Tuesday, 29 May 2018
CS – Chris Smith /CP –Catherine Parks /C1,2,3, etc – Callers
CS Well it’s no secret that Australia’s family law system is just an absolute mess and so many of you have told me that publicly on the open line over many years and it’s at breaking point. The backlog of family law cases waiting for resolution has surpassed 20,000 in the last few years. Meanwhile, some of the decisions these Courts make are extremely questionable and haven’t we had some case studies presented to us on the open line in reference to that. Not only that the system is so disjointed, that families are being tossed between the Family Court and the Federal Circuit Court which adds confusion and delays to resolution. Well the Attorney General Christian Porter will unveil a major overhaul of the Family Court system very soon and over the weekend he said the structure of the Family Law system in Australia is letting families down. And I bet I’ve got listeners who can give us examples of that. So that’s where we are heading today in today’s Legal Matters Segment and if you have any questions about family law, Catherine Parks is joining me and you can talk with her on 131 873. Catherine Parks is from Turner Freeman Lawyers and we’ve got a $100.00 Westfield Voucher to give away, which is what we normally do each and every Tuesday, courtesy of Turner Freeman Lawyers. That’s a $100 Westfield Voucher to one of our callers. Turner Freeman Lawyers provides a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and estate and property law. They’ve got offices in New South Wales in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and in Queensland, in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. Catherine is the Senior Associate based in Turner Freeman’s Parramatta office. She specialises in family law and child protection. She’s in the Parramatta office just right now but joins me. Catherine, thank you very much for your time.
CP Thank you.
CS What did you make of the comments over the weekend from the Attorney General Christina Porter saying that the structure of the system is letting families down?
CP Look, I don’t think that anyone can deny that the family law system is in crisis. We all know about the long waiting lists, the delays and the impact that’s having on families. It seems to me though that everyone is blaming each other as it were. It’s the structure; there’s not enough funding; the lawyers are charging too much money; the system’s too complex. It will be really interesting to see what comes of the law review that’s happening at the moment. I note that submissions have closed for that now.
CP And the report is to be provided by March 2019. Everyone’s hoping that there will be a major overhaul of the system, but I think probably what we need to do is step back and think about exactly what it is that the Family Law Court’s are doing. They’re being relied on a lot to do all of the negotiations about what happens to families when people separate and I wonder if that’s their role. That’s my first thought is, the system is …. we really should be relying more on mediations and earlier interventions and then the Courts being the last resort rather than the first resort.
CS Because with your experience, the mediation process does work?
CP The mediation process works wonderfully and it’s an empowering process even when you don’t get exactly what you want. There are always going to be difficulties in allowing a Judge no matter how skilled they are to make decisions about your family.
CS If we’ve got a backlog of over 20,000 cases, how does that translate for someone like you? How long have you had to wait to have you know – from start to finish a case resolved?
CP Look, unfortunately we’re having children’s matters, particularly when there are some interim issues to be dealt with that are before the Court for up to 3 years. Obviously things change over that period, people’s circumstances; children change and what we have is the costs become exorbitant because as things change, the Judge needs to be made aware of that. New Affidavits have to be filed. New expert reports have to be provided. The delays are very costly. Also in my experience, I think that the real difficulty with the delays is, the hostility simmer. People become frustrated because there’s no resolution and there’s no determination. Small issues become bigger and that obviously impacts children.
CS What about when Orders of the Court cannot be policed? I hear this all this all the time where Orders are breached and yet the only way to police the breach is from the person who’s been disadvantaged by the breach of Orders going back to Court and costing themselves more money.
CP That’s right. And that’s a huge problem. How we resolve that though, I’m not entirely sure. The difficulty I hear from New South Wales Police in particular, is where I am is they don’t have any either jurisdiction or time to be dealing with………
CS They don’t want a bar of this stuff, do they?
CP They don’t ……. I mean …. .and it’s not really what they’re skilled to do.
CP They’re supposed to be dealing with the criminal area and also they don’t have jurisdiction because this is a federal issue rather than a state issue. How we deal with breaches though is a big issue and I think it’s one of the ones that ……. in fact I know it’s one of the ones the Law Reform Commission is looking at. At the moment the process is you file an application and start proceedings…………
CS And wait.
CP And wait and wait and Judges often are dealing with perhaps more urgent issues in long lists and so you tend to wait a bit longer than in other matters and very few people that I have ever dealt with who run contravention or enforcement applications feel any satisfaction from the process.
CS One quick one before we go to calls. Are we likely to see the merging of the Family Court with the Federal Circuit Court and are we likely to see a whole mediation channel created do you think:?
CP Look, I think that the focus has to be more on mediation. I know that mediation – I know that a lot of the mediation centres that run and do very good work through UNIFAM, Relationships Australia and those kinds of organisations; also under-resourced and so mediations take a long time to be set up and be run.
CS So we need to source these tenfold.
CP We do and ……. we do……. I mean resource is a big issue. I keep coming back to and I know I’ve said it before on this program is Judges particularly at Parramatta where I work…. in 2008 there were 10 Judges, there are now 5. There are court rooms available.
CS And yet Catherine, the issues that face your average family today in 2018 are so …… There are so many more issues concerning breakup of family and children’s custody etc than there were 40 years ago.
CP I think that’s right and I think it’s also been added to by the fact that there are often step children involved. There are you know all kinds of complexities. Family dynamics are different – the amount of children who are now being raised by grandparents has increased. We’ve got far more complex issues to be dealt with, less judges and it seems inevitable that it’s a recipe for disaster.
CS Which means we need more resources for all of those complexities. 131 873 the telephone number – you’ve got plenty of callers and plenty of questions coming your way. We’ll take a quick break and back with Catherine Parks, Senior Associate with Turner Freeman Lawyers.
Catherine Parks is here to take your call, Associate with Turner Freeman’s legal firm at the Parramatta office and Michael has a question for you. Go ahead Michael, Catherine’s listening.
Caller 1 – Michael
Michael G’day Catherine. How are you?
CP I’m well Michael. How are you?
Michael Good, good, good. Excellent. My wife and I were divorced around 10 months ago, we’re best of friends now, well we still always have. But anyhow, we are trying to split our super and we’ve done a Form 6 and now we’ve got to do a BFA or Binding Financial Agreement but one lawyer told me that that’s got holes in it and that kind of put to Court later on but anyhow.
CS So you want to know whether you can do this without a Binding Financial Agreement?
Michael Yeah. Or either whether we can do the Binding Financial Agreement by ourselves because apparently it’s going to cost us around $3,000 – we’ve got no kids or any property or anything else – we’ve just got super.
CP So Binding Financial Agreements have had a lot of controversy around them. They are what the Americans’ call the pre-nup agreements and continually we find that the Court’s overturning them because they have not been found to be just and equitable or have not been correctly drafted. It’s effectively a contracting out of the family law system when you set up a Binding Financial Agreement. Super splitting does require Court Orders. Your cheapest and easiest way to split your superannuation is through drafting of some Court Orders and an application for Consent Orders. The application for consent has a filing fee of I think of about $155.00 – you can draft it potentially yourself but if you need lawyer assistance to get the wording exactly right because superannuation is a highly regulated area, it really won’t cost a lawyer very much to have a look through those and draft those documents – that’s your easiest way.
CS Yep. Michael – thank you very much for your call. Graham – go right ahead.
Caller 2 – Graham
Graham Yeah – Catherine/Chris – just wondering about if legally you are separated, not divorced for say 10 years as a couple – he or she – somebody comes into a little bit of money whether it’s a Will or whatever it is, can the either party go that further and still claim to be married and claim a part of those funds?
CP Any entitlement under the Family Law Act that you have to another person’s property is based on your contribution to it. So if you 10 years after separation and you’ve kept your finances separate and everything is separately dealt with receive an inheritance that the other party hasn’t contributed to in any way, then you are very unlikely to have an entitlement to it because you can’t show that you have contributed. The only way though to ensure that you are ever finally separated from your former spouse whether that’s matrimonial spouse or a de facto, is to have Court Orders that set out these assets are mine, these assets are the other parties. Then it becomes very very hard accepting cases of fraud to look behind those orders and to make claims into the future.
CS Okay – thank you Graham for your call. John in Gosford. Go ahead John.
Caller 3 – John
John Hello Chris/ Catherine. I hope you are both well.
CS Hi. Well.
John Catherine, this is slightly off topic but family orientated and you may need to listen to a [good Samaritan] here to sort this out….. We have a friend in her 60s, a nurse and she’s at her wits end. She made a blunder a few years ago and allowed an alcoholic 40 year old son into her rented house on condition that he gets treatment for his alcoholism and you don’t have to be Einstein to work out what happened but that didn’t happen and basically…..
CS She wants to get rid of him?
John Yeah – well – nobody could live the way that she has to live really. She comes home every day after work – the average is for what was a day – every day – she comes home – doesn’t know whether he is going to be passed out of the floor – vomit over the furniture or the floor – he gets – she suffers constant verbal abuse and a couple of times physical threatening but it never came to physical action – she’s had the police out there – they suggested that she go there on the AVO route.
CP I think it is an area that’s – not necessarily my area John but if perhaps you leave your contact details, I can get in contact with a colleague who might be able to assist, but I think it is an order for him to be removed forcefully from the property.
CS Yes – which allows other people to do exactly that for her. John… I want to give you the $100 Westfield Voucher by the way because I think you are a good sam representing your friend. Well done.
John Well I’ll pass it on to her.
CS Well – you’re even a better friend John. Fantastic! $100 Westfield Voucher coming your way. Stay there John and we’ll also get you the contact for Catherine who will get you the contact that you require. And by the way for those willing and wanting to contact Turner Freeman in Queensland – 13 43 63 and in New South Wales 1300 698 263. Jimmy – go ahead.
Caller 4 – Jimmy
Jimmy Yeah hi Catherine. From what you were saying, it sounds like one of the problems in the system is a shortage of resources and perhaps mediation or mediators. Where do people go to get these qualifications – how hard is it? It seems to me – because I’ve been thinking a career change for the last three years and I have the sort of soft skills in the area that I’m at where I’m negotiating resolutions all the time and I’ve often thought…… you know what, I would like to move into this…. When I try and research how you do it, it seems like you’ve got to be a lawyer to ………..
CP Look – a lot of the very successful Mediators in the Family Law space do tend to have law degrees. The most successful from my personal experience are barristers because what we do is we try and negotiate in the shadow of the law. We try and say to people, well look – this might be what you want but the reality is it’s going to cost you “x” amount of money. It’s going to take “x” amount of time and a Judge is likely to give this outcome and that tends to push people into reasonable positions. So, there are courses that you can do. There are mediators particularly through Relationships Australia and UNIFAM who are not necessarily from a legal background. Some of them are social scientists, but a lot of the successful mediators in this space I must say do have legal expertise that tends to assist in these kind of mediations.
CS Let’s hope there are many many more jobs for mediators in 2019. Catherine Parks – you’ve been a great help today. Thank you very much for your time.
CP Thank you.
CS Catherine Parks from Turner Freeman Lawyers.