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

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

The Law re Loathsome In-Laws

My mother-in-law is an angel” One man said to his friend. “You are lucky” his friend replied “mine is still alive.”

We have all heard the jokes, whether they were said with tears of laughter or tears of frustration.  Actually, just out of curiosity I entered “in-law jokes” into my favourite search engine and it came back with 113,000,000 page results. If each of those pages contains at least 10 jokes, that’s 113 trillion jokes at least and that is just for a quick search using just the English language!

I am willing to bet that there are probably enough in-law jokes floating out there to cover every couple that have ever entered into a relationship during the history of mankind!

On an interesting side note, a survey conducted a couple of years ago found that women in general tend not to like mother-in-law jokes as they were either mothers-in-law themselves or knew they would one day become one. However no matter which side you are on, I think it is safe to say that plenty more than a fair few people in relationships have an issue or 10 with their in-laws. For the Anti In-laws group, a story published by the Herald Sun titled Mother-in-law obsession with cleanliness tainted in court would have provided enough of a shock to convince a few fence-sitters into quickly joining the ‘anti’ ranks. To put the horrifying details in a nut-shell, a mother-in-law provided photos to the court, showing common household items (think plastic bread tag, 5c coin and Panadol packet) being misplaced in her daughter-in-law’s home to prove the state of the house’s un-cleanliness and that it was unsuitable to raise a child.

Judge Joe Harman said in judgment that it was “extraordinary that someone would take photographs of another person’s house unless it was to prove allegations at a later date.” Not only that but “certainly what is depicted in the photographs, save for one room which would appear to be a computer room in a state of relative untidiness, is a functioning household with a small child.”

To me, it was not only interesting to see how the mother-in-law in the above story could be in the running for winning the gold medal for single-handedly resurrecting the flailing image of the stereotypical nightmarish mother-in-law but she in fact shocked the article’s author enough into not referring to her by the title she would have referred to herself with in court – Grandmother.

For the pro in-laws group you will probably note that while the word “mother-in-law” brings up some uncouth adjectives to mind, the word “grandmother” usually brings up adjectives that are the exact opposite, and both often refer to the same person.

This being said if you are a grandparent who is being painted with the ‘in-law’ brush when trying to spend time with your grandchildren following the separation of the parents, you would be happy to know that sections 60CC(3)(b)(ii) and 60CC(3)(d)(ii) take into account your relationship with your grandchildren when determining orders that are in the children’s best interests.

Many grandparents fail to realise that spending time with their grandchildren is simply their right. That being said, while the Court takes into account a child’s rights to spend time with his or her grandparent when considering the child’s best interests it will not tolerate applications such as general complaints about a parent’s cleanliness or their choice of the child’s sporting activity.

So before you lodge that court application, it is always wise to talk to a Family Lawyer to consider your reasonable prospects of success.

By Nadia Messiha

The Court’s Code of Conduct

Walk into any court room and you will automatically feel the respect and formality everywhere you look. I always find there is something very solemn and revered about the Court where the truth is separated from the lies, judgments are weighed and delivered and precedents set for future generations to follow. It is only befitting that such an atmosphere would have its special code of conduct.

You can call it the CCC, or triple C or even C3 but whatever you call it, the Court’s Code of Conduct is something everyone should add to that area of the brain where etiquette and netiquette mingle and socialise.

Whether it’s the Local Court, Family Court or High Court there are certain things that should be (or not be) done when in them. However before the list of Dos and Don’ts is presented, do let’s take a walk down tradition lane.

I don’t know about you but it seems that the first question I get asked when people know I am a solicitor is “Do you wear a wig?” My reply is always “not yet, my hair is still intact.” However there is more behind my not wearing a wig than my head-full of hair.

Introduced in the 1680s, wigs became part of the court attire and as time passed so did their function. Nowadays, the wig is worn by judges and barristers appearing in the Family court, Supreme Court or High Court. Which leads to the second most asked question “What is the difference between a barrister and a solicitor?”

In a nutshell, a solicitor is the lawyer who will handle the case from the get go, prepare the documents and handle the everyday running of the matter. A barrister is the lawyer who will go to Court at Hearings, the one who will cross examine witnesses and is usually easily spotted by their traditional black robes.

Another person you will come across in court is a Court Officer. An officer is the one who will make sure the parties names are called out before court, a document is handed up to the Bench (where the Judge or magistrate sits) from the Bar (the table facing the Bench where lawyers sit).

Now that you have identified the ‘usual suspects’ of a court room like pieces in a chess board, lets talk about the promised list of basic Court Dos and Don’ts. So without further ado

DO

      • Bow before entering or leaving the courtroom if a Judge or Magistrate is sitting. Not a dramatic bow with a flourish, more like a respectable bowing of the head.
      • Do stand up when a Judge or Magistrate enters or leaves the room and bow when they are about to sit or leave the Bench.
      • Do refer to the Judge or Magistrate as “Your Honour” not “darling” or “sweetheart” as I have heard in the past.
      • Do switch mobile phones off when in the court room.

DO NOT

      • Talk loudly in court unless asked directly by the Judge or Magistrate
      • Take food or drink in
      • Sit at the bar table unless specifically requested to do so
      • Record (video or voice) any court proceedings
      • Read a newspaper while waiting for your turn

The best advice I share today is one I heard given in a dining etiquette lesson – when in doubt look at what others around you are doing.

However remember good lawyers will always run through the CCC with their client before Court starts.

Abuse – It’s not just physical

I recently read a travel article about an Asian country where it is considered very offensive to ruffle a child’s hair in public, however it was perfectly normal to grab a young child’s private parts in a show of affection. In Australia seeing this action would most likely spring one word to mind – Abuse.

Take five seconds off now to ask yourself what you would consider to be child abuse. I would say chances are you mentioned the words physical, sexual and assault in your definition. If those were the only words featuring in your definition, then consider yourself on par with the legislative minds of yesteryear.

Recent research has shown that a lot of actions that some people would consider normal while others would disapprove and shake their head at, such as parents fighting, breaking items in a fit of rage, police or medical assistance required for any parent following a fighting incident all in the sights or hearing of children are actually very damaging. Very often leaving deep and raw emotional scars which could lead to a cycle of violence as the children grow up repeating in their families what they saw in their own.

This has lead to the recommendation of changes to the previous definition of abuse. The Family Law Act now considers family violence to include not only the above but also what I think should be termed ‘emotional blackmail’ such as

– intentionally causing death or injury to a family animal;

– unreasonable denying of financial autonomy; and

– preventing a family member from making connections with his or her family amongst others.

While exposure to family violence is taken to include incidents such as children comforting or providing assistance to a family member who has been assaulted by another family member.

Social workers and psychologists would probably be saying “it’s about time the definition of abuse and violence has been broadened”. Chances are others would think the definition is too broad now.

Whichever side of the fence you are sitting on, to get the appropriate information to help you, and your family, contact one of our experienced family lawyers.

By Nadia Messiha