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What not to do during a separation

Podcast Episode by Pearsons Lawyers
6 April 2021

(Transcription)

Leanne Abela:
Hello, I’m Leanne Abela.

Joe Schepis:
And I’m Joe Schepis.

Leanne Abela:
And welcome to another podcast of Pearsons Family Law.

Joe Schepis:
This morning, we’re going to discuss the do nots. We have done a previous podcast on the things to do before you separate or when you separate. This morning we’re going to discuss what you do not do either before or shortly after you separate.

Leanne Abela:
And these are pretty easy tips, aren’t they, Joe? They are pretty easy tips for anybody to follow. But I guess if you didn’t know them, you could really adversely affect your case.

Joe Schepis:
I think that they sound pretty obvious to us, but we’ve been doing this for a long, long time.

Leanne Abela:
That’s true. That’s true.

Joe Schepis:
And they might not be so simple, especially when people are going through a pretty traumatic stage of their life. They’re not-

Leanne Abela:
Thinking straight.

Joe Schepis:
May not be thinking logically or straight and that could present them with a blurred mind and maybe not do the things they shouldn’t be doing.

Leanne Abela:
Yeah. That’s true. So, they’re obvious to us, but not to the world at large. So, let’s give them some tips.

Joe Schepis:
Well, the first one is that be careful not to let your emotions get the better of you. So, when you’re separating, obviously going through a very difficult phase of your life and you can say and do things which you may regret later on. So, I think it’s important that you just take it easy, try and reflect and try and be careful about the things you say and you do to your ex partner or your soon to be ex partner, particularly if they’re in writing by way of a text or email. Things you put on social media, on Facebook or Instagram. All those things can come back to haunt people.

Leanne Abela:
Oh yeah. They can win or lose cases. I guess it’s, I’m sure you’re all listening, thinking. Well, it’s easy for you as my solicitors to say, take it easy. Nothing easy about a separation is there? But I guess breathe. I say to my clients, just breathe before you send that text. Just breathe before you pick up that phone and yell down the phone head piece. Just really breathe before you think about your response, because that response is definitely going to bite you in the backside in a court case, or in negotiations. Cases have been won and lost on texts and emails sent.

Joe Schepis:
Definitely. Social media is becoming a part of court cases.

Leanne Abela:
Huge, huge. Or what’s on Facebook.

Joe Schepis:
Facebook postings and in relationships. And all sorts of things.

Leanne Abela:
Yeah, at your time of separation, really, it would be difficult for a client to work out what is going to be relevant in terms of the children’s case and the property division that they think is an innocent text or an innocent email, but everything is under the microscope. And so you really need to think carefully and remember less is best. The less you elaborate on communications and the more you stay focused in your communication, the better off you’ll be.

Joe Schepis:
Definitely, especially when it comes to parenting matters. It’s important not to discuss things with the children, not to embroil them in the adult dispute, the conflict between the parents. That is extraordinarily damaging to the children. And if one of the parents does that, it’ll invariably come out in some form or another before the court and the court would be very, very critical of parents that embroil your children in the adult conflict and dispute. It’s important to try and keep the children as best you can out of the conflict and out of the dispute and let the lawyers deal with the resolving the parenting and property matters and what other issues arise from the separation. Just you need to stay calm and try and think logically. And if you’ve got any questions, ask your lawyer, just say, these are sort of things I can discuss with the children or not, and they’ll give you some guidance.

Leanne Abela:
So, the next tip that we can give you as to what happens when you go to see a family report writer or a family consultant. So, often clients will say to us, “Well, when do my children get to speak to you, my lawyer, or when did they get to speak to the judge?” Well, the good news is that they don’t get to speak to us as lawyers and nor do they get to speak to the judge, because that’s not the appropriate forum. They will, however, get to speak to a family consultant when it is time to do a family report. And that family report is one piece of many pieces of evidence that assists a judge in making a decision as to what’s in the children’s best interests. But the tip we’ve got for you as the person attending the family reports writer, the session is to not do all the talking and to listen to the questions.

Joe Schepis:
Definitely 100%, you need to listen to what the psychologist, who the report writer is a trained psychologist, what the psychologist is asking to listen to what questions they’re asking, because at the end of the day, they’re going to be the eyes and ears of the judge. So, it’s as if the judge is asking you. Don’t try and preempt what they’re asking, what they’re going to ask and where they’re getting to, because you’ve got to fall into a trap of trying to make up answers, just be honest and be genuine.

Joe Schepis:
And most importantly, I tell my clients, be child focused. This is about what is best for the children. The court is not that concerned. And the family consultant won’t be that concerned about the adults. They’re adults, it’s their decision to separate, but the children are innocent victims of the separation. And therefore the psychologist is going to be focused on what is best for the children moving forward. And obviously what’s happened historically is as far as caring for the children issues that have arisen will have some impact on that. So, just be mindful to be listening to what the psychologist is asking and answer the questions honestly and as fully as you can.

Leanne Abela:
All right, now moving on to financial matters, Joe. I guess the next point is not to settle unless you’ve had full and frank disclosure. That is, it’s your prerogative to settle in any way, shape or form you want. As lawyers, we guide clients and say, listen, you’re entitled to this percentage or that percentage, you’re entitled to a private child support agreement. You’re entitled to spouse’s support. But in the end, it’s your decision. And after the 36 years I’ve had plenty of clients as I’m sure you have, Joe, who said, “Right, thank you for telling me what I’m entitled to, but guess what? I’ve decided to settle for less. Or my partner’s decided to give me more, because we want to save the house for the kids.” Or whatever the agreement is. But for you to be fully informed, you need what we refer to as full and frank disclosure so that everything is on the table and you know what you’re choosing from.

Joe Schepis:
Oh, and not only that you know what’s on the table, that also you are transparent with the other side and you let them know what’s going on with you. And that you’ve made full and transparent disclosure of your financial affairs. For example, if you’re going to be made redundant, then you need to tell the other side that that is a possibility, because if it does eventuate and you’re negotiating your property settlement, and then it becomes apparent that it wasn’t disclosed.

Leanne Abela:
You hid something. That’s right.

Joe Schepis:
That you hid something. Then the whole settlement can be overturned. And you’ve got to start again. And not only do you have to start again, it’s going to be timely and costly, but you’re on the back foot as far as credibility is concerned.

Leanne Abela:
Absolutely. No one’s going to believe anything that comes out of your mouth.

Joe Schepis:
Exactly. So, it’s important that if you’ve got something that is happening with your life financially, that you let your lawyers know so that they can be transparent and let the other side know. It may or may not impact the settlement. And sometimes what I find in the end, I’m sure you’ve found the same. Is that what clients think might be extremely important that they’ve got to hide it because it’s going to upturn the whole apple.

Leanne Abela:
Yeah, like a personal injury claim, redundancy, a bonus.

Joe Schepis:
It could be that it’s got no impact or minimal impact anyway.

Leanne Abela:
Better off telling the lawyer everything and let them deal with it. But whether you’re the person making the offer or the person receiving the offer of settlement, make sure you know about everything. And you might need to get some of those assets valued. So, that might need to happen as well. But you really need to be fully aware of what the pool is and what the value of the pool before you make your decision.

Joe Schepis:
That’s critical. Another thing that I find is that sometimes clients are too eager to effect the property settlement after they separate. Before they see lawyers and they start selling property and carving up the cake so to speak. They start dividing money. They started selling shares and divided the money.

Leanne Abela:
Transferring, yeah, yeah.

Joe Schepis:
Transferring cars, doing all sorts of things. Before they’re seen lawyers and before it’s been documented, and then something happens, one of them repartners, or has a windfall of some sort. They go and see lawyers and they realize that just because it effected a property settlement between them, doesn’t mean that it’s finalized. Clients don’t understand that you need to either have consent orders approved by the court or a financial agreement signed off by the clients and also their lawyers.

Leanne Abela:
Otherwise it’s not over.

Joe Schepis:
It’s not over until that’s done.

Leanne Abela:
Often you’ll speak to clients that’ve come in for an interview in relation to children’s matters only. And that’s what they’ll say to me. It’s children’s manners only. And I’ll say, “Well, you’ve done your property settlement. Have you?” “Yeah, yeah, yeah we’ve done our property settlement.” “So, you’ve got court orders or BFA.” “No, no, no, but we’ve done our property settlement.” I said, “Well, guess what, the news is, you haven’t done a property settlement. So, if anybody wants to make a claim in the future, they can. And if you die, that’s also up for grabs.”

Joe Schepis:
Yeah, makes it very complicated.

Leanne Abela:
So, you really need to shut the door. And if you haven’t shut the door and it could be quite inexpensive and cheap to shut the door and easy. And so no need for clients to get stressed about that. Why would you want to leave loose ends hanging around. You’re better off cleaning it up and cleaning up the financial mess behind you.

Joe Schepis:
And then you’ve got certainty. You can move on with your life. You can buy, you can sell.

Leanne Abela:
Plant the Petunias in the front garden.

Joe Schepis:
Do whatever you like.

Leanne Abela:
It’s your garden for life, all that stuff.

Joe Schepis:
So, if you want to come for your free consultation at Pearsons, you can do so by visiting our website or calling us on 1-300-699-688.

Leanne Abela:
And the other thing is if you found it difficult to follow us on this podcast and take your notes, given how quickly Joe and I do tend to talk, you will find these articles, this article on what not to do and an article on what to do, the do’s and don’ts, on our webpage by visiting the Pearsons Family Law webpage or following us on Facebook. And on Instagram, you can get all the information you need to know about separation free of charge.

Joe Schepis:
So, use the information that’s there for your disposal, and hopefully you’ve got some idea of what you do and what you don’t do when you separate.

Leanne Abela:
Thanks for listening to us.

Joe Schepis:
Thank you very much.

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