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Home | Partner providing Q & A on Family Law 27/01/2016

Q & A on 2GB discussing Family Law 27/01/2016

 

Wednesday, 27 January 2016  

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WM – Warren More – Sheridan McMahon /C1,2,3, etc – Callers 

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WM    And back for the first time in 2016 we are going to kick off our regular segments.  Legal Matters with Turner Freeman and joined today in the studio by Sheridan McMahon covering family law.  And by the way if you’ve got a question for Sheridan, call in now 131873 and back again this year we give our best caller a $100 Westfield Voucher. How are you Sheridan?

 

SM      I’m fantastic thanks Warren.

 

WM    You had some good news in your office yesterday?

 

SM      We had some fantastic news.  I’d like to certainly acknowledge a great achievement by our managing partner, Armando Gardiman who was awarded an Order of Australia in yesterday’s Honours List for his contributions to the law and also for that round ball game, I think it’s a great accolade and very proud to have him as a colleague.  He’s a leader who leads by example.

 

WM    I presume you mean soccer?

 

SM      Yes.  Heheh I do. The round ball game.

 

WM    It could have been a little ball like golf or it could have been volley ball.

 

SM      No, no. The proverbial round ball.

 

WM    Okay right. Right o.

 

SM      An absolute great achievement. We are very proud.

 

WM    Okay, 131873. Now there’s been a bit of talk lately about divorced or separated parents and the impacts on their children and particularly toddlers and newborns.

 

SM      Absolutely. It’s a really fraught issue when it comes to negotiating or working out a parenting arrangement for children of a very young age where parents separate and usually the child remains with mum and dad’s trying to get time with his child, which may be one of a number of children in the family, but ….

WM    Yeah.

 

SM      But because the child is so young it is a really fraught question about how that can be done without impacting on the child’s developmental needs in terms of primary attachment.  If the child’s breastfeeding or how does that work in a practical sense and I really think there’s a really delicate balance between a dad very understandably wanting to have time with his child, but doing it in a way that is actually developmental appropriate for that child and its I think the key message for everybody listening is it’s not about whose the better parent, it’s about what are the actual needs of a child in that exact point in time.

 

WM    Yeah, yeah.  That’s so tough.  That’s so tough.  I mean from the father’s perspective you would see that that is the time when bonding is so important.

 

SM      It absolutely is and I think the way that our social scientist that we’re having to are trying to indicate the appropriate orders are regular time but in short bursts.  So it’s that recognition time.  But to take the child physically away from a mum who is breastfeeding or has developed that primary attachment bond with the child can actually be very damaging to the child in its later development of those ongoing attachments.

 

WM    Okay, Sheridan McMahon taking your calls from Turner Freeman.  131873 is that number.  131873.  So I mean, we’ll hear of the weekend dad, for older children anyway, where the dad may have custody on the weekend or every second weekend for two days straight.  That’s what you’re saying isn’t appropriate with a tinier child?

 

SM      Well it’s very much a case when is overnight time even appropriate?  So you certainly look at is the child being breastfed?

 

WM    Yep.

 

SM      Because that’s nutritionally a very important factor and also from that bonding and attachment position, something that should be very much factored into, how much time away from mum, should happen in those circumstances.  And it’s not a one size fits all answer but it’s usually the case that up until the age of 1, really dad shouldn’t be expecting overnight time but…. or even considering up to 2 and then you look at the child and the development and the relationships but I guess the first thing you look at is, what are the circumstances for this particular child at the time of separation?  Because it might actually be that the child’s been born, mum’s gone back to work to be the breadwinner and dad is the person that the child’s bonded with the person that has a primary care role.  So it’s not about statistics, it’s not about this is what happens in most cases, it’s this child and these parents.

 

WM    Would you say when you have to go to a Court or is there a negotiation over this that at that age you have to revisit it for obvious reasons?

 

SM      Again, for young children, there’s always got to be a period of revisiting because the child grows and it’s the arrangements appropriate for that child will change and the children respond differently in different situations.  So regardless of whatever the age of the children are, the parents really need to have a lot of insight into what’s going on for their kids and how they’re coping and not maintaining this transposition of I’ve got the children and I’m not budging.

WM    Yes.  Treating them like a possession.

 

SM      Unfortunately it happens a lot.

 

WM    It sure does.  131873.  Now Sheridan McMahon’s in the studio and Sheridan we’ve got Linda for you.  Hello Linda.

 

Caller 1 –         Linda

 

Linda  Hello.

 

SM      .Hi Linda.

 

Linda  Hi.  My question is I have a 7 year old daughter and we did orders six years ago so my ex-husband and I split when she was four months old.  At the time we placed the orders to be that when she’s 8 she will have share 50% custody between the two of us.  Basically I have raised my daughter on my own for all these years.  She’s now having 2 days each week with her father and I’m just wondering I actually don’t feel really comfortable in a few months time to hand my daughter over 50% just because she’s turning 8.  Do I have a chance of changing those orders considering that I’ve been raising my daughter pretty much on my own for the last 8 years?

 

SM      Well Linda I guess the key question is, what is going on with your daughter and how has her relationship with her father been developing. The circumstances of having orders when the child is potentially a baby that purport to be this crystal ball into their whole childhood, is just untenable and we as lawyers find ourselves in a situation and we tend to have contingencies that say at some point in time and you’ve nominated the age of 8, the parties will engage in mediation to consider what should be the next appropriate step in the increase or the development of the relationship with both parents and I think that’s probably the key indicator.  There’s been essentially 7 and a bit years of an arrangement going on and now there’s a catalyst moment where something needs to change and I think in terms of can you change it, if there are court orders, there’s a requirement that is a significant change in circumstances to warrant a re-opening, but I think backing that up is again the crystal ball argument of how can you see what is appropriate.  So I think the key point you say is, we’ve got orders and I acknowledge that, I think we need to sit down with a mediator or maybe with some organisation that does child inclusive type programs.

 

Linda  What like Relationships Australia…….

 

SM      Relationships Australia, Unifam syndicate.  There are lots of programs and organisations that are there specifically to help families, work out their parenting arrangements and the ones that are child inclusive help the parents get an insight into the proposed changes because whilst they look good on paper, how do you know how your daughter’s going to actually feel and adapt to the change and you never know it might work really well or it might be a complete failure and it’s an untested entity and I think if you are on at least communicable terms with her father, if you’re not put in a position where you’re threatening it, but you’re saying before we embark on it we really need to sit down and work out how we implement it and whether we agree that it’s a trial because we really need to be gauged by what our daughter’s feeling and experiencing at the time.

 

Linda  That’s right because it’s a very big jump to go from two nights a week to suddenly 7 and it’s also……

 

SM      Oh it’s immensely huge….

 

Linda  Also be in afterschool care… for those 5 days and I work ….. I’m self-employed so I’m very flexible with my time.

 

SM      I would certainly suggest mediation and possibly flag that you have some concerns about how those orders are actually going to be in your daughter’s best interest.  I’m happy to have a chat later on/

 

WM    Okay good on you Linda, thank you for calling.  Hello Fred.

 

Caller 2 – Fred

 

Fred    Hi, how are you going?

 

WM    Good, what’s your question for Sheridan?

 

Fred    I’ve been separated for about 9 years and my ex-wife has gone back to her family name.  My son’s under my name.  But now I’ve met somebody, if I want to now get divorced, how long will it take?  She has been living with her mum for about 7 years, so we have actually been separated.  Do we have to prove that?

 

SM      For you to get a divorce?  What’s the actual outcome that you are seeking?  A divorce to happen or are there ……..

 

Fred    No – I’ve met somebody, I just want to make it final…..

 

WM    So is it the divorce or is to do with the custody of the children?

 

Fred    No, not the custody  – the divorce I’m talking about.

 

SM      Oh – Divorce is easy, if you’ve been separated for over 12 months, all you have to do is file a divorce application and you’ll be stating on Affidavit that that is the case..  It gets filed on your child’s mother.  She will either object or respond to any factual circumstances but it’s just one person requiring a divorce because the marriage is irretrievably broken down.

 

Fred    Okay and how long does that take?  Do I actually have to go to court for that or not?

 

SM      Depending on if there are any property arrangements in place for the child so there’s a maybe but not a significant court event.

 

Fred    No because now we got on very well where I don’t go through custody, you know I get him any time I want.

 

SM      Well then perhaps you do a joint application and then you won’t have to go to court.

 

WM    Yeah.  Okay Fred – anyway the simple divorce from what you saying is quite straight forward.

 

SM      It doesn’t sound difficult.

 

WM    Okay.  131873 – Hello Raymond.

 

Caller 3           Raymond

 

Raymond       Hey – how are you?

 

WM    Good.  What’s your question for Sheridan.

 

Raymond       I want to know, I got divorced on 1987 and they are still sending me the …. She took the kids from me and I still have to pay the maintenance for the kids?

 

SM      How old are your children?

 

Raymond       They are 25 and 26.

 

SM      You’re paying child support that are not children.

 

Raymond       Yeah – they are my children but she took it from me.

 

SM      I understand that but your obligations is that unless there is a specific provision, your obligation ceases once they turn 18 when they are not children any more.

 

WM    Okay Raymond?

 

Raymond       Do I still have to pay the maintenance?

 

SM      I really can’t give you a straight answer.  I don’t know why you are being required to but give me a call afterwards at Turner Freeman.

 

WM    Okay good on you Raymond.  131873.  Now that does sound rather odd doesn’t it to be paying maintenance to children in their 20’s.  Very rare.  We’ll take a break, we’ll take some more callers.  It is Legal Talk with Turner Freeman and today we’re talking family law.  Sheridan McMahon in the studio.  131873.

 

Break

 

WM    Legal Matters with Turner Freeman Lawyers and Sheridan McMahon we’re talking family law today.  Are you ready for more calls Sheridan?

 

SM      I sure am.

 

WM    Let’s go to Peter.  Go ahead Peter.

 

Caller 4 – Peter

 

Peter   Yeah g’day, how’re you going?

 

WM    Good, what’s your question?

 

Peter   You know, it’s in relation to my daughter.  My daughter is now 25.  When she was 18 she was in a relationship with a young man and they had a child.  The relationship she had with this guy, he was quite violent and she subsequently had the baby and he’d had no involvement with the child from the time the child has been born.

 

WM    So where do you want to go to from here Peter?

 

Peter   Yeah.  What I’m asking is she needs to…. When the baby was born, he forced her to have the child’s surname under his name.

 

WM    So you want it changed back?  You want to change to your daughter’s name is that it?

 

Peter   We do, yeah.

 

WM    How do we go with that Sheridan?

 

SM      Well the key questions are  What relationship does the child have with his father;  Yes you can do it but she’d either need his consent to do it or she’d need to file an application with the Federal Circuit Court for a change of name setting out the age of the child, how the child identifies itself, himself or herself and what relationship the child’s had with the father and any embarrassment that will be caused by the child by retaining the name or changing the name.  So not terribly hard.  Happy to have a chat with her later.

 

WM    Okay.

 

Peter   Okay thank you.

 

WM    Okay good on you Peter.  Hello Matthew.

 

Caller 5 -Matthew

 

Matthew         Hi there.  How are you?

 

WM    We’re well.  What’s your question for Sheridan?

 

Matthew         I have two children.  I have been separated or divorced three years – separated 12 months before that.  My wife won’t let my daughter who’s 4 years old and come and spend a week in school holidays with me when my son comes to spend a week with me.  Now my son is very upset because he misses his sister.  Do I need to take it to court and try and get my daughter for a week as well or what will be the best way to go about it?

 

SM      Best way is always mediation because that’s the first step you’ve got to do before you go to court but ….. it’s always difficult with children of different ages and stages but I think she’s 4 and there should be some consideration about spending some holiday time with her brother and with you, so yes.

 

Matthew         She’s very non reciprocal with anything I suggest and I asked and yeah.

 

SM      Mediation is your first tick box for this if that’s not going to work then a court application.

 

Peter   fantastic.

 

WM    Okay Matthew

 

SM      Thanks Matthew.

 

WM    Nice to hear from you.  131873.  Hello Mark.

 

Caller 6 – Mark

 

Mark              Hi, how are you?

 

WM    Good, what’s your question?

 

Mark  Ah, mine’s a bit more complicated.  I was married for 9 years – worked all those 9 years – 7 years of that my ex has done as well.  We’ve been separated for 12 months.  She’s put a claim in now for 50% of my super for the 9 years that we were married and in that – as I said 7 out of the 9 she would have worked, she never put anything away.  I’ve been to a …. I’ve paid to go to solicitors – she’s got Legal Aid and my solicitors are telling me that I’ve got no case.  Because she’s a woman and the woman and the laws on the woman’s side….

 

SM      We don’t have any laws on the woman’s side unfortunately Mark.  What the court looks at is what was contributed to by both of you during the course of your marriage and that forms the asset pool available for division and then it looks at those contributions, the initial contributions and where you both are now – if there’s any children involved – earning capacities and the difference between those and the ability to support.  So it’s on the table – the question whether she gets 50/50 is really a matter for you or for the court to determine and in relation to your respective contributions.

 

WM    Did you hear that Mark?

 

Mark  No – well – it didn’t give me an answer anyway.  Thank you….

 

WM    Well you did get an answer Mark.

 

SM      It’s legitimately on the table.  As to part of the asset whether she gets 50% is a different question.

 

Mark  Well I’ve been told already that she will……

 

WM    Who told you that Mark?

 

Mark  A solicitor – its cost me over $1,000.00 to see a solicitor and says you haven’t got a case.  She’s got everything in her favour because she’s gone back onto a disability pension…

 

WM    Is there anything for special needs after the split?

 

SM      Absolutely, so that’s one of the key things that’s looked at.  Should there be an adjustment.  I don’t know how super is actually going to  help because you can’t access until you an enthuseless age… but….

 

WM    It’s getting worse.

 

SM      But it’s on the table – it might be a little bit complicated Mark – more than happy to have a conversation with you off air.

 

WM    Okay  131873 and quickly if Karen – you’ve got a quick question for us?  Karen?  No – Karen’s got the radio on which means she’s getting 7 seconds in delay and I’m bad enough the first time around – you don’t have to have me coming at you twice  – so I’ll have to leave it there Karen.  Well that’s very interesting and in particular where we started about talking about those very very young children and I guess one of the things you highlighted and this is unfortunate I guess, it happens a lot in family law doesn’t it where the parents really forget the interest of the child because of that fight between themselves.

 

SM      Yeah – I think they are trying to establish their role in the children’s lives and they lose sight of the fact that for various reasons they can’t have an equal role in terms of time….

 

WM    Yeah.

 

SM      But in terms of importance to that child, it may still be a very much an equal relationship.

 

WM    Yeah – the time isn’t the only way I guess view that.

 

SM      No and parents provide different aspects of the child’s development so…..

 

WM    Turner Freeman.  The number 134363 for Turner Freeman Lawyers.  Are you okay to give Matthew a Westfield Voucher?

 

SM      More than happy.

 

WM    Okay Matthew’s got the $100.00 Westfield Voucher and that’s the first one for 2016.  But Turner Freeman will be back with Chris Smith and Legal Matters next week.

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