Podcast: Family Law with Jacqueline Brown

May 2020.

Transcript.

Mark: It’s 25 to four, Mark Gibson with you this afternoon. If you’d like to call up with any family law related issues, we’ve got a new segment with Jacqui Brown, who’s a family lawyer. 92211882, if you’d like to ring up with a question of your own. We’ve got a few issues to tackle with Jacqui. Good afternoon to you, Jacqui.

Jacqui: Good afternoon, Mark. How are you?

Mark: Yeah, going well, thanks. How about yourself?

Jacqui: Yeah. Very well, thank you.

Mark: That’s good. It’s a tricky subject to navigate, isn’t it? Family law. It often feels like there aren’t really many winners. You sometimes have to be a little bit careful what you can and can’t say. And I guess I need to advise listeners of that, in terms of any family court issues that might be pending right now.

Jacqui: Yes. Yes. So we can’t mention any names. There are provisions in the Act that say that we’re not allowed to do that. So long as we don’t do that, we should be right.

Mark: Should be okay. Now, tell me; at the start of a couple of months ago, really the start of the whole pandemic, we were told… I think we spoke to psychologists and people were expecting that there would be a fair bit more separations, even violence, and these sorts of issues that could happen in the home by very virtue of the fact we were just locked in a house together and spending so much time with our family members. What can you tell us? Is there any evidence to support any of that?

Jacqui: Yes. Thanks, Mark. It’s been obviously not long since it’s happened, and a number of the reporting agencies haven’t had an opportunity to do it. But certainly anecdotally, the reports that we’re seeing coming out from a lot of the domestic violence agencies is that the domestic violence has increased. And even the Western Australian Police Deputy Commissioner announced on the eighth of April that there had been a five percent increase in the reports in WA. And we all know with domestic violence that it’s one of the most underreported crimes that there is. So if it’s five percent increase, then it could well be more in reality. Likewise, with the number of separations; again, there’s not really any hard evidence of it. But the anecdotal evidence that I’m hearing from a lot of my colleagues is that they’re certainly quite busy at the moment. And there’s people that I’ve seen who have had been saying “I’ve been thinking about doing this for awhile”, but after being stuck for weeks on end with the other party, it sort of really crystallised things for them.

Mark: We’re speaking with Jacqui Brown, a family lawyer. 92211882, if you’ve got a question. One area I wanted to ask you about, Jacqui, was property settlement. And we do have a caller on this subject, I believe. Hi there, Jenny.

Jenny: Oh, hi. Hi, Jacqui too. I just have a family member, a close family member who… It’s a bit of a tricky one. Got married in March 2010, they had two children and left the marriage with the children. This is the wife; she left the marriage with the children in December 2016 and returned to the family home with the husband, as a married couple, back in 29th of January 2019 and has just had to leave again in May because it got quite abusive. Now, the thing is that, there was a family court order signed by the wife February 2018 because there was a debt on the home and he was earning the money, where she signed basically the house over to him (although her name still remains on the title deeds and the mortgage). She also signed the court order where she wouldn’t touch his superannuation, vehicle, furniture, property, moneys held in his bank account. And he, the same with her: furniture, her super, monies in her account. With her going back from January 2019 and left in May (just last week), do you see her having any claim at all on anything? Of his super. Could that be put forward?

Mark: Jacqui?

Jacqui: Yes, very good question. Thank you, Jenny. And this can be a bit complicated. But certainly, in circumstances where they’ve been together – well, back together for that second period for more than a year… I don’t know whether or not they divorced after their initial separation in 2016, but it may well be the case that he has some entitlement because of the resumption of cohabitation. So, it may be that she might be able to apply to have those 2018 orders set aside, or she might be able to simply make a new application. We do see this on occasion where people do resume living together, whether or not they have divorced. If there has been a co-mingling of finances or if she’s been significantly contributing to a number of the other assets in some way or supporting him in some way, then she may well have a claim.

Mark: Does that help, Jenny? It is a complex area.

Jenny: It does. And they did not divorce. No.

Mark: Right.

Jacqui: That may well be helpful for her because the marriage has resumed. And certainly in certain circumstances, you can apply for court orders to be set aside, and this might well be one of them.

Mark: Thanks for the call, Jenny. Yeah, might be well worth revisiting all that. I guess when it comes to things like superannuation, Jacqui, there’s not really hard and fast rules, are there? It’s always dependent on the individual case.

Jacqui: Yes, absolutely. So the court has very broad discretion. And obviously, if the parties are negotiating and they reach a settlement, that settlement can look very different from one case to another. But superannuation has become problematic in light of what’s happened with COVID-19, particularly as Australians tend to have a lot of superannuation invested in shares. And we all know what’s happened with the share market in the last few months. So a lot of people have taken a big slide in their superannuation.

Mark: And then people now have access to 10 and then $20,000 dollars of their super. So you could be dipping into that, which can affect how things sit with your partner, your ex-partner and that sort of thing. Yeah, there’s a lot of factors at play.

Jacqui: Absolutely.

Mark: Alright, Jacqui, stay with us. 92211882 is the number. I’m going to take a quick break. Nikki has phoned through. If you’re okay to hold, we’ll get to you after the break. And plenty more issues to explore with our family lawyer, Jacqui Brown. If you’ve got any questions for Jacqui, 92211882.

Mark: This is the weekend catch up with Mark Gibson on 882 6PR. Yes, it’s 14 minutes to four. Very nice. 21 degrees outside. We are chatting to family lawyer Jacqui Brown from Lynn and Brown. All sorts of issues. If you’ve got a question for Jacqui, give us a call. 92211882. Let’s go straight to Nikki. Hi there.

Nikki: I have a very difficult problem, and I think probably may be the solicitor you’ve got there could give me at least a name that I could go to for help. I have two grandchildren in Dubai – one seven, one’s twelve – and the mother has custody of them. But she has a block and will not let them leave Dubai, so they can’t fly out. My son is in Australia. He’s not allowed to go into Dubai. The problem is, he wants them home. Their rooms are ready. They’ve always lived with him. He keeps them. He pays everything for them, which he doesn’t have to. He pays for the she school, he pays for everything. And they’re looked after by a nanny at the moment. See, everybody in the family, including me, has been and stayed there for a long while. I did three months. It’s impossible to stay in Dubai all the time. We all have different lives. I really need to know, is there anyone that can help us get these children out? Can they lift the blockage? We’ve been to call the solicitor. Can’t seem to help there. They keep closing down the courts. I need someone like an international lawyer, or someone that could actually help us. The girl is Australian. The boy was just about to be Australian, but the mother cancelled all his affections at the embassy. But the mother doesn’t see them at all. She lives in Korea. She doesn’t look after them. She doesn’t have any contact with them, except very nasty phone calls. Is there any way I can possibly get them out? Because they’ve been without my son for over a year. And although he speaks to them every day and does their schooling online (because now, of course, the schools are closed). But it’s still not like seeing them in the flesh. And he is so devastated, and we don’t really know who to go to, to get some help.

Mark: Nikki, that’s quite a predicament. If the mother’s in Korea, the children are in Dubai, the father is in Australia… Jacqui, what are your thoughts on that?

Jacqui: Normally, I’d say, look, if the country is a Hague convention country – so, if it’s one of the countries that have signed up to the international Hague convention – then you may be able to make an application through the Hague Convention, which is the international way to be able to deal with the children. But I’m a bit concerned that the UAE may not be a Hague convention country. So, if the children are over there, I would suggest that your son goes over there and takes the children from there, particularly if mum’s not even there. Presumably, he would have access to their passports. And if he’s got access to their passports, then he may well be able to get them. And I know that the government is allowing compassionate travel in some circumstances. I would imagine that two children without a parent stuck in Dubai would quite possibly qualify for one of those compassionate circumstances.

Mark: Nikki, does he have access to their passports?

Nikki: He can’t. He has got their passports, and he is their guardian. But she’s the custodian and he had actually adopted the boy, which is hers. Sharia Law doesn’t approve of adoption. So, they gave her back the custodianship. And also, she has two writs out on him because she said that he kidnapped the boy when he was a year old.

Mark: You do need some help. It’s getting into some fairly murky territory there, Jacqui, isn’t it?

Jacqui: Absolutely. So, if he’s got writs out for his arrest there, then probably it wouldn’t be the best thing for him to go back there. But there are certainly, you know, lawyers in the UAE who specialise in Sharia Law who would be able to do that. I know a lawyer over there and if you wanted to give you details to the producer afterwards – to Liz – I’m sure she would be able to get in contact so I can pass on those details.

Mark: Okay, let’s do that, because it’s getting very niche when you start talking about Sharia Law as well as family law and dealing with the UAE. Yeah, that’s good of you, though, Jacqui. Hopefully Nikki can touch base with you and you can point her in the right direction off-air. Jacqui, in a general sense then, we’ve just reminded me when we’re talking about the travel restrictions, how much is has COVID-19 played into some of these issues and problems with family law? Given the restrictions of things like travel.

Jacqui: Look, luckily in WA we’ve obviously had those very strict interstate borders which have loosened a little bit recently, but we were very lucky in that having court orders that you had to travel to pick children up or drop them off was an exemption for that, and if you presented them at one of the borders, then that was going to be okay. There are some broader issues where we’ve got parents who are interstate or overseas, and with them traveling. But again, the government has been very proactive in allowing parents to be able to try to continue the normal arrangements for their children.

Mark: Okay, that’s good. What about the family court system generally? It’s notoriously slow. People get bogged down in court cases that can drag on for years. What has COVID-19 done in that sense? Are things getting slower?

Jacqui: Unfortunately, Mark, it’s a very under-resourced system. We have a really great principal registrar, and a fantastic chief judge, who have been trying their hardest for the last couple of years to try and get things back on track and to reduce the time for people to get to a hearing and also to a trial. But unfortunately, with the restrictions of COVID-19, it’s just placed all of that back so much further. We’ve had a lot of instances where the court’s gone to hearing matters over the telephone rather than in person, to try to maintain social distancing and that sort of thing. We’ve cancelled some of the Circuit Court hearings in Bunbury, Broome and Kalgoorlie and a lot of the regional areas. That’s affected them quite dramatically. Even if you do manage to get a hearing, unless it’s urgent, they’re automatically being adjourned to sometime after September to be dealt with. So, it really has pushed things back significantly.

What are we looking at in terms of time currently to get to trial?

Look, the best-case scenario, time to trial for a property matter is at least two years. A children’s matter, you might be able to get it inside of that two-year period but there are a number of matters that are significantly longer than that as well.

Mark: Well, that’s an awfully long time to wait when they can be all sorts of factors at play. Jacqui, we’re running out of time. As we just learned, with so many complex cases, there are so many things we could talk about, so I’m sure we’ll do it again. But thanks very much for joining us on the program this afternoon.

Jacqui: Fantastic. Thanks a lot, Mark. Have a great weekend.

Mark: You too. That’s Jacqui Brown from Lynn and Brown Family Lawyers. And yeah, thanks for the calls. 92211882. We can see if we can get Jacqui on again next weekend. There’s plenty of issues to sift through in the world of family law.