Mrs Doubtfire’s Separation Advice to Katie

As a child I loved watching Robin Williams’, Mrs Doubtfire.

As an adult, I am appreciating the movie in a different light especially the advice Mrs Doubtfire gives to Katie McCormick distilled into a 1:55 golden nugget for the ages.

Katie had written to Mrs Doubtfire saying:

Dear Mrs Doubtfire

Two months ago my mum and dad decided to separate and now they live in different houses. My brother Andrew says we aren’t a real family any more. Is this true? Did I lose my family? Is there anything I can do to get my parents back together?

Mrs Doubfire responded:

My dear Katie, you know some parents when they are angry, they get along much better when they don’t live together. They don’t fight all the time and they can become better people and much better mummies and daddies for you. And sometimes they get back together and sometimes they don’t, dear. And if they don’t, don’t blame yourself. Just because they don’t love each other anymore doesn’t mean that they don’t love you.

There are lots of different families Katie, some families have one mummy, some families have one daddy or two families. Some children live with their uncle and aunt. Some live with their grandparents. Some children live with foster parents. Some live in separate homes, separate neighbourhoods in different areas of the country. They may not see each other for days, weeks, months, even years at a time.

But if there is love dear, those are the ties that bound. You will have a family in your heart forever. All my love to you poppet. You are going to be alright.

Many parents ask ‘ how do I tell my children and what do I say?”

Maybe start with Mrs Doubtfire’s advice and if you need more ideas on how to open the discussion with older children watch our interview with Ms Jessie Patterson – Child Anxiety Counsellor here.

No matter what you say, your children need to hear “You are going to be alright.

And we know with a Courtless Divorce Strategy ® you will be too.

By Nadia Messiha

Child Support Options

Going through separation in parenting matters will involve discussions around child support.

One option is to have Services Australia (accessible online via the MyGov website) do all the calculations, collections and payments for you.

Services Australia use a formula that is based on many factors but most importantly include the following;

  1. The total number of nights (calculated as the number of nights in the calendar year) that the children spend with each of their parents

  • Each parent’s income

  • The cost of care and raising children

You can find the full 8 step formula here.

Another option is to reach an agreement with your ex-partner regarding the amount you each feel is appropriate based on your own private calculations of your child’s needs.

Things that you may wish to consider should include amongst other things the;

  1. Day-to-day costs
  2. School fees, uniforms and educational costs
  3. Extra-curricular activities
  4. Medical and dental needs and costs

This private agreement can be documented by way of a Binding Child Support Agreement (CSA).

For help and assistance with a binding child support agreement contact us now on 1300 44 55 75.

By Nadia Messiha

When to update your Will

As much as we would love to ‘set and forget’ our Will. Once it’s in place it is essential that we ensure it is updated if circumstances change.

The Supreme Court is full of heartbreaking stories were beneficiaries missed out on an estate because a Will was found to be invalid for the simple reason that it was not updated.  

Here are the top 9 reasons for updating your Will.

You’ve relocated to another state

Wills are governed by state law. Meaning that the state where a person was living prior to passing is the one where the rules will apply. So it is important if you are planning a permanent sea change including selling all your property in one state and moving to another that you update your Will under the laws of your new home state.

You’ve downsized

If you left your real property to your children in your Will, but have now sold up and are using the money as a bond for a nursing home, that may mean that your children could likely miss out! Misunderstandings and errors lead to costly contesting of Wills, a quick call to your lawyer to double check all is in order could save $$$.

You’ve left someone a gift

If either you no longer own the gift that you wanted to give them in the first place OR you no longer want them to get that gift means it is time for a review.

You start or end a relationship

In NSW, ending a marriage or de facto relationship or starting a new one will render your previous Will void. So, it crucial that you ensure yours is updated.

A beneficiary has died or their circumstances have changed

If a beneficiary has passed or unfortunately has become a gambler, addict or very irresponsible with money, you probably will want to consider other options than leave the money to them directly.

One of your children becomes your care giver

Many parents promise their children a larger share of the estate for being their long-term carer. If oral promises have been made, then it is important that these promises are reflected in the Will (with an explanation), to avoid Will contests.

You become estranged from someone

We all wish that our close relationships remain constant. Unfortunately, there are many times when the end result is estrangement. If you are estranged from someone and it is common knowledge to all you know, then it is critical that you state in the Will why you are still gifting this person a portion even though they are estranged from you or clearly state that you have removed them from your Will because you have become estranged.

You start or end a business or family trust

Businesses and trusts are not covered under ‘standard’ Will clauses. As sources of incomes and asset protection; who controls them and who benefits only from them, is often a matter of careful thought and consideration. The importance of having clear directions for each in a Will cannot be understated.

You support a different charity

As a result of life’s circumstances, you may find yourself supporting a different charity than before or supporting 2 or more instead of just the one. To ensure these charities benefit from your estate, ensure that your Will is updated.

Unsure where to start? Give us a call now on 1300 44 55 75 to check whether you need to update your Will.

By Nadia Messiha

Separation Under the One Roof

The 2006 movie the Break-up starring Jennifer Aniston and Vince Vaughn was a box office success though it was ‘lacking in laughs’ as one critic put it.

Part of the reason for its success seems to be the subject matter which touched a sore spot for a lot of people considering divorce.

For many people, moving out of the house following the end of their divorce is not a financial possibility. Many people stay in relationships for a long time because of what they see as the financial security blanket until a more concrete financial decision is reached.

The Family Law Act and legal system in Australia recognises that this is a reality for many people. So when taking into account the divorce period, the separation under the one roof is considered a separation.

However, the court will require proof that the separation did occur. For two people to be separated under the one roof means they are flatmates, not a couple. So it is important to show at a minimum

  • that both had separate bank accounts,
  • attended family and social events separately,
  • told each other and close friends that they were separated, etc

Once you can prove the above, the court is likely to consider that separation did occur and take the period spent under the one roof as part of the 12 months separation period required for divorce.

By Nadia Messiha

Presents in the present

They say the difference between whether money paid was a loan or a gift would depend on who you were asking – the giver or the receiver

It should not come as a surprise that a lot of parents who would happily gift their child and his/her new spouse a monetary amount at the start of the relationship would turn around and demand it back when they realise that the relationship is ending.

So to determine the question of whether it was a loan or a gift the courts have come up with a set of criteria:

1- It is a loan if

a) there is an agreement (preferably witnessed) in writing setting out the terms clearly including interest, repayments and the term of the loan.

b) there are clear bank records showing the repayments being made on a regular basis; and

c) it is clear what the loan was for (eg to start a business or buy a property)

2- It is a gift if

a) there is an agreement but it states that the money is a loan payable on demand and/or there are no clear terms set out;

b) bank repayments start happening after separation has occurred; or

c) there are a lot of different explanations as to what the money was used for.

One thing to know is that if the amount given is found by the court to be a gift then it  could count as a contribution to the relationship by the spouse who received the gift.

By Nadia Messiha

Negotiation goalposts

While the courts have now made mediation in parenting matters compulsory in most cases, a lot of judges are asking litigants in property cases to consider settlements as well.

Family law settlements tend to be emotional and fraught with tension. As such the best advice that I always give my clients is that when attending a settlement conference they should always walk in knowing what their best possible outcome is and what their least acceptable outcome.

By knowing where the ‘goalposts’ are and the space between them,  when an offer is made or accepted that fits between the goalposts, my clients would know it was a good deal regardless of how they felt after a long day of emotional and tense negotiations – because it would be an outcome they knew they would accept during the time of deep thinking and preparation that they had invested in before the settlement discussions.

So always prepare well prior to mediation because going into a mediation session without knowing where the goalposts are means that when a goal is scored you will not be able to actually tell until it is too late.

By Nadia Messiha


Licence to Deal

The courts are currently so bogged down with cases that the judges are pushing people to try and attempt settlement outside of the court system.

In fact, section 60i of the Family Law Act specifies that parents can not start an application for parenting unless they had first attempted to negotiate an agreement through mediation.

If mediation does not work out the parents are then give a section 60i certificate (gotta love original naming conventions).

Any parenting application filed in court – that is not urgent or does not relate to family violence or abuse putting the children at risk – will need to have a section 60i certificate filed with it.

These certificates are issues by family law mediators or at mediation facilities such as Relationships Australia and Unifam.

With mediation settlement rates being high, it is a wonderful opportunity for separated parents to give mediation a real go instead of thinking of mediation as a checkpoint that needs to be passed before going to court.

By Nadia Messiha

Domestic Goddesses’ Rewards are not just Heavenly

It seems that we still can’t get enough of all the ‘post baby bodies’.

I’m into fashion and beauty as much as the next person but in the last couple of weeks it seemed that no matter which channel I tuned into, there was Kim Kardashian showing her post baby non-existent bump. Which in turn lead to images or footage of Miranda Kerr, Doutzen Kroes, Eva Herzigova and Heidi Klum also parading to prove the possibility of strutting the catwalks only 2 months after giving birth.

During this maternity media frenzy I came across an article in the Sydney Morning Herald which discussed not only the reasons behind these new catwalk mums being able to regain their pre-baby bodies (it is their established pre-natal exercise routines if you are wondering) but how motherhood has become beautiful and glamorous now after a period of appalling avoidance.

It was more than satisfying to see that while the fashion world may just be coming to terms with the fact that motherhood is not something to be ashamed of, the Legal domain has given mothers their due credit for decades!

In the eyes of the law, a homemaker is treated equally to a breadwinner. In Family Law there are clauses that provide some weight on the scales for the party that was taking care of the children while their spouse worked; for the disparity in incomes that may arise from taking time off work to look after the children; and for those left with the majority care of the children following separation.

For example, in a recent case the Family Court took the following factors into account, among others, when determining a just and equitable division of the property:

  • The wife’s contribution as homemaker, which included the time she took off work following the birth of the children.
  • The husband’s earning capacity as opposed to that of the wife (which was considerably less than his). The wife noted that due to her immersion in the family business she lost a lot of her accounting skills.
  • That the wife has major responsibility for the care of the children and that will continue for many years. The Court noted that “even taking account of the child support the husband pays in respect of the children; he will not have anything like the parenting responsibility which the wife faces for many years yet.”

You might say ‘but this is what is to be expected from the Law’. However I always find it reassuring to know that when striving to create laws for the future, the law is always tapping into the wisdom well of the past instead of the whimsical whims of human nature.

By Nadia Messiha

Adoption Proposal

Have you ever loved your partner so much you wanted to adopt them?

Polo magnate, John Goodman who is facing a civil trial in the US over the death of a 23-year-old in a hit and run accident, did just that.

A judge previously ruled that a trust Mr Goodman had set up for his two children could not be considered part of his financial worth if a jury awarded damages to the victim’s family. In an attempt to provide for his girlfriend, Mr Goodman has since adopted said girlfriend as his legal daughter, in turn allowing her to be entitled to a third of the family trust. An American Court has described the action as a new “twilight zone” for the legal system.

It is very unlikely that we get such a twilight rezoning case as the Adoption Act of NSW and it’s mirroring counterparts from other states state that adoption applies to a child under the age of 18 or for a person over the age of 18 that was cared for as a ward or stepchild of the adoptive parent when they were underage. In Australia adoption is understood by most people to have the same meaning Angelina Jolie and Madonna understand it to have. There have been cases where children have been adopted by family members when their parents could not care for them. Of course there will always be the precedent setting case or two that come with a slightly off-centre set of facts.

In one interesting case a married couple asked the wife’s mother to become the surrogate mother of their child as the wife suffered from cervical cancer.

When determining who were the parents of the child (taking into account that all the parties agreed that the child belonged to the husband and wife regardless of who carried him in the womb) Justice Watts made this interesting comment “It came as a surprise to me, and I am afraid it will come as a surprise to the parties, that at law, [the grandmother] is Michael’s mother, [the grandmother’s partner] is his father, [the wife] is his maternal step-sister and [the husband] is his maternal step-brother-in-law. The good news is there is a way to rectify this surprising result.”

At the conclusion of the case, his Honour made recommendations for the amendment of certain sections of the Family Law Act to avoid any such surprises in the future.

Regardless of the background, adoption like a ripple will have effects that will carry through to the life of the child and the parents. So if you are thinking of adopting your stepchild, ward or even a family member remember to always seek legal advice beforehand to understand the legal consequences such a decision can have on you, your adopted child and the rest of your family.

By Nadia Messiha

Two is Customary – Three is Allowed

I am not alone when thinking of things in twos.

Holden v Ford

Pepsi v Coke

Optus v Telstra

Two teams in a match, two peas in a pod, two birds with one stone.

Two parties in a court case. Except – this last phrase is not always the case.

There are two ways a person can become a third party to a traditional two party case – either as an Independent Children’s Lawyer or an Intervener.

Independent Children’s Lawyers (aka ICLs) are the third ingredient in many a parenting matter in the family law courts. The name itself tells two things, they are independent and they act on behalf of the children. What it doesn’t clarify is the when and why.

– When they are appointed it is often in cases where there is high conflict and tension between the parties.

– Why they are appointed is to assist the parents in reaching a resolution that is in their children’s best interests, to alert the Court to the children’s wishes and to ensure the Court is informed of any factors in a case that could affect any of the settlement outcomes. A couple of questions always asked are: 1- Does the ICL take instructions from the child? and 2- Does the ICL have to always act on the wishes of the child? No and No.

When an ICL meets with the children it is to explain in child-friendly terms the reason for the meeting and ask the children’s wishes, they never take instructions from the children. They are there to protect their interests and ensure any settlement reached will be a working and beneficial one for the children. They are also obliged to tell the court what the children’s wishes are but not fight for those wishes if they are not in the children’s best interests.

So that’s that for the ICLs. But before I say ta-ta, the second part on third parties – Interveners –under the title To Intervene or not to Intervene – that is the question will be released shortly.

By Nadia Messiha