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E14 – Divorce & The Blended Family

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On the Show Today You’ll Learn

As family lawyers, we like to see our clients re-partner and start new lives.  But as blended and step families form it can raise unexpected disputes.  In this episode host Benjamin Bryant  chats with partner and fellow family law specialist Heather McKinnon tackle the often-difficult subject of divorce and the blended family.

Topics covered include:

  • How to minimise conflict with your ex when re-partnering.
  • Parenting arrangements when one spouse re-partners.
  • Spousal and child support implications when one spouse re-partners.
  • Shared custody arrangements with children, half-children and step-children.
  • Responsibilities and rights of step-parents and step-children.
  • Financial implications of a second or third divorce.

Links & Resources Mentioned in This Episode

Child Support Agency – this agency assesses, collects and transfers child support payments in Australia.  You can find a calculator to assist you in working out how much child support will be required.

FAQs – Estate Planning for Blended Families – this FAQ document, prepared by Bryant McKinnon, provides answers to some of the most common questions regarding estate planning for blended families.  While not specifically mentioned in the podcast, we include the link here as you may find it useful.

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Full Episode Transcript

Welcome to The Family Matters Show

Benjamin Bryant: Welcome to Episode 14 of The Family Matters Show. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers and today I’m delighted to be reunited with my partner in crime, Heather McKinnon. Heather has missed out on the last two podcasts, so it’s fantastic to have her back. Welcome, Heather.

Heather McKinnon: Thanks Ben. And I’ve really enjoyed working from home but I’m so proud that Australia has really been able to flatten that curve. It’s been worth the effort.

Benjamin Bryant: Absolutely. And I want to assure our listeners that whilst Heather and I are recording in the same room together, we are sitting more than 1.5 metres apart. Even though things are slowly getting back to normal, social distancing is going to be with us for a long time to come.

Benjamin Bryant: Now, on today’s podcast, we are going to tackle the often-difficult subject of divorce and the blended family. As family lawyers, we like to see our clients re-partner and start new lives. But as blended and step families form unexpected disputes can arise. So today we’re going to tackle some of those issues that are specific to blended families. Heather, are you ready to get started?

Heather McKinnon: Yeah, let’s get underway.

How to minimise conflict with your re-partner after divorce.

Benjamin Bryant: Let’s start by talking about the whole process of re-partnering. When one side of a divorced couple re-partners, this can cause upset on the other side and upset can often lead to dispute. Heather, if you are divorced or separated and heading into a serious new relationship, what are some of the things that you should be thinking about to minimise the conflict with your ex?

Heather McKinnon: Like every relationship in life, it’s about good communication. So people will often ask, when should I let my ex know that I’m dating? And my usual advice is: Look, until you think that the relationship has become serious you probably don’t need to worry.

Heather McKinnon: Some people have the courtesy of letting the ex-partner know that they have re-entered the dating arena. But you need to set some sort of boundaries with each other about how you’ll communicate with the children. That’s the biggest issue in the early stages of relationships. We’ve all heard stories about little kids coming to news at school and talking about have they got a new daddy, and Mum’s been dating someone for a week. That serial introduction of new partners to small children is not ideal. So that would be the biggest sort of issue. And we can understand why the other parent may get concerned if there’s a roller coaster of ins and outs and lots of partners coming in and out of the other parent’s home.

Heather McKinnon: But in terms of serious relationships and where there’s going to be a long-term commitment, the ideal would be that if there are children in the house that you introduce the new partner to the other parent. Doesn’t have to be a big formal occasion, but at least the courtesy of saying, this is my new partner. This is who they are. And that general good manners, if you like, is what I would say you have to lead with.

Benjamin Bryant: And also for the other parent, I suppose to acknowledge them and to give them a chance We see people all the time with maybe six weeks after separation, they’re talking about property settlement, “No we don’t need to talk about the kids. It’s okay. You know, the kids are fine.” But of course, there hasn’t been something like a re-partnering or something when it normally hits the fan at that point. And that’s when the communication, like you said, is really important.

Heather McKinnon: And it’s really important Ben, as we know, that the conflict with parents will either happen right at separation or when one partner really does send the signal that I’m re-partnered. Now, that might be 4 or 5 years down the track and it is quite a shock that if things have been going along OK and then suddenly all these emotions come to the surface. People can delay grief. So they can separate, but as long as their ex hasn’t re-partnered, they can live in a bubble where they really think the family is still together.

Benjamin Bryant: That’s right. And normally it’s about the parent. It’s not so much about the child’s experience with the new partner. It’s the other parents experience, really.

Heather McKinnon: Yeah it certainly is. Little kids, you know, if adults are nice to them, they’re nice to everybody. They don’t really mind who adults introduce them to as long as they’re secure with their parents.

What happens about parenting arrangements when one side re-partners?

Benjamin Bryant: And Heather what happens about parenting arrangements when one side re-partners. Do these have to be renegotiated?

Heather McKinnon: It very much depends on the circumstances. Obviously, the most extreme examples of re-partnering impacting is when somebody re-partners with someone in another state or another city. So, you know, a long-distance relationship may have turned into something serious. A marriage is contemplated. So the issue becomes, can I take the children to live with my new husband or wife in another city? Or the other extreme example that we have to deal in the court is when the new partner is not ideal in terms of what risk they pose to the children. So we often see a situation where someone’s come out of a marriage and the old rebound occurs and they quickly commit and don’t know anything about really the new partner. And they may have lengthy criminal history, serious psychiatric disturbance, they may be an ice addict. I mean, all sorts of things can happen when people go back into the dating arena and they’ve got baggage that they’ve got to deal with.

Benjamin Bryant: And can you use the fact that you are re-partners to force a change in the parenting arrangements?

Heather McKinnon: It’s not so much a forced change, but we’re looking always at different timelines of what’s best for the children. So you might have a professional re-marrying a professional in another city and they ask the court for permission to leave. So the court’s then going to have to look at, what does this mean for the children? Is it in their best interest to move with mum or dad? And so cut the time the other parent is having from every alternate week to seeing them only in school holidays. They’re the sort of issues that we have to deal with on a daily basis.

Benjamin Bryant: So, again, getting back to the best interests of children.

Heather McKinnon: Absolutely.

Can you change parenting arrangements to suit new living arrangements?

Benjamin Bryant: And let’s say that you are re-partnering with someone who is also divorced and you both have children. Can you change parenting arrangements to suit your new living arrangements? For example, so that you get child free weekends or to ensure that step siblings have time to bond?

Heather McKinnon: It’s absolutely the issue that most blended households face. So the negotiation to get it in sync so the kids do spend alternate weekends all together in the new blended family is something that parents will strive to try and get. But they can get chains, so that your ex may also re-partnered and also be in the same situation. It gets quite complex. People need to communicate clearly what they want to achieve and look at how the extended family system might operate to optimise the children’s experiences.

Heather McKinnon: One of the issues I see Ben is step-children of different age groups. So people might be keen to have this happy Brady Bunch family, but one set of children are teenagers and the others are only toddlers. And so that’s a different situation than if you’ve got four children from two families who are all in the normal sibling range. So every case is different.

Will children’s views be taken into account in parenting arrangements?

Benjamin Bryant: And with the older children, Heather, what about children’s views? Can they be taken into account?

Heather McKinnon: Absolutely. So we always say, once kids hit high school and their intellectual and emotional development maturing, they have a greater say in the arrangements. So their lives become very complex in high school. And the wish of mom and her new partner to have these happy blended family may get into conflict with the adolescent’s need to make an independent move from the family. And that’s where you see a lot of conflict, as parents keep thinking the kids are still in primary school and why what they do, what we want them to do.

Do spousal and child support arrangements change on re-partnering?

Benjamin Bryant: And spousal support and child support arrangements. Would that change if you re-partner?

Heather McKinnon: So in the formula for the Child Support Agency in Australia, there are various factors that can be taken into account when we’re looking at assessments. So, for example, if someone takes on step children and they’ve got financial responsibility for them, it’s a minor factor that they can use to look at whether there can be a variation of the assessment. But in the main, you’re financially responsible for your biological children. Full stop. You’re not responsible financially for step-children.

Benjamin Bryant: What about spousal support?

Heather McKinnon: So spousal support is a very rare thing in Australia unless you’re in high income brackets. It’s something that does happen where you’ve got, say, a mom who’s at home with little pre-schoolers, who can’t work because of the full-time commitment to children. If the other spouse is a high earner, then they may have an obligation to support that spouse. What then happens is they remarry and they say, well, I can’t afford all of this. Well, we have to counsel people about is that your first priorities are going to be that first family financially. And you need to be careful about taking on further financial obligations if you can’t meet the obligations you have to the first spouse and the children from the first family.

Benjamin Bryant: Absolutely. And sometimes it might be that the formerly dependent spouse, re-partners, it is not so dependent anymore.

Heather McKinnon: Exactly. So as life moves on it gets very complex.

Do step-parents and step-siblings have any rights after divorce or separation?

Benjamin Bryant: And unfortunately, we do see second and third marriages fail, which means that blended families can sometimes be forced to unblend. So let’s consider some of the issues that could arise in that situation. Of course, the biggest complication with blended families is the children. Stepchildren, half siblings, shared custody with previous partners: it can get really messy. When separation occurs, do step-parents and step-siblings have any rights to stay connected?

Heather McKinnon: So it’s not the rights of the parents, but it is the right of the child. Children in Australia have the right to be able to have a relationship with anyone that they deem to have parental attachment to and also sibling attachment. So we look at each child. I had a case last week where somebody said to me, “We were only together five years, how come the kids want to see each other?” And what I ask people to do is to go back in your childhood when you were in year three and you count how many five years are – the whole of your primary school life. The relationships that you form with step siblings over a period of years will stay with you for life. And it is important that parents recognise that what may be a short relationship for them, can be an experience for a child that’s half a lifetime.

Benjamin Bryant: So a step parent is essentially an eligible person within the Family Law Act to make an application.

Heather McKinnon: Yeah

Benjamin Bryant: What are some of the other things a step-parent can do if they want to spend time with the children of their ex, but the ex was opposed to it.

Heather McKinnon: So initially we recommend that if you approached directly, if that fails, that you then have an invitation sent to your ex through the Family Relationship Centre to engage in some proper mediation, so that the perspectives that both of you have are drawn back to what’s best for the child. So it is interesting to watch someone let down their hostility to their ex-partner and realise the affection and the importance of that relationship to their children. So we would highly recommend that step-parents who want to stay connected and who feel that the child needs their input, attempt mediation to see whether or not that relationship with the child can be maintained. If that fails, then you’ve always got the option of applying to the court because the Family Law Act recognises those relationships are important for children.

Benjamin Bryant: And what about half siblings? Does the Family Law Act recognise those relationships also?

Heather McKinnon: Any of those kinship relationships, if they are important for the child, will be fostered and maintained by the court if appropriate. So we often see situations where half-siblings have a very strong sibling relationship. And the psychologists tell us, in the expert reports, that they are brothers and sisters and that needs to be respected. So it’s all about how the adult world helps children to maintain relationships that are important to them.

Can a step-parent be held liable to pay child support?

Benjamin Bryant: If I could go back to child support for just a moment. Can a step-parent be held liable to pay child support to step-child?

Heather McKinnon: It’s a very vexed area. In rare cases, it does occur. Under the Child Support Assessment Act, a step parent is not a person that’s required to provide for ongoing financial support for non-biological step-children. So the main answer for most families is no.

Benjamin Bryant: And Heather, we know firsthand on a daily basis how difficult divorce is for people and how financially difficult divorce is. And of course, if you’re doing it the second or third time around, it can be completely more difficult. When it comes to a property settlement the second time around, do the courts take into account that you’ve already divided your assets before?

Heather McKinnon: No, they don’t look at what happened before. Other than, what capital did you bring to the second marriage from the first marriage? So it’s tangentially relevant, I suppose, because we’re looking at what capital do you have to divide to go forward in your futures at the breakdown of the second marriage. But the only time the first marriage is relevant is to see what you got out of it to bring to the second one.

What if your new partner doesn’t have a formal property settlement with their ex?

Benjamin Bryant: And what if your new partner hasn’t done a formal property settlement with their previous partner?

Heather McKinnon: It gets very messy. So what theoretically happens is, if the second relationship ends before your new partner has concluded the property settlement with their ex-spouse, the Family Court would have to wait until that had been done to sort out what happens in the second one. So these chains are very complex and it is amazing how often we have to deal with those sorts of scenarios.

Heather McKinnon: So it’s critical that in the first blush of love, any new second relationships, you try and keep your head together about the financial aspects. Because we see so many big messes. And a lot of it can be averted if there’s clear communication about, where are the lines drawn with what capital has each party got to contribute to the relationship.

Benjamin Bryant: And what about liabilities or ongoing expenses following from your previous relationship? Let’s say, for example, they did to a property settlement and the spousal maintenance was being paid for the former spouse Does that get taken into account as a liability the second time around, if you were to do a property settlement with your new partner?

Heather McKinnon:  Where it’s more important is that the partner that doesn’t have the baggage, contributes to the economic fortunes, if you like, of the first family, because they beaver away so that their spouse can pay for his ex and the kids. So it’s a contribution that they make to the relationship. So we do take those things into account. And likewise, if step-parents financially and practically contribute to step-children, they are given credit for that in the overall property settlement if the relationship fails. To give a practical example, if you spend 10 years in a relationship raising step-children, then it’s not hard to see how financially behind the eight ball you are. If you hadn’t had that obligation, you obviously would have had a big capital base. So the court has recognised repeatedly that someone who gives up their own financial gain for the benefit of children will be given some credit for that at the time of property settlement.

Final words of advice for blended families

Benjamin Bryant: Well, Heather, I think we’ve almost covered the field. Do you have any last advice for blended families?

Heather McKinnon: Just try and have gaps between relationships. What we call serial monogamy with outbreaks where you just go from one relationship to the next, is quite disastrous in a lot of cases. So our message would be if a relationship ends you can, get back in the saddle, experience relationships but….

Benjamin Bryant: Go within.

Heather McKinnon: Yeah. Try and get that psychological support to deal with: why did that relationship fail and what can I learn before I commit fully to another family?

Benjamin Bryant: And also, listen to your support network, because I know from a third person, we can see when the people are describing their ex and describing their new partner, they could be the exactly the same person. That can be the complete opposite. It’s really quite funny. So listen to the people around you as well, I reckon.

Heather McKinnon: Excellent.

Benjamin Bryant:  It’s so good to be back together again to record this podcast. Thank you so much for your insights about the complications of blended families.

Heather McKinnon: That’s fine. It’s been really good to be back chatting about our work and helping people to make decisions.

Benjamin Bryant: And I know that we will be referring our clients to this podcast in the future.

Benjamin Bryant: Next month is going to be a very special podcast. We’re going to give you some insight into what a Family Court Judge is thinking. To do this, we are extremely lucky to be joined by the Honourable Rodney Burr, AM. Rod is a former acting justice of the Family Court of Australia. A former chair of the family law section of the Law Council of Australia. Recipient of the United Nations Award for Services of the Year of the Family. And a member of the Order of Australia for services to family law and children’s rights.

Benjamin Bryant: Needless to say, we are very excited to have someone with Rod’s experience and standing on our little podcast program and excited that our listeners will get to hear the perspective of a family court justice firsthand. If you’ve got questions you’d like us to pose to Rod about the workings of the Family Court, or what a family court justice considers, then please send us a message on Facebook or email us on familymatters@bryantmckinnon.com.au? It’s going to be a great show.

Benjamin Bryant: Before we go, one final reminder that links to any resources mentioned plus a full transcript of today’s show will be available in the show notes on our website. Goodbye for now. Enjoy the new freedoms we are gaining, but stay safe and hope to have your ears again next month.

 

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