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The first week
So now it’s a week later. You’ve gotten through the first seven days, and it’s probably time you thought about calling a family lawyer. First up, though, here are a few facts about how the jurisdiction of family law is divvied up in Australia. It’s a bit boring and technical, so bear with us.
Jurisdiction—the legal authority that a judge or a court has to act or make decisions in a given situation or case.
The jurisdiction of the family law courts
Family law in Australia is a federal jurisdiction. The Family Law Act 1975 (Cth) (this means Commonwealth) is the main law that applies. The Family Law Act is an Act of the Australian Parliament, not state parliaments. Family law in Australia is therefore pretty much ‘uniform’ across the country.
With the exception of Western Australia, which has its own family court, there are two family law courts in Australia—the Federal Circuit Court, which deals with garden-variety separations and divorces, and the Family Court of Australia, which deals with more complicated issues and cases. If you get divorced in Western Australia, just to be even more painful about it, then the federal Act applies, but if you’re in a de facto relationship then the state Act applies.
Since 2009, in most of Australia (except, again, annoyingly Western Australia), property settlements between de facto partners are dealt with under the Act and in the Federal Circuit Court and Family Court of Australia.
Parenting matters between de facto couples have been dealt with under the Act and in the family law courts since the late 1980s and early 1990s, except in, where else, but Western Australia.
Local and magistrates courts have some jurisdiction as well and sometimes consent orders (which we’ll talk about in a lot of detail later on) can be made through them, to keep things interesting, we guess.
How to choose a lawyer
Firstly, if you’re feeling really terrible, it’s a good idea to get both a psychologist and a lawyer. Psychologists, who charge about $180 an hour,12 are much cheaper than lawyers, who charge about $300 to more than $600. Your lawyer is not your counsellor, and every single time you send him or her ‘just a quick email’ or make ‘just a quick call’ to check on something, that’s going to go on your bill.
Except for some limited circumstances involving family violence, child abuse or abduction, it is usually compulsory to have family dispute resolution (mediation) before going to court regarding parenting matters.
Family violence and abuse are defined in the Family Law Act as:
Abuse—in relation to a child, means:
• an assault, including a sexual assault, of the child
• a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person
• causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence
or
• serious neglect of the child.13
Family violence—violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include (but are not limited to):
• an assault
• a sexual assault or other sexually abusive behaviour
• stalking
• repeated derogatory taunts
• intentionally damaging or destroying property
• intentionally causing death or injury to an animal
• unreasonably denying the family member the financial autonomy that they would otherwise have had
• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or their child, at a time when the family member is entirely or predominantly dependent on the person for financial support
• preventing the family member from making or keeping connections with their family, friends or culture
• unlawfully depriving the family member, or any member of the family member’s family, of their liberty.14
It is a good idea to get some legal advice before you go to mediation so that you have the best possible chance of success, and to give you the best possible chance of an outcome that you can live with. Your lawyer will go through options, the mediation process, the documents that you will need and the law relevant to your matter, so you are prepared and can negotiate from a position of knowledge and strength. We’ll talk much (much) more about this in Chapter 6.
Choosing a lawyer can be really tough, and it’s not something people do every day. You may not know where to even start. There’s also a difference between the lawyers you can access through Legal Aid, through a private law firm, or through a community or women’s legal service. We’ll go through the differences below.
Legal Aid
Legal Aid provides free, or discounted, legal advice and representation in family law matters, which generally covers ‘issues arising from family breakdown (especially matters involving children), domestic and family violence, and child support’.15 Legal Aid is a state-based service, so it varies a bit from state to state.
Legal Aid also provides duty lawyers at some courts, including most major registries of the Federal Circuit Court and the Family Court. Duty lawyers generally give advice only (that is, they don’t represent you in court or write nasty letters on your behalf to your ex). In some states Legal Aid does not provide legal representation in property matters, which means the process of dividing your assets or your debts. In other states Legal Aid will provide funding for property matters; it is best to contact Legal Aid in your state to see if you can obtain assistance from them.
Some private firms are also Legal Aid preferred suppliers and can represent you under a grant of aid (this means they are paid by Legal Aid, but are lawyers who work in a private law firm).
The Legal Aid form can be a bit daunting and you can be rejected for aid if you get it wrong. If you do get stuck filling out the form, a community legal service lawyer or a Legal Aid lawyer (or even a private lawyer) can help you even if you haven’t yet been granted Legal Aid.
Legal Aid is means tested, and as it is funded by the state and territory governments, there’s no one figure we can give you to help you work out if you’ll be eligible. Generally speaking, if you rely on Centrelink benefits as your sole source of income, and don’t have a lot of equity in your home or don’t own a home, you’ll most likely be eligible.
If you earn wages, or have other financial help, then you can earn up to a certain amount each week before you have to contribute to the cost of the Legal Aid lawyer. In Queensland, as at August 2017, you can earn up to $370 a week as a single person without having to pay a co-payment fee, but the formula changes depending on how much you earn over that amount and how many children you have, and also depends on what assets you own, including your home and your car.
In Resources, we’ve provided the addresses for each of the Legal Aid websites across the states and territories.
What if I’m not eligible for a grant of Legal Aid?
If you’re not eligible for a grant of Legal Aid, you can find advice and limited representation through a community legal centre, or you will have to find a private lawyer. You can also be self-represented, which we’ll discuss below.
Self-representing
Lawyers are really expensive. Even comfortably well-off people may find that with their family income literally halving overnight, the cost of lawyers is prohibitive. We understand that, which is partly why we wrote this book. Access to justice shouldn’t be just the preserve of the very wealthy. There is no reason why you can’t run many aspects of your matter yourself, and seek advice when you need it.
There’s also heaps of information available online, although it’s important to sort the wheat from the chaff, because some of the sites we’ve seen give misleading or out-of-date information you don’t want to rely on. The websites of the family law courts (Family Court of Australia,16 Federal Circuit Court17 and Family Court of Western Australia18) have huge amounts of helpful, plain English resources available and should be the first place you look if you need a quick answer to a question.
Where you will find it tricky is when you need to speak up in court or provide cases to back up your position (otherwise known as precedents).
Precedent—a decision made by a judicial officer, which may serve as an example for other cases or orders, unless the judge decides the facts of the case are too different.
Understanding how the courts have decided these cases (case law), and the way they approached them, is a key lawyer skill, and it’s why lawyers are expensive—they have to spend about 40 per cent of their waking hours reading case law to keep on top of all the latest developments.
Case law—law that has been made by a judge or judges, that is binding, and becomes precedent (see: Precedent). (See also: unhelpful.)
Private lawyers
A private lawyer is a lawyer that you pay for by yourself. The best way to choose a private lawyer is through word of mouth, although most people start out by googling local family lawyers. If you feel comfortable doing so, ask around for details of lawyers who people you know have used and been happy with. Always remember, though, you have to have confidence in your lawyer, and different lawyers will suit different people.
Many lawyers will offer free or reduced rates for first consultations or free phone consultations, and if you don’t gel with the lawyer in that meeting, you don’t have to use them. Some people may prefer a woman, some a man. It really is up to you.
Community/women’s legal services
Community legal services, women’s legal services and the Aboriginal Legal Service are exceptional organisations that provide (generally) free legal advice, help with applying for Legal Aid, some assistance with drafting documents (although this may be limited), limited representation in court, and referrals.
Lawyers from these services won’t represent you in court as a general rule, nor will they handle your ‘matter’ for you from start to finish. Their services are more designed to give you general advice and to help you access other services through referrals.
Some community legal services (such as Caxton Legal Centre in Brisbane) have duty lawyers available at courts.
Referrals can be to Legal Aid or to a private lawyer. Referrals can also be to organisations like Relationships Australia or a Family Relationship Centre, which can provide family dispute resolution (mediation), counselling and other support. You can find a community legal service near you at: www.naclc.org.au/.
Family dispute resolution—(or FDR) a process where a family dispute resolution practitioner assists people to try to resolve some or all of their disputes with each other following separation and/or divorce. (Most people just call this mediation but the government can’t resist a good three-letter acronym.)
Conflict check
A conflict check is something lawyers have to do before they can represent you. For example, it’s possible that another lawyer in your lawyer’s firm has already taken on your ex as a client. That means they can’t now work for you. This can happen often in small towns, where there may not be many family lawyers. It also applies to Legal Aid—if they are representing your ex, they may not be able to represent you. This can be very upsetting, especially if money is tight, and your ex has nabbed the ‘best’ lawyer in town. But as hard as it is, the same firm or organisation can’t represent the same two parties in a case—it’s an unacceptable conflict and not allowed by law.
In circumstances where the conflict check doesn’t check out, the firm that can’t act for you may refer you to another lawyer.
The psychology of divorce, or why do I feel so bad about my separation?
All this is really hard. As we’ve discussed, for many, many people separation and divorce is the second most horrible thing they can go through. And there’s a reason for that—it’s called the human condition. Psychology can, and does, explain why we feel so awful when we’re facing a break-up—and it basically comes down to the different stages of grief, and attachment theory.
Stages of grief
So let’s talk about the stages of grief. We’re going to come back to this quite a bit, because it’s critically important that you understand how grief (which is what you experience at the end of a relationship) works and how each individual stage works.
One thing we found really important is accepting that people grieve differently, and at different rates. If you made the decision to end the marriage, you’ve done a fair bit of your grieving already, and you’ve moved through the various stages. But if you’re totally blindsided, you have to start at stage one.
If you’ve left your partner after a long period of reflection and thought, you might be at stage five, and it might seem really tedious that your soon-to-be-ex is wallowing (in your mind) in stage one. Be kind, and patient. Grief is a process, and it takes time.
Often the person leaving the relationship has been through a long grieving process themselves and may not have been emotionally or physically available to the other party or children. The other party may be furious that not only have they put up with what they see as bad behaviour from their partner, but now, to top it all off, their partner is leaving. The fury may be much worse if there is a third party involved, and this can drive some pretty intense behaviour.
If you are the new partner, please accept that there is nothing useful that you can say or do with respect to the partner left behind. If this new relationship is to be long term and there are kids, you’re going to have to be involved with the parenting to some degree in the future and what you do now is going to set the tone for your relationship with your new partner’s ex for a long time to come. If you love and support your partner, then the best thing you can do is be supportive of their relationship with the other parent of their children. Only sociopaths would try to ruin that critically important relationship out of some misplaced sense of jealousy.
Accepting that your new partner’s ex is going through the absolute worst time possible is going to help here (but telling them that is not going to help at all), as is accepting that they are going through their stages of grief and keeping out of the way for now.
Elisabeth Kübler-Ross, the brilliant pioneer of hospice care, defined the stages of grief as follows (our commentary in brackets): Once you understand that you’re grieving the end of a relationship (even if you ended it and it was truly awful anyway), it’s easier to see the process as just that—a process, which you have to go through.
Denial
(‘This is not happening to me. She’s just going through a midlife crisis. We will work things out.’)
Anger and resentment
(‘How can he do this to me? I hate him! I wish he was dead! He owes me for everything I have done for him!’)
Bargaining
(‘Stay, and I’ll accept that you’re secretly gay. Stay, and we’ll have an open marriage. Stay, and I’ll be a better spouse. Stay, and I’ll transmorph myself into a Stepford Wife even more than I already have.’)
Depression
(‘I am so sad I feel like I will never get over this. I will die old and alone and my cats (note: must get cats) will eat my face off.’)
Acceptance
(‘I can, and I am, getting through this. I know my own value. I will be happy again.’)
There are no shortcuts, no workarounds—you have to do the hard emotional work of grief, unless, of course, you’re particularly adept at stuffing down your emotions only to have them come out at inappropriate times, or you find a rebound relationship to distract you (these are all fine choices, but possibly not the healthiest long term).
If you’re having a really hard time, talking to a therapist can help label your emotions and talk them through in a safe, neutral place.
Attachment theory
Having a basic understanding of attachment theory can also help you understand why your emotions are all over the place, or why you’re so upset even if the divorce was all your idea.
Attachment theory,19 in our opinion, explains almost everything there is to know about human behaviour, and it’s something a psychologist can really help you understand better.
There’s a simple test for working out who your primary attachment bond is with, and it’s this:
You are sitting at your desk, and the phone rings. It’s your boss, and you’ve gotten the big promotion!
Or, you are sitting at your desk, and the phone rings. It’s your boss; your position has been abolished, and you’re being made redundant.
Who do you call in both instances?
Most people in a relationship, no matter how toxic, will ring their partner when the news is good and when the news is bad. During a divorce, one of the hardest things many people face is the loss of their primary attachment partner. Attachment isn’t the same as intimacy, and it’s possible to be very strongly attached to someone while at the same time not being particularly close to them at all.
The overwhelming sense of loss and fear that goes along with thinking about a break-up is what keeps many people in a toxic relationship far longer than they should be. It’s what triggers rebound relationships, and exit affairs—the human need to not be all alone in this world. A primary attachment is ‘a lasting psychological connectedness between two human beings’20 and it’s not something we desire, it’s something we need.
Primary attachment, and the ability to form a strong and stable emotional bond, is formed from birth, generally with your mother. As we mature, our primary attachment (so long as we’ve had good modelling of what a secure attachment is) usually transfers relatively seamlessly to our partners. We’ll come back to attachment theory when we discuss negotiating your child access arrangements in Chapter 6, because it’s super important in that context as well.
When a baby doesn’t have a secure primary attachment (such as when their needs are not met by a loving, consistent caregiver), their primary bonding can be disrupted, and they learn to meet their own needs through self-soothing techniques.
This can result in arrested development,21 and some pretty cruel experiments showed that baby monkeys, when deprived of contact with their mothers, developed bizarre and self-destructive behaviours such as biting their own arms and legs, obsessive self-rocking, and clinging to fabric rag dolls as a mother-substitute. They were also bullied by the other monkeys once they were reintroduced to the group.
The baby monkeys who were isolated for a year never recovered and never learnt to form a primary attachment with any other monkey. Other experiments on poor baby monkeys show that when deprived of their mothers, the monkeys grew up to have difficulty finding mates and made poor parents themselves.
The point of all this is not just to show how awful psychological experiments in the 1960s were, but to show that primary attachment theory explains a lot when it comes to the often overwhelming grief people feel when faced with divorce. One woman we know explained it as ‘always feeling homesick, even when I was at home with my children’.
This is a horrible way to feel, and it’s why it’s pretty hard to get over someone if you’re talking to them every day and still relying on them for emotional support (this is regardless of who left who). Breaking your primary attachment to your soon-to-be-ex-spouse is a critical step in healing.
It’s an especially hard thing for the spouse who ultimately leaves the marital home, and who is faced with the reality of life apart from their kids, their neighbourhood, and everything that anchors them to their personal life.
The good news is that a period of no contact can help weaken a primary attachment, which is crucial if you are to get over your ex in a romantic sense and form a new, healthy relationship with them post-separation. No contact means no contact of any type as far as possible, particularly if there is abuse, a history of being on again/off again, emotional game-playing, or any kind of general nastiness.
But it is unquestionably hard to do, because you’re trying to break your primary attachment. You have to unfriend them on Facebook, not stalk their Instagram, drop them from LinkedIn. Block their phone number so they can’t call you or message you, after letting them know that in an emergency they can call your mum or dad or best friend, who will get a message to you. Communicate only via email, and only about things like arrangements for the children, which has the added bonus of being a written record of your communications in case you need it later.
If the split is very nasty, and you’re engaging in unhealthy shouting matches over the phone and finding that you’re constantly relitigating every aspect of your relationship and split, don’t engage with your ex at all. That’s what your lawyer is for. Try to be the Grey Rock. 22
Case study—Jessica and Jason
Jessica and Jason had been married for twelve years, although they’d been together for over twenty, since they were teenagers. They had three children, Sophia, Natalia and Imogen, aged ten, eight and six.
It was an incredibly toxic relationship. Both Jessica and Jason had frequently cheated and Jason had had a long-term affair, which he found very hard to break off. They talked about nothing except the children and had been sleeping in separate rooms for three years. They were both completely miserable, fought constantly, and there had been several extremely frightening incidents of domestic violence, which seemed to be escalating. The children had witnessed all of these incidents.
Over the past three years, both Jessica and Jason repeatedly tried to end the relationship. At the same time, neither could seem to do it. One or the other would always come back home, almost straight away, and they would both sweep the whole thing under the carpet—until the next blow-up.
Eventually, after a particularly nasty physical fight that was witnessed by their neighbours, they sought counselling, and they learnt that they had a codependent relationship that was based on their mutual fear of being poor and alone with the children.
Jessica realised that the relationship was damaging both her self-esteem and sense of self-worth, and was a toxic environment in which to raise her children. She moved into a rented house with the children, engaged a lawyer and commenced legal proceedings (including a plan for the children that meant all changeovers occurred at school),23 and didn’t communicate directly with Jason for six months. The separation stuck, and Jessica felt free for the first time in her adult life.
Just because you have a very strong attachment to someone doesn’t mean that the attachment is healthy. A good psychologist can help you unpack why you’re so miserable, even if intellectually you know that divorce is the best thing for you, and for your children, if you have them.
Breaking an unhealthy attachment can often be the first step in rebuilding your better, happier, post-divorce life, and finding joy again.
WORKSHEET 1
WHO WILL BE MY SUPPORT PEOPLE?
You will need people around you to support you through this process. Some will be people you pay, others will be your close friends and family.
Don’t be worried about asking for help—all this really means is a quick text (for some) to ask if you can rely on them occasionally, or a meeting (with the school, for example) to let them know what’s going on and how you might need help (accessing the school counsellor, giving your kids extra support in class, helping with access to after-school care programs, etc.).
People will want to help you. Lots and lots of people ask other people for help every day—why shouldn’t you?
In the worksheet below, you can plan who your support people will be, and how you will utilise them.
This list could include people such as:
• your lawyer
• good friends
• neighbours
• your boss
• your colleagues
• former colleagues
• your school-mum or school-dad friends
• your mum
• your dad
• brothers and sisters
• extended family
• your church and church leaders, if you’re religious
• your children’s friends
• your children’s day care educators or school teachers, or after-school carers
• your general practitioner
• your psychologist
• your local domestic violence support liaison
• the local police, if you are dealing with domestic violence.
MY SUPPORT PEOPLE WORKSHEET
