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Home | Q & A on 2GB discussing Family Law 3/3/2015

Spousal maintenance discussion with our Family lawyer

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

 Tuesday, 3 March 2015

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CS       Well they’re back. That’s right our experts from Turner Freeman Lawyers back in our studio each and every Tuesday taking your questions on various aspects of law. This is a free service. One of our most popular in 2014 and it continues from today in 2015 and it’s a very good afternoon to Sheridan McMahon, family lawyer.

SM      How are you Chris? 

CS       I’m very very well. Did you have a good break? You missed us here. You must have      missed doing radio.

SM      It’s been four months. It’s been…….

CS       Long time……

SM      It’s been a long time.

CS       Yeah, it’s good to be back.

SM      It is indeed.

CS       It’s also back a thousand miles an hour and family law back in the news as well.  We will get to a case that you would like to talk about a little later in the program but I should let people know. Turner Freeman once again in 2015 are appearing in your local newspaper providing information on a range of legal topics in a weekly legal matters column and you can check out this week’s column on the latest on legal matters affecting your community and as we did last year thanks to the good people at Turner Freeman and Westfields, Turner Freeman will provide a $100 Westfield voucher each and every week to the question of the afternoon. Alright, the question of the afternoon as judged by all of us in here in the legal segment. So between now and 2 o’clock we’ll find the wizbang question of the afternoon and a $100 Westfield voucher will go to that listener. Can we start today when it comes to family law define for us Sheridan what spousal maintenance is? 

SM      Well spousal maintenance is a payment made by one spouse or former de-facto partner to the other one after separation to assist them in supporting themselves and meeting their day to day needs… um… it’s quite a bug there…… or usually from the person who is required to pay spousal maintenance….. but the reality is that there is an obligation on both spouses to support each other even after separation occurs to the extent that they are reasonably able to do so. …. .if it’s the case that the other spouse is unable to provide their own financial support whether it’s because they’re caring for children or they’ve ceased work during the marriage and haven’t re-entered the workforce… um… so there are often times where a person is very much in need because their only ever source of income is a Centrelink benefit or a Government allowance.

CS       Tell us about this case….. about a recent UK decision which saw the Courts reduce the spousal maintenance order for a former wife…um…. she’d done nothing since 2008 to look for work right…. so how did that play out?

SM      Well, it was quite a high profile case in terms of ….. a large amount of money was involved in the spousal maintenance order so it’s not garden variety spousal maintenance case that we would ordinarily face. Um but the circumstances were ….. the husband was required to pay a large amount of child support and in addition to that he was also required to pay the wife a substantial amount of spousal maintenance. Um…. the youngest child I think was 10 years of age and by that time the husband I think got a little bit tired of putting his hand in his pocket and he made an application to the court to say well isn’t enough enough or enough is too much…. ahhh  …. then the court actually agreed with him and said that the wife’s done nothing since 2008 to look for work, to retrain herself……….

CS       So there is an obligation on those that have been part of the breakup of the relationship and when spousal maintenance is paid, it can’t be paid forever, someone has to have a duty to go out and work.

 

SM      Well I think generally there’s an implied duty that people take whatever steps necessary to support themselves but there is often a period of time when they are unable to do that….

CS       Yeah….

SM      But generally in the Australian system, spousal maintenance usually has a sunset clause.  Sometimes it is on an interim basis until a property settlement is finalised and then what otherwise would be spousal maintenance might be considered in an adjustment in the actual property settlement or it might be for a defined period of time say until the children return to school or the children are of a certain age.

CS       What’s the usual here? Is it a year you pay spousal maintenance for or………

SM      There’s no real usual ……….

CS       There’s none………

SM      Because every case is different …. every marriage that breaks down you have children of different ages…. you’ve got different earning capacities and different financial circumstances… so to say what’s normal… um…. what is normal is the question…….

CS       Yeah…. so we’ve got to differentiate between spousal maintenance and child maintenance right?

SM      Absolutely. Child support is entirely separate. Child support is an obligation to provide money to support the children and there is often a resentment that a payer is paying both child support and spousal maintenance, but it really needs to be taken into account…. that child support…. if everybody was utopian of course they would be putting money in to support their children and to provide money for extra curriculum activities… It’s just when it’s going to a person that you don’t love much anymore that there is a bitterness towards it… but if everyone could be a little bit more child focused that would be great.

CS       Yes… a bit more child focused and a less ???? good ensue I would have thought. Um now 20 minutes to 2:00 o’clock.  Mark has got a question for you Sheridan. Go ahead Mark…..

Caller 1:         Mark

Mark: “Ah yeah. Good afternoon guys. I have a simple question  …..

SM      Hi Mark

Mark  Hi….. If one of the parties has received a compensation payout during marriage, would that come into the equation as the family asset pull upon financial settlement or it won’t be?

SM      No it is definitely taken into account and it might be taken into account in a number of ways.  It might come in…. if you’ve received a compensation payout, it might be considered that it’s a contribution that’s been made on your behalf so it falls on your side of the ledger, but compensation payments often have lots of different heads of damage, so there might be for loss of wages, ah they might be for care which another party like your spouse might actually be providing, so…. you don’t get necessarily the whole lump sum taken into account as a contribution on your behalf…..

CS       But if that person had a large amount of money in the pool given to her for instance I think is the case with Mark, when you try and work out spousal maintenance surely her money has to be taken into account that she may not need the propping up that others would.

SM      I misunderstood, I thought Mark was just talking about is a compensation payment counted as in the asset pool……

CS       Oh right…..

SM      And……

Mark  If I may say it was a compensation for loss of wages and pain and suffering as well… a lump sum….

SM      Well the pain and suffering is usually all yours so nobody can share in that… if it’s payment for services that are provided in in-house in care, that is a different thing, but generally they will fall on your side of the ledger.

CS       Okay, thank you Mark for your question. Now, I can tell you that Susan Lai has done the predictable and announced that the Federal Government has abandoned its GP co-payment… that $7 GP co-payment does not exist anymore – the Government – the Federal Government has abandoned it according to the Health Minister…. she says “we haven’t arrived at a final position”, but she remains committed to delivering a balanced budget. So that might mean there is a little bit of pain still to come somewhere attached to Medicare….. John… .You’ve got a question for Sheridan… go right ahead….

Caller 2 – John

John   Yeah.. Hi to both of you…….  I hope you’re having a good day…. Um…. a very close friend of mine had a I guess an acrimonious separation divorce. There was one daughter involved and the ex wanted to take her up to Kempsey and he fought tooth and nail…. he didn’t want his daughter growing up in Kempsey for obvious reasons apart from the distance and went through all this… she got the whatever it is…. because of the daughter 65% or you know… and up.. then the very day of the settlement…. the very day that she got awarded that amount she’s turned up on his doorstep with the daughter and two bags and said you wanted her, you’ve got her and his solicitor says there is nothing he can do about it…. She got the two thirds of whatever it was the 65% because of the daughter and then she hands her over the same day…….

CS       Wow…

John   That just sounds so wrong……

SM      It sounds a little bit set up to be honest.. I mean there are some circumstances if it’s a consent order that they have both entered into there are some circumstances that even consent orders or court orders can be set aside and they relate to various disclosure issues but they also relate to significant issues relating to the care of the child and potentially you might be waving a flag saying there’s been a whole case strategy set up to gain a financial result and then once that’s been gained…. if it’s immediate upon the settlement being effected then the child suddenly returned the settlement was very much factored on the primary care being with the mother…..

CS       But the next step would be… you’ve got to actually test this in the court….  you’d grab a solicitor and certainly test it because the division of wealth has been decided based on the presumption that most of the time the child would be spending the time with mum.

SM      That’s right… you’d have to file an application seeking to set aside those orders and as I said that is a very narrow set of parameters but it’s potentially possible but you’re facing a court battle to do it which might basically negative the result.

John   Hmmm

CS       Alright John….

John   Yep… Okay….

CS       Thank you… How much is spousal maintenance? How long is the piece of string?

SM      I was going to say that…. obviously you read my mind. How long it that piece of string?  As I said before no family is a unique instrument……

CS       But can’t you go to a website where you put in all the basic data……

SM      It’s not like the child support website where they’ve got a formula because there are so many variables and so many circumstances can factor into an amount.

CS       Okay Sue, you’ve got a question for Sheridan, go ahead.

Caller 3 – Sue

CS       How are you Sue? Oh she was there….. no – give her one more chance? No? And how do you pay spousal maintenance Sheridan?

SM      Either by agreement or as the court orders. So it might be a court order that you pay it into a nominated bank account on every Monday or every month or sometimes they garnish from wages but it gets a bit nasty. But usually there’s a set mechanism in how you pay it whether its agreed or not.

CS       Okay 131 873 is the telephone number, Turner Freeman Legal Matters…. James has got a question.. go ahead James.

Caller 4 – James

James   Hi how are you going mate. Look today I was just in a shopping centre in Blacktown and I’ve seen a female Muslim lady in a full magab …. head to toe covered in complete black magab and I was just wondering man that ……..

CS       Hey James is this a family law question?

James Ah…. no no…

CS       Okay just stay there mate, we’ll put you back to Ash and we’ll try and get you in the right part of the program if we can…. Have I got Sue back again have I?

Caller 5 – Sue

Sue      Yes you have

CS       Go ahead Sue.

Sue      Oh thank you…. Hi….. Look my question is my son was divorced 8 years ago and the divorce was done on the internet and the girl made it private and because he’s on Health care, she was supposed to pay him every year, we get the letter from the Family Support but she never pays him and she never gives him any money for his three children and his three children live with him full time.

CS       He’s a deadbeat dad…..

Sue      No, he’s a deadbeat mum…..

CS       Oh a deadbeat mum, sorry go on.

SM      So you are referring to child support Sue?

Sue      Yes.

SM      Okay so if ……

Sue      My question to you is when I have rung up Community Services and they said well the letter is not to you so it has nothing to do with you…..ahhh your son has to ask but he won’t do that – he doesn’t want to argue with the ex-wife.

SM      Um well I mean, it’s an argument within an administrative agency, the Child Support Agency governs child support assessment and the enforcement of payments, so it’s not like ……..

Sue      They’re not doing that…… they’re not doing that because on the paperwork it says “private” so it’s between the husband and the ex-wife.

SM      Sure, but all he has to say to Child Support is I want child support to collect and then they mark it in their system that they are to collect and then from the date that he makes that arrangement then they start enforcing or following up those payments but for the gap period where it’s been a private payer that’s where you’ve got greater difficulty in chasing it…….

Sue      Oh look…. I realise that we are never going to get that back it’s just that I’m past retirement age but I still am working because um that my son as Aspergers although he’s got three degrees he just finds it very difficult to hold a job down….

SM      Sure…. I mean… there might be some…… as I said.. .the first step he needs to do is to tell Child Support that he wants the Child Support Agency to collect the payments from her and then they will have the powers to garnishee wages and tax returns to meet her current obligations …. ahh..

Sue      What happens if he won’t do that, do I have any redress?? for myself so that I can stop working?

SM      Yes, you point the finger at your son and say silly boy……

Sue      Yes I know…

SM      Do the right thing…. help yourself….

Sue      Yes I’ve tried this many times but that’s all I can do…

SM      That’s all you can do because it’s not an agreement that affects you.

CS       Alright Sue, thank you very much for that.  It’s interesting…… just as an aside, is it the men that have a greater inability to go to court to defend their right or to women or is that just too much of a generalisation?

SM      Uhh

CS       There’s no pattern?

SM      From what I can see everybody is quite happy to go to Court……

CS       Laughing…  It’s 11 to 2..  7 ½ minutes to 2 O’Clock.. Just repeating the Medicare co-payment …. the doctor’s co-payment dead and buried… well at this stage…. dead and buried by Susan Lai the new Health Minister… a short time ago her press conference has now concluded.  I’ve got Sheridan McMahon in the studio today from Turner Freeman Lawyers answering your questions on family law.  David, go ahead

Caller 6 – David

David  Hi… .um.  I’m a first caller.  Sorry I’m a bit nervous….

CS       That’s okay go ahead…

David  Okay, um I’ve got a child who I went overseas on a holiday with and my partner and she decided not to come back to Australia and I’m going through the Hague Convention at the moment… it’s in the Hague Convention it shows that if the child stays there for more than 12 months it says that he really can’t come back…. it’s made itself a home there.. so if they keep adjourning the court hearing date, making it longer and longer and it’s coming up to the 12 months, I was wondering if there is anything else that I can do under the Hague Convention?

SM      Well I guess the first point is that the 12 months….. is the issue about habitual residence, so if a child has ordinarily been resident in a place for 12 months that becomes that child’s habitual residence but if the child’s been there without your consent where that consent has been known not to be given and there been procedures in place, you would suggest that time is not running…… if you’d sat back and done nothing until the 12 month period was up, then I think there would be a difficulty…. Which country is the child in?

David  Greece.

SM      In Greece okay.

David  Yeah….

SM      Um..

David  They’re part of the Hague Convention Act I think. It’s just because they are going through so much turmoil at the moment, the courts and things get adjourned…. they don’t run……

CS       Have you got a good lawyer?

David  Yeah, well it’s cost me $100,000 Euro already…

CS       Ohhhh……

David  Yeah…

SM      And generally for you….. David…. the State Central Authority would be acting on your behalf….

David  Yeah they are… well I have contacted them… it’s just that I was worried that the 12 month period is coming up…. I actually lodged it two months when we were over there but I was just worried that the 12 month period is actually coming up in about a month’s time and I thought maybe that …. the court hearing date is after that….the next court hearing date…. so I was just worried… concerned about that…

SM      Look I don’t know how the Greek courts are going to deal with it but I would certainly suggest that the fact that your lack of consent or your opposition to the child remaining over there trumps the 12 months.

CS       Yeah… you would have thought so, especially the delay in the court process…..

SM      Precisely.

CS       Get your lawyer to go hard. Valerie go ahead.

Caller 7

 Valerie Hello yes, um I am separated and receiving a certain amount of money and um I was the one who nominated the amount and I didn’t have a clue what to ask for or anything so I thought about him and he’s so bitter and ????? I’ve picked on a lowish amount…. now I’m finding extremely high medical bills – that’s the problem…. Um, is it possible for me to ask via my pro bono lawyer to referred to be raises or would I get it?

SM      Well I guess the question is what is the obligation for him to make a payment to you – is it spousal maintenance? Is there a court order? Can you vary it and have you done property settlement?

Valerie  No – I think it’s just done quietly or whatever.

SM      Okay, Well then you either negotiate with him or….. but you’ve already said that he’s bitter so that might not go so well….

Valerie No…

SM      Or you make an application to the court – if you can’t adequately support your own needs and you’ve got some medical issues that might…. if he has the capacity to pay which is the topic of the day….. that might open up eligibility for more spousal support – but if he’s got no obligation – he might just pull up stumps and not pay you anything…

CS       Yeah – you’d have to mount a fairly convincing argument.. Very quickly with only 15 seconds left, I know that Daniel wanted to ask – Can both partners go to the same lawyer to save money?

SM      Hell no!!

CS       Hell no! By law you can’t?

SM      Oh we’ve got to give independent legal advice..

CS       Yeah..

SM      You can’t….. to the parties to an agreement.

CS       Good to have you back.

SM      Thanks Chris.

CS       Sheridan McMahon, family lawyer at Turner Freeman and our Legal Matters segment three minutes away from 2.

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