Turner Freeman discussing Family Law issues on 2GB
Tuesday, 7 April 2015
Chris: Another free legal matter segment 131873 is our telephone number. Handling legal issues between family members as we know can be a very awkward experience and unfortunately it is a situation that a lot of us have or will find ourselves in at some point. You may be smack bang in the middle of an issue right now. Well financial control seems to be the main issue when it comes to arguments or control of certain items that are left behind etc. 131873 Sheridan McMahon from Turner Freeman in our expert in the studio this after. Sheridan thank you very much for coming in.
Sheridan: Hello Chris.
Chris: Good to have you here did you take down a few too many eggs over the Easter period.
Sheridan: I abstained entirely from chocolate so I am very proud of myself.
Chris: Did you that’s very good self control.
Sheridan: My 17 year old the same can’t be said of her.
Chris: Oh right she took your share.
Sheridan: She did and more.
Chris: That’s greater Turner Freeman Lawyers of course and the people from Westfield have got together to give us a $100 voucher to give away to our best caller of the afternoon. If you have got a very interesting question that might pertain for a lot of our listeners you will get a $100 Westfield voucher courtesy of Turner Freeman Lawyers and don’t forget to pick up your local newspaper because each week the Turner Freeman Legal Matters column can be found in it and it covers a range of legal topics including compensation and negligence law, family and employment law or Wills and estate law and superannuation and disability claims. So you can find out all you need to know of those subjects. Pick up your local newspaper and again that $100 Westfield voucher up for grabs between now and 2 o’clock.
Sheridan McMahon from Turner Freeman is with us right now. A lot of people don’t realise Sheridan that financial control can often lead to threats or actual acts of violence because it is a very passionate area isn’t it.
Sheridan: Well it certainly is and financial control actually is one of the indicators of family violence as it is defined in the Family Law Act so it’s really serious and it’s an insidious problem that I tend to face frequently and yes there is usually a gender line and it’s often the female clients coming to me saying “I don’t have anything. I’ve got no access to any bank accounts. I can’t afford to move out. I can’t afford to pay for a lawyer” and it’s a real problem because they have existed in a relationship whether benignly accepting it or having it forced upon them that their husband or the partner has had absolute financial control dolling out a limited sum of money each week for groceries. Monitoring access to credit cards and often when mums are at home there only source of income is through a Family Tax Benefit and that often goes into a joint account. They often don’t have accounts in their own name. So when it comes time to either wanting to leave or needing to leave or choosing to leave it’s very hard for them to establish their financial independence because somebody is quickly going to pull off the purse strings.
Chris: So their decision to get out of something that is looking like it is turning violent or is violent can actually be dictated to by their access to financial or lack of access to finances.
Sheridan: Well it hamstrings somebody from making independent financial choices and making independent life choices such as to leave. So it’s not necessarily saying that if there is financial control there is going to be physical violence but it’s certainly one of the indicators of a controlling relationship.
Chris: 131873 is the telephone number you don’t often get a chance to get free legal advice. Sheridan McMahon from Turner Freeman Lawyers is here with us. If you um I am sure that you have dealt with this too and if you have been reading papers recently or listening to the news you would have heard about I guess a greater public awareness of domestic violence an it’s often after the violence occurs that woman try and seek help. They don’t necessarily take that preventative measure do they?
Sheridan: Well I think that’s absolutely right and it’s the nature of the relationship with the perpetrator. Domestic violence or family violence perpetuates because I mean and I’m no psychologist but I will throw it out there. The dynamic is that this is a person that you love, this is a person that you want the validation and love returned from and it’s a very private battle. People often won’t complain about family violence for fear of being shamed, for fear of being isolated, for fear of being not believed and that in today’s context is a big thing about any form of abuse.
Chris; Or fear of once you go to a lawyer or once you go to the police or someone the fear of not really being protected despite the fact that you have told someone.
Sheridan: Well I think what we are looking at now is the prevalence of cases where there are Apprehended Domestic Violence orders in force such as the Queensland matter.
Chris: They mean nothing.
Sheridan: Well they mean something to people who obey the law. People who are going to wreak revenge no matter what um you are only protected to some extent. To the extent that somebody is going to obey the law.
Chris; Okay John you have got a question for Sheridan go right ahead.
John: G’day Chris, G’day Sheridan.
Sheridan: Hi John.
John: Sheridan my understanding is now this going back a fair while because I am a fit old now but you know the family allowance went to the wife to the mother.
Sheridan: Well as far as I know and I am not an expert on how Centrelink doles out their money it goes to the person who makes the application for it and I suppose in an intact relationship for the most part yes the mother may be the applicant and she will nominate the bank account that the money is to be deposited into. So really there is the level of control of how that money is distributed and then when people separate the Family Tax Benefit is apportioned relevant to the percentage of care of both parents.
John: No I was just interested I mean I am not in that situation but I was just interested because that was my understanding.
Sheridan: The answer is not necessarily it goes wherever you direct the payments to go and it might be you know when I am talking about financial control it might be a circumstance where the partner says “where is the family tax benefit why isn’t it going into my account or the joint account or whatever”. So as I understand and this is my own personal experience you direct traffic as to where funds get deposited.
John: Oki doke that’s fine thank you.
Chris: Good on you John thank you for your question. Pete go ahead.
Pete; I have just got a question why is the Family Act regarding divorces since it comes with a no fault clause it has a gender inequality against the males.
Sheridan: Why is that?
Pete: Well when you look at it both work, both have super, I contribute most to the household yet when it comes down to the split it has to go 50% of the super and 50% of the house.
Sheridan: Okay firstly I will stop you there no it doesn’t. Secondly divorce and property settlement and I will be a technical police at the moment they are totally different things. So no fault divorce has nothing to do with what each party receives out of a property settlement. I am actually really glad you raised this issue because it goes along the issue of financial control. It’s often a perception that I find either my client or not necessarily my clients but clients or other parties in financial proceedings have this sense of I am the one that went out and worked I earned the super you didn’t it’s mine. The reason why particularly in relationships where children are a by product of the marriage. The reason why you could go out to work and earn money is because your wife stayed at home and cared for the children. So she is making an indirect financial contribution. So it’s not a guarantee 50/50 split of everything it depends on what each of you had when you came into the relationship, the way you managed your family business in terms of who did what financially, who did what around the house and then you look at well what are the circumstances now that you have separated. Who’s got care of the children. Does that impact on the ability of the parent to work, earn money and that’s where the contribution, I guess the entitlements and adjustments come in. So it’s not 50/50 and it’s certainly not a case where you’ve gone an earned money and super that your partner is disentitled to that because she has freed you up to do that.
Pete: Yeh the only trouble is we both had separate accounts, we both earned income, we both had super and all the rest of it. It come to the Family Law Court I was told by 5 different separate legal companies it will go 50/50. They will put it all together and go 50/50.
Sheridan: Well it might be the case depending on the case.
Pete: Yeh but also as far as the legal part of it goes. The domestic violence part of it I put up with two years of domestic violence against me. I couldn’t touch her. I reported it once, the police come out. I am the one that got dragged away.
Sheridan: Well it’s certainly not the case in terms of issues where there is family violence it is certainly not the way we look at it and we look at how it impacts on the ability of each party to contribute and each matter is an individual case and yours is one of those.
Pete: There is another thing that comes in legally as far as child support. I had the two children for 12 months fulltime because she didn’t want them yet I was advised by the Child Support Agency because I earned more she didn’t have to pay maintenance.
Sheridan: Well that might be the case because child support is a formula so it is based on your respective earnings and whilst you take into account if you have got them fulltime she might not have an income
Pete: No this is the point she had an income a good income. But because I earned more no you’re not entitled to it.
Chris: I guess on a general basis there is a expectation that women will figure more beneficially out of a Family Court dispute. Is that too much of a generalisation.
Sheridan: I think it’s a massive generalisation. It depends and that’s the great cop out for the day. But it really depends what each of you brought into the relationship particularly in circumstances where people are entering into second relationships and come into those relationships with substantial assets you have really got to look at it case by case.
Chris: You sound like you have got a lot of confidence in the Family Law Court in terms of making decisions fairly.
Sheridan; Well its not just the Court. I mean the Court obviously knows what they are doing because that’s their core business. But also from family lawyers We get a sense of what each matters worth by virtue of our own experience, by virtue of reading case law and seeing how judges have decided to weigh aspects of different types of contribution, inheritances, pre-relationship contributions. So there is a vast field of case law that we rely on and that’s what we rely on when we given our client’s advice and you know if you have got a good opponent on the other side normally you will pick up the phone and you will have discussion and we will be talking the same ball park.
Chris: Okay appreciate that. Let’s get back to callers right after a quick break.
It is 12 minutes away from 2. I have still got the $100 Westfield voucher to give away to our caller of the afternoon and Sheridan McMahon will be here for the next 5 minutes to take your calls from Turner Freeman in our Legal matters column and don’t forget you can also seek advice via your local newspaper where Turner Freeman has a legal matter column inside of all of those as well.
Steve go ahead Sheridan is listening.
Steve: Sheridan good afternoon.
Sheridan: Hey Steve.
Steve: My question is during separation mode is it allowed for the receiving partner to claim child support or to raise a child support case when living under the same roof and then of course after 8 weeks decides to move out but that means you pay child support for 8 weeks and the parent the father of the child has paid all bills towards the running of the house. But the question here is the receiving partner allowed to claim child support when living under the same roof and not contributing to any bills.
Sheridan: Well firstly child support would look at the claim and make an assessment. The flipside. So yes is the answer The flipside is you can turn to Child Support and say “Well during that period of time we lived separated under one roof I’ve met mortgage repayments. I’ve paid for grocery bills” and you could potentially have those credited against your child support liability.
Steve: Oh okay.
Sheridan: So give that a try, give Child Support a call that might be an avenue that you can go down. Usually they have to be agreed expenses so that’s where you might hit a hurdle but you might be able to persuade Child Support to accept those.
Steve: Yeh actually they are agreed expenses but you have answered my question basically.
Chris: Good on you Steven thank you very much for your call. Michelle hi.
Michelle: Yeh hi how are you going?
Chris: Good thank you.
Michelle: Look my question is my partner recently left me just before Christmas. I have had my stepchildren, his children live with me for 5 years since they were 5 and 6. He has taken the children and I just wanted to know if I have any legal rights to be able to claim to get some period of time with children.
Chris: Good question.
Sheridan: Is this with the stepchildren, so your partner’s children.
Michelle: Yeh they are my partner’s children. That’s right.
Sheridan: The answer is yes. You would fall under the category of a person concerned with the care, welfare and development of the children by virtue of the fact they have spent a period of time living with you, depending on how long, what the frequency of his children being under the roof in your household. The thing that you need to take into consideration is what impact is that going to have on those children. Because obviously he is separated from their mother so what your potentially proposing is a regime where the kids are now split in 3 different directions. It’s certainly possible you could potentially attempt mediation to see if there could be some agreed time.
Michelle: Yeh well they live with me since they were just turned 5 and 6 fulltime because their mother is an alcoholic. Those children are devastated. They want to be with me but he is making it very difficult on the times I am allowed to see them.
Sheridan: And you’ve got children with this man as well.
Sheridan: It’s just the stepchildren.
Michelle: Yeh and we have no joint children together no.
Sheridan: Okay well potentially you have got standing to make an application but you need to go down the path of mediation first and you know I am not going to say its a line ball question as a step parent its 5 years and those developmental important 5 years are significant. But you need to give consideration as to what is the longer term objective particularly if he repartners.
Chris; But what’s the process she goes through. If she goes to the Family Court and lodges some type of claim for this. How long will she have to wait how much money will she have to spend.
Sheridan; Too much and too long. but first step is always mediation. You can’t file a Parenting application or an application for parenting orders unless you have got a certificate to say you have attempted mediation or one party has refused to attempt mediation or for some reason such as family violence there is an exemption.
Chris: Well there’s your first step Michell.
Michelle: Okay great thank you.
Chris: Stay there I am going to get you that $100 Westfield voucher too by the way.
Michelle: Thank you so much you don’t have to.
Chris: No your contribution to the programme because it’s a very good question. I know it’s a question we’ve had before. You know you can get very close to someone else’s children when they live under your roof and when that relationship is all over surely you have a right to at least see them visit them or they visit you.
Sheridan; Well the key thing is you as an adult don’t have the right but the children have a right to be known and cared for by each parent and other people that are meaningful to them.
Chris: Very quickly we have only got 20 seconds left but at what age does the Court ask the children who they would like to visit.
Sheridan: Well it’s not really a question of asking the children who they want to visit but certainly taking into account their experiences and from ages that they can rationally express themselves.
Chris: Okay thank you very much for your time this afternoon.
Sheridan: Thank you Chris.
Chris: Interesting Sheridan McMahon from Turner Freeman Lawyers our legal matters segment once again for a Tuesday, afternoon.