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Jacqueline Brown sits down with 6PR to discuss all things family law including estate inheritances in blended families.

11th June 2020.

Transcript.

Mark: Good to have you along on this Saturday afternoon. Coming up to 22 past three now with you through until 6:00. I mentioned before the break about the author of a new book called One Punch. We’ll catch up with him a bit later in the hour. We’ve brought forward Jacqui Brown, who’s in the studio, very punctual, and she’s our family law expert to chat to us about all things family law. If you do have any questions for Jacqui, 92211882. Good afternoon to you.

Jacqui: Hi, Mark. How are you?

Mark: Going well. Thank you. We’ve got a spectator today. Would you like to just tell us about that?

Jacqui: Yeah. My son Morgan’s in to have a look and see what happens in the big wide world radio.

Mark: I don’t even think he’s listening. He didn’t really acknowledge that as he’s sitting outside the glass… There he goes, he’s giving us a wave. Nine year old checking out radio; it all looks a bit high tech and daunting, I’m sure. But he’ll learn a lot.

Jacqui: It looks pretty cool.

Mark: Well, exactly. I’m glad it looks cool to someone. (laughs) Jacqui, thanks for coming along. Calls, 92211882. We also do have a text line that we launched this week, 0487999882 if you want to flick through an SMS. Usually family law matters, I would have thought, they require a bit longer than an SMS. You’d normally have to explain it, don’t you?

Jacqui: Yeah, you do.

Mark: There’s normally a fair bit going on. One of the issues that you raised with us was about older people being involved in more and more family court proceedings. Why is that, and what do you mean?

Jacqui: Okay, so I’ve noticed anecdotally, and also speaking to a number of my colleagues, that they seem to have noticed the same thing over the last few years: there seems to be an increase of older people – and when I say older, I’m talking people in their late 70s, 80s – who were involved in family court proceedings.

And that might not necessarily be they themselves, although they are a party to the proceedings. But often it’s their children, particularly from a first marriage, who are saying that their parents have separated, that their parent and their step parent have separated. That might just be because, you know, one of the parents has moved into aged care, so that they have actually… They’re not living together anymore, but they may not have formed that intention to end their relationship. But the children, particularly from a first marriage, are looking at it as a way to protect their inheritance. So we’re seeing a rising number of those sort of claims happening.

Mark: You open up a bit of a Pandora’s box when you talk about… That’s another that’s an interesting issue. Children from previous marriages. Do you deal with many cases where they, you know, come out of the woodwork, so to speak?

Jacqui: Yeah, look, it certainly has happened. And people can be really upset when they find out that maybe mum or dad had kids that they didn’t know about. And that they’ve had a sibling for a number of years that they could have had a relationship with and didn’t. So, that that can be problematic, too.

Mark: What sort of entitlements do children from previous marriages have? Do they have to lay claim that they have had some sort of relationship, or not?

Jacqui: I mean, if you’re looking at what claim they might have to an estate once someone has passed away, they certainly have the same entitlements as any other biological child would have to a parent’s estate. Whether they’ve had that relationship or not.

Mark: Really? Even if you can say, hang on a minute, I’m the child who’s been loving and doting and caring and being with my parent my entire life. And you didn’t know them? Doesn’t matter?

Jacqui: Well, no. And it may well be that the court says that a particular involvement might mean that someone’s entitled to more. But on the face of it, they have as much of an entitlement as a child who’s played a part in someone’s life.

Mark: All right. I’m jumping around a bit, but getting back to the the older people themselves who are who are coming through more and more of these cases. I mean, we’re an ageing population. Right. So what other reasons are there for this?

Jacqui: So, look, one of the particular reasons is that you can only commence family court proceedings if you’re alive. So your estate can’t commence proceedings for you. So I’ve had a number of matters. And one, actually, where there was a son who commenced proceedings on behalf of his mother. And he did it within the 24 hours before she passed away.

Mark: What sort of proceedings?

Jacqui: Family court proceedings, because he wanted to make sure that he protected what he perceived to be his right to get half of the family home, and he knew that because the family home was registered as a joint tenancy, the stepfather would get the whole lot if his mum passed away. He wanted to make sure that he could get a claim to that, so he filed proceedings.

Mark: Right. What happened? The Family Law Act came in in 1975. Right. What are some of the changes? This is where it became a no-fault system, right? Just explain that, and how that changed way back then, and what impact that could be having now.

Jacqui: So previously, before 1975, the matrimonial law in Australia was dealt with under what’s called the Matrimonial Causes Act. And people had to prove that there were some fault on one party’s part, and often that was that someone was having an affair with someone else. And private investigators were used quite often to try and prove those sorts of things, which needed to be proved in order to get a divorce. Desertion was another common reason for divorce.

But in 1976, when the law was enacted, that just opened the floodgates and we had a huge amount of people getting divorces and that cleared the way for a lot of second marriages. And now, we’re seeing that coming to fruition with a lot of people who are quite older and have been party to those second marriages. They might have had kids from a first marriage. And it’s those kids from the first marriage that we typically see, who are trying to protect what they think is their rightful inheritance.

Mark: That’s how we end up in that position. 92211882 if you’ve got a question, a family law question for Jacqui Brown. So, Jacqui, that was part of the problem, was that in terms of an increase in divorces? Because we know it is really since the 70s, isn’t it, that that that divorce rate in Australia has really gone so high?

Jacqui: Yeah, and it’s been very stable for the last probably 15 years. We haven’t really seen any sort of marked increases at all after that, but it was on the rise for a long time.

Mark: Yeah, yeah, exactly. So what do you put that down to now that it’s sort of stabilised? Could it not go much higher – was that part of the issue there? Why have things sort of stabilised, do you think?

Jacqui: I think a lot of people were who were potentially wanting to trial a relationship, were happy to live in de facto relationships around about that 15, 20 year mark ago. And society became more accepting of that sort of thing. So, they didn’t feel the need to rush into a marriage if they were looking for a second or subsequent relationship. So a lot of the people who may have subsequently decided they wanted to get married might be not bothering about getting divorced from their first partner, and just moving on to the next one.

Mark: Can I ask you – this is a broad question, I know – but if a couple is preparing to split up and going down the path of a divorce, what are the main things they need to know and be conscious of – and let’s say they have a couple of children – what are the main things they need to know about in preparing to go down this path, this sort of finality of divorce?

Jacqui: So you want to make sure that you’ve got proper arrangements in place for the children. Hopefully you’re going to still have some kind of an amicable relationship. So you might be able to work out where the kids can live, if they’re going to live with one parent predominantly. How much time they’re going to spend with the other parent and how that might look. Obviously, you need to get your living arrangements sorted out. And that’s probably one of the most important practical aspects of things. But finances really need to be looked at as well. And you might want to be looking at, do I want to stay in the house? Am I happy to leave? If I’m going to leave, what do I need? And all of those sorts of things. So there’s a lot of practical issues.

Mark: There are. And that’s why it’s good to have you on, to talk about some of them. We’ll take a break. Stay with us. I want to talk about, among other things, an enduring power of attorney, the importance of that. It’s half past three. The phone number, again, 92211882. If you’ve got a question for Jacqui more with our Family Law segment after the break on TV.

Pre-recorded Voice: On 882 6PR, this is the weekend catch-up.

Mark: Mark Gibson with you, and joined by Jacqui Brown, a family lawyer, 92211882. We’ve got some calls we’ll get to in just a sec. But I did say I’d ask you about the importance of having a good enduring power of attorney. Talk to me about that.

Jacqui: So an enduring power of attorney is something that gives someone the power to look after your finances if you’re not able to. And that’s if you’re not here; so if you’re overseas and you want someone to handle a property settlement or look after some bank accounts for you. But also, if something happens to you and you’re no longer competent, or if you are just not able to get to your finances, it means that someone can make payments for you, can deal with your bank on your behalf, can deal with your property on your behalf.

Mark: What’s the difference between an enduring power of attorney and enduring power of guardianship?

Jacqui: The guardianship gives someone the power to make decisions about your lifestyle, if you can’t do it. That means that they can make decisions about where you’re going to live, if you’re going to go into aged care, if you need to have surgery in and you can’t make that decision yourself. Someone else can make that decision for you. Typically, it will also mean that that person will have the power to decide whether or not you have a do-not-resuscitate order as well. Right. Okay.

Mark: Yes. All right. Twenty five to four. Let’s take some calls. Hi there, Joe.

Joe: Hi, guys. Is there any chance of talking an half-hour or not?

Mark: You can do afterwards, if you like. Is there anything you want to share with us on air now, though?

Joe: Yeah, I just want to ask. It’s just regarding my daughter, and she’s been divorced for years and she took over the mortgage on our own. She was paying, he was he wasn’t paying anything. And then after that, fighting, everything else. And they got divorced about three years ago and then all of a sudden he’s coming up and tried to control everything, because they got both names on the mortgage.

Now he did say it to her with a letter sent to her, he didn’t want to know anything about, she can sell the house, blah blah blah. But in the last six, seven months, he’s been putting pressure on us to sell the house. Mind you, he hasn’t paid and not even a penny. She’s been the same single mom and paying all the mortgage by herself. They’ve been in court and everything else. Mediation, you name it. But family court, I don’t know. It’s very hard. We just can’t understand a lot of things; I don’t know how it works.

Mark: Yeah. I’ll let Jacqui respond to what you’ve kind of said briefly then. And I’m sure she’s happy to chat to you if you need to give a few more details.

Joe: Yes. Thanks for calling, Joe. I think you’re raising some issues there about what sort of a timeframe people have to, you know, sort out their property settlement after they’ve divorced. And I think you mentioned that your daughter had been divorced some three years ago. If she or her partner had commenced proceedings within 12 months of that divorce going through, then they’re within time in accordance with the rules of the Family Court.

If they hadn’t done that, there are certain exemptions [where] the family court will allow people to apply out of time for a property settlement. But typically, they have to prove that it’s detrimental to one or other of the parties if they don’t allow that to happen. Now, if it means that your daughter has made most of the contributions to the mortgage, as you’ve said, and it’s largely been her house – she might have even made some renovations or done some upgrades to the house – then they’re what’s called post-separation improvements or contributions. And they will certainly be taken into account if there is a property settlement that’s going on between the two of them.

Mark: Okay, Joe. We’ll get Joe to give Liz his number. I’m sure he’s got it phoning through there. And we can see if we need to pursue anything else off-air as well. Let’s go to Steve. Hi there, Steve.

Steve: Hi, guys. You’re talking about children, first marriages and wills. I’ve got a daughter from the first marriage who I haven’t seen for something like about 36 years, or 34 years. Something like that, anyway. And I have tried to get in touch with her and I got told to get far away by a bloke who said he was her husband. And I came up and said, well, how the hell do I know you’re her husband? You could be a brother, as far as I know. But anyway, there’s been absolutely no contact for, I guess I said, 34-odd years and I’ve put it in my will that she’s to be totally excluded from the will. So does that count for anything or just because she’s a child of my first marriage, does she…?

Mark: Good question. This is what we were discussing. Do the children still have the equal entitlement to all that, Jacqui?

Jacqui: Yes, under the Family Provision Act, she would have a right to make a claim against your will if she’s not been provided for in that will, purely and simply because she is your biological child. And as long as she can prove that subsequent to your death, then she would be able to make a claim if she needed to. And that involves Supreme Court proceedings, which is a pretty costly and lengthy process for her. Although those costs may ultimately be borne by the estate. 

Mark: Wow. So, Steve, how do you feel about that, that you’ve explicitly asked for her to be excluded from the will, and then you hear that really, she does still have a claim?

Steve: Rather annoyed, because I’ve done everything in my power to try and keep in her life. And her mother’s just refused to answer phone calls from me. I don’t know if she’s received any Christmas or birthday presents, anything like that. I even stopped paying maintenance to make her ring me. And she never rang, so she never got the money.

Mark: Well, the only thing you can hope for in all of that, then, is that she just wouldn’t make that claim and that you’ve made your wishes in your will and that’s where it ends. So that’s that’s probably the best outcome that you can you can hope for. Thanks for the call, Steve. 92211882 is the number. It’s twenty to 4. Let’s go to Michael. Hi, Michael.

Michael: Hi. How are you doing? Hello. I’ve lost my late mother. A couple of brothers are executors, and it should be shared amongst the four of us surviving children and what-not that the mother gave birth to. And I’ve just received the bank statements to say they’ve only put 15,000 bucks in there.

Mark: So your mother who passed away and you’re saying the will has not been split up four ways?

 

Michael:  A copy of her will says we’re entitled to all content. The sale of the property, which…

Mark: Has it gone through?

Michael: Gone through? I don’t know. One of these brothers has gone and done a dirty damn trick on us, and has passed on this small amount of money. Who do I go and see?

Mark: Jacqui?

Jacqui: Michael, it may well be that you need to get the involvement of a lawyer, because certainly if the executors haven’t performed their legal entitlements in accordance with the will, then that’s something that the beneficiaries have a claim to because the executors of the will are the trustees. Trustees have very high responsibilities. And if they’re not looking after the ultimate beneficiaries – of which you may well be one – then you definitely have recourse against them.

Mark: Well, there you go. A good friend of mine once said when he became the executor of a will, he said, it’s the last thing you want to be. It’s fraught with so many problems. So wills are another great subject all on their own, because there’s so much to talk about. And I tell you what, we’ve learned some things today, though, Jacqui, with that the other children from previous marriages and that sort of thing. And that the entitlements they have to parents’ estates is a little bit surprising.

Thanks for coming into the studio and chatting about all that with us, and some good calls and some varying topics there. So we’ll see you again next time. Thanks, Jacqui.

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