THE PREVIEW OF A BOOK BY LYNETTE GALVIN
What Next:
One day you are part of a couple – sure you fight a bit, who doesn’t, but you
are sharing responsibilities like kids or mortgage and you come home to each
other at night. You have always managed to sort through your problems before and
you had no reason to think this time was any different when, BAM, someone said
those fateful words that ended it
Your marriage may have ended through indifference or through an affair or maybe
just got too hard for one of you. Whatever the reason it is over and you are
stunned. Your marriage is finished. Gone. Over. The big question is" what do you
do about it".
I decided to write this book after over 20 years practicing in Family Law in
Australia. I realized that a lot of the common sense advice given daily in
my practice to my clients would be more helpful if it could be accessed as and
when it was needed. You know what it is like. You may not yet have been to a
Lawyer. Or you may have been to one and not really remembered what she said. I
suspect it is a bit like going to a Doctor for bad news You have been to a
Doctor where he has carefully explained your condition and treatment and you go
home and realise you have forgotten half of what he said. The same happens with
your Family Lawyer, only you are in such an emotional state sometimes I think
you remember less. Also your visits are often of an hour or more and can cover
many areas of your situation such as children, property and child support and it
is tough to recall all of this afterwards. I often wonder how much of my good
advice, especially the practical stuff is forgotten almost at once.
So this book is a kind of guide by your side with information when you need it.
There is a little bit of legal information but general only, since every case is
different and there are plenty legal books available if you need in depth legal
advice.
What this book offers is what other books don’t . Practical strategies to get
you and your family through this difficult time in one emotional piece and with
the least possible financial cost. It draws on my years of experience as a
Family Lawyer, mother, stepmother, children's lawyer teacher and also on my experience, as a single parent,
step parent and grandmother, so I know something of what you are about to
experience. If my experience can ease the way for you, then this book has
achieved its aim.
TO DO TODAY!
So, your partner is gone. It is over, and you wake up alone, If you slept
anyway. This is the first day of your new life and whether you view it through a
veil of tears, or with relief, there are things you have to do – today – no
matter how hard it is.
The first thing is to make contact with your bank as soon as you can and block
any further redraws of any line of credit account you may have after ensuring
that you can still draw enough to live on. Don’t actually block off the whole
account so that the wages that have just gone in are inaccessible, leaving you
both broke. Find a sympathetic bank assistant and enlist their help to take the
necessary steps. The point is that you don’t want your ex to be able to clean
out the whole account without your permission so joint signatories may be the
way to go. It is up to you, talk to your bank. I would actually suggest you
actually put your own wages into a different bank to the one you have banked at as a
couple just so there is no risk of the bank innocently taking any action against
your funds at the request of your ex spouse . I have seen situations where the
bank is so used to one party managing the finances that they don't always check
to see what authorities have been revoked.
If you feel it is necessary, put holds on your credit cards (and advise your ex
you have done so). Change your internet banking password and open your own
account to have your wages banked into (you can always transfer funds to the
mortgage or joint account to cover your obligations) as you need money to live
on. Be careful also not to leave your partner destitute. Remember, you will need
to be able to negotiate together in the future whether for kids or to
settle property and if you do something vindictive or that makes your ex feel
exposed then the mistrust and anger from that action will pollute your whole
settlement process.
Believe me, I have seen many cases where the circumstances immediately after
separation were so horrific that the "injured" party has rejected any offer of
settlement, no matter how reasonable it was.
In the first few weeks, take steps to have your name taken off any phone or
electricity accounts attached to the house where your ex lives (this may need
his or her cooperation). If you are leasing and there is violence in the
relationship, you may be able to obtain an order for the lease to be transferred
to your sole name under the Domestic Violence Laws.
WILL AND ENDURING POWER OF ATTORNEY ( EPOA)
I know many people already have a will and EPOA, but if you have
been part of a couple it is a fair bet that it names your soon to be EX as the
executor and
beneficiary of your estate and your attorney. This may not be what you want right now.
Go quickly to a lawyer and get a simple quick will
prepared and a new Enduring Power of Attorney naming someone you trust to be
your attorney. I say do a simple will, because things will change with property
settlement and you may want to change your will after that has happened.
Lots of people leave changing their will until the end of
their case because they will be moving, or don't know what they will end up
with, but don't wait, you need protection now.
Also remember that each State ( rather annoyingly) has its
own forms and laws about such things so if in Queensland consult Queensland
lawyers and if elsewhere consult accordingly.
FIRST THINGS:
In some separations the battle lines are drawn pretty clearly. We have all heard
horror stories where the Father comes home to find the house empty and Mum has
gone with the kids and all furniture, cleared out of the bank account and may or
may not have left a note telling him not to try to contact her. If the Husband
does try to contact her he ends up with a Domestic Violence Order Application
filed against him. He ends up angry, confused and hurt.
The mother often justifies such a course of action by referring to allegations
of the father’s domestic violence in the marriage but, whether or not such
action is justified, I have observed that there is absolutely no trust left
between the parties after such a violent separation so there is almost no
prospect of resolving property or children’s issues without ending up in Court.
I often wonder if there could have been some other way to accomplish both the
safety of the Mother and Children and the dignity of the father. One way is to
open up a dialogue with the ex to begin resolving issues and restoring or
maintaining trust.
Another type of separation scenario is the one in which the parties decide that
they will continue to co-parent and share responsibilities for the finances in
much the same way as though they were still married. This stems from a desire, I
think, to cause minimal disruption to the children and often, if the instigating
party is the breadwinner, this is an attempt to preserve the status quo and
assuage guilt. I have even seen families where the parties have houses next door
to each other so that the children can see both parents. As laudable as this is
however, there has to be an extraordinary amount of co-operation between the
parties that lasts even when one of them starts having visits from a new partner.
Come to think of it, the new partners would need to be extraordinary people too
for this to work.
Many of us have separations that fall between these two extremes where, after
the initial shock wears off, we struggle between wanting to sever all ties and
wanting to hang on to as much as we can of our old bonds. When there are kids,
of course, you realise you have no choice but to maintain some contact and bond.
Sure, some people do manage to limit the contact the kids have with the parent,
but make no mistake, the bond is there and it is not weakened by lack of
contact. In my experience, the tie between the child and the parent remains. If a
parent teaches a child that they can only be loyal to one parent at a time, then
beware when the child decides to reach out to the other parent as they may sever
contact with you!
Think of some of your friends who have separated recently. If things were okay
between them and their ex just after separation, generally things get worse at
some stage (sometimes through frustration at lack of progress, misunderstanding
or a third party). Sometimes it deteriorates to the point of needing lawyers and
even court intervention, but it generally starts off okay. So what happens? Is
it the lawyers causing the problem? No-one forces people to go to lawyers, they
go when they feel they must. A good family lawyer is able to help restore the
situation to the level of co-operation the parties generally had immediately,
pre or post separation.
I have to say though that even handled sensitively, lawyer involvement can be
like a red rag to a bull sometimes, and I often say that even if all we typed on
out letterhead was Twinkle Twinkle, the other side would still be offended
because solicitors letters just have that kind of impact.
SEEING THE KIDS
Keeping in Touch
The days of the kids living 12 days at one house and 2 at another are long gone,
as are the terms residence and contact. These days the word Residence more
properly reflects the true situation where children reside (or live) with one
parent for so many nights a week or fortnight and with the other parent for the
other nights. The obligations of day to day parenting are shared too. A child
may live 7 days a fortnight with one parent and 7 days a fortnight with the
other. This could be made up of different scenarios such as 3 nights one week
and 4 nights the next week with Dad and 4 nights the first week and 3 nights the
second week with Mum and all the variables in between. Think about that for a
minute. You could make an arrangement that gives you each one weekend a
fortnight with your children and arrange the other nights to * your family. For
instance, if dad coaches the kids in netball they may want to stay over on
netball training nights. Easy isn’t it? Well, this arrangement is ok in that
some kids can spend time with both parents but this may not suit all kids. You
know your children.
If they are happy enough to move from place to place, then this plan will
probably suit them, but if you have a child who likes his or her own space, who
is happy to get home after holidays and spend time in their room, then this
arrangement may be intolerable for such a child. You have to consider your kids
needs, after all, it is the child’s right to see the parents, not the parents
right to see the children that we are talking about here.
New child laws have come into effect in Australia that focus on shared
parenting. It remains to be seen how the Courts will interpret those laws, but
the effect will be that the Court must give consideration to shared care of the
children and only make different orders if shared parenting is not possible or
in the best interests of the children. I don’t think that it will necessarily
mean a generation of “suitcase kids” where the kids spend exactly half of their
days and nights with each parent. Hopefully though, there will be lots more
opportunity for input by both parents, regardless of where the child actually
lives.
The new terms about children that you will see whether
you are preparing a Parenting Plan or in Court proceedings are a little
difficult to get used to. They are "spends time with" and Communicates with" and
lives with. These replace the old residence, contact terms and they inplace
replaced the old custody and access terms. I think they are better although I
was sceptical at first. If you say :
"Jessica shall live with her Father on these days
Jessica shall spend time with her Father on these days
Jessica shall communicate with her Mother at these times
and in this way"
In my opinion It is much more reflective of the child
focus we should have then
The Father shall have residence of Jessica
The Mother shall have contact with Jessica etc. Can you
see how the focus os more on the parents rights in the second old terminology
and more on Jessica in the new? But can I say it is driving us crazy as we try
to always remember to use the correct terms after so many years of the old
expressions.
The Court has already had some changes in our they
interpret the new laws. The recent case of Goode and Goode is very different in
its approach to children's matters than the case we all used to rely on
(Cowling), If you are technically or legally minded, then go to our Childrten
tab at left and read all 43 pages of Goods case and scan the old case and
relevant part of the Family Law Act that I have put on that page.
Separating the children
Sometimes it seems obvious that one child should be with Mum and one with Dad.
Think carefully before you enter such an arrangement. It sometimes seems fair
for one child each, but, the studies show that kids really rely on their
siblings. This is especially so in separating families and to separate them can
deprive them of their main support. Courts occasionally make orders to separate
children but when they do, they take great care to ensure as much time as
possible together eg almost every weekend, all of the school holidays and their
birthdays.
Even so, it may be that the kids grow up in households with different rules and
different focuses, I think this can weaken the bond between kids. You know your
kids, but think carefully about this plan and be sure it suits them before you
lock in such an arrangement. Some sample orders will be in the appendix of the
eventual hard copy of this book.
Picking up and dropping off
I often think I could write a whole book on this issue alone! You can’t imagine
how many dramas have been generated during 2-3 minutes it takes to collect or
deliver children. There are several issues that arise and you may come up
against some or all of them at some time so forewarned to forearmed. The issues
are:-
1) Abuse, violence and intimidation between adults
2) Confusion or conflict over changeover venue
3) Upset/clingy children
4) Upset/clingy parents
5) Late or early arrival by one or the other parent
6) Parent arriving under the influence of alcohol or drugs
7) Unsafe/unregistered motor vehicle and/or incorrect or inappropriate child
restraints.
8) The presence of an unwelcome new partner
9) The presence of unwelcome third parties
10) Unexpected collection by someone other than the parent
So there you have my top 10 complaints at contact changeover. I told you there
was enough to fill a book! Let’s look at them in detail and I will try to give
you the advice I have given over the years to my poor clients.
1. I know you would never “lose it” in front of the kids after you’ve read about
the effect it has on them and after all, you are the enlightened one in this
separation, aren’t you? But just in case you feel you could possibly be
provoked, here are some steps to ensure that you do not put yourself or your
kids in that position.
2. Firstly, keep all exchanges with your ex very polite and brief. If he/she
wants to discuss a change of plan (something that may get your blood up if
you’re already arranged your schedule to suit him/her once and doesn’t he/she
realize you can’t just keep changing things to suit their every whim – God,
he/she has got a cheek, Whoa there – cool down – well deep breath – suggest
calmly that your ex send you an email or give you a note when you drop the kids
off or call you after you drop the kids off and you will discuss it then. Then,
if you get mad when you get the email, you can cool down before you send your
response. Or at least, if you do discuss it on the phone and if you do get
angry, it won’t be in front of the children.
Similarly, if you have something to put to your ex that may trigger a reaction
(no matter how reasonable your request seems to you) then please, please don’t
ask it in front of the kids. Send an email, letter or phone them. It is just
simple people skills really. In time, maybe when things have settled down, you
will be able to discuss these things casually, but don’t risk it in the early
days in front of the kids.
Of course, I know that it sometimes doesn’t need for you to ask a question or
say anything to be subject to a hail of abuse at contact changeover. Say nothing
at the time, reassure the kids straight after without putting the other parent
down. But do write and let your ex know that you will get a DVO on them if they
persist in abuse. I have a sample letter in the back of this book marked #. I
find such a letter works quite well sometimes to prevent further trouble without
you needing to get a DVO which can sometimes cause even more ill will . Although
if the letter doesn’t work, then by all means apply for a DVO/AVO.
If you tape record the abuse, then in Queensland, this is legal because as long
as one party to a conversation knows it is being taped, then it is okay. So a
small recorder in your pocket can help your DVO Application. You need then to
type it exactly as it sounds with the name of the speaker before each speech,
rather like a play, so it looks like this:-
Judy Swearer: I will knock your block off
Ian Niceness: There is no need to talk like that.
Judy Swearer: You’ll be sorry if you take these bloody kids today.
Etc etc.
The law is different in each state re taping conversations.:
Phone conversation taping is another issue addressed in this book.
Difficulty with changeover for parents often stems from the choice of changeover
venue, picking kids up from the home where you once were a family is fraught
with difficult emotion for the parent collecting the children. It is also
awkward for the person who is still in the home – especially if they have
repartnered, or if there are unresolved property or relationship issues.
In the circumstances, people often find it easier to arrange for children to be
exchanged in a public place such as a shopping centre, playground, fast food
outlet, at a friend or relative’s home or even at a Police Station. Sometimes
these options are good if they reduce the risk of violence or abusive exchanges
in front of the children. The trouble with this decision, though, is the extra
pressure it places on the kids. If they are collected from home and returned
home, they can be in their own comfortable environment until collected by their
parent and a late arrival or a “no show” has far less impact on them than it
would if they were waiting at a shop or fast food outlet. Also, the tension is
less as they await the arrival. There is also, I think, a subliminal message
that there is something wrong with their parent. Any real risk of unpleasant
interchange between the parties can be avoided at home by arranging for the
children to move between the house and the car unaccompanied with one parent to
stay in the house and the other in the car.
Please think about this and try for the sake of the children to avoid knee jerk
arrangements that, although they may be less awkward for the adults, are much
less comfortable for the children. Another compelling argument for normalizing
contact collection at the parents’ homes as soon as possible, is that contact
will continue for a long time especially if your children are small and the
impact on the parents daily lives is also less if there are not compulsory
travelling to shopping centres every fortnight. Think about it.
How to choose a solicitor-
I can really relate to this question, having employed several solicitors in my
practices over the years. What I looked for, I suppose is what you will look for
but the difference is that I actually got to interview mine before I hired them.
Well, guess what? So can you. I firmly believe that if you are going to have a
solicitor on your team as you go through your separation journey, you should try
to be reasonably sure that you like him or her and feel you can trust him/her.and
that your solicitor has the level of skill in family law that is required to
address your matter.
You can find out some things by looking at yellow pages ads especially on line
where you can see their web sites, and it always pays to telephone and try to
have a quick chat to the lawyer before you commit to making an appointment .
While it is true that many lawyers won’t take your call until you are a client,
many others will. We always do. This preliminary chat can give you a pretty good
idea of whether you are going to be able to get along with this person. It is
important to get on reasonably well with your solicitor because your matter
could go on for a year or more. You almost certainly will have some tough times
ahead in court or conferences or responding to hurtful or challenging letters
from your former partner (or his/her solicitor) and your relationship with your
solicitor needs to stand those testing times.
It is often said that Criminal Lawyers deal with quite unpleasant people acting
at their best, but that Family Lawyers deal with nice people at their most
awkward. I think that is right, but we do understand that our clients are under
a lot of pressure.
See my notes about coping with Christmas visiting on my introduction page,
"about us"
DOMESTIC VIOLENCE
If you read the papers and many articles on domestic violence today you would be
forgiven for thinking it is much more prevalent today than it was in the past. I
don’t think it is. I think that what has changed is that we identify it more
readily, and we have extended our definitions of it to cover emotional,
financial, sexual and verbal abuse as well as the physical abuse that was always
recognized as D.V. Years ago society felt D.V was acceptable in marriage. This
stemmed from the idea that women “belonged” to their husbands. Only a few
decades ago the police would have referred to a complaint about violence in the
home as “a domestic matter” and have been very reluctant to attend at the scene.
In QLD, before the introduction of the D.V Act in 1989 the police were far less
responsive to D.V calls than they are now. Now, some people say that D.V orders
are given too easily. Almost everyone reading this would have heard of someone
who obtained a Domestic Violence Order, DVO or apprehended Violence order (AVO)
on what appeared on its face to be very flimsy grounds. D.V is said often to be
the easiest thing to allege and almost impossible to defend oneself against.
This is probably because incidents of D.V tend to take place in private where
the only people who know about it are the perpetrator and the abused person. So
if an allegation is made, the fact the no-one witnessed anything does not mean
it didn’t happen.
DVO- yes or no
Let me start by saying that some people need a Domestic Violence Order to
protect them and their kids from the anger of a partner. By the way don't think
for one minute that only men commit Domestic violence. I have seen some very
badly effected men who have suffered at the hands of a woman.
Nevertheless, the taking out of a Domestic Violence Order is not automatically
the right thing to do.
Tips for getting through your first days and times with the kids.
CSA- how to deal with as a payer.
Setting early contact ground rules
My place, his place
CSA- dealing as a payee
THIS BOOK IS A WORK IN PROGRESS AND I WILL ADD CHAPTERS AS I WRITE THEM. IN THE
MEANTIME IF YOU WOULD LIKE TO SEE SOMETHING IN THIS BOOK THAT I HAVE NOT
ADDRESSED OR PUT ON MY LIST OF THINGS TO WRITE ABOUT SEND ME AN EMAIL.
I WOULD APPRECIATE ANY FEEDBACK. IF YOU DO EMAIL ME WITH A STORY OR INFORMATION,
PLEASE ADVISE WHETHER OR NOT YOU GIVE CONSENT FOR ME TO USE THAT MATERIAL IN MY
WRITINGS.
Please ignore typos as I have yet to properly proof read this book as I am
posting it on the web as I write it.
REGARDS Lynette Galvin
© Brisbane 2006 Lynette Galvin (Journey Family Lawyers)
