Latest / Reflect Reclaim & Liberate - with Sallyanne Hartnell / Guest Episode: David Gale Part 2 - Gender bias in the family law system, legal abuse & kids names.

Transcript

Guest Episode: David Gale Part 2 - Gender bias in the family law system, legal abuse & kids names. · Reflect Reclaim & Liberate - with Sallyanne Hartnell

0:07
SPEAKER_01: Welcome to Reflect, Reclaim and Liberate, the podcast.
0:12
SPEAKER_01: Finding the space for all of you in life and love.
0:15
SPEAKER_01: I'm your host, Sally Ann Hartnell, and this podcast is for anyone wanting to reclaim and liberate themselves in their relationships and their life.
0:25
SPEAKER_01: Wherever you are on your relationship journey, these conversations meet you right there.
0:30
SPEAKER_01: In soulful, deeply supportive DNMs with me and interviews with other gorgeous humans.
0:36
SPEAKER_01: Moving you from where you are to where you most want to be.
0:40
SPEAKER_01: A life and love completely aligned with your deepest desires to have it all on your own terms.
0:47
SPEAKER_01: If you're seeking a relationship and a life that lights up all of you, you're in the right place.
0:54
SPEAKER_01: I'd also like to acknowledge that this podcast is recorded on the traditional lands of the Wuradri people and pay my respects to elders past, present, and emerging, and acknowledge them as the original storytellers of this land.
1:10
SPEAKER_01: Welcome, welcome to Reflect, Reclaim and Liberate.
1:13
SPEAKER_01: This is the second part of my conversation with David Gale of Gale Family Law, Family Law Specialist.
1:20
SPEAKER_01: I really hope you enjoy this second part of the conversation.
1:26
SPEAKER_01: You did touch on this, and I am going to ask it.
1:28
SPEAKER_01: I want you to outline for us the ways that a separating or divorcing couple can make sure what they've agreed, either, you know, around the kitchen table on the back of a napkin or with the support of mediators or lawyers, how can they make sure that that is legally binding?
1:44
SPEAKER_01: So how can they document their settlement in a way that's binding?
1:48
SPEAKER_00: Sure.
1:49
SPEAKER_00: I'll go through this with property parenting.
1:51
SPEAKER_00: I did touch on child support before, but I'll briefly mention that too.
1:54
SPEAKER_00: So for parenting cases, there's a spectrum of an informal agreement that could be verbal.
2:01
SPEAKER_00: You know, you've discussed like a handshake.
2:03
SPEAKER_00: You could have an informal agreement that's in writing, like text messages or emails, or you could even have an informal agreement that is written down as a parenting plan, which is a written agreement about child support, so parenting arrangements, which is signed and dated by the parents.
2:19
SPEAKER_00: In all three of those cases, so the handshake agreement, the documented in emails and text messages, or the even the signed parenting plan, that is a non-binding arrangement in the sense that if a parent later applies for parenting orders in the court, the court is not bound to follow the agreement that's been reached by the parents.
2:40
SPEAKER_00: The court will have to turn its mind to what is in the best interest of the children.
2:44
SPEAKER_00: However, the informal agreements can be evidence of what the arrangements have been and also what the parents at the time considered to be in the best interest of the child if those agreements were reached with you know informed consent.
3:00
SPEAKER_00: And my view is that in a lot of cases, I won't give a percentage, but it's probably in the 90% of cases.
3:07
SPEAKER_00: In a lot of cases, parents can do perfectly well having those kind of informal arrangements if things are cooperative.
3:15
SPEAKER_00: Parents can make a if parents want to get a binding agreement about their children's arrangements, they can apply for consent orders, which they it's an application form.
3:27
SPEAKER_00: I have to file that with the Federal Circuit and Family Court of Australia.
3:31
SPEAKER_00: And if the court considers that these orders are appropriate and in the best interest of the children, the court can make binding orders reflecting the parents' agreement.
3:40
SPEAKER_00: And those orders are binding and can be enforceable in court to the extent that parenting orders can be enforced, which is a topic we can, you know, talk about enforcement of parenting orders has has uh issues as well.
3:55
SPEAKER_00: And but in in theory, those orders are binding and enforceable, and they are final orders.
4:02
SPEAKER_00: And what the law says is that for parenting orders to be changed, you either need consent for three things either consent of the parents or the parents make a signed parenting plan later on, which varies the orders.
4:18
SPEAKER_00: And thirdly, that if neither of those last to apply, there's been a substantial change in circumstances and it's in the best interest of the children for the court to revisit the orders.
4:31
SPEAKER_00: But typically when parents reach an agreement, um, we don't always do consent, as a matter of course, we don't always do consent orders.
4:40
SPEAKER_00: That could they can be rigid, uh especially if the children are younger and things might need some flexibility in the future.
4:46
SPEAKER_00: However, sometimes, like if a parent is really if part of the agreement is a parent is able to relocate into state or overseas, or if we need orders maybe relating to passports or overseas travel, it can be, you know, or if there's a flight risk, for example, there can be some good reasons to do consent orders, or if we feel what that there's a high risk of a breach.
5:08
SPEAKER_00: So that's that's parenting.
5:11
SPEAKER_00: Uh with the financial side of things, it's almost a reverse where I would recommend as a default, unless you've got legal advice otherwise, it's usually best to formalize your financial agreement in a binding way.
5:23
SPEAKER_00: And that can be done in two ways.
5:25
SPEAKER_00: The first way is consent orders, which I've just mentioned.
5:28
SPEAKER_00: So it's an application form that's sent into the court.
5:32
SPEAKER_00: It's quite lengthy, it's about 20 pages plus a lengthy annexure.
5:35
SPEAKER_00: It's especially for the property ones, I recommend people get a lawyer to help them prepare that.
5:42
SPEAKER_00: And the court will generally approve the financial settlement if the form is fully completed.
5:50
SPEAKER_00: And part of doing that is the form has extensive lists of financial where you have to document all of your assets, liabilities, um, your your income.
6:00
SPEAKER_00: So you need to make disclosure in that court form.
6:03
SPEAKER_00: So if that happens and the court, in its opinion, considers that the proposed settlement is just and equitable, then the court will uh, without having to attend court, will produce a sealed order that makes that settlement binding.
6:18
SPEAKER_00: Yeah.
6:20
SPEAKER_00: So that's one way to do it.
6:21
SPEAKER_00: And that's I'd say the most common way.
6:23
SPEAKER_00: And most family lawyers and I myself take this approach.
6:26
SPEAKER_00: We generally default to consent orders, uh, all things being equal, because we've got an order of the court that makes the agreement binding.
6:35
SPEAKER_00: And there are only limited circumstances in which that can be.
6:38
SPEAKER_00: For example, if one party fraudulently has not disclosed all of their assets, or if one party was pressured to sign the documents, there's very limited circumstances where they can be set aside.
6:52
SPEAKER_00: A common question here is do you need a lawyer to file for consent orders?
6:56
SPEAKER_00: Technically, no.
6:57
SPEAKER_00: So you can have both parties applying themselves, you can have one party represented, their lawyer preparing the application, and the other party being self-represented.
7:08
SPEAKER_00: In that case, the lawyer preparing the documents should make very clear in writing that they're not preparing the documents jointly, they're preparing them for one party only, and the other person should go and get their own legal advice, but they don't, they're not compelled to.
7:24
SPEAKER_00: Although it's probably advisable to do so.
7:27
SPEAKER_00: Very advisable to do so.
7:29
SPEAKER_00: And you know, if I had a dollar for every case I had where uh if someone's come back and said, I wish I hadn't signed those, or so, you know, it's just get advice.
7:39
SPEAKER_00: So the other way to document a financial settlement is through what's called a financial agreement, also called a binding financial agreement or a BFA for short, as some people call them.
7:52
SPEAKER_00: Financial agreement is a private agreement that documents the settlement.
7:56
SPEAKER_00: And to be binding, they need to meet certain requirements under the Family Law Act in terms of how they're drafted.
8:02
SPEAKER_00: And also, in this case, both of the parties need to have their own lawyer, receive their own independent legal advice, and then the lawyers have to issue statements of advice which are exchanged.
8:14
SPEAKER_00: The statement of advice doesn't disclose what the advice is, but it simply says I advise my client of the necessary matters.
8:21
SPEAKER_00: And some of the key differences are that obviously with the financial agreement, both parties have to have a lawyer.
8:29
SPEAKER_00: The other difference is that consent orders, the for consent orders, the proposed settlement has to be just and equitable.
8:36
SPEAKER_00: So it has to be fair.
8:37
SPEAKER_00: Now, when both parties are represented by lawyers, there is case law that says the court will be more lenient in what it considers to be fair because it under you know both parties have had advice.
8:47
SPEAKER_00: This may well be a commercial settlement.
8:50
SPEAKER_00: So the court can be a little bit more flexible.
8:52
SPEAKER_00: With a financial agreement, though, there's no justice and equity requirement.
8:57
SPEAKER_00: So often, if the if the agreement is one-sided, we might, and that's what the parties have agreed to.
9:05
SPEAKER_00: And from a legal point of view, it might be not accepted by the court.
9:09
SPEAKER_00: We might do a financial agreement.
9:12
SPEAKER_00: Financial agreements can also, to some extent, exclude feature applications for spousal maintenance.
9:21
SPEAKER_00: Haven't talked about that yet, but essentially spousal maintenance is different to child support, and it's a payment that can be sought by a partner or ex-partner for their own support.
9:33
SPEAKER_00: And to cut a long story short, it's harder to get out of, it's harder to make an arrangement to contract out of spousal maintenance because the government doesn't want people getting on center link when their ex-partner should have been providing for them.
9:48
SPEAKER_00: However, with a financial agreement, you can contract out of maintenance.
9:52
SPEAKER_00: However, if one of the exceptions is if the person at the time was receiving an income-tested pension allowance or benefit and taking into account the effect of the agreement wouldn't be able to support themselves without that benefit, that might not stand up.
10:11
SPEAKER_00: However, the financial agreement can be a good one where one party's on a really high income and the other part could be exposed to a potential claim in the future.
10:20
SPEAKER_01: Yeah.
10:21
SPEAKER_01: Um, always a good idea to offset any future claim.
10:27
SPEAKER_01: Yeah.
10:28
SPEAKER_01: And I think again, it's win-win.
10:30
SPEAKER_01: It really is win-win to have this documented and and legally binding in whatever form works for a couple.
10:39
SPEAKER_00: That's right.
10:39
SPEAKER_00: And in complex cases, sometimes we do we have consent orders for the property settlement.
10:43
SPEAKER_00: We have a separate financial agreement just covering maintenance.
10:46
SPEAKER_00: It can combine in the property, but sometimes we like the the lawyers prefer the greater certainty of the consent orders, have the financial agreement for maintenance, because consent orders can cover maintenance to a lesser degree, and sometimes even then a separate agreement for child support.
11:01
SPEAKER_00: So it can be a multi-document settlement in some cases.
11:05
SPEAKER_01: Yeah.
11:06
SPEAKER_00: And can I just mention some lawyers?
11:09
SPEAKER_00: If you have a lawyer out there who is putting child support orders in consent orders, uh, ask them to explain how that is binding because this is uh unfortunately a common practice where some lawyers put in the settlement orders that you know the parties will sh pay child support in these proportions or pay private school fees or whatever.
11:29
SPEAKER_00: However, uh yeah, there is a real question as to whether they're a binding, and there are reported cases where those have been found in those cases not to be binding because they weren't in a binding child support agreement.
11:41
SPEAKER_01: So split it out as much as as much as it is necessary for your unique circumstances.
11:47
SPEAKER_01: Again, that's right.
11:49
SPEAKER_01: Get your own independent advice.
11:51
SPEAKER_01: Absolutely.
11:52
SPEAKER_01: I want to shift the conversation a little bit now.
11:55
SPEAKER_01: Um, and I know you know that I work more with women than with men.
11:59
SPEAKER_01: However, regardless, I often hear, and I know you do too, I often hear that the family court system is biased.
12:07
SPEAKER_01: Either it's biased towards women and men are penalized, or it's a boys' club with inherent and even perhaps unconscious bias that discriminates against women.
12:18
SPEAKER_01: Maybe, maybe, especially when there are no children involved.
12:22
SPEAKER_01: Not sure.
12:23
SPEAKER_01: What are your thoughts on the inherent of it?
12:26
SPEAKER_00: Yeah, it's a it's a big it's a big question, isn't it?
12:29
SPEAKER_00: I like to start generally with these and say that I am sure I wasn't around 100 years ago or 50 years ago or 20 years.
12:35
SPEAKER_00: I'm sure that how assets are divided up or children's arrangements are you know uh agreed to or imposed has for all history been a very controversial issue.
12:50
SPEAKER_00: And I'm sure that there is no perfect answer to how we do it.
12:56
SPEAKER_00: So I think we always have to bear in mind when we're talking about is the system biased or you know, the system's broken, well, what is the proposed replacement?
13:05
SPEAKER_00: And a little bit like when you lift the hood on the bonnet of a car and you realize how complicated a car is and how if you talk to a mechanic or an engineer, if you do one thing to a car, like if you put another component in, it can change the vibration of the car and break something on the other side of the car or cause the car to be too heavy or unaerodynamic.
13:25
SPEAKER_00: So when you actually drill down to the mechanics of law, sometimes people who say the system is broken or it's biased, and here's how we can fix it, have a very uh low resolution or one-dimensional view of law.
13:39
SPEAKER_00: And when you understand the mechanics of it all, you go, oh, that's actually why that happens.
13:44
SPEAKER_00: So that's my first comment is that I think that's a lot of these comments um are misinformed, although I'll go a bit deeper.
13:55
SPEAKER_00: The other thing is when we talk about bias, I guess what is the bias means I guess, you know, unfair or um someone's predetermined the outcome.
14:05
SPEAKER_00: But I suppose we have to ask the question, what is your starting point?
14:09
SPEAKER_00: So if you, for example, believe that 50-50 care of children and 50-50 division of assets is the only possible way to have a fair settlement, then you will, by your own definition, consider the process in Australia biased because the process in Australia has no presumption of 50-50, whether for care of children or financial division.
14:30
SPEAKER_00: Yeah, and I always say I always say fair is multifactorial.
14:33
SPEAKER_00: So if that's your definition, then by your definition, it's it's biased.
14:38
SPEAKER_00: But the politicians in Australia have decided to put this system in place, which is uh parenting cases are decided based on the best interests of the child, financial settlements are based on what is just and equitable.
14:53
SPEAKER_00: So I guess they're my opening remarks.
14:56
SPEAKER_00: I can go uh deeper into some specific, I guess, challenges or complaints or um issues faced by the different genders, if you like.
15:07
SPEAKER_00: Yeah, that's yeah, and obviously this kind of applies more to the typical uh couple where it's a like let's say it's a heterosexual couple where there are is more of a traditional division of of labor during the relationship.
15:21
SPEAKER_00: So obviously there are I often act for people who are in same-sex relationships or who you know don't have that traditional division of labor.
15:29
SPEAKER_00: And so, you know, obviously there's different uh things that apply in most cases, but um let's see where where's a good place to start.
15:38
SPEAKER_00: Um I suppose let's just start with a common complaint that men say that the family law courts are biased against men because you know they generally award not my language, not my word award, but I'm just using the language that is used, you know, generally award the mother with sole custody.
16:00
SPEAKER_00: Again, we don't use that language.
16:02
SPEAKER_00: We might say the court orders that the mother have primary, you know, the child live with the mother.
16:08
SPEAKER_00: There are some interesting statistics though that say in the community, about nine per in about nine percent of cases, the arrangements in the community are that the father spends no time with the child.
16:22
SPEAKER_00: And that may be by agreement or it may be by the status quo, but that is the statistics in the community.
16:30
SPEAKER_00: Whereas in cases decided by the court in contested proceedings, it's only in 3% of cases that the court um makes orders that the ch children spend no time with the father.
16:45
SPEAKER_00: So on that view, that's quite a and if you think about if you would know this, and as any family lawyer can tell you, and people can just imagine the kind of cases that end up in the family court, I think it's something like is it 70 or 80 percent involve allegations of family violence, a high percentage involve allegations of child abuse.
17:03
SPEAKER_00: Like these are very acrimonious cases.
17:05
SPEAKER_00: So this is already a very small subset of cases that are highly acrimonious and with risk issues.
17:11
SPEAKER_00: And even in those cases, I mean in 3% of those cases, the court orders no time with the father.
17:16
SPEAKER_00: Yeah.
17:17
SPEAKER_00: So I think that statistic should be sort of pause for thought.
17:21
SPEAKER_00: Another one is in the community, it's only in about again, statistics, 5% of cases where the child is in the sole care of the father, again, either by agreement or just by the status quo.
17:37
SPEAKER_00: Whereas in cases decided by the court on a contested basis, it's 19%.
17:43
SPEAKER_00: Wow.
17:44
SPEAKER_00: Which is huge.
17:44
SPEAKER_00: And that's a surprise.
17:46
SPEAKER_00: I know I don't I don't have the stats for this, but anecdotally, like from what I've seen, in a lot of cases in the court, even when I'm acting for the father, we're not seeking even often shared care or primary residence.
17:58
SPEAKER_00: We're simply seeking time.
17:59
SPEAKER_00: So when you look at 90% of cases that the father gets soul care, it's not in 100% of cases that the father is seeking soul care or even you know equal care.
18:09
SPEAKER_00: So I'd love to know of that 90% of how many of those cases the father was seeking soul care.
18:17
SPEAKER_00: Because if it was 38%, that's half the cases the father gets that order.
18:21
SPEAKER_01: Yeah.
18:23
SPEAKER_00: So it's it's I think those statistics should give pause for thought.
18:28
SPEAKER_00: And I think they also need to be seen in the context of I guess it's the point I wanted to make, which is the demographics.
18:33
SPEAKER_00: So just in general, on average, women are more likely to be playing a primary caregiver role to the child or children during the relationship or after separation.
18:43
SPEAKER_00: And again, heterosexual relationship, um, women are more likely to have lower incomes than their male partners.
18:51
SPEAKER_00: That's just a demographic, that's just a statistic.
18:54
SPEAKER_00: And so when you look at our system that says I'm going to a financial settlement now, the court makes a just and equitable settlement, which looks at the contributions of the parties.
19:05
SPEAKER_00: And the court nowadays generally treats the homemaking and parenting contributions by one partner as equal to the breadwinner contributions of the other, and then would generally treat a lower income as being a future needs factor.
19:20
SPEAKER_00: It's just logical that, well, in those cases, the partner who has the lower income generally gets more than 50%, unless there's a contributions argument, like the other partner got a huge inheritance and that's factored in.
19:33
SPEAKER_00: And because women are more likely to have lower incomes than they're our partners, it's just statistically uh true that in more cases we get those outcomes.
19:43
SPEAKER_00: So I think again, that sort of pause for thought.
19:47
SPEAKER_00: And I often hear the bias argument explained in terms of oh, women get more than 50% of the property poor, more than 50% care of the children.
19:55
SPEAKER_00: But I think a lot of that is explained by demographics and the way the war is.
19:59
SPEAKER_01: Yeah, and and the way society still is.
20:07
SPEAKER_00: I can go.
20:07
SPEAKER_00: There's a few things to know.
20:08
SPEAKER_00: I mean, it it's a lot more obviously that's just sort of scratching the surface.
20:13
SPEAKER_00: Um, there is research that says that the research that I've uh read suggests that women are typically more likely to experience poverty and financial hardship after separation.
20:26
SPEAKER_00: Um, again, there's some demo I think women in in general, but by demographics that that's statistically true anyway, but I think it's exacerbated after separation.
20:35
SPEAKER_00: Yeah.
20:37
SPEAKER_00: And in my experience too, women often are more like more often than men in a situation, particularly in the financial settlement, where they don't have access to the financial resources to sometimes even get advice to start with, never mind, uh run their case.
20:54
SPEAKER_00: And I frequently do see cases where um, you know, it's it's not women are accepting, you know, maybe significantly less than even the you know their basic entitlements.
21:06
SPEAKER_01: So which leads me to my next question.
21:09
SPEAKER_00: And I know we've only just scratched the surface when in answering I should probably just in fairness to men out there, there are some huge like male suicide is a huge issue, male suicide after separation.
21:20
SPEAKER_00: Like the I I there's two sides of this coin.
21:23
SPEAKER_01: Yeah.
21:23
SPEAKER_00: Uh there's family violence, which is a whole other topic, but yeah, it's a complex topic.
21:28
SPEAKER_00: But I just think people need to look at the statistics and look at the big picture.
21:34
SPEAKER_01: Yeah, and we haven't really touched on the the effect on on men, but that's the suicide rate for men after separation, divorce is quite startling.
21:44
SPEAKER_01: Um I wanted to lead from that into my next question, which is around and it does touch on family violence.
21:54
SPEAKER_01: So um if you listeners as a listener, if that is something that It's triggering for you, perhaps pause and come back in at a later at a later point in the podc in the recording.
22:06
SPEAKER_01: Um the use of, and I that's horrible to use the word use, but the use of the legal system to inflict damage on an ex, legal abuse as a family violence.
22:19
SPEAKER_01: Um, I have coached a number and know of many, and again, mostly women, but not all, but mostly women who've been threatened with or have actually gone through lengthy, expensive court experiences.
22:31
SPEAKER_01: It really does happen.
22:33
SPEAKER_01: Um, so how can a client of yours, of mine, deal with it if it is happening to them?
22:40
SPEAKER_01: And the next question about it is what's the role of the lawyers in this circumstance, these sorts of circumstances?
22:47
SPEAKER_01: Because they are they are in a position to stop it.
22:49
SPEAKER_01: How can they stop it?
22:51
SPEAKER_00: Yeah, it's a it's a fantastic question, one you could probably, I'm sure people have done whole PhDs on.
22:57
SPEAKER_00: Again, I like to go very big picture and very conceptual to start with and say that we need to rem like because some people say you know that the system's broken, the family law court is ridiculous because it because the system abuse is is real.
23:10
SPEAKER_00: But what we need to remember is that I'm not trying to suggest here that you know this is just inevitably how it is and there's nothing we can do, but more to say that the family law court by definition, law courts by definition, are trying to control people who, by definition, are trying to evade control.
23:32
SPEAKER_00: And so, in in a very general sense, all kinds of legal proceedings, not just family law, but uh in other areas of law, courts and legal proceedings can be used as swords rather than shields, if I can put it in that way.
23:49
SPEAKER_00: And it's very difficult to, I think, as I said, that analogy of lifting the hood of the car, design a system that is perfect because you change one thing and affects another thing.
24:00
SPEAKER_00: And one of the things in our system is it's designed to have very strict rules of evidence and uh procedures to ensure that there is evidence that's been put before the court is relevant, meets the evidentiary requirements, and we're not going back to the old days where you know people were you know put before courts in kind of a kangaroo court.
24:26
SPEAKER_00: I know some people talk about the family law court in that way, but it's really not.
24:31
SPEAKER_00: I think the key issue is delay.
24:33
SPEAKER_00: That is the if you look at any, give me any particular problem in the family law court or separation, it's the delay of the courts and the backlogs in the courts that is the root of all the issues.
24:46
SPEAKER_00: Our justice system was designed from back in the days where you might be put before a magistrate immediately or in a few weeks or you know, months.
24:55
SPEAKER_00: It wasn't, I think, designed to be a process where it takes, you know, one, two, three, four, five years to resolve.
25:03
SPEAKER_00: And those delays cause um can give one party a strategic advantage over the other, either because the status quo pending the decision favors them or because the other party cannot afford the legal costs to go on or is being put through it if they're experiencing trauma, for example, uh it's and that's a really real thing as well, triggering the the resurfacing of the trauma at every single touch point.
25:35
SPEAKER_00: So delay, I think, when you ask about how do we fix this, I think like let's just say we had a system where a court could give a trial in three months.
25:45
SPEAKER_00: That would eliminate a lot of the problems because it would be very it would be a lot harder for people to run unrealistic cases or vexatious cases when instead of being two years away and they know that very likely we're just gonna sit around a table and settle this with the settlement that it's gonna be put before a judge in three months and determined and they're gonna lose because they don't have a case.
26:12
SPEAKER_00: So I played chess, and in chess, if you're behind in I'll get this quick because I don't know if everyone out there probably does the point, but in chess, as a strategy, if you're behind on material, if the other side's taking more pieces than you, so you're at a disadvantage when you get to the end game, the strategy is to um take a positional approach and put your pieces in a position that clog up the board and stop the other person moving around.
26:38
SPEAKER_00: So they can't use their greater advantage to them.
26:41
SPEAKER_00: And the same is true in law that when someone is writing a vexatious case or something, they they use every hook and crook to try to slow the process down.
26:50
SPEAKER_01: Yeah.
26:50
SPEAKER_00: So I think that's big picture.
26:53
SPEAKER_00: And as I said, I think that we can tinker with the system as much as we like, but reducing the delay is I think the kind of golden thread.
27:02
SPEAKER_00: And if you can pull that golden thread, a lot of these issues will go away.
27:08
SPEAKER_01: What about on a real client by client level?
27:11
SPEAKER_01: Like if you're working with a client or I'm working with a client whose Soon-to-B X is being vexatious, is dragging things out, is you know, just constantly barraging um barraging the client with letters from their lawyer, etc.
27:29
SPEAKER_01: etc.
27:30
SPEAKER_01: How do we deal with that?
27:32
SPEAKER_00: Firstly, the client needs to have a support, should have a support network in place.
27:38
SPEAKER_00: So I'd be encouraging them to think, so as a lawyer, I'm you know, I'm not your counselor, I'm a very expensive counselor.
27:44
SPEAKER_00: And you know, you need to have support in place, not just family, but obviously uh counselors, people like yourself, Celien, who are coaches, can be uh amazing.
27:53
SPEAKER_00: But having that support network in place, building controlling what you can control is the first step, which and the very first step is building that resilience so that you have as much stamina as you you can.
28:06
SPEAKER_00: Then I think the role of the lawyer is really presenting options to the client that are realistic.
28:11
SPEAKER_00: And sometimes those options are okay, here is the offer from the other part, this is what they you can take this offer.
28:17
SPEAKER_00: And my advice to you is legally speaking, this is outside the range.
28:22
SPEAKER_00: And um here I'm talking more financial.
28:23
SPEAKER_00: Obviously, with children's matters, if there are issues of risk to children, it's more than you know, it can be really difficult.
28:31
SPEAKER_00: But sometimes it's laying out the options that you, you know, option one is you exit the proceedings on this basis, or you exit the case on this basis.
28:38
SPEAKER_00: You have a settlement, it's not ideal, but the advantages are it's done.
28:44
SPEAKER_00: And then the next option is you know, we negotiate more or we start court proceedings.
28:50
SPEAKER_00: Here are the likely costs, here is the likely um uh delay.
28:56
SPEAKER_00: And I think being really up front with the clients about the total costs of a court case and the total delay, we need we should be doing that up front, not just doing what I call scope creep, where let's go, oh yeah, you know, and just it just drags on and drags on before the client knows it, they're in court and they go, Wow, if I realized it would have cost this much, I never would have done it.
29:19
SPEAKER_01: And the other cost, the time, energetic, heartache, emotional cost, um, mental health cost.
29:27
SPEAKER_01: I think it all needs to be factored in.
29:30
SPEAKER_00: And and can I just uh uh this is a phrase, I think it's from Muhammad Ali, and uh it's not really a great thing.
29:38
SPEAKER_00: Uh I'm just saying this is it's not really the best turn of phrase for this podcast, but I think he says something like every good plan is a good plan to get punched in the face.
29:47
SPEAKER_00: Like, as in, you think you know what you're gonna do, you walk in the arena and then it's over.
29:50
SPEAKER_00: And court is like that, where even me as a lawyer, we prepare our case and then the other person will respond.
29:59
SPEAKER_00: And it's not people often think that they'll go along to court on the first day, they'll stay in the witness box, they'll tell their story, the judge will believe them, the judge will believe that the other party is a liar, and it will be all done.
30:14
SPEAKER_00: And unfortunately, that is not how court works.
30:17
SPEAKER_00: You don't get in the witness box on the first day, it's at a trial which may be years away, and we may be faced with the other party, may throw a number of procedures or allegations at us that we have to untangle.
30:32
SPEAKER_00: And yeah, it can make things very complicated.
30:36
SPEAKER_01: Yeah.
30:36
SPEAKER_00: And the other thing is the asymmetry principle, which is that the level of work to refute uh an allegation without basis, is an order of magnitude greater than the effort it takes.
30:49
SPEAKER_00: So if the other party makes a wild accusation, the work involved for them to come up with that three minimal, but the work for us to actually untangle that and disprove it is very great.
31:01
SPEAKER_01: Yeah.
31:01
SPEAKER_01: Yeah.
31:02
SPEAKER_01: I think the the the cost, as we've touched on, and and the risk of going to court needs to be factored into the whole decision.
31:11
SPEAKER_01: 100%.
31:12
SPEAKER_00: That's right.
31:13
SPEAKER_00: And and that it's not going to be where where I even if any lawyers telling you, oh, you know, you we're just gonna absolutely just destroy, you know, the other party in court, uh, that's probably not any lawyer should be saying there's advantages and disadvantages, risks and yeah, advantages.
31:30
SPEAKER_01: So now I was gonna ask you about proposed reforms to the Family Law Act, and I'm not going to because we're gonna run out of time.
31:38
SPEAKER_01: And I really want to finish on something a little bit lighter.
31:42
SPEAKER_01: Sure.
31:43
SPEAKER_01: So we'll have to come, we'll have to have you back to talk about that.
31:46
SPEAKER_00: I can do that.
31:47
SPEAKER_00: Maybe once they release because the submissions have closed on the 27th of February, and maybe once they say more what they're going to do.
31:57
SPEAKER_01: Yeah, that would probably be a smart thing just to hold off on that.
32:00
SPEAKER_01: I wanted to ask you about names, and there are two reasons I want to ask you.
32:05
SPEAKER_01: Um, firstly, can a parent after divorce change their child's surname?
32:12
SPEAKER_01: I have had a couple of clients want to do this for a variety of reasons.
32:16
SPEAKER_01: Can it be done?
32:17
SPEAKER_01: How easy is it to do, and what is the law around it?
32:21
SPEAKER_00: Well, as with almost anything, with the consent of the other party, almost anything is possible.
32:25
SPEAKER_00: So if the other party consents, uh, there's an application to birth tests and marriages to do that.
32:31
SPEAKER_00: Uh if the child is nearly 18, sometimes if the other parent doesn't agree, it might just be better to wait till the child turns 18 and they can do the application themselves because you can change your name.
32:43
SPEAKER_00: Now, what you're obviously asking, which is what happens if the other parent doesn't agree and the child is nowhere near 18, the parent will typically need to get a court order to change the child's name if they want to do that.
32:57
SPEAKER_00: And it comes down again to what's in the best interest of the child.
33:00
SPEAKER_00: And the case law says here are a number of factors that come out from the case law of the kind of things that the court will consider.
33:06
SPEAKER_00: So obviously the best interest of the child, the short and long-term effect of the change in the child's name, any confusion of identity that might arise for the child.
33:16
SPEAKER_00: That is particularly the case if the child's already been known by that name, as opposed to like a baby or a young child.
33:24
SPEAKER_00: Uh the next one is any embarrassment that the child may experience if their name is different to that of their primary carer, which is you know obviously a really important factor in a lot of cases.
33:36
SPEAKER_00: The effect that any change of name may have on the child's relationship with the parent whose name the child bears.
33:44
SPEAKER_00: And then lastly, like the effect or of frequent or random changes of name.
33:49
SPEAKER_00: So I have read court cases where, you know, for example, the court has ordered hyphenated surnames for the child to recognize the child's identity as the child of both parents.
34:02
SPEAKER_00: I've also read court cases, and this is particularly where the easiest case, the strongest cases to run this argument where is where there is soul, one parent has sole care and the child has not had, then the child has the surname of the other parent who is not spending time with the child or has not spent time with the child and will not be spending time with the child under court orders, and has their surname, where the court will order that the name is changed to the name of the uh resident parent or the primary caregiver.
34:34
SPEAKER_00: So it's not an automatic, I've gonna be really clear that the factors I just mentioned before, the court would need to go through all of those.
34:40
SPEAKER_00: It's not a clear cut, oh, I'm the primary caregiver or the sole caregiver it's my name, or it's not a clear cut, it's a hyphenated name because we're both spending time with the child.
34:51
SPEAKER_00: Uh so, but yeah, I would say in a case, if I had a client who had the situation I just described, their sole care out, the other parent hasn't seen the child, particularly if the child's younger and hasn't become accustomed to that name, there would usually be a strong case for a change of surname.
35:07
SPEAKER_00: Obviously, the parent needs to decide it because they need a court order.
35:11
SPEAKER_00: If there are other core proceedings on foot, sometimes it's cost effective to just slip that application in as part of the application.
35:19
SPEAKER_00: It doesn't make much more work.
35:20
SPEAKER_00: But if there's no core proceedings on foot, there's two things.
35:24
SPEAKER_00: Firstly, there's the cost and time and stress of having to start court proceedings.
35:29
SPEAKER_00: And then secondly, it can give the other parent a stage to seek orders.
35:36
SPEAKER_00: So sometimes my client's concerned that, well, the other parent hasn't seen the child for 10 years.
35:40
SPEAKER_00: Can I change the name?
35:42
SPEAKER_00: They don't have permission or whatever.
35:44
SPEAKER_00: And then if we look at issuing core proceedings, will the other parent now seek time with the child?
35:49
SPEAKER_00: Yeah.
35:50
SPEAKER_00: Whereas the status quo is they're not.
35:52
SPEAKER_00: So a lot of things to consider.
35:57
SPEAKER_00: It's never easy, is it?
35:58
SPEAKER_00: There's never just an easy answer.
36:00
SPEAKER_00: It's never I have seen some clients who have informally uh called their child by you know that surname.
36:08
SPEAKER_00: I'm hesitant to sort of recommend that as to the public as a general thing to do because I think that a child's name is very important.
36:14
SPEAKER_00: We shouldn't just be unilaterally changing it.
36:16
SPEAKER_00: But I have seen some clients who've done that.
36:18
SPEAKER_00: It's there's nothing illegal about that as long as there's no, you know, on formal documents, generally, you know, you're not doing that.
36:25
SPEAKER_00: But sometimes I've seen situations where schools or families will recognize that informally, but on the formal documents, their name as reflected on the birth certificate is used.
36:35
SPEAKER_00: Yeah.
36:35
SPEAKER_00: Because in Australia, your name is also your name by repute or usage.
36:41
SPEAKER_00: So I have seen that happen as well, but that's obviously not an ideal situation.
36:46
SPEAKER_00: And yeah.
36:48
SPEAKER_01: Yeah.
36:49
SPEAKER_01: Stick to the stick to the uh legal process if you can.
36:53
SPEAKER_01: Yeah.
36:53
SPEAKER_01: If you can, yeah.
36:54
SPEAKER_01: Get advice.
36:55
SPEAKER_01: Get advice.
36:56
SPEAKER_01: Get advice to your for your unique circumstances.
36:59
SPEAKER_01: All right.
37:00
SPEAKER_01: Sticking with names, I did want to ask you something quite a bit lighter.
37:06
SPEAKER_01: And I wanted to ask you about your research.
37:08
SPEAKER_01: Now we spoke about this off when we were not recording, and I can't remember exactly what this research was for, PhD or honours or something.
37:14
SPEAKER_01: But you did some research into strange names for children or the legalities of naming children.
37:20
SPEAKER_00: Yes.
37:21
SPEAKER_01: Can you just give us a little bit of a question?
37:23
SPEAKER_00: So when I was at uni, this was like 2013 in my final year.
37:26
SPEAKER_00: I did I did honours and I had to write a thesis, and I my topic was unfortunate names given to children and their regulation under the law, Australian and comparative perspectives.
37:39
SPEAKER_00: And this came about, there's a funny story.
37:42
SPEAKER_00: I'd had like a false start with this honour's thesis.
37:44
SPEAKER_00: So I was going to do a project in the magistrates court, and it kind of the project fell away.
37:48
SPEAKER_00: And I was a tutor for at uni, and we had this legal reasoning class, and it was so boring.
37:56
SPEAKER_00: It was like, is a bucket of ice on the road, littery.
37:58
SPEAKER_00: I was like, this is it's not fun.
38:00
SPEAKER_00: So I had seen some articles about bad baby names, celebrity baby names.
38:05
SPEAKER_00: And so I gave a list of the names to the law students, and I gave them the Birth Deaths and Marriages Act and said, tell me if these names would be illegal in Australia.
38:13
SPEAKER_00: And it was a bit of a hit in this class.
38:15
SPEAKER_00: And then when I came around, I was like, Oh, this is super, I just read more and more like, wow, this is super interesting.
38:19
SPEAKER_00: And it turned into my honest thesis.
38:21
SPEAKER_00: So I looked at three things.
38:23
SPEAKER_00: Firstly, I scoured every, I didn't do psychology, but I scoured every psychology paper I could find on whether or not your name is linked to life outcome.
38:34
SPEAKER_00: Because I thought there's no point complaining about bad baby names if there's no evidence that it's actually going to affect your life.
38:40
SPEAKER_00: And what the research I read, and I read Studies Upon Studies, concluded seems to be that when people know very little else about you, your name can be quite important.
38:54
SPEAKER_00: So teachers who mark a paper by there's a whole body of research about what is a desirable name and what is an undesirable name.
39:02
SPEAKER_00: I won't go into it too much, but when a teacher reviews an assignment with a child who has a desirable name, they get higher marks than the undesirable name for the same paper.
39:15
SPEAKER_01: Wow.
39:16
SPEAKER_00: I know.
39:17
SPEAKER_01: I know I've heard I've heard of it with um job interviews that there's discrimination against certain names, job interviews.
39:25
SPEAKER_00: That's right.
39:26
SPEAKER_00: And it's different for male for women, the research shows that women can tend to have a more unusual uh or uh name.
39:33
SPEAKER_00: For example, that's why there's a lot of French names like Sarah and Natalie and Rachel.
39:37
SPEAKER_00: People don't realize they're all from French from French.
39:39
SPEAKER_00: Uh whereas this research shows, at least, and this is again it's Western culture, they'd be different in different cultures, but typically more conservative names for males were seen as more desirable.
39:52
SPEAKER_00: So, anyway, the more information you know about somebody, the less important uh their name becomes.
40:00
SPEAKER_00: To the point that a hu a really hilarious example is in the United States, there is a politician, and his name is Young Boozer.
40:09
SPEAKER_00: And he's not just a politician, he's a conservative Republican.
40:14
SPEAKER_00: And he, I think it was the governor of one, and you can look him up, Young Boozer, B-O-O-O-Z-E.
40:19
SPEAKER_00: And he actually plays, he goes, Hey, I'm Young Boozer, I'm and yeah, that's my real name.
40:23
SPEAKER_00: And and so it shows that there, you know, when you know, ultimately it once people know more about you, it plays less and less of a role.
40:36
SPEAKER_00: But certainly when like the research on dating websites and teachers marking things and job applicants, it does.
40:43
SPEAKER_00: The second thing I looked at was what do other countries do?
40:48
SPEAKER_00: And it's crazy because in the extremes of this, in the United States, in some states, you can basically call youth kid anything, as in, I'm not going to list them on this podcast, but like they're kids with racist or vulgar names.
41:04
SPEAKER_00: In Europe, in some European countries, they have laws that have a list of names, and you have to select from that name.
41:11
SPEAKER_00: Like in Iceland, they have that.
41:13
SPEAKER_00: Uh, and you have to select from that list of names.
41:16
SPEAKER_00: And if you don't uh want one from the list, you have to make a special application.
41:21
SPEAKER_00: Wow.
41:22
SPEAKER_00: Yep.
41:23
SPEAKER_00: And there's a case where, like in Germany, because I think Germany used to have more strict rule, like the name Anders was banned and it was challenged in course.
41:30
SPEAKER_00: Like Anders is like a typical European name.
41:33
SPEAKER_00: And then in Australia, what we have is a system which is in the middle where there are some, I'd have to go over my paper again, but it's things like if the name's obscene or offensive, uh, if it is not pronounceable, etc.
41:47
SPEAKER_00: And I wrote to all the registers of best destin marriages and asked them to provide me with a list of names that they had banned, and they all wrote back, most of them wrote back to their credit, most of them didn't keep records.
41:58
SPEAKER_00: It seemed that very often they never really banned the names.
42:01
SPEAKER_00: They just spoke to the parents on the phone and said, You're really going to call your set your son that or your daughter that, and they changed it.
42:09
SPEAKER_00: Um, and then the last part of my paper was about looking.
42:13
SPEAKER_00: Oh no, the second part of my paper was looking about this the law in Australia, and then the last part was international perspectives.
42:18
SPEAKER_00: So I thought that was, yeah, it was really fun.
42:20
SPEAKER_00: And there were some amazing cases that I came across.
42:23
SPEAKER_00: So interesting.
42:24
SPEAKER_01: So interesting, because there are some pretty crazy names.
42:27
SPEAKER_01: I guess a lot of them do come from the states when you think about it.
42:30
SPEAKER_01: But anyway, closing out, I'm gonna ask you a question that I ask all of my podcast guests.
42:38
SPEAKER_01: And that is if you could share a song or a piece of music you feel either reflects your philosophy about family law or that would support someone in the thick of separation, divorce, what would that piece of music or song be?
42:53
SPEAKER_00: Yeah, this one vexed me because I spend so much time working in in the family law space that when I relax, listen to music, the last thing I want to listen to is any family law-related music.
43:03
SPEAKER_00: Uh, I would actually say the thing, the thing that came to mind, it's a little bit different, is Eva Cassidy and her version of Over the Rainbow.
43:11
SPEAKER_00: And there's two reasons for that.
43:12
SPEAKER_00: Firstly, I think that song Over the Rainbow is about dreaming of a day when your troubles are over and you know things will be better.
43:19
SPEAKER_00: And then secondly, Eva Cassidy, if people don't know who she is, look her up.
43:23
SPEAKER_00: But she was probably one of the most amazing singers of all time.
43:27
SPEAKER_00: Yeah, I can see you're tearing up.
43:29
SPEAKER_00: I'm tearing up.
43:30
SPEAKER_00: It's so sad.
43:30
SPEAKER_01: Well, my daughter is in part named by named after Eva Cassidy.
43:35
SPEAKER_01: We fell in love with her.
43:36
SPEAKER_01: Yes, I am serious.
43:37
SPEAKER_00: Yeah.
43:39
SPEAKER_00: So she passed away at 33 from melanoma, and then afterwards was discovered basically, because before that, she was playing around in small venues in the United States, was very introverted, and then became her recordings went to number one.
43:52
SPEAKER_00: And yeah, top musicians like the Beatles and all that were like, What?
43:56
SPEAKER_00: You know, she's a superstar.
43:59
SPEAKER_00: So I guess the point is, yeah, live life and make the most of life.
44:04
SPEAKER_00: But that's that's amazing.
44:05
SPEAKER_00: We have that shared interest.
44:07
SPEAKER_01: Yeah, there you go.
44:08
SPEAKER_01: And I think that's a really nice way to end our chat, which I am going to split into two because it's been such a long and amazing chat.
44:17
SPEAKER_01: So we this is probably the last little bit um of part two, listeners.
44:22
SPEAKER_01: Um, thank you, Dave Gail, for all your wisdom, bit of humour, and especially for yeah, Eva Cassidy somewhere over the that's incredible.
44:32
SPEAKER_00: I'm so glad it's a little bit like would you for people even know the law people know who she was?
44:37
SPEAKER_00: So I'm so glad I mentioned that.
44:38
SPEAKER_00: And thank you so much, Sally Ann, for having me on.
44:40
SPEAKER_00: It's been an absolute pleasure talking to you.
44:42
SPEAKER_00: And uh I love your podcast.
44:44
SPEAKER_00: So um I hope it keeps growing and growing.
44:47
SPEAKER_01: Awesome, thank you.
44:48
SPEAKER_01: And we'll definitely um catch up again for another episode at some point in time.
44:53
SPEAKER_01: Thanks, David.
44:54
SPEAKER_00: Absolutely, thank you.
44:56
SPEAKER_01: That takes us to the end of my conversation with David Gale.
45:00
SPEAKER_01: Links to connect with David will be in the show notes.
45:03
SPEAKER_01: Also in the show notes is a link to a sign-up page, VOP sign up page for my new masterclass, Upcoming, which is all about the one thing that you can do to heal your relationship patterns.
45:17
SPEAKER_01: Now, this applies whether you're currently in a relationship, whether you are moving through navigating separation, divorce, out the other side, and potentially even calling in a new relationship.
45:29
SPEAKER_01: The one thing you can do to heal your relationship patterns, masterclass upcoming live with me.
45:36
SPEAKER_01: Link to sign up in the show notes.
45:38
SPEAKER_01: Hope to see you there.
45:39
SPEAKER_01: Would love to support you.
45:42
SPEAKER_01: I'm Sally Ann Hartnell, Relationship Coach, and you've been listening to Reflect, Reclaim and Liberate.
45:48
SPEAKER_01: You can follow me on Instagram at Reflect Coaching, and if you can think of anyone who would love this episode, please, please share it with them.
45:56
SPEAKER_01: I'd also be so grateful if you'd follow the podcast and review this episode so we can get it in the ears of a whole lot more humans just like you who are ready to reclaim and liberate themselves in life.
46:08
SPEAKER_01: I hope you'll join me next time for another episode of Reflect, Reclaim and Liberate.
46:14
SPEAKER_01: Until then.