Do you have an ex whose favorite pastime is bad-mouthing you? Take the high road!

Although most divorced people occasionally say something less than kind about their former spouse, some turn ex-bashing into an Olympic event. These are usually high-conflict individuals (HCIs) who defend against the pain of divorce by blaming their ex for everything. HCIs have distorted ways of thinking, and cannot see their part in problems. They need a target, and if you’re their ex, that’s you! Don’t expect them to ever change their behavior, and do develop strategies for deflecting their drama.

Dealing with the bad mouther

• Don’t defend yourself. When someone twists reality to spin outrageous, inflammatory tales about you, it’s natural to want to defend yourself. Resist the urge! You will just give your ex another opportunity to climb onto his or her self-righteous pedestal and tell you 97 more terrible things about yourself. Yes, your ex’s slanderous statements are hurtful, but they are distortions. The next time you’re tempted to defend yourself, repeat this mantra: “What my ex thinks about me is none of my business.”
• Use disarming statements. Politely decline your ex’s invitation to a verbal or email/text bloodbath by using disarming statements: “you may be right;” “I’ll think about that;” “I’m sorry you feel that way.” Your ex is expecting you to get upset. Responding in a calm, non-reactive fashion may seem like you’re “giving in,” but the opposite is true. You’re not agreeing with your ex; you’re taking your power back by ending a fight.
• Don’t match your ex’s intensity. Imagine that your ex is a toddler having a tantrum. What’s the best way to handle that situation? By having your own tantrum? Or remaining calm and setting limits? You don’t have to respond to every hostile text, email, or voice mail. Or, you can choose to respond by stating: “It sounds like you’re upset. I don’t think we’re going to have a productive conversation right now. When you’re done being angry, I’ll be happy to discuss this.” If your ex counters by slinging more barbs, hold your boundaries and don’t respond.
  
  

There are some situations where you may need to confront the bad-mouthing: your child’s school staff or doctors have been told you don’t have custody, and other parents are declining playdate invitations because they’ve been told you’re evil. Here are some sane ways to address the crazy.

• Don’t counter-attack your ex. Launching into an emotionally charged, detailed explanation of why your ex is actually the crazy one will confuse people, confirm their misguided notions about you, or make them feel pressured into choosing sides. Don’t do this!
• Present your side of the story calmly and factually. Pretend you’re a reporter; address the bad-mouthing by delivering facts to the contrary. If your ex has told school staff that you’re an unfit parent who lost child custody, show them the custody agreement. Give your contact info to medical staff so they know you exist and are an involved parent. Without going into a lot of details, tell parents of your child’s friends that your ex’s allegations are distorted or untrue and you’re sorry they’re being exposed to drama. Urge people to contact you directly if they have a question or concerns.
• Don’t get emotional. It’s natural to feel angry and upset when people say bad things about us. But if you comer across as volatile or capable of whatever your ex is saying about you, then people may believe what they’ve heard. You can’t control what others think, but you can control your own behaviors.
• Detach. Your ex’s comments and others’ faulty beliefs have nothing to do with your worth. They may not even have much to do with reality. Hitching your self-esteem to other people’s transient opinions will just make you miserable. Focus on being the best person you can be and let go of the need for approval.

Talking To Your Kids

If your children have bought into your ex’s propaganda, you need to address it. Pretending everything is fine is like pretending the elephant in the room isn’t really there. Your ex is attempting to damage your children’s relationship with you, and their ability to think critically. While you cannot stop your ex, you can do things to present your side of the story.

• Acknowledge the bad-mouthing. Name bad-mouthing as a problem but don’t respond with your own bad-mouthing, i.e., “your father’s a nightmare and is out for revenge.” Instead, acknowledge that your ex says bad things about you and focus on the impact on your kids: “What you’ve heard may have scared you, or made you angry.”
• Confront distortions with facts. Contrary to popular divorce wisdom, saying nothing won’t make the problem go away. Your ex is emotionally abusing your children by trying to damage their bond with you. The antidote to gas-lighting is presenting facts. For instance: “I arrived for visitation, but you weren’t there. I texted and called your mother, but she didn’t respond. If there’s an emergency and I’m not able to see you, I will always let you know and tell you when the next visit will be.”
• Teach your children self-agency. Your ex is trying to control what your kids think, so give them permission to think for themselves. Tell them to talk to you directly if they have concerns about you. Don’t pressure them to believe your side of the story; instead, let them know they have a right to their own feelings and opinions. Not only are you teaching your kids how to think independently, but you are also showing them that you’re safe to talk to.
  

Remember: what your ex says is a reflection of them, not you. You can choose not to take it personally. The best way to respond to bad-mouthing is to behave in ways that make you feel good about yourself.

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WHAT IS SHARED PARENTAL RESPONSIBILITY?

There’s a lot of confusion out there when it comes to understanding what all the different expressions about parenting mean. The one that confuses people the most is shared parental responsibility.
Firstly, it does not necessarily mean shared time parenting… like when dad gets the kids for week 1 and mum gets them in week 2.
Shared parental responsibility relates to something completely different.

Under the Family Law Act 1975, there is a presumption that both parents will have an equal parental responsibility—that is, they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues such as potential surgery. It can also cover things like overseas travel. Shared parental means that parents need to communicate with each other and where one parent has concerns, to work through those before a joint decision is made about something important to the child’s future.
The important thing to note is shared parental isn’t a ‘give in’ for all parents. For example, the presumption does NOT apply if the parent engaged in abuse of the child or family violence. The presumption also does not apply if it is not in “the best interests of the child”.
And what does that mean? I often tell self representers to try and understand what the law says about the best interests of a child by going to the famous section of the Family Law Act known as 60CC.
Here you will find all the things that the court takes into consideration when needing to make a decision about what is in the best interests of the child. I encourage you to read it …and assure you it won’t put you to sleep!

BUT DOESN’T SHARED PARENTAL RESPONSIBILITY MEAN EQUAL TIME?

Shared parental responsibility is not the same as equal time parenting. Parents will spend equal time with a child only where they can agree to that arrangement or where a court finds that equal time is in the best interests of the child and is the most suitable arrangement.
If parents don’t agree to equal time parenting, and it’s not uncommon, the court might need to ask for some help in making a decision by asking for what is known as a family consultant report. This involves a social worker or more often a psychologist over the course of a half day, interviewing both parents alone and with the child or children. The children are also interviewed alone depending on their age. The consultant then writes a report based on those rather quick observations and that is where the recommendations about co-parenting sometimes go pear shaped.

These reports can be really hit and miss, with one parent feeling they have been portrayed by the family consultant as an inferior parent. Problem is they carry a lot of weight as they are court appointed reports. Where these reports are messy or unfair I often assist self-representers with applications to the court to redress this.

SO WHAT IS A PRIMARY CARER?

Post separation, it is not uncommon for one parent to do more “hands on” parenting than the other. By this I mean the child or children may spend the bulk of the week at one parent’s home and maybe spend weekends with the other parent. (Many variations on this folks.) So the parent who is doing more of that hands on parenting is called the primary carer. In the bulk of cases it is the mother although things are changing guys. Here the parent who isn’t the primary carer is sometimes referred to as the non custodial parent.

However, don’t forget that a primary carer parent still needs to follow the assumption of shared parental responsibility. Time and time again we find some primary carer parents forget that and if left unaddressed can lead to the other parent feeling excluded and alienated. It can also lead that parent to seek orders from the court to address that imbalance. We are often putting together these applications with much success.

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It’s something we’ve become very good at over the last 10 years.

IT’S BEEN A BIG YEAR FOR PROPERTY!

2019 brought with it a range of NEW perspectives on property matters in the Federal Circuit Court. Simply reading the Family Law Act doesn’t give a crystal clear picture of how the court perceives a property issue that it has to rule on. Cases are unique and have variables and circumstances where Judges use the legislation as a base but then make what are called ‘common law’ decisions. In other words, these are decisions based on a judge’s reading of the Family Law Act (or any other relevant legislation) PLUS that Judge taking into consideration the unique circumstances of the matter before the court.

Sometimes judges in landmark cases or appeal proceedings make decisions which change the way a law can be interpreted or viewed. These are called decisions of precedence and once such a decision is made with that level of authority, it becomes the basis for how future decisions in a particular area of family law are made until the next decision of precedence overtakes it. The common law is constantly evolving while the legislation changes at a slower pace until it it changed by the parliament.

Let’s turn it over to our trusty court stickybeak Elroy the Eagle to update you all on some interesting decisions relating to property and spousal maintenance in the Federal Circuit and Family Courts from June till December in 2019.

Eaglets! 
Firstly let me wish you all a feather-full 2020 and may you start the year soaring high with a tremendous squawk.
Ok… enough of the bird humour 😉
2019 had some interesting and unusual moments for the court as they were presented with the usual challenging matters to adjudicate over. Frazzled Judges are thinking of bringing back wigs to compensate for all the lost hair pulled out in dealing with matters regarding property and money.
After all, money does make the world go round.

June 2019


WHERE FAMILY VIOLENCE AFFECTS A PARTIES SCOPE TO CONTRIBUTE

Court did not err in relying on family violence findings in earlier parenting decision in support of a Kennon contribution weighting, where the husband did not object at trial and where there was an abundance of other evidence of violent conduct of the husband
Remember Eaglets, to successfully raise a Kennon argument, the Court must be satisfied that: there was a course of violent conduct by one party towards the other which occurred during the marriage or relationship; and. this conduct had a significantly adverse or negative impact on the party’s contributions to the marriage.

EXPERT EVIDENCE ON PRIZED BOOK COLLECTION INADMISSIBLE

Property – Valuation – Affidavit of bookseller adduced by husband to value his book collection held inadmissible as expert evidence – Affidavit of wife’s alleged expert who was unavailable for cross-examination was inadmissible too – Order made for sale of books.

DENTAL BILLS AND SPOUSAL MAINTENANCE

Spousal maintenance – Urgent lump sum maintenance granted for wife’s urgent periodontal and dental work for which she was being pursued for payment – Section 75(3) (as to disregarding pension) not relevant – Periodic maintenance application adjourned for interim hearing.

July 2019

PROPERTY AND A LONG MARRIAGE – REZONE INCREASES VALUE

Husband’s initial contribution of land soared in value due to rezoning – Judge erred in assessing contributions – Increase in value was “unrelated to the efforts of the parties” – Williams [2007] FamCA 313 “somewhat overstated” importance of an increase in value of an initial contribution, at the expense of all contributions by the parties throughout their relationship.

SHORT AND SWEET RELATIONSHIP …AND PROPERTY

Property – Short childless cohabitation – Initial contribution of entire small pool – Judge’s crediting of interim maintenance payments to appellant against her property settlement (resulting in no settlement being payable) was in error – Contributions reassessed at 90:10 – No adjustment under s 90SF(3).

August 2019

TRANSFERRING PROPERTY TO RELATIVES

Property – Wife fails to prove that a property the husband transferred to his sister and brother-in-law shortly before the parties’ marriage was held on trust for the husband – Court accepts evidence of husband and transferees that the transfer was for good consideration.

PROPERTY – SOLE USE OF THE BEACH HOUSE

Property – Sole use and occupation – Application by husband for sole occupancy of a “currently vacant” beach house occasionally used by his estranged children dismissed – Applicant financially able to rent alternative accommodation but did not want to do so.
No sand between that fellow’s toes I’m afraid!

PROPERTY AND CRAZY INVESTMENT LOSSES BY SPOUSE IN LONG MARRIAGE

Property – 45 year marriage – Elderly parties – Wife’s $1 million mid-marriage inheritance – Pool of $1.74 million included $360,000 notionally added back for wife’s reckless investment losses (not considered under s 75(2)(o) as the waste was identifiable) – Proceeds of life insurance policies paid to husband’s estate added back too – Contributions assessed at 65:35 in wife’s favour.

September 2019

CHALLENGED VALUATION

Property – Valuation by single expert appointed by parties was disputed by wife – Wife was refused leave to rely on shadow expert’s report (her instructions to whom were tainted) – Wife failed to use shadow expert to guide her questioning of the single expert, instead seeking to call him as an adversarial expert.

HUSBAND WITH NO WILL

Property – Husband died intestate (no will) – Wife appointed both as legal personal representative by Supreme Court of NSW and legal personal representative of husband’s estate by the FCC pursuant to s 79(8)(a) of the Act and FLR 6.15.

WHEN YOU DON’T CONTRIBUTE MUCH

Property – Small pool – Wife was of low intellect and contributed very little – Contributions assessed as 75:25 in favour of husband – Finding that wife would never be able to work – Adjustment of 25 per cent in her favour under s 75(2).

October 2019

QUICK SALES AREN’T FAIR

Property – Court erred in dismissing husband’s application for injunction against wife, where parties’ daughter had told him of imminent sale – Injunctions made pending determination of husband’s s 79A application.

PRE-MARITAL PROPERTY

Property – Husband granted sole occupancy of his pre-marital property – Conflict between elderly parties – Wife had ready access to alternative accommodation – Husband’s financial support of her was to continue – Wife also ordered to remove her caveat.

VALUING OVERSEAS PROPERTY

Property – Real estate agent husband’s evidence as to the value of a jointly owned property in China was inadmissible pursuant to s 76 of the Evidence Act (the opinion rule) – Such evidence did not constitute an admission (adverse to his interest in the case) within the meaning of s 81 of that Act to which weight could have been given.

LATE SPOUSAL MAINTENANCE APPLICATION? – NO WORRIES!

In Blevins [2019] FCCA 1923 (11 July 2019) Judge Baker heard an Initiating Application filed in March 2019 for spousal maintenance of $400 per week, filed 23 years after the parties separated and 21 years after their divorce. The parties were 69 and 71. A final order for maintenance had been made in 1999, requiring the husband to pay $750 per month until 8 July 2009 … In 2009 a further final order was made for lump sum maintenance of $275,000.

November 2019

BIG INITIAL CONTRIBUTION AND PROPERTY SPLITS (9 YEAR MARRIAGE)

Property – No error in 80:20 contribution assessment to reflect husband’s initial contribution of $4.97 million (and wife’s $500,000) of a $12.5 million pool –
A nine year cohabitation here eaglets.

SHORT DE FACTO RELATIONSHIP NEEDS INJUSTICE

Property – De facto threshold – Applicant partner for less than 2 years found to have made “substantial contributions” by assisting with renovations but fails to establish “serious injustice” if the order sought were not made.

December 2019

PROPERTY RISES AND SPLITS

Property – Rise in value of property resumed by government treated as windfall for both parties – Trial judge erred by equating periods of separation to the ending of the de facto relationship for the purpose of assessing contributions –Contributions continued during the many separations.

INHERITANCE AND SPOUSAL MAINTENANCE

Spousal maintenance – Applicant wife had inherited $1.6m in 2009, partly spent on property purchases – $520,00 retained in cash, term deposits and shares – While an applicant need not exhaust all capital so as to satisfy s 90SE(1) thresholds, the property of this applicant was such that she was able to support herself – Application for interim maintenance dismissed.

DIVORCE IN DUBAI NOT CONTESTED

Property – Wife’s application for property and spousal maintenance orders permanently stayed on appeal where she had failed to contest divorce proceedings in Dubai (in which she could have applied for property settlement and alimony) – Res judicata can arise notwithstanding differences between laws.

SPOUSAL MAINTENANCE RELEASE…DENIED!

Financial agreements – Clause purporting to release husband from future spousal maintenance held to be void as it did not specify the amount provided for maintenance as required by s 90E of the Family Law Act.

INHERITED PROPERTIES

Property – Court erred by failing to hear and determine wife’s application for declaration as to her one-half equitable interest in family home which husband inherited from his father after trial but before judgment – Further error where inadequate weight given to wife’s contributions.

And there it is folks.

So keep in mind Eaglets that every case before the court is different and the law can only guide the judge particularly if your matter has some complexity or untried element to it.

See you soon with more updates from the court battlegrounds and don’t forget that crack team at the Legal Eagle are always happy to assist self-representers with court preparation and low cost document drafting from applications to affidavits.

Make a free 15 minute appointment with our caring lawyers – HERE