Topic: Shared Parental Responsibility in Family Law
Partner providing Q & A on the 2GB Chris Smith Afternoon Show discussing issues in relation to Equal Shared Parental Responsibility – 12/05/2015
Chris: Turner Freeman Legal matters segment. I’ve got another $100 Westfield voucher in my hand to the best caller of the afternoon. A $100 Westfield Voucher and we will make a judgement on that between now and 2 o’clock. 131873 is the telephone number jump on its Family Law legal matters today and Sheridan is in the studio. Sheridan McMahon and I should ask Sheridan firstly what have you been doing?
Sheridan: Ah well I think your referring to the fact my arm is in plaster and obviously nothing very sensible or to do with my balance.
Chris; Are you a right hander?
Sheridan: I am indeed.
Chris: And it’s your right hand.
Sheridan: It is so for the listeners I apologise I won’t be able to take your names down or your notes just rely on my memory and hope we do alright.
Chris: So if she calls someone whose name is Susan she calls you Carol you will understand why. You can’t actually write those notes down anymore right.
Chris: Look at that it’s a big sling too. We’ve got a few emails to get through today. There have been some emails sent to us this week leading up to your little segment and I should remind our listeners to pick up their local newspaper. You can do that each week to read the Turner Freeman Legal Matters column. Their lawyers cover a range of legal topics including compensation and negligence law, Family and Employment law. Wills and Estate law and superannuation and disability claims all contained in your local newspaper. Sheridan McMahon specialising in Family Law and negotiating responsibilities with your partner can be very tricky for parents. I want to start with an email I received this week from a fellow by the name of Peter. Peter says,
“Just a quick quest for your legal team. I have an 11 year old daughter who lives with her mum. I only see her when it suits her mum. Yet her mum said I can have her on weekends. I try to ring every night to say hi but she will only answer maybe once a week. This has been going on for a month. Please advise.
I guess they are in a separation situation.
Sheridan: Sounds like it is and from what he says he doesn’t sound like he is getting the liberal access that he has been allegedly promised. I seem to bang the same drum. The first step is always mediation to sit down and try and work out an arrangement that can then be formalised into Court orders and then if she doesn’t abide by what the agreement is then he has enforcement capabilities. But in that limbo time between separation and some formality in terms of parenting orders sometimes you know a parent is very much left up to the goodwill and whim of the another parent unfortunately and it’s not very child focused. The child loses out.
Chris: Yeh and it can be a very hostile time because as you say without Court orders, without something in black and white that says when you have access to your child things can get pretty much out of control. What about making big decisions about which school someone goes to and you know one party one partner may say: Well listen I want that child to go to a religious school The other one says No. Or I want this child to go to a very expensive school. The other partner says no. If there is conflict in reference to that and there is nothing specific in a set of orders how do you come to an agreement?
Sheridan: Well if there is nothing specific in the orders there is a presumption that the parents share the decision making equally so that means they have equal say which is all very well and good except when there is no agreement. So usually the outcome is that if there is an agreement we would go with the mediation path as the first step. But there is either an application to Court. There is a general premise that two parents have brought a child into the world whilst they were together hopefully they were able to navigate the pathway of making decisions and you know in a family dynamic there is some people who might have more power and influence in the decision making and the other parent is happy to abide by that but when they are separated it becomes very positional. But the key point is: No you can’t make unilateral decisions about long term decisions such as where a child lives so relocating them from cities and states and countries, enrolling them in schools without the consent of the other parent, major medical decisions for the child or dental decisions, decisions about their religion are decisions that pragmatically you would hope parents would make jointly. When it all falls apart we trot off to mediation or if there is an urgency because the child is about to be removed from an area or from a country then you trot off to Court.
Chris: You go to Court alright. 131873 is the telephone number let’s start taking some calls at 21 minutes to 2 o’clock. Robert go ahead Sheridan is listening.
Robert: Yes I have a Family Trust and what I want to know is can I leave my real and personal estate to the trust and appoint my wife and daughter as trustees.
Sheridan: This is sought of less a family law separation kind of question but I would guess. You are talking about in your Will?
Sheridan: Okay so that’s sort of a slightly different area to the area I deal with.
Robert: It follows on because I want to talk about divorce of one of the parties.
Sheridan: Okay so you can set up something like a testamentary trust. Certainly not my area of expertise.
Robert: I have a family trust currently.
Sheridan: Yep okay. So yes of course you can set up a trust and you can determine what assets are in there, who controls the trust and who are beneficiaries of the trust. That’s entirely within the scope of your powers.
Robert: Right now the question is if my daughter gets divorced will any of these items go into her list of assets?
Sheridan: If she is a mere beneficiary.
Sheridan: She has an interest in the trust as a potential financial resource. But because if she is a trustee of the trust, if it’s just your wife who is a trustee that’s one thing your wife has control of it. If it’s your wife and daughter who have control that puts another flavour in it because it suggests that she can direct traffic in terms of access to money. And the other consideration is: What is the habit of the trust? What has the trust been paying out to the various beneficiaries? That sets up kind of an expectation or a pattern of financial behaviour that if your daughter did get separated her spouse would rely on as either a guaranteed financial resource for her in the future or something that’s likely to come into her actual possession from property. So yes it does get taken into account.
Robert: It does get taken into account.
Sheridan: But only in a certain way and you would be very wise to get some advice about how to best structure that trust so that it limits your daughter’s control over it then her right is just as a mere beneficiary.
Robert: Yes righto thanks very much.
Chris: Robert thank you. 131873 is the telephone number I have got a question here from Doug who has written in via the email.
“Hoping you can answer this in the upcoming show with Turner Freeman. What happens if say I come in to an inheritance and put it on my own existing mortgage that I have with my current wife and then shortly after we get a divorce. Can I claim that in my percentage of the house sale? Or is it not taken into account? Also is there a time limit like after a year or before a year that I have to act?”
Sheridan: Well the more recently the inheritance has come in the more it will be potentially not necessarily quarantined but not meshed into the joint contributions to a property. So if it has come in from his family it essentially is a contribution on his behalf except for where the wife has cared for the parents before they had died and made some contributions to an entitlement to an extent. So it very much is in the contributions favour of the party that received the inheritance. The later it comes into the marriage prior to separation the more likely the whole quantum of that inheritance is going to be taken as a contribution entirely on behalf of that person or taken out of the whole pool.
Chris: So if you are separating things say 60/40 for instance across the board that may be taken out before that 60/40 is calculated.
Sheridan: It very well may address what we call a two pools approach so you have the inheritance pool as one and then the rest of the assets of the marriage as a separate pool.
Chris: But the dependence is whether and what time it has been thrown into that mortgage.
Sheridan: To a large extent and then on the flipside once if it is a two pools approach the Court will still look at the fact that one person has the benefit of that inheritance so there might be an adjustment to take that into account.
Chris: Okay Sheridan McMahon is our Family Law expert with Turner Freeman. Shirley you have got a question for Sheridan go right ahead.
Shirley: I do Sheridan my son and his de facto have recently separated it’s very nasty it always is nasty. There is a little boy 3 years old involved and this lady is a good mother but she will not let my son or any of us have visitation to the child or any access to the child at all and I am afraid this dear little boy will grow up thinking we all hate him. Now I have got seven grandsons. So I see a little bit of those grandsons. This little boy needs to have his dad and go to the football with his half brothers.
Sheridan: Is it a recent separation Shirley?
Shirley: Yes very recent.
Sheridan: Well I think that’s often when it is the hardest. Everybody is very positional. But the key point is your grandchild has a right to know and be cared for by both of his parents and other people that are concerned. So you were his extended family. Your son needs to take some action pretty quickly and again here goes me waving the same flag mediation is your first stop. If you can’t reach an agreement there then the Court is the next process but he is a very young boy. Obviously there will need to be a lot of consideration about what type of time with your son is appropriate now and as he gets older and becomes school age and then becomes a primary schooler and high school boy. So there will be transitional stages but the key thing is the child has a right to know both parents.
Sheridan: In so far in the best interests there is no risk to the child and that would be the only key reason why.
Shirley: My son is reluctant to rock the boat by Court action at this time. He said he would let it settle down or cool down for a while but then I thought well have I got any rights to act on the son’s behalf?
Sheridan: Well Shirley you do have the right sorry you have standing in your own capacity but I think you know if your son’s position is he wants to just let things simmer down you making a stand might sought of do something different to that to rock the boat a little bit.
Shirley: Yes I might rock the boat.
Sheridan: But I think you know if he communicates with her whether it’s directly or via letter or through a lawyer saying we need to sit down and sort out some arrangements. It doesn’t have to be with the threat of a Court action but just that we need to sort things out. I think that’s absolutely the first step he needs to take.
Shirley: I understand thank you very much Sheridan.
Sheridan: My pleasure Shirley.
Chris: Thank you for the question Shirley 131873 is the telephone number. Adam go ahead. Adam are you with us?
Adam: Yeh I am here how are you.
Chris; Yeh I am good very well go right ahead.
Adam: My question is my parents were divorced legally about 10 years ago due to illness they’ve kept their assets together. They are both well now my dad is happy to continue the way it is. He is obviously supportive of my mum financially but my mum wants to move on with her life. She wants to split the assets. They own two houses. My dad is not ready to move out of the house that they used to live in. The other house is a holiday house and mum wants to know if they can keep that house and sell their primary residence. Is that possible?
Sheridan: Well if they agree on it they can do anything they want.
Adam: My mum has been given advice and also external pressure from my other family members because they’ve had issues in their regard because they are worried about my dad having claims on my mum’s estate as their parents are both alive still.
Sheridan: Well the first point is in terms of having a property settlement through the Court unless you get the permission of the Court they are out of time you have got a twelve month deadline from the date of divorce. But there are other rights that they both have in terms of the Supreme Court and altering the interests in property. So they would certainly need to get some legal advice about certainly what’s in the asset pool, what’s happened, what the position of them is respectively at the moment. As to how to go about it and if it’s not agreed then what’s the best course of action.
Adam: Yeh I am hoping that they can try and sort it out amicably because I know obviously once it goes to Court they will obviously see lawyers and they go making money and the other house is used primarily as a holiday rental which obviously our family benefits from and I want it to sort of stay that way if it can. Is it possible that they can pop it into the kids name or it doesn’t come into it if it goes to Court?
Sheridan: Well in terms of putting the property in the kids name there would be some stamp duty implications on the transfer so it would have to. You would all have to get legal advice about how it impacts on you in terms of the transfer but the first thing for your mum and dad to do is to sit down and work out what are the outcomes they can both agree on. What are the things that are in dispute and take it from there.
Adam: No worries. Just one more quick question. Any money that my dad has given or paid to my mother over the period of the last ten years in regards to rental or financial does that come into any money that when they sell the assets does that come out of it or what?
Sheridan: No well I think their financial behaviour over the last ten years will be considered but the general proposition is that the first thing the Court needs to be convinced of to make an order to alter property interests is that an order should actually be made so it might be that they have sorted out their finances and no order needs to be made because the properties are in their sole names or that to end their financial ties then something needs to happen. But you know it’s going to be a unique scenario that really needs to be looked at.
Adam: No worries thank for your help.
Chris: Good on you Adam thank you so much. It is 11 minutes to 2 o’clock we are smack bang in the middle of our legal matters segment this afternoon courtesy of Turner Freeman. I have still got that $100 Westfield voucher to give away and Sheridan McMahon is our expert this afternoon. Our lawyer answering your questions. Andrew has got a question for your Sheridan go right ahead Andrew.
Andrew: Hi Chris how are you going mate?
Chris: Very well.
Andrew: Sheridan there is so much I want to talk to you about but there is only eight minutes left.
Sheridan: And I don’t know if you will get all the eight minutes.
Andrew: Sheridan I have been sort of separated for five years now. The Child Support Agency is so hard to work with as a man. I have tried and attempted to I have actually put in a submission to the enquiry. They way they use taxable income is so complicated and they always use the gross not what you actually net. I have attempted to try and work out a private arrangement with my ex and she says well we have to go to Court and I can’t afford it obviously to pay someone like yourself but I am just wondering what the enquiry is looking at as far as income and I’d much rather pay for my kid’s education and extra curriculum activities and so forth because I want to play an active role in my kids life. Whereas all my ex wife tells my kids is basically is “All your dad pays is the minimum“. When I do actually pay the maximum and I can’t get to the 52 nights a year. What’s the enquiry going to do for someone in my position that basically wants to have a private arrangement but can’t basically pay to go through Family Law.
Chris: Good question and so many individuals, men in particular think exactly the same way.
Sheridan: And it’s a very fraught situation and I know the government has been trying to get people’s feedback and response about the system. What seems to have come overwhelmingly is that it is a system that is fraught. It is confusing. It is frustrating. There seems to be a significant amount of inequity about it and the interesting thing is both sides of the payer/payee are complaining that they are not getting the right hit. What are they going to do goodness knows. I roll my eyes when I have to deal with Child Support matters because it seems so hit and miss.
Chris: Well the Department of Human Services gave evidence at this enquiry saying it tends to favour the primary carer which is usually the mother. That was from the Department of Human Services. It’s hard to tell what could come out of that but something has to be reformed within the system.
Sheridan: Well they are certainly trying to postulate some recommendations about either centralising collections and arrears. You’re saying you want to enter into a private arrangement but that’s obviously impossible to do if the children’s mother isn’t going to agree to that course of action. This is very much an I don’t know answer.
Chris: If you’ve stumped the expert Andrew you get the $100 on this programme.
Sheridan: Well as I have said on a number of occasions Child Support is fraught for both sides. No one seems to be happy and the kids are stuck in the middle.
Chris: I’ve got no glee for you there Andrew but I’ve got a $100 Westfield voucher that we can send you.
Andrew: I appreciate that Chris.
Chris: Yeh you could probably talk to Sheridan for an hour or so. You suggested that at the beginning of the phone call and by the sound of it that would work and I don’t know whether at the end of the day you would get any decent answers because it is an unfair system that needs to be reformed.
Sheridan: It’s hopefully a work in progress and hopefully will get improved but I don’t hold out great hope.
Chris: Sheridan thank you very much take your broken arm out of here although you can stay for…
Sheridan: Spandau Ballet?
Chris: I thought you knew who was coming.
Sheridan: I have been warming the seat.
Chris: Thank you see you later. Turner Freeman Lawyers. Andrew stay on line we will get that voucher to you.