Jacqueline Brown on The Weekend Catch-up

30th May 2020.

Transcript.

Mark: 9221182 is our number, with Jacqui Brown joining me in the studio from Lynn and Brown Lawyers, family lawyers. Jacqui, Good afternoon.

Jacqui: Hi, Mark. How are you?

Mark: Going well, thank you. How are you?

Jacqui: Well, thanks.

Mark: That’s good. Good to have you in the studio this week and talk about this big wide world of family law. I’m interested to know what has COVID-19 done in terms of, we did hear one of the potential downsides earlier on was an increase in domestic violence, increase in separations and divorces, people really realising they couldn’t live with each other and all sorts of problems. What are you seeing now that things are starting to get opened up a bit again?

Jacqui: Well, it’s been interesting looking at the dynamics of the relationships. And I think a lot of people were a bit scared about whether financially they could afford a lawyer, what they wanted to do, whether they could afford to separate. But now they’ve had a bit of time to look at their finances, maybe take a breath. And now that things are opening up in the state, we’re finding that they’re wanting to make appointments, wanting to come in and see us and at least get some advice about their situation and what’s going to be best for them.

Mark: I guess, rightly or wrongly, the financial side can be such a determining factor, even in couples staying together, can’t it? And making that move to leave. They look at the finances and go “I just can’t afford to”.

Jacqui: Exactly. I mean, I’ve had clients who I’ve seen for years when they’re still together, and they’re doing their sums, you know, month in, month out, trying to work out when’s the best time.

Mark: What have we seen then? Has there been a spike – that we know of – in terms of domestic violence and these sorts of troubles in the home in the past few months, or is it too early to tell?

Jacqui: Well, absolutely. The WA Deputy Commissioner of Police said certainly in March in WA, the reports were up five per cent. And we know with domestic violence that the reports are only a small tip of the iceberg. And we’re seeing nationally that the rise is predicted as about 20 percent.

Mark: What else has this highlighted? I know that when you deal with the Family Court, as you do, that between the different states and the way that we handle these things… I know you’ve been saying that in WA, we’ve still got a lot of work to do, don’t we?

Jacqui: Yeah, we do, we do. And one of the big issues that we have for de facto couples in WA is that they can’t access their superannuation to split up once they’re reaching a property settlement. So this is a hangover because WA didn’t refer powers back in 1975 when the Family Law Act came into existence; they didn’t refer it to the Commonwealth, the powers that they had in relation to the fact that couples. Which has worked really well for WA in a lot of ways because we were the first to do lots of things, whereas the rest of the country followed us. But now we’ve got this hangover of the superannuation, because that’s a Federal issue and the state can’t make laws in relation to it. For years we’ve been trying to get this issue resolved at a State level. And in 2006, WA did refer a very limited amount of power to the Commonwealth to allow it to happen. In 2018, it looked like we were making some progress because the attorneys general at the state and federal level reached an agreement about what was going to happen. And at the end of last year, we actually saw a bill introduced into the federal government. But now it looks like with COVID, that’s sort of gone to the wayside. We can only hope that it will come back and get enacted.

Mark: What do people need to know about superannuation when it comes to splitting up? There’s a commonly held belief that you can just get access to half of your partner’s super. It’s not always the case, is it?

Jacqui: No, definitely not for de facto couples in WA. And [with] married couples, the vast majority of super funds you can split, but it might depend. If it’s a second marriage, for instance, a lot of people are coming into that with a lot of superannuation to begin with. So you might only be accessing a portion of the super.

If you’ve got any questions for Jacqui Brown, family lawyer, give us a call. Daniel has phoned in. Hi, Daniel.

Daniel: G’day, mate. How are you?

Mark: Good, Jackie’s listening. Go ahead.

Daniel: Hi. So I’ve got a daughter I’ve never met, and the mum won’t talk to me. I’ve got no way that I can get in contact with her. She’s basically built up these big, massive walls. And it’s not just me that’s getting affected. It’s also my parents. They’re never gonna be able to meet their grandkid if I don’t sort something out. How can I walk into this situation and come out with the best possible outcome? While my daughter’s two or three, so it doesn’t scar her by not dealing with this situation.

Mark: Is she two or three now?

Daniel: Yeah, she’s two at the moment. But if I left it till the time she’s five, you know… I don’t want it to be in her psyche that I didn’t care about her.

Mark: Jacqui might have some advice on how to deal with all this.

Jacqui: Daniel, look, there are lots of avenues available in Perth for you to be able to get some assistance. But certainly what I’d recommend doing at an initial stage is to contact your daughter’s mum and have a chat to her, if at all possible. If that’s not possible, put something in writing to her and see if you might get a response that way. Or if you do know a mutual party that is in contact with both of you still, then that could be a good avenue to look at. There is, in relation to children’s issues, a mandatory requirement that people go to mediation prior to instigating court proceedings if they want to have some contact with their child.

Jacqui: So you would need to go through that process. And there’s a lot of family relationship centres that are government funded that would be able to help you out in that regard, too.

Mark: So first part of that, Daniel, is there the possibility to put something in writing and get a message through and talk to her? Or is that a bit difficult?

Daniel: It’s a bit difficult.

Mark:  So the second part of it then is this mediation, and there might be another path for you to go to go down.

Daniel: I contacted Relationships Australia, but they said unless I’ve got an address… which I don’t… they’re not willing to chase it up.

Mark: So you don’t even know where they are?

Daniel: Literally, she may as well be Madeleine McCann. She’s disappeared off the face of the earth.

Mark: Daniel, you might want to hang up and listen to the response. But, Jackie, I’m interested to your hear your thoughts then, because in that case, if if you can’t even prove a West Australian address, for instance, that’s going to be very difficult to mediate or get anywhere, isn’t it?

Jacqui: Absolutely, Mark. That’s got to make it very difficult for Daniel. So what I’m thinking that Daniel might want to do is to commence proceedings without ever serving any papers. Then he may be able to have the court make orders that he can get in contact through Centrelink or some other party who may have knowledge of a phone number or an address for the mum. And then, it may be able to progress that way.

Mark: Okay. Thanks for the call, Daniel. That’s a tough one. I feel for him in that situation, with a child he’s never met and no idea where she and the mother are. That’s really tough. Can we just talk a bit more generally about children? I mean, it’s just so fraught with problems when people split up and there are children involved. What other advice or information can you give us about how that plays out?

Jacqui: Yes. As I mentioned, the most important thing that the court says in relation to children is that they always want to have their best interests. And that’s what the court will always predominantly look at. And quite a few years ago now, the federal government decided that it’s in the best interest for a child if their parents aren’t involved in family court proceedings. And nine times out of ten, they’re right. That’s why they’ve introduced this mandatory mediation. There are some exemptions for that. But that has been quite helpful for a number of parties who have some issues: to be able to talk it through with a third party, who can give them a bit of insight and some ideas around how they might try parenting in a separated situation.

Mark: So what legal obligation is there (if any) on the mother, say in that case to give some sort of access or information to the father of the child? Is she allowed to take off with the child and cut off all ties?

Jacqui: Well, no, she’s not, because a child has a right to know both of their parents. If one party is withholding the child from the other parent, then, you know, on the face of it, that definitely seems like is it’s not going to be fair for that child and it’s not going to be in that child’s best interest.

Mark: And so even if Daniel doesn’t have an address, I’m just wondering: if he gives a name and a date of birth or whatever else [whether] the authorities would consider acting on that and try to track her down.

Jacqui: There might be some ways that that can be done. Certainly if Mum’s ever had any contact with the Department of Communities, then that might be a way that it can be done because a court has some close links with them. If she’s ever had any contact with the WA Police, for example, there are certain subpoenas that can issue in those cases.

Mark: Yeah, okay. Well, let’s see how that plays out for Daniel. It’s 17 minutes away from four. Stay with us. Jacqui, more calls coming up. Nine double to double one eight 82. If you’ve got a question for Jacqui Brown, more with her just after this.

This the weekend catching up with Mark Gibson on 882 6PR.

Mark: Thirteen minutes away from four. If you’ve just joined us, Jacqui Brown is in the studio from Lynn & Brown Family Lawyers. If you’ve got anything you’d like to ask Jacqui about Family Law, 92211882. We’ve been talking about the access to superannuation We’ve also been talking about access to children when relationships or marriages go south. Paul has phoned through with a question. Hi, Paul.

Paul: Hi, how are you? Hi, Jacqui. Mine is very complex. It relates to 2002 orders, which is March of 2002, relates to the government Gold State superannuation, which I’m sure you’re familiar with, which is pretty complex. The issue is that the figure that the lawyers within Gold State have actually come up with, my ex wife doesn’t agree with. And they’ve also got this disclaimer that they want both of us, to sign to this figure. She’s refusing to sign them. And there’s a configuration within the orders about a about a percentage of interest that has to be paid… It’s very complex, as I said; we don’t have enough time to go through it. But it was based on 55, but then 59 is the federal government’s tax component. So I’ve got to pay like 32 per cent tax on the figure that she receives… is that correct? And they’ve also said I can no longer stay in Gold State, and I have to roll the remaining amount into another fund and pay another additional 15 per cent tax; which basically cuts why superannuation by 50 per cent.

Mark: Hmmm. Jackie?

Jacqui: Yeah. Look, superannuation is very fraught, Paul. And unfortunately, it sounds like you’re on the receiving end of what doesn’t seem – on the face of it – to quite be fair. I am familiar with the Gold State superannuation funds, and there are lots of provisions within funds that say if certain events happen, then for certain reasons, other things have to happen. And it may well be that what they say about this super fund is that if the fund gets split for some reason, that you can no longer stay in the fund or you have to have a minimum amount in the fund. The taxation issues is something I wouldn’t be able to help you with. I always refer those matters to the tax experts because that’s not something I’m terribly familiar with. But certainly if you wanted to give Liz your number, we could get in contact with you afterwards. But I guess this just highlights how fraught superannuation court orders can be.

Paul: We appreciate that. I’ve spent over 22,000 with this solicitor with no outcome. Yes, there has been some some streamway made, but with no outcome. I’m just like at desperate ends.

Jacqui: Yeah, it may be the best way to deal with it is to go to court just on that distinct issue, if you can’t get your former partner to sign off on an agreement. And that’s certainly what the court is there for. Not usually the first option that I recommend to people, but certainly in circumstances where you’ve done everything you can to try and negotiate, it may be the last resort.

Paul: Can I speak to you?

Mark: Yeah, I will let her let you speak to Jacqui off-air a bit later, if you like. But some that’s some good advice for now. And yes, leave your number with Liz. We’ll put you back to Liz and leave your number there, Paul. And hopefully Jackie can be in touch with you a bit later on. Geez, superannuation’s so complex, isn’t it?

Jacqui: Yes, certainly.

Mark: It really is. And then when, as you say, you’re talking about tax issues and all these things that don’t really fall under the realm of family law, I’m sure, as experts in all these different fields. Okay. Well, we still got a few more minutes with you. 92211882, if you’d like to call up with a question for Jacqui. Otherwise we’ll duck back to the the whole issue of children, which is just so difficult. Again, when relationships end is one of the issues just the difference in parenting? As we said before, you know, the family court is always going to be about what is best for the child. But, of course, you can have two parents who both believe that what they can provide and offer is in the best interests of the child. Where do you go from there?

Jacqui: Yeah. Look, Mark, that sort of happens every day in my life. So, if it gets to the point where two parents can’t decide on what’s going to be best, then obviously we have those mediation pathways and they can be really helpful. Unfortunately, though, some matters do end up in court and that’s what we’ve got the court there for.The issue with that is that the court is only going to see a really small “tip of the iceberg” sort of situation. They’re only going to be able to see what the parties can explain at a trial or in an affidavit. And it may not be the real picture, but everyone knows there’s always two sides to a story. So it can be very difficult to get to the bottom of it.

Mark: And that’s what judges and mediators are there for, aren’t they? To sort of sift through that and work out where the truth might lie somewhere. What about the role that grandparents can play in all of this? Sometimes grandparents can have a really crucial role in the upbringing of children, obviously, when this happens.

Jacqui: Absolutely. And anecdotally, we’re seeing a lot more grandparents who are getting involved in proceedings relating to children, unfortunately. A lot of parents might be of an age where they’re tempted by drugs, or other things along those lines. And so the grandparents have become the primary carer for the children. And then if the parents split and a grandparent comes along, it definitely becomes an issue. And we’re seeing a lot more grandparents bringing proceedings in the family court to try and make sure that they can stabilise their relationships with that child.

Mark: Yeah, right. So, when orders are put in place by the court – you see this on the coal face – how seriously do people take court orders, a lot of the time? And the next part of the question is, how serious is it to breach them?

You’ll have anything that ranges from people complaining about a minute or two being late, to people just adapting to things. It’s like, after a few years this wasn’t working for us, so now we do this and we do that. And it might end up looking a whole lot different from what the court orders actually say. But if it works for the child and it works for the parents, then that’s not necessarily a bad thing. I guess the issue comes in when you do have those breaches. Breaches can be very serious. And obviously they range from something quite small, like how “you contacted me about something two minutes before you were supposed to” or “you didn’t return a call within 24 hours”; they can be things like that that are really on the very low scale of things. But I’ve dealt with matters of international children abduction and that sort of thing, which is obviously at the very high scale of things.

In terms of penalties, it depends what they are, as you say. Some of that can, I’m sure, just be batted away or mediated. But on some of the more serious things, there’s all sorts of serious penalties involved.

Absolutely. So the family court does have the ability to issue fines and to also imprison people for breaching court orders. They are quite reluctant to do those things in parenting matters, and also in in all matters, because they’re not a criminal court, per se. But they do have those remedies available to them, and breaches can be very serious.

Yeah, I think we had one of those international custody disputes phoned through last week, I mean, they do happen, don’t they? Probably more than any of us want to realise, but there’s plenty going on out there. I think you guys deserve a medal half the time with all this stuff that you find yourself embroiled in. So, Jacqui, thanks for coming along today. We’ll do it again next week. We’ll see what else is happening in the world of family law and encourage you to give us a call on 92211882. Thanks for today, Jacqui.

Thanks so much, Mark.

That’s Jacqui Brown from Lynn and Brown Family Lawyers.