In this episode of The Family Matters Show, Ben and Heather answer real questions from the Coffs Coast community – questions that might be on your mind too.
Can I force the sale of a jointly owned home if we’ve only lived together 18 months?
What can I do if my ex is demanding too much and I can’t afford legal fees?
Do we really have to split parenting time 50/50?
Can I stop my ex from introducing the kids to a new partner after just a few weeks?
What are my options if my ex has stopped paying child support?
Should my HECS debt be considered in our property settlement?
What can I do if I suspect my ex is hiding business assets?
If you’ve been asking yourself any of these questions, this episode is packed with clear, practical answers.
Our podcast library offers in-depth discussions on many of the issues raised in this episode:
Episode 46: Getting In and Out of De Facto Relationships
A comprehensive guide to understanding your rights and responsibilities in de facto relationships—whether you’re starting one or ending one.
Episode 57: Changes to Family Law Legislation
Covers recent updates to family law, including parenting arrangements and debunks the myth that children’s time must be divided equally between parents.
Episode 16: Divorce & The Family Business
A detailed look at how family businesses are treated during separation and property settlements.
Episode 35: Forensic Accounting: Valuing Businesses in Family Law
Forensic accountant Susan Delbridge explains how businesses are assessed and valued in family law matters.
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Benjamin Bryant: Welcome to episode 62 of The Family Matters Show. I’m your host Benjamin Bryant from Bryant McKinnon Lawyers. Today we’re diving into another round of questions from our wonderful Coffs Coast community. We love these Q&A episodes because they let us tackle the issues that matter most to you, our listeners. Joining me, as always, is my colleague and family law specialist, Heather McKinnon. Together, we’ll be taking on some challenging and thought-provoking questions that you’ve sent in. Before we jump in, a quick reminder, if you know someone navigating the often-daunting path of separation, please share this podcast with them. We now have a library of over 60 episodes, designed to help people feel less overwhelmed and make more confident, informed decisions. Alright, let’s get started.
Benjamin Bryant: Welcome back Heather.
Heather McKinnon: Hi, Ben.
Benjamin Bryant: Let’s get started. I have been living with my partner for 18 months. We bought the house we live in a year ago and have joint tenancy, and we purchased almost all of our furnishings together. We’ve decided to split and are moving into another apartment. I want to sell the house and furnishings, but my ex refuses. I read that we had to be living together for two years to be considered de facto. So what are my legal rights?
Heather McKinnon: Very common with young people. So there’s two approaches to this. You can go to the Family Law Act and say that even though we were only together 18 months, we bought a property together and seek remedies through that. Or you can go to the Supreme Court, which deals with people who have property partnerships. So the short answer is mediate and try and get an agreement, because either going down the path of the Family Court or the Supreme Court is likely to cost you more than the equity you have in the property. So keep your heads together. If the two of you can’t solve it directly, next step mediate. If mediation fails, you then need legal advice to look at what’s the most effective way to get the courts involved. Should we do it as a property partnership, or as if we’re family law people because we bought a house together? That’s the lay answer. I think probably Ben, at any one time, we have 1 or 2 Supreme Court property dispute ones that we’re doing. The bulk of the stuff that we deal with should be dealt with in the family court, because mediation in the regions is really effective. But if you can’t solve it, it’s really about how much money do you want to throw at lawyers? It’s a real nightmare in something like this where you’ve just got your deposit and your furniture.
Benjamin Bryant: And to assist our dear listener, under the Family Law Act, what you were talking about with the Family Law Court, section 4AA of the Family Law Act defines what a de facto relationship is. And section 90SB, sets out when the Family Law Court has jurisdiction to make an order in respect to de facto relationships. And that is two years, or if there’s a child of the relationship, or if one of the parties has made substantial contributions to the asset pool, and not granting the property settlement would result in a serious injustice. So you meet those criteria, you’re off to the family court. If you don’t, you’re probably likely in the Supreme Court, like you said. The other thing as well, Heather, is we’ve been doing this podcast for some time. Check out episode 46, Getting In and Out of a De Facto Relationship, where we go very deep into de facto relationships and all the things that can come from that. So our listeners should check out those.
Benjamin Bryant: Next one Heather, my ex-wife insists she deserves 75% of our assets. We’ve been to mediation, and she still won’t budge. So this means I need to go to court if I want to get a settlement that’s fair for me. We’ve been married for 20 years, and our total asset pool is about 1.5 million, including our house, cars, super funds and everything. So I’m not going to be left with much if I just agree with her demands. But I don’t have the cash to pay the legal fees. What are my options?
Heather McKinnon: So starting litigation is the next expensive investment that you make. And we probably say to people, if you’re going to start your first sort of capital you need to set aside is about $10,000. What happens in these cases nowadays is people tend to borrow the fees from family, and they’ll pay it back when they get their settlement. Or we have litigation lenders who are a very specific sector of the finance market, who lend people legal fees in family law, property settlements. But you certainly need to assess objectively what your entitlements are before you start spending money in court. Obviously, the listener here says that the dispute is 75% the other one wants, but we don’t know whether that’s within the range. So be careful that you don’t let emotion override commercial sense, and make sure that you have very good advice from someone who’s very competent in the field before you start spending big money litigating.
Benjamin Bryant: And I think it’s important for people to know as well, Heather, that, I think out of all separated couples, only about 3% of couples actually need a decision from a judge. And a lot of people say to us, I’m definitely in the 3%, but the 3% is the 3%. And I think for the listener as well, I think obviously getting legal advice, because there’s a difference between legal advice and legal representation. But I would, you know, be interested to know if they’ve tried mediation with a lawyer. And also, of course, apart from litigation lending, as you mentioned, it is possible to go to court without a lawyer as well. That’s possible. Going to court is not expensive in itself. It’s a lot of things, but without a lawyer, expense isn’t one of them. And it’s possible to try that. And again, 3% of people need a judge. You know, you’re most likely not part of that 3%, most likely part of the 97%. And it may be that you just need the stick of a judge, the threat of a judge rather than a judge to make a decision. So definitely get some legal advice dear listener in respect to 75%, whether it’s inside the range and we need to look at options or it’s way outside and we need to look at what we can do.
Benjamin Bryant: Heather, my ex and I are negotiating our parenting arrangements, and we’re trying to do it without involving the lawyers. My ex insists that the “rules” are both partners get equal time with the kids, but my ex travels a lot for work, and trying to work out equal time doesn’t really make sense to me. Is it true that we have to share the kids completely equally after divorce?
Heather McKinnon: This is a complete myth that we’re doing everything to bust in the community, but it still persists. Every single day young people come into my office and think they have to split the kid like Solomon’s cut the kid in the old biblical story. So let’s go back to first base. Every decision about a child has to be made in the best interest of that little one. Not about rights of parents having equal time. So broadly, if we’re looking at child development up until about eight years of age, the research says children need a significant stability in one home so that where they sleep at night should be a place that they consider theirs, and they have time with the other parent occasionally. Most children will not adapt to week on, week off or shared care until they’re in primary school. And if you start splitting a little one who’s not even at school, week on, week off arrangement, you will do irreparable damage. That’s what the research says. So be very careful. My plea to all young parents is go and talk to a counsellor who’s trained to help you both look at age-appropriate arrangements. Put aside your own needs for harm and hurt and fairness and get some help to look at what you’re going to do as your little one grows through the different stages of development. We’ve got plenty of brilliant resources available in the community through the relationship centres. Your GP can refer you to child psychologists who will help you both look at your child. We’ve got all sorts of research now around special needs for kids who are, say, on the spectrum, who need more certainty, not less. So remember, as a mum and dad, your responsibility is to do what’s best for your little one. And you don’t want to get stuck in a fight just because it’s not fair.
Benjamin Bryant: It’s not about fairness. And Heather, as you know, on the 6th of May 2024, the new Family Law Act legislation or the amendments came in place which removed any reference to equal time in the act. It wasn’t the case that the court would make an order for equal time before the 6th of May 2024. And it’s certainly not the case after. So you’re right, that myth is completely dispelled. Where it’s come from is that the previous version of the Family Law Act said that the court must consider equal time in certain circumstances, but in most of the times it wouldn’t think it was appropriate at all. But now that reference is. completely gone. Section 60CC of the Family Law Act clearly sets out what a court must consider when determining what’s in a child’s best interest, and the first and foremost, of course, is to keep children safe, and after that comes to relationship with others, views of the children, the ages and stages and needs of children and things like that. So absolute myth. We discuss the new changes to the Family Law Act in episode 57. So if our listener wanted to check out that episode, that might be a good resource for them.
Benjamin Bryant: Heather, the next one. I’ve been separated from my ex for nine months. We’ve been sharing the kid’s week on week off again. She told me yesterday that she wants to introduce our six- and eight-year-old kids to her new boyfriend, who I think she’s only been dating for a few weeks. I think it’s way too soon to be doing that. Can I stop it from happening?
Heather McKinnon: Yeah. Really common problem. So parents need to really communicate clearly their expectations around new partners entering the scene. Kids don’t discriminate between adults on the basis of whether they’re in relationships with parents. They just see adults as people that they will or will not spend time with. What I suggest people do is talk through with a counsellor what your expectations are around your partner. So meeting people that you’re casually dating for a barbecue on the weekend is different from someone moving into the house where the children are living. So there’s going to be a big change in the children’s lives as mum and dad move on and meet and commit into new relationships. The biggest problem is people introducing children to too many people, and the solutions that we see are that people are respectful of the children’s needs for stability in the home. And if you are going to commit to a live-in relationship, it is respectful to introduce that person to your ex, and to also be very mindful that it’s probably not sensible to move in with someone until the relationship’s a bit tested over time. Not a couple of weeks. But they’re all things that, as parents, you’ve got to really talk through. It is true that people who introduce serial partners into the living arrangements for kids can in fact, do damage.
Benjamin Bryant: And I see this other more as a family issue, not so much of a family law issue. We know that the children will be fine with new partners, the children will be fine with new schools, with new homes. That does not really affect children the way that people think that it may affect children. What affects children is the parental conflict. And like you said, it’s about communication. It’s about getting an understanding. If you don’t know that they’ve been together for a few weeks or a few months or something, ask the question. There needs to be some communication about that, because it’s not really relevant in a family law context, unless again, it goes to that best interest factors. Does that relationship make the children unsafe? Do the children have views about that relationship? Does that relationship affect the ages and stages of children, those types of things. People need to separate their emotion and try and see the best interest of their children.
Benjamin Bryant: Heather, my ex suddenly stopped paying child support about three months ago. He refuses to speak to me about it and is also giving excuses every time he’s supposed to see the kids. So none of us have seen him for weeks. I can’t manage without the child support. What can I do?
Heather McKinnon: So in Australia we have a government agency which determines at any point in time, what financial contribution a parent should make for the financial support of their children. Going into an economic era at the moment where there’s an increase in the amount of redundancies occurring, the unemployment rate’s starting to climb, so the advice that I would give all parents is to be careful about assuming that the other parent’s financially abandoning the children. They may have gone through a redundancy, and they are ashamed, and they don’t want to tell the other parent. Keep the agency involved with what’s happening. So if you don’t get an explanation, you need to let your case officer know that the money’s stopped. And if there’s not a sensible answer as to why it’s not being paid, let the agency deal with the other parent. But you know, you’ve got to always be aware that life cycles change and there will be periods of time where parents can’t contribute and there may be absolute reason for that. Illness, unemployment, change of circumstances in terms of income. That’s why we have the agency. So there can be an efficient look at any one time as to what’s happening.
Benjamin Bryant: And I think also, Heather, I think it’s fair to say that the agency will catch up with them. So if it is more sinister, if it is intentional, it will catch up with them. The filing of a tax return or something like that, something will trigger it. So it doesn’t really make it easier for this listener in terms of the interim. But again, there’s all different collection options that they can take with, their officer to assist them.
Heather McKinnon: And it is really important that you let the agency know sooner rather than later, so that, for example, you might be able to get an increase in family tax benefit if the child support amount has stopped being paid.
Benjamin Bryant: My partner and I are separating after 20 years of marriage. I still have a HECS debt of around $48,000. Should this debt be included as a joint debt when we work at our property settlement?
Heather McKinnon: I think the best way to give guidance is if that HECS debt was incurred during the relationship and went to an improvement in earning capacity, then definitely it should be on the balance sheet as a liability of the relationship. I think Ben you were talking to me the other day about a person who brought a HECS debt into the relationship from an unrelated skill set, never used it in the marriage, never used it to contribute to the well-being of the family. So in that case, there could be an argument that that debt doesn’t go on the balance sheet. So you’re really looking at tying the HECS debt into the earning capacity of the person who has it to see what the pub test is. Look, did that HECS debt take someone from being a university student to a physiotherapist? Well, clearly, it’s a debt of the parties. So every case has to be looked at. But they’re the sort of things that the judges look at.
Benjamin Bryant: And Heather, the final question is a bit of a doozy. I’m pretty sure my ex is hiding assets from me. She has a business and her own accountant, and she somehow made it look like the business is worth nothing, which just can’t be right. What would you recommend I do?
Heather McKinnon: Probably this question we get asked a hundred times a week. So in Australia the tax system is very, very well developed. So we live in a modern democracy with very well-developed financial regulation. And as a taxpayer, if you’re self-employed, you file your tax returns in accordance with that tax system. It’s very hard in Australia to hide money now. When I came into practice 40 years ago, I’d often get people delivering 10,000 in cash to the front counter. We would see cash once a month now and it might be 50 bucks. So we’ve got much better in Australia at dealing with corruption, the black economy, all those things. And so what happens when there is a business in a relationship, your lawyer will get the last 3 to 5 years filed tax returns, have a look at the profit that has been generated, and then give you advice as to whether that business should be valued. In this case, the person who’s in the relationship, who hasn’t been involved in the day to day running of the business, will often have a very limited understanding of the profitability. It may or may not have been successful, but the way family lawyers get some understanding of whether it is profitable is to get access to the information that the government requires to be filed each year, which will absolutely give us the first sign as to whether it’s worth getting forensic accountants in to value it.
Benjamin Bryant: And that’s what I was going to touch on as well Heather, is that to help this listener, it’s very very normal (especially when it comes to finances) that in a relationship you have like the driver and the passenger. Right? There’s normally some person that knows every dollar, every account, every internet banking password. And the other person that knows some, has an idea, but not exactly all of the information. And myself is not excluded from that Heather. In the business sense. I can tell us what’s happening in the finances of the business. But at home, I really have no idea. I don’t have internet banking passwords. It’s quite normal. So when you go through a property separation, we’re asking all these questions about what do you own, how much is in the bank, what’s in his super, all those different things. These are probably the first time the person’s being asked this question and doesn’t have access to the information. And so the court has all these rules about disclosure, about what people must disclose, asking for bank statements, asking for superannuation balances and things like that, is not a provocative ask. That is a very normal ask, a very usual ask.
Benjamin Bryant: And if the answer is not forthcoming, that to me is a very big red flag. that’s when you should be concerned. But disclosure is a very usual part of the process. So, listener, don’t feel ashamed if you don’t know everything. Ask for the disclosure. You’re allowed to do it. The other thing as well, Heather, is valuations. Getting, an idea of what’s happening with the business, all the different methodologies, how you may value a business, whether the business is actually worth nothing (that might be true), or whether we should use the net asset backing method or net maintainable earnings, all these different things. Okay. So it can be complicated. Depends on what type it is. And we’ve actually discussed it before. Heather episode 16 our episode on Divorce and the Family Business we touched on this and also episode 35, we deep dived into this with forensic accountant Susie Delbridge. So perhaps this listener could check out those episodes as well for a better understanding about the family business.
Heather McKinnon: And can I also have one final plea that you don’t demonise accountants, the poor things. When people go through divorces, they always think the accountant’s a schonk. Remember, accountancy is like law. It’s a profession. And in Australia, to practise as an accountant, you have high ethical responsibilities, and it’s very rare that you find someone who is some sort of fly by night criminal working as an accountant. So even though you see them as a line to your ex. It’s not my experience, and most accountants do their work well and comply with the legislation.
Benjamin Bryant: And I remember Susie Delbridge touched on this as well. So episode 35.
Benjamin: Thank you again, Heather. I know these types of questions, the community questions are one of our most popular episodes, so I’m really thrilled to do another one with you.
Heather McKinnon: Thanks, Ben.
Benjamin Bryant: Thank you for tuning in to our latest Community Questions episode. We hope we’ve answered some of your questions today and helped make things a little clearer. We know separation can raise countless questions. That’s exactly why we created this podcast. With an extensive library of episodes covering a wide range of topics and featuring expert guests, there’s a good chance you’ll find the answers you’re looking for. If you have a specific question that isn’t covered, we’d love to hear from you! Just email us at familymatters@bryantmckinnon.com.au and we’ll provide answers in our next Community Questions episode. Don’t forget to check out our website at bryantmckinnon.com.au, where episodes are organised by topic to help make it easy to find what you need. You’ll also find full transcripts of each show and links to any resources we mention. Finally, if you know someone who may benefit from this information, please share the podcast with them. Thanks again for listening and we look forward to having your ears again next time.