Separation and divorce in family law
Tuesday, 15 November 2016
CS – Chris Smith /CP –Catherine Parks /C1,2,3, etc – Callers
CS Turner Freeman, our Legal Matters Segment. We are talking family law today. If you’ve got a question, jump in as soon as you can because so often people leave it too late and they don’t get on. 131 873. And Catherine Parks, the accredited specialist in family law from Turner Freeman in their Parramatta office – we’ll be taking your calls today. 131 873 – free legal advice. I’ve also of course got the Turner Freeman Westfield voucher – $100 Westfield voucher to give away to one of our callers between now and the top of the hour. And just a reminder, Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family law, Wills and estate and property law. They’ve got offices in Queensland, across New South Wales, Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and South Australia and WA as well. Family law. 131 873. Catherine, welcome to the studio. Good to have you here. Fantastic!
CP Thank you.
CS What are the three areas the three areas the Family Courts deal with following separation?
CP Well they deal with the division of assets, so assets that have been accumulated by the parties during their relationship. They deal with obviously the care of children. Then divorce itself is something quite separate. It’s really just the ending of a marriage. But probably not as important or at least time consuming as a division of assets and care of children.
CS Yes – because you could have Orders related to the division of assets and children come way before divorce goes is that right?
CP That’s right. And a lot of people are separated and never divorce.
CS Yeah – now family violence is an issue dealt with by the Family Courts regularly, how does family violence impact on how the Court decides who has assets? Does it have any bearing at all?
CP It can and it’s one of the things that is coming up in more cases as we become more aware of family violence and how it impacts people. Assets are divided usually in the Family Court depending on the contributions that people make. There’s no community of property in Australia. You don’t get someone’s assets because you’re married, it’s about what you contributed. And sometimes the Court says that if there has been family violence, then one party’s contribution is made more onerous – made more difficult and it should be recognised. And you can imagine a mother who is the subject of family violence. It makes parenting far more difficult. She’s got to protect the children – she’s got to deal with the husband as well as doing the parenting – and so sometimes the Court says that that should be taken into account when they are dividing assets.
CS Okay. If you’ve got a family law issue – 131 873 is the telephone number. Now when you say assets, we are also talking about the pool of finances between a couple?
CP That’s right. So that any assets that are in individual names or in joint names and it certainly includes superannuation, shares, any assets of the parties have.
CS And does one party as you’ve described it – one party have to prove that he or she was subjected to violence or do they just have to allege they were?
CP You have to prove to the standards that the Court requires which is not – is a balance of probabilities – so everything in the Family Court – you can image – becomes he said – she said.
CP And a Judge has to decide who’s the more credible witness. So there is often doctor’s records or police records or something of that nature. But sometimes it just becomes trying to work out who’s the one who’s telling the truth and I suppose that’s what Judges are particularly good at doing. With the family violence, when it comes to asset division though – there needs to be a nexus between the contribution and the violence.
CS Okay – alright. Claire has phoned through and has a question for you. Claire, good to have you on the program – Catherine is listening.
Caller 1 – Claire
Claire . Yes – Hi. My daughter has gotten into quite a situation that you are outlining at the moment with the ex-husband stalking her – ………. scaring her…….. making sure that she doesn’t survive financially – wanting to prove that she …………
CS Are you on hands free are you Claire. It’s really difficult to hear you – if you could…..
Claire I’m sorry. Is that better.
CS Ohh. That’s a bit better – yeah – go on.
Claire Um, it wasn’t proved that she’s an unfit mother so that he can get more access to the children and more access to the children’s – and less maintenance or no maintenance to pay….. He’s getting more access than previously……….. inaudible.
CS No, Claire – can’t take your call I’m so sorry – I don’t even know what the question Claire was trying to ask but it is too difficult to hear. I don’t know whether we can continue – maybe she can call from a landline to make it easier for us. Al, go ahead – Catherine is listening.
Caller 2 – Al
Al Yeah – G’day Chris and Catherine.
CP Hi. How are you going?
Al Good thanks. Just we’re in the process of adopting a child.
Al We have to take the child to see the birth father – the mother’s died. And we’ve been told we have to give him our address if the adoption is to continue – but our concern is that he’s been violent in the past in front of the child and in front of us and we’re – she does not want him to know where she lives.
CP Look I think that’s one of those requirements that might be in place – I don’t know where you’ve – I don’t know who told you that or where that came from particularly – but if there is violence and there are concerns about safety, it’s something that a Court should know and of course Courts can make any Orders that they need to protect children or anyone who’s involved in family law matters and it’s probably something that you need to tell a Judge and get some Orders in relation to.
Al Yeah – it’s difficult to find anyone who will actually help you – we’ve actually tried to seek legal advice and stuff about this and no-one wants to talk about it – it’s………
CP Adoptions are very difficult – unfortunately the reality of adoptions is that they are run through the Supreme Court and there’s – the Government have been very slow to move on making it easier. Certainly if you wanted legal advice, it is something that I do and I am more than happy to contact us.
CS Okay – Al stay there. We’ll put you through to Gabriella and we’ll get you a number so that you can have a longer conversation with Catherine on this one. Doug – go ahead.
Caller 3 – Doug
Doug Oh – look is…… my daughter has given a – I have given her a $3 million dollar house. If she then gets married, does that mean that that will not be carved up that he’s entitled to 50% of that?
CP Ah, no – it becomes part of the asset pool regardless of where it comes from, however going back to contributions is that that’s a very big contribution made on by you for her benefit and so when the asset pool is carved up, obviously she will have a big percentage in her favour because you’ve given her that gift.
Doug Geez, that’s a rort isn’t it?
CS Hahahaha. That’s a state of play when you get married mate. When you get married it becomes a pool.
CP And look the reality of ……..
CS What about a prenuptial agreement?
CP Look, we have binding financial agreements in Australia which is the equivalent and you can do them during the relationship, before, after…..
CS And sometimes they’re not worth the paper they’re written on.
CP Correct. And actually our firm doesn’t do them because they become so contentious.
CS Okay – Bill – go right ahead.
Caller 4 – Bill
Bill Yeah hi. I’d like to know – I used to be married to a Thai lady and I – we’ve got a kid together – I’m the full time carer of the child.
Bill I – she has property in Thailand that I contributed to, so I actually bought that for her.
Bill When going through the Courts in relation to assets and break up etc, can I claim any of that back or because it’s in Thailand I’m not entitled to it?
CS Good question.
CP Yeah – look Australian Courts only have jurisdiction over property that’s in Australia. We can’t make any laws that provide for transfer or dealing with assets overseas.
CS But could he go overseas and try his hand with a local lawyer?
CP That would be the way to do it.
CS Yeah – Hey Bill – I tell you what – it’s a difficult one – you might need an extra $100 to help you along the way – I’ve got a $100 Westfield voucher for you Bill.
Bill Awesome – Thank you so much.
CS Alright – stay right there and I’ll put you through. Ben go ahead. Catherine is listening.
Caller 5 – Ben
Ben Hello Catherine and Chris.
Ben My ex-wife has taken the children currently where I live at the Central Coast and they have fled the State in moving to Tasmania and there’s no laws in place for the children and I’m in the process of going to a solicitor and she’s put out that she contacted the Court in Tasmania and to my mother and me and she put like an AVO which the thing is completely absolute lies – So I just wanted to know where we stand?
CP Well having an AVO in place won’t stop you running any Court proceedings in relation to seeing your children – the two can be quite separate – I mean they often do get taken into account – opposing an AVO is done through the Criminal Courts and that’s where you should do that, but ……
CS Are there any Orders in place at all Ben?
Ben No – there’s nothing.
CS So she’s fled to Tasmania but not against the Law – that’s your problem.
Ben Yeah – that’s right.
CP Well you need to get into Court quickly because Court’s don’t particularly like parents regardless if there’s Orders or not – moving unilaterally with the children and not letting the other parent know. Were you quite involved with the children?
Ben Yes – well I used to see them every second weekend and ring three or four times a week and I haven’t seen them for 9 weeks now.
CP Yeah – well look you need to get into Court quickly because otherwise it becomes a status quo and that’s difficult to change.
CS Alright Ben – so get into Court quickly is the lesson and Catherine Parks – you’ve been terrific this afternoon. Thank you so much for your time.
CP Thank you.
CS And we’ll see you again. Family law – our topic this afternoon brought to you by Turner Freeman and Catherine Parks our guest. Sorry to the callers we couldn’t get to. Just run out of time and we’ll give it another shot at another time when we have a Legal Matters Segment – Tuesday afternoon of course.