Partner providing Q & A on the 2GB Chris Smith Afternoon Show discussing Family Law 13/10/2015
Tuesday, 13 October 2015
CS – Chris Smith/SM – Sheridan McMahon /C1,2,3, etc – Callers
CS From Turner Freeman this afternoon in the studio with us right now, Sheridan McMahon. A very good afternoon to you Sheridan.
SM How are you Chris?
CS I’m very very well. Gee I tell you what, you’re getting into a prickly area of family law although every area of family law is prickly.
SM Oh, they have different variations of prickliness but this is one which is you know black or white and there are usually no winners in it…
CS Ah, no winners. Things can turn upside down. Before we get into our subject today and by the way if you’ve got a question based on family law or maybe something concerning what we are covering today which is you know what legal and possibly it’s worth talking about what moral obligation does a former partner have to stay in a State or a City as opposed to moving for work outside of a State, maybe even overseas and what happens to child custody in those situations,. You’re probably in a predicament like that, if you are, we would like to know how it is fairing because things can get turned upside down. 131873 is the telephone number. Don’t forget Turner Freeman will provide a $100.00 Westfield Voucher each week as they normally do to one of the questions of the afternoon in their legal segment and we’ll judge that before 2 o’clock this afternoon. And you can also catch up with these topics, family law and other topics by following the latest Legal Matters column in your local newspaper and you can do that each and every week and they usually correspond with what we are doing here on the program as well. Family and employment law, wills and estates, superannuation, disabilities, compensation and negligence and also family law. So, go for your life. 131873 is the telephone number. Okay what happens if you are wanting or needing…. let’s start with needing to relocate with your children after your relationship has broken down and maybe after separation or even divorce, you want to change States but there are arrangements in place for custody. This must turn things if they weren’t already upside down completely on their head.
SM Yeah. It’s a major area of dispute and that faces a lot of people and it might be in the case where there aren’t arrangements in place. The key thing is whether or not there are Court orders, there is a presumption that both parents have an equal say in long term decisions that affect their children and that includes where the children live. So if one parent ups and leaves for whatever reasons, whether it is financial, whether it’s work, whether it’s other extended family.
CS Getting a new life?
SM Getting a new life. New wife. There is an obligation to discuss any change that is going to impact on the other parent’s ability to spend time with the children before making that move. Now, often there are circumstances where communication is so bad that won’t happen or the results going to be inevitable. You say black, I say white. I say go, you say no. So a parent might do a, let’s call it a self-help act and just take their chance and make a move. That can have significant consequences for everyone.
CS It must happen frequently.
SM Too frequently. I mean there is a specific recovery order application that’s almost pre-prepared to deal with circumstances of this exact nature or where a parent absconds with the child. So there are differences where there’s a determination to evade the other parent versus – I need to move. We can’t reach agreement – time is running out and I’ve got to make the move without your agreement…. so….
CS So the Family Court would frown on the side of the argument that would just take off and take the kids with them without any consultation with the former partner.
SM Well given that there is a presumption that both parents have a say in decisions like that you’d be starting an application or you’d probably be the respondent to an application. You’d be starting on the back foot. You’d be having to explain yourself.
CS Or someone thinks “Well hang on a minute I have the majority of the time with my children. I have them you know 10 out of 14 days for instance. I had a right to take them to where I need to go.
SM Well they might think that they have a right but ….
CS But they don’t.
SM The Family Law Act doesn’t really give parents any rights – it gives them obligations and gives the children the right to know and be cared for by both parents. So the impact of the 10 night parent moving away might mean that the 4 night parent doesn’t get their 4 nights other than in the school holidays, so how does that impact on the relationship between the other parent.
CS So how do you go about it in illegally justifiable way?
SM I always end up talking about Mediation on this program. That is always the first step. You try to talk about it. Obviously there are situations where it’s just going to be les messier …. No you are not going…. I’ll do anything to block it. And there might be entirely justifiable reasons for a parent to say no. And those…. I mean they’re the really entrenched disputes because one parent is going to be very unhappy with the outcome.
SM The compromises are exactly that…. One parent sacrificing a hope of something or entirely changing their own circumstances to accommodate the fact the other parent needs to move somewhere.
CS Interesting. I want to go to some callers. 131873, the telephone number. I’ve got a few other questions to ask on this side of the ledger though. Tim, go right ahead, Sheridan is listening.
Caller 1 – Tim
Tim Yes, good afternoon Chris. Good afternoon Sheridan.
SM Hi Tim.
Tim Um, I’ve had a bit of a battle now for 5 years. Now what happened is I can see my children under supervision and she has done nothing about making that happen. Now what’s happened is she’s up and moved. I’ve got no idea where. My question is do I have, like do I have the knowledge to know where they’ve moved and things like that?
SM In ordinary circumstances, yes there might be some circumstances in general terms where there is a parent might have fears about disclosing their location or their residence to the other parent, but ordinarily you’d be wanting to know where your children are spending the night and attending school and you know parents are generally encouraged to have…. share full knowledge and also become involved in the school
CS Unless the reason for you being supervised to be with your children is because she’s made an allegation that their lives are in danger when you’re there.
Tim That’s correct Chris and they were fought in court and won on my behalf. It was great. But from there of it’s just been an uphill battle against the Family Law Court regarding my rights as their parent. I have no rights whatsoever. Nothing has gone forward in 5 years now and I’m stuck and I don’t know now what to do to approach the courts. Financially I can’t. I’m absolutely ruined. She’s done a great job at that. I’m sort of stuck at the moment. I don’t know how to proceed.
SM So you say you’ve got proceedings on foot and they are just in limbo at this stage?
Tim No. No I have final orders in place and I have been told that those final orders are now defunct. Because she hasn’t abided by any of the conditions and I can’t get her for contravention because it is five or six grand to go to court and I just don’t have the funds to fight it.
SM Well the key thing is, I mean that’s the judgment call you need to make, you do have the option of contravention proceedings open to you and you can, not an ideal situation, but you can represent yourself at least to get the ball rolling. It might be the case that you have eligibility for Legal Aid or one of the Community Legal Centres might be able to assist you. There are some duty schemes within the court that might also be able to assist you, so it would be worthwhile coming to the court and making some enquiries with their duty schemes.
CS Good idea.
CS Yeah. Investigate those avenues and see how you go. How old are the children now thought?
Tim My son has just turned 10 and my daughter turned 13 on the 28th of this month.
CS There’s a lot of their lives that you’ve missed.
Tim I certainly have. And it’s just heart breaking. I mean I’m not the only one but you know to wake up every morning and look at their pictures and that, sometimes it’s really hard to move forward.
CS Yeah. I can hear it. Tim. Thank you. All the very best.
Tim Thanks Chris.
CS Good on you Tim. Yeah. You’ve missed their entire lives and we don’t know the background of the circumstances or the orders originally or whether Tim was telling us that he won an argument in court based on accusations made by her, but either way.
SM And it certainly sounds like there was some avenue for him to have time with his children and the frustrating part is that you don’t have the funds available to mount your own legal argument. You don’t have the skills or the confidence to represent yourself and we find more and more people are representing themselves because they’re just hamstrung.
CS So when one partner takes the children, they take to rely on the fact that the other partner may not have the funds to go to court to try and get the children back.
SM I don’t think that even factors in their head to be honest. Their primary need to get to a different location for whatever reason is a thing that’s running.
CS All right. Phil, go right ahead. You’ve got a similar story.
Caller 2 Phil
Phil Yeah. I was actually given advice by the government to actually work with my partner because my situation was that I was married to a French national, so my children are French nationals and she could…… I was trying to see if I could block the children from travelling on their passport and she decided she wanted to move to Spain. When I spoke to the government they actually told me that you have to work with her because realistically speaking if things went sour with the communication, she could just disappear and I would lose the ability to have interaction with the children. I’m very very lucky because I did take their advice and in my circumstances my ex-wife did actually return back to Australia after being overseas for three years and I now get to spend time with at least one of my daughters. So, it is a very very tricky situation.
SM It certainly is Phil. It sounds like you’re one of the lucky cases….. communication…..
Phil I am so lucky.
SM Communication is always one of the key elements and that’s usually the first thing that goes when the relationship breaks down. But there certainly…. you’ve touched upon things like the airport watch orders which are the things that prevent parents taking the children out of a country. The other thing you look at is whether the children have been habitually resident in Australia and to remove them would possibly enliven some Hague Convention proceedings…. so…. but yeah, communication is always the first avenue for prevention of a great family law disaster.
CS Okay. Phil, thank you very much for your call. Motorer’s travelling east bound on the M4 are experiencing significant delays due to a multi-vehicle accident at Granville. Two east bound lanes on the Motorway closed. Two east bound lanes. Just past James Ruse Drive. So probably close enough to where the old Toll Gates used to be or Toll booths. Motorists are passing the accident using one late, but traffic is heavy so motorists are advised to allow plenty of additional travel time through these areas. Emergency Services are at the location as well. We will take a break at 17 minutes to 2 o’clock back with our Legal Matters Segment on family law this afternoon with Sheridan McMahon.
CS Okay, let’s get straight to callers. Plenty of people wanting to ask questions on similar circumstances when a partner decides to take the children, leave the State, leave the city, leave the country, then what happens, Giselle, go right ahead.
Caller 3 – Giselle
Giselle Chris, thank you. Yes I’m ringing up on behalf of my daughter. Now she had a partner and together they had a little gorgeous little girl but honestly she got away with her life, you know because he was an ice user, so consequently she escaped with her life as I said.
CS And sole custody as well?
Giselle Well no. This is it. This is what I want to know because he hasn’t made contact in three years. She’s only three years old now. Hasn’t made contact in three years. Is there a limit time, you know where we can have sole custody of our little girl, or is there you know when …… because as far as she knows… he lives on the streets of Melbourne because you know he is heavily on ice and has no contact…. and he hasn’t made contact, so how long is it that it go for before she considers, gets sole custody and then maybe even change the little girl’s name.
SM Well theoretically, she’s got until the child’s 18. So at any point in time he can I guess pop up out of the woods and try to repair his relationship with his daughter and the question will then be what is in her best interest and is that relationship a relationship that is going to be of any benefit to her and I think at this stage there answer is no. If ….. there are unknown whereabouts…. what you’d be doing is your daughter would ……… potentially either would go as she is going now and cross her fingers that all is fine. She could make an application to the courts to change the child’s name, but she would have to attempt to serve the father and give him notice of an application. She could also in that application seek to have sole parental responsibility and orders that the child……
Giselle But he doesn’t know the child. I mean she escaped when she was only like 4 months old, so she doesn’t know her father.
SM I mean theoretically it might just be safer for her to do nothing and then if at some point in the future he decides he wants to make contact and seek to establish a relationship then the onus is on him to bring an application to do that, but there are some technical things that your daughter might want to do so that from a legal point of view she’s got the formal I guess parental responsibility …. She’ll have a birth certificate with the child’s name on it… that’s a very very good start. But there will always be that question…. who’s the father? Is the father required to give various consent so when your grand-daughter starts school there might be that question that’s asked but she would give the answer, well we don’t know his whereabouts and she lives with me.
Giselle Yes, she lives with us. You know that’s the thing.
SM The ultimate question is what is in your grand-daughter’s best interest if dad does pop up in the future, then I guess you’d consider the situation at the time.
Giselle It’s scary for words.
CS I bet it is. Thank you very much for the call and all the very best. Ray, go right ahead.
Caller 4 – Ray
Ray Yeah. G’day. My ex-partner moved to WA and I notified Child Support people about it and they wouldn’t do a thing. I’m a pensioner. I’m nearly 69 and I’m still paying maintenance but I don’t know where they are. I get letters every now and then addressed in my younger son and she’s changed his name to her maiden name. I’ve rang up Child Support and they [hadn’t] wanted to know anything.
SM Well I think there’s two different avenues. Child Support is dealing with the financial obligation to support your child and isn’t at all attached to whether you see them or whether you don’t see them other than factoring into the percentage of care and then the child support obligation you’ve got to pay. So they really won’t care about any of the actual family law or custody issues going on other than how it affects the number of nights the children are with your ex-partner. The second part though if you say that your ex-partner has changed to someone’s name is something that you certainly should have had some formal notice of. The question would be, has it actually been changed legally in terms of birth certificate amended or is it just a case at school or ……. how old is he now?
Ray Well he’s now 15 going on 16.
SM It might be the case that he’s also chosen to revert to his mum’s maiden name and a child of that age has some wishes that would very much be taken into consideration in terms of relationships that they have but the question would be if it’s been done formally, then you should have been notified because there would have been an application to a Family Law Court.
Ray No – never been notified. We went to mediation and it was only at mediation that we found out she moved to WA and been living there for 6 months. I/We didn’t even know and ah……
SM Well that’s exactly the topic of our program today and there would have been some avenues for you to engage into either seek a recovery order or ……………..
Ray It just came to a dead end. We tried that and the second session we were supposed to go to mediation, she never ……. it was a conference call type thing from my solicitors to her solicitor.
SM The joy of mediation is about parents coming to an agreement. If you can’t reach an agreement, then you’ve got to go to court.
CS Ray, I’ve got to leave it there. I’ve got to leave it there. Thank you very much for your call though. Lysette. Hi.
Caller 5 – Lysette
Lysette Hi. Hi. I was just ringing up about my ex. We’ve been separated for quite some time and he’s had nothing to do with my children for about 5 years. He was very violent towards me and I had to escape into a refuge a few times to escape from him. I’ve since met a beautiful man and we want to get married and I’m…. and we want to get married overseas and I’m worried we are going to have to contact him to get permission to take the children overseas with us.
SM Do you have any court orders in place at the moment?
Lysette I have no court orders in place because I am just very fearful of going through the court process with him.
SM Do the children have passports?
SM Okay. Step 1 is they obviously need passports and there might be a circumstance. If the children’s father isn’t spending any time with them, generally the Passport Office will require his signature, regardless of the fact that he’s not spending any time order they’ll need to be satisfied that you either don’t know what his whereabouts or that there’s another legitimate reason. I think you’d probably had to have a conversation with them about.
SM Being about to take the children overseas. Um….
CS Because seeing that this matter has involved some degree of violence in the past, she would be on firmer ground would she not to take the overseas without his permission?
SM Well the key point is that there are no orders in place. If there are orders in place, you are required to obtain the consent of the other parent of the overseas travel but there’s none in place.
CS It may play in her benefit. May be to her benefit to have no orders at this stage?
SM Possibly, there’s not an actual obligation. It’s not a criminal offence to be taking the children overseas without the consent of the other parent, but at this stage, it might be acceptable to you know if it’s a genuine holiday trip, you’re not planning to remove them from the jurisdiction permanently and certainly if it’s been the circumstance where he’s made no attempt to have any meaningful relationship since you’ve left then what’s the prejudice to him and to the change in the relationship between the children and him.
SM I certainly understand your fears of you know – poking the sleeping tiger.
CS Yes it is. Exactly. That’s well described and therefore how does she go about not having the counter signature of her former partner on a passport for her children?
SM There are some circumstances where you won’t be required and it really is up to I guess the administrators at that Passport Office whether that is sufficient enough circumstance and your fears for your safety if he is notified of your whereabouts.
CS Yeah. Lysette, good luck with all of that. I would like to give you the $100.00 Westfield Voucher Lysette.
Lysette Oh, awesome.
SM It can go towards the wedding.
CS Yes, it won’t allow your children to get an instant passport or it won’t pay for the cake at the wedding but it might do something or rather.
Lysette Oh thank you.
CS A $100.00 Westfield Voucher for you. Stay right on line and we’ll get it to you. Thank you for your call. There you go.
Lysette Thank you. Bye Bye.
CS I’ve run out of time. We could have taken calls for another half hour but it’s interesting, once you start talking about the prickly issue of moving the children from point A to point B, there are so many in a similar predicament aren’t there?
SM It’s a really common issue.
CS Sheridan. Thank you very much for your time this afternoon. Sheridan McMahon. Family Law with our good friends from Turner Freeman and compensation can’t change the past but it will make a difference to your future. So if you’ve been injured at work or in a road accident and is suffering financially it’s time to turn to Turner Freeman Lawyers. Since 1952 they’ve been winning claims and achieving great results for their clients and they’re great value to. Talk to a Turner Freeman Partner before you sign up with another law firm and you can see for yourself. Call 13 43 63 today. That number again 13 43 63. Maybe you’d like to contact Sheridan in reference to a family law matter. You can do that for a free case assessment and ask about their “no win/no fee” policy as well when it comes to compensation. Turner Freeman Lawyers. They are the compensation experts.