parent.
Benjamin Bryant: Heather is it normal to have a solicitor and a barrister attend a mediation? This has been recommended to me, but I’m concerned about the cost, and I know Heather you’ve had a recent experience with this.
Heather McKinnon: I’d be really worried about the costs. So, it’s horses for courses. I mean, generally to have a barrister and a solicitor in a mediation is absolute overkill and it could be a sign of intimidation, bringing one more person than what’s normal.
Benjamin Bryant: Safety in numbers.
Heather McKinnon: Yeah, exactly. But there are real reasons why in complex cases we do have both solicitors and barristers. So, my experience is if the asset pool is significant and there are complex issues, it may be appropriate. I’ve been in mediations, as you have, where we’ve had a solicitor, a junior counsel and a King’s Counsel or Senior Counsel, and those cases are run like that because the best chance everyone has to mediate and settle the matter is if the team can really work on problem-solving. So, if it’s a standard family law property settlement, house, some super and vehicles, then I would think that the use of two lawyers is overkill. And it can sometimes be the sign of a lawyer who doesn’t feel confident in the mediation environment. So, in that case, you really need to investigate, is this lawyer the right person for me?
Benjamin Bryant: And I think it’s also okay to question the costs with your lawyer. Heather. So, if this listener was concerned about the costs, they should ask their lawyer. If they’re questioning whether a barrister and a lawyer needs to be at the mediation, they could sit down with their lawyer and just ask, why is my matter so complex, in your view, that we need a barrister as well? What can they bring to the table that I can’t? And if the costs are significant, they should know what the costs are. It shouldn’t be, “Surprise, here’s a $15,000 bill.” It should actually be explained to them saying this is going to be the cost. It may be significant, but this is the reason why, this is the advantage of doing it.
Heather McKinnon: Yeah, absolutely.
Benjamin Bryant: Heather question number five. A few months ago, my ex physically abused me in front of my children. The police brought him to a criminal court on an assault charge. I was supposed to give evidence, but decided against it because I didn’t want the father of my children to have a criminal record, and I was afraid it would just make him angry and more violent. Now, his family lawyer has submitted a document to the family court saying that I made false allegations of domestic violence. What should I do now?
Heather McKinnon: Look, Ben, I think probably in half the matters we see this scenario raises its head. Yes. It is a really difficult moral decision about whether or not you continue in these situations. But we also know from research that if there’s been years of coercion and control in a relationship and finally the behaviour comes out into the public, then the person who’s charged is likely to put incredible pressure on the victim to try and get the police to drop the charge or not turn up. What I can say is that over the last decade or so, the police and the funded domestic violence services have got much better at helping victims carry through and go to court. And they do a lot of work about what the research shows about bringing the behaviour out into public and why it might be sensible to proceed. But if you don’t proceed and you do withdraw, it does not mean it didn’t happen. And when we get into the family court and we get into an expert assessment of the family, the fact that someone made a complaint is objective, real time evidence that there was family violence. So you should never feel ashamed or that you won’t be believed, because we know many women back out and don’t show up to court. But in our court, in the family court, the reasoning behind that will be looked at. And there’s a much more sophisticated understanding of why people make a choice not to give evidence against a spouse.
Benjamin Bryant: And I think it’s really important for our listeners to know the difference between the criminal law system and the family law system. In this particular example, the listener needs to know that in a criminal court, there’s a charge of something happened and the conviction is that thing either happened or it did not. In the family law courts, that doesn’t play out. Sometimes it does. Sometimes the court can make factual findings that something happened on a particular date, particular time to a particular someone, and it had this effect. The court can do that. But it’s not very common. What the family law court does is actually assess risk, which is what we do. And it may well be that that particular thing that was said to have happened, could not be found in the criminal court. But that particular thing, in addition to all the other little things, amounted to coercion or control or amounted to a risk that the Family Law Court judge thought was unacceptable. Okay. So, there is a big difference between the criminal proceedings and the family law proceedings. And I think people really need to understand.
Heather McKinnon: And I think that the big work that needs to be done in all these cases is the balance of risk and the feeling of shame that comes from having exposed your children to that family violence. So, we have a lot of knowledge in the field now. And they’re hard issues. No one can say they’re not.
Benjamin Bryant: And question number 6, Heather. We currently have a court order specifying a 50:50 custody arrangement for our children. But my ex is now planning to relocate. (Who knows where?) Can we change the arrangements ourselves, or do we have to get a lawyer involved?
Heather McKinnon: Really great question. We say to people who are in the middle of conflict over their children that the orders that we make, we know if you follow up 12 months later, are unlikely to be now something that the family sticks to. So, in this case, you can go back to parenting. You don’t need bits of paper that tell you where your children live on certain days. And as the children mature and life gets more complex, obviously things like relocation happen all the time. You only go back to change the arrangements if the two of you feel that the level of distrust is going to rear its head again. But if you can move on with your life and become independent and back to being parents rather than in conflict, then I say rip up the paper and get on with your lives. But if there is insecurity, then you can certainly change orders by agreement. And you can do those variations by lodging a thing called an application for consent orders.
Benjamin Bryant: And that’s what I advise people Heather I try to get a sense of what their personality type is. If they’re a person that needs all of their ducks in a row, and they need the black and white to reflect the current arrangements and move forward, we’re doing everything proper, then you do need to change the orders because you’ll always have that anxiety or what if. Sometimes, however, if it’s a functional co-parenting successful relationship, then perhaps you’re right. You just move forward. Who cares about the family court orders? What I would say is that if there is an agreement for the relocation to happen or something with the children, get it in writing, just in case the wheels do fall off later.
Heather McKinnon: Yep.
Benjamin Bryant: Heather, I have been separated for two years and I’m now going through the process for property settlement. If I buy myself a new car now before the property settlement is completed, will my ex be able to make a claim on that car?
Heather McKinnon: Why do I get the hard questions? So, this is a really common phenomenon, and it could be a house, a car, all sorts of assets. So, when you separate, it is important to start focusing on drawing a line on your finances so that you know that you can move forward without it impacting the other person. But in a case like this, what we’re looking at when we do the property settlement is how did that car come into being? So, was it a trade in of a car that was there during the relationship, or is it something where you’ve got 100% finance for it, so there’s no equity in it? Or was it funded by your mum and dad giving you a loan? So, all these factual situations show is why it’s important to try and tidy up a financial agreement within a relatively sensible time after separation. Normally most people have tidied everything up within a year. But the longer you go without tidying it up, the more risk there is that assets are going to come and go and the continuum of working out who contributed to what’s going to get more complex.
Benjamin Bryant: The waters get muddied, as it were.
Benjamin Bryant: We’ve spoken about this quite a lot, Heather, on our podcast. And the court doesn’t expect everyone to freeze and stop doing what they’re doing and not spend any money and not purchase new things. But again, what we say to people is that, as you said, there’s no line drawn in the sand. When we’re doing balance sheets, finding out what are the assets and liabilities of the parties, we’re not finding out what it was two years ago when you separated. We’re finding out what it is now. So that’s the first step. Identify the assets and liabilities of the parties now. And that could be, two years, could be four years, ten years after separation. But next, as you were saying, step two, we talk about how the items on the balance sheet even got there in the first place. So, if it was bought into the relationship, perhaps ten, 12 years ago at the start of the relationship, that’s a relevant factor. If it was there at separation, relevant. If it’s a completely new item that only one person has brought in and paid for, perhaps the repayments or whatever since, you’re starting to talk about post-separation contributions. And to give people, just a crude example of what it might mean, you might say two years ago, we agreed a 50/50. We get it. We agree to 50/50 down the middle. But in the last two years, if you’ve been living in the home and paying for the mortgage and doing all these things, or you’ve bought a car without finance or somehow you received inheritance or something. If there’s something to change the balance sheet significantly, let’s say, since two years ago, it might not be 50/50 anymore. It might just mean that that person who made the greater contribution for that period gets a little bit more. So, do you call that a claim on the car? Question mark. It depends on the circumstances. Yeah.
Benjamin Bryant: Next up, my child lives with me 100% of the time. Do I have to tell my ex that I’ve enrolled our child into daycare, even though I will be paying all of the costs?
Heather McKinnon: Yeah, we’re going to come into some interesting times because we’re about to see a change in the legislation. So, under the Family Law Act, as we speak, parents have joint parental responsibility. And we talk about that concept regularly on the podcast. What that means is you do have to keep the other parent involved in relation to major decisions. So, things like education are a pretty major decision. So, you should really put an email to say, “Look I’m enrolling Johnny at XYZ Day-care. It’s responsible. It’s what you should do. But on the other side of that, this listener says the child doesn’t have any contact with the parent. Now, is that because of family violence or is it because the risks are so high? If there’s high risks, there might be very good reason for not providing that sort of information. So, every case is different. We have to look back at it. But this idea of joint parental responsibility has been causing a lot of angst in the community. And Parliament has recently passed a bill, that will come into play in May, that will alter the way we interpret those sorts of decision-making responsibilities between parents. And we’ll have more to say about that in an upcoming podcast when we talk about the new regime. But again, the key giveaway is: is that child with you 100% of the time because of risk factors with the other parent?
Benjamin Bryant: That’s right. And we also don’t know how long there’s been separation, could have been two weeks ago. We don’t know. My answer is a little bit shorter. I would have thought unless it’s unsafe to do so. Yes, you should probably tell the other parent about enrolment in daycare.
Benjamin Bryant: Heather, at what age can a child choose not to attend supervised visits?
Heather McKinnon: Look, this is the most commonly asked question that we have in initial consultations. There’s still a big myth in the community that the Parliament has a graduated age indication that says that if children are in year 6 or 12 years of age, they can make decisions. No such thing exists. Every decision about a child is based on their best interests at any given time. So, resistance to turning up to supervised visits is going to have to be assessed in terms of the developmental age of the child. So, if a child’s in year eight and they’re saying, “Bugger off, I’m not going there.” there’s not much that anybody’s going to be able to do. I mean, the kid can go and get a job. It can get on a plane and fly to the US on its own. That’s sort of the upper end of where children really have self-determination. But under that, it’s really complex because there’s a lot of reasons why children may be resisting going to supervised visits. And one of the areas that the social scientists have to look at in those cases is: is it in the interests of the child to keep forcing them to go into an environment where they’re getting overly distressed? So, no, there’s no age. There is no easy way out of this. And if you’re separated and you’ve got a two and a four-year-old, you’re making decisions with the other parent until those kids are adults.
Benjamin Bryant: That’s right. Yeah. And I think it’s probably a better question. Instead of what age can a child choose? I think it’s probably what level of maturity is when a child can choose? I think that’s probably the better question. And you’re right, there’s no age or level of maturity. It’s on a case-by-case basis and depends, on the child’s best interests. But what I would say to people as well is this: court orders apply to the parents of children; they don’t apply to children. If this listener has an order which compels them to provide that child to the other parent, even on a supervised basis, that parent has to do that. It doesn’t matter if the child does not want to do that. They can talk about changing the orders to reflect the child’s views, but that order compels that parent to do so. And as we know, if you don’t follow an order, a penalty can flow. But I think for the parent that has the child, or the resisting child, in their care, they could also take comfort that if you’re using a professional supervision service, that they’re far better off taking the child to the professional supervision service so the child can express their views to that service, and then it’s all recommended. These are all child experts. In a sense. This is what they do on a daily basis. And they can make the call, because it’s very risky when a parent makes the call reflecting their child’s wishes, or the other parent might say a parent’s wishes. So, it’s much better for that to come from an independent third party. So, if you’re using a professional service, if there’s anyone to can the visits, as it were, or make a call on the maturity or wishes of the children, it’s probably better for them. And discuss it, of course, with your family lawyer if you’re still in the court system.
Heather McKinnon: And I think Ben the other thing we should talk about there is that supervision occurs for different reasons and for different time intervals. And in cases where a parent is of high risk to a child, the child may visit that parent for 2 or 3 times a year. So, they have a sense of the identity of the parent. There are all different scenarios as to why we use supervision. But certainly, forcing children to go on supervised visits over years is not, in my experience, something the court’s interested in.
Benjamin Bryant: Right. And as I said, we’ll have to change the orders to reflect that. It’s all about what’s in a child’s best interests.
Benjamin Bryant: Well Heather, another great round of community questions. I really enjoyed today’s show. What about you?
Heather McKinnon: Yeah, it’s great to keep seeing what the community is interested in.
Benjamin Bryant: Absolutely.
Benjamin Bryant: And next month we have a return guest. Sydney based barrister Rhys O’Brien will be joining us on the show to talk about how the court deals with domestic violence. Rhys has a great deal of experience in family law matters and regularly works with us on local cases. It will be fantastic to have his expertise to tap into. Before we go, remember that if you have any questions, including questions you’d like to share with Rhys, 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. And don’t forget, please share this show with family and friends who may benefit. We hope to have you ears again next month.