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Home | Partner providing Q & A on Family Law 24 November 2015

Q & A on 2GB discussing Family Law 24/11/2015


Tuesday, 24 November 2015  


CS – Chris Smith/SM – Sheridan McMahon /C1,2,3, etc – Callers



CS       Yes our Legal segment, Sheridan McMahon, Merry Christmas to you. Is it too early to say that?

SM      It’s never too early Chris.

CS       It’s never. It’s usually December 1 on, but I will say it to you anyway because we are sort of referring to family law issues that may have a little bit of a Christmas twist here. We’ll get to that in a second. Don’t forget I’ve got a $100 Westfield voucher courtesy of our good friends, not just at Westfields, but also Turner Freeman Lawyers for the caller of the afternoon between now and 3 and you can ask Sheridan a question. 131873 if you’ve got one and don’t forget you can catch up all the Turner Freeman assist people with, in your local newspaper. They’ve got all the topics covered there, compensation, negligence law, family and employment law, wills and estates law, superannuation, disability claims all found in your local Legal Matters column in your local newspaper. So you can look for that. Alright. Christmas fast approaching. Christmas time equals family time but for a lot of families, this is easier said than done, right?

SM      Absolutely, it’s sometimes a very very fraught time particularly when there has been a separation and parents can’t work out what they are going to do with their children over Christmas or can’t agree. …… they can work it out for themselves but they certainly can’t reach an agreement and it becomes a very distressing time for parents when they are contemplating on going without seeing their children…….

CS       But don’t they just follow their orders, usually it’s a Court Order or when circumstances change it’s difficult to work out how to adapt that Order?

SM      Well generally if there are Court Orders you’re hoping that parents are going to comply with them. The problem usually arises when people have separated and having got to the point of having orders made, so they’re in this sort of grey limbo period….There’s no legal outline or setting up who the children are due to be with at any given time, so it comes down to either a handshake agreement and a lot of goodwill and unfortunately around Christmas time the goodwill seems to dry up quite quickly.

CS       Now there is a cut off date isn’t there before Christmas every year where you have got to lodge your hearing or lodge your dispute with the Family Court and you try and get a hearing date. 

SM      Try is the operative word. Every….. he second Friday in November each year is the deadline for filing an application for Christmas time parenting orders in the Family Court. The Federal Circuit Court that also deals with family/parenting applications or family law generally doesn’t actually have a date per say but the reality is the 13th of November which is the date it was this year is, literally 6 weeks out from Christmas. With the states the Courts are in at the moment with their significant delays, only the most urgent cases will actually get a gig in ……. 

CS       So even if you get in before the 13 or 14 November, you could be waiting until Christmas Eve to have a hearing.

SM      You could be waiting for February to have your Christmas hearing.

CS       Yeah…

SM      Or March.

CS       That’s pathetic.

SM      I’d like to talk to our Attorney General. I’d like to talk to everyone’s Federal Member to get on board and say we need the money, we need the Judges, we need the funding, because it is a crumbling system at the moment and we are all waving our hands madly for help, so you know, the reality is, regardless of whether it is a parenting order for Christmas or you know, a parent wants to go overseas for the Christmas holidays and may have filed an application months ago, you know I’ve got matters where the listing for the Christmas holiday overseas trip is getting a gig in March.  So when you have to turn around to your client to explain it…. it’s very difficult.

CS       And sometimes those overseas trips can turn into something almost semi-permanent right?

SM      Well, I guess that’s the problem, if there isn’t an agreement for something like a Christmas holiday or an overseas holiday, that might be because one parent thinks the other parent is not going to return with the children. So, where there’s no trust, there’s no trust.

CS       Okay.  If you learn about now that you’ve missed the date for filing an application to have something heard. If you fear that you may not get heard or if you’re in a predicament where circumstances have changed and there hasn’t been an agreement in recent weeks, is there anything else you can do? Is there Mediation?

SM      Mediation is always available and I think if I got a dollar for every time I said Mediation on your show, well I’d probably have about $10 but I do seem to say it every time I go on the show, but Mediation is always your first port of call, because the delays are so significant so getting people in the same room or at least in the same venue and having a neutral person trying to assist them in a common goal, which is the agreement has got to be the best option because you don’t want a Judge deciding it for you because you know, if you don’t come up with the answer as an agreement, as a consent order, one of you are going to miss out, or both of you.

CS       And the trick is to try and say to yourself, well how much am I prepared to bear and be willing to negotiate.

SM      Well absolutely. I think…….

CS       And it’s about the children not about you either.

SM      Exactly, that’s what I was about to say…. I really encourage people to step back from their…. the views….. a lot of people hold about wanting to achieve what they want for Christmas and thinking about well what’s the balance so that the kids get to enjoy both their parents and that’s of course when …. the right thing for the children spending time with both parents. But working out how else is this going to impact on parents and the reality is kids in separated families on Christmas day often do the bolt from one house to another leaving toys behind and it’s everybody clock watching… you know…. it’s not that different in intact families when you’re doing the relative run and going from the in-law to out-law but for…. there’s a lot more stress I think when it’s a separated family because time is of the essence and one parent’s looking at their watch saying well your late and wrecked my day so I’m going to make up for that tomorrow by being late returning the child or something. It’s horrible.

CS       Selfishness comes to mind there.  131873 is the telephone number. We’ll take a very quick break. Straight back with your calls for Sheridan on Family Law issues. Doesn’t necessarily have to be related to Christmas, but go for your life. Now compensation can’t change the past but it will make a difference to your future so if you’ve…. maybe injured at work or in a road accident and are suffering financially it is time to turn to Turner Freeman Lawyers. Now since 1952 they’ve been winning claims and achieving great results for their clients and they are great value too. Talk to a Turner Freeman Partner before you sign up with another law firm and see for yourself. Call 13 43 63 today for a free case assessment and ask about their “no win/no fee” policy. Turner Freeman Lawyers, the compensation experts. Yeah. Family Law on the Agenda this afternoon. Go for your life, 131873 and I’ve got a $100 Westfield Voucher for the caller of the afternoon as well.  We’ll have Sheridan with us for the 5 to 10. Scott go right ahead.

Caller 1 – Scott

Scott   Yeah – Hi Chris. Hi Sheridan.

SM      Hi Scott

CS       Hi Scott

Scott   Basically what’s happened I pay Child Support, I don’t mind paying Child Support, I love my kids. I have them 50/50 straight down the line. My ex-partner’s been working full time now for two years which I’ve remarried and I’ve got another child. I tried to explain to my ex-partner that it’s going to catch up with her and like I’m too soft hearted I guess, I don’t want her to owe me money at the end of the day, but at the same time I am paying out all this money which has affected my children you know what I can give them when they are with me for the 50/50 time and it’s affecting my newest addition to the family because we don’t have that extra money there and I’ve rung Child Support and they said to me until she does her tax return there is nothing we can do about it, we can only go on an estimate.

SM      That’s the problem…. I was waiting for you to identify it Scott…. So she hasn’t put in her tax returns for a couple of years and therefore the Child Support that you have been assessed to pay is a lot higher than it would be if it was taking into account the fact that she’s working full time.

Scott   And then I said to Child Support as well, so what she’ll get a [bit] and they said no not if she does it…. I think a 2 year or a 12 month you know like a threshold or something – so it’s in her benefit not do it – her tax return sort of thing.  You know……

SM      It’s actually not in her benefit, firstly …. you’ve got open to you ….. applying to change an assessment based on the fact that if the income that she’s assessed at doesn’t reflect the fact what’s called her actual earnings. So you’ve got an avenue to do that. The thing that will come around to bite her if Child Support does go and assess her on her actual earnings and they’ll look at payslips, bank accounts and things like that to evidence that aspect of things is that at some point she’s going to have an arrears to you and her Family Tax Benefit might also be impacted and have a debt to the Government.

Scott   Yeah –that’s what I told her….. explain…. yes – she just doesn’t listen.

SM      You don’t need to explain it – just put it in action and it will happen.

Scott   I did ring Child Support about that and they said they would send out the documents and you’ve got to supply where she works, what she does ….. look I felt like I’d have to be a detective.

SM      Well you don’t really. You just download it.  I mean she has an obligation to make some disclosure and it sort of goes from there. Look it’s……

CS       It’s not such a huge job though to do what he’s been asked to do.

SM      No.   I mean it’s literally downloading the documents off the website.

Scott   Yeah.

CS       Have a go Scott and you might get somewhere. It might actually you know put the pressure on her to act more appropriately by the sound of it. David go ahead.

Caller 2           David 

David              Yeah.  G’day. How are you?

CS       Okay

David  Ah, I’ve been separated for 18 months. I’ve got an AVO on me. I am currently fighting that in Court next month. She’s stopping me from getting access from anything in the household, camping gear to go away with the kids or like a kayak or some tools to work on the car. Now I left willingly because she works from home and the kids are at school locally, but yeah it has sort of come and bite me in the butt because I have access to nothing. 

SM      Well, I guess you have got two avenues. Firstly you can approach the police to seek an order to access, or the Court’s to seek an access the house. Or if you are separated, I don’t know whether you have done your property settlement, but that might be part of the equation, that you would be permitted to attend the house in her absence, to pick up, you know agreed items.

David  Yes – she’s changed a lot from alarm codes and …….

SM      Is it a house in joint names? I mean if there’s an AVO, so you’ve got difficulty there. You can’t really do anything else, but certainly……

David  The AVO does not stop me from going to the house. It’s what you call it – the least AVO you can get against you….

SM      Yes…the mandatory orders, but I think going there and breaking through the locks even if it is a joint property might be seen as some form of intimidation. So I’d be a little bit cautious about doing anything like that. But there are avenues. You can certainly discuss it with the local police about how you can go and retrieve your property.

David  Yep

SM      And get a lawyer. Talk to me later.

David  Okay.

CS`     Yeah – contact Sheridan if you need to do that David. But David before you go, I think we’ll give you the $100 voucher because you might need to pick up some new camping gear by the sound of it.

David  Oh, excellent.

CS       A $100 Westfield voucher. I don’t mean to take the mickey mate… but….

David  No – it’s good – it’s always helpful this time of year.

CS       Yeah – why not. Stay there David and we’ll put you through to Carla and make sure you get that. Annette. Hi.

Caller 3           Annette 

Annette           Oh hello Chris.

CS       Hello, Sheridan is listening.

Annette           And Sheridan.

SM      Yes it is.

Annette     My daughter’s partner for years, hasn’t paid maintenance. He pays maybe two sets of maintenance per year and then you never hear from him again. So…..

SM      So, when you mean maintenance, you mean Child Support obviously.

Annette           Child Support – yes. And the Child Support has come through from the Child Support Agency, but he owes $17,000.

SM      Game on….

Annette           And, he never puts a tax return in.

SM      I think there is an epidemic about that today.

Annette           Oh, look I just caught something at the end as I was talking to Chris’s secretary when …. and I thought oh dear….. you know…. I’ve missed that call.

SM      No no.  It’s a similar situation and as I said to the caller earlier, there are ways and means to hold them accountable. The fact that your daughter’s partner has already racked up a debt.  It’s not a debt to your daughter, it’s a debt to the Commonwealth. So it is actually the Commonwealth that can enforce that and they can do sort of some strong things like do prohibition orders on leaving the country.

Annette           He never does that.

SM      Garnisheeing bank accounts…. they do have some heavy handed tactics for parents who are just not meeting up with their obligations….

Annette           …. in touch with the….. sorry for interrupting.

SM      That’s alright.

Annette           The Tax Department?

SM      Ah, no – really I think the avenues are that your daughter should contact the Child Support Agency and ask them what they’re doing to enforce the arrears.

Annette           We’ve done that.

SM      Um, potentially depending on you know where things are at. How old is the child?

Annette           14 now.

SM      There are some avenues. Certainly if you want to give your details to the station, I can get in contact with you and have a longer discussion.

CS       Yes.  Annette that might be wise given the circumstances, so stay on hold and we’ll put you through to Carla Annette and Sheridan will deal with at least on the surface of it give you some direction on where to go next. Thank you so much for that Annette. Thank you so much to the callers. I couldn’t get to all of them, I am so sorry. We’ve only got limited amount of time, but Sheridan McMahon all the very best for this hectic last four weeks before Christmas.

SM      Yes.  I’m hoping it’s a nice quiet one. I’m looking forward to a holiday.

CS       I bet you are. Like most of us are. Okay – Courtesy of Turner Freeman this afternoon.

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