One of our Principal Lawyers, Daniel Dalli, discusses with Dads Online some of the issues that arise after separation or divorce. This podcast focuses on whether having your own property will help you obtain greater care of your children.
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The below is a transcript of the podcast for your viewing.
Intro: Hello, everyone and welcome to Dads Online. I’d like to welcome back Daniel Dalli who is a family lawyer. Daniel handles Family Law matters.
Daniel: Thanks for having me back Peter. It’s great to be here.
Peter: Fantastic to have you too. So following on from our last podcast. Tonight what we’d like to talk about is, does having a place help me get 50/50 custody. Now I get lots of emails through the Dads Online website as well as our Facebook page, and this comes up sometimes because I think there are some dads that don’t have a place and obviously they really want to put themselves in a situation where they have the best possible chance of having 50/50 custody, and this is a question I get. So have you come across these
questions Daniel before?
Daniel: Yes, I have and I get a lot of dads coming to me and asking me this particular question, phrase exactly as you say. And it’s a tricky question because there are so many factors to consider in making this final, I guess, an assessment regarding parenting arrangements for children in a relationship.
Peter: Yes, it is. I guess as we spoke in our last podcast together, it was about, you know, do I stay in the home and live in a separate bedroom or — and a lot of the time they do that because they don’t want to leave the children. But now if they do leave the family home and it gets to that point where they do, and it’s just a really interesting question because there are so many factors involved around, am I allowed — can I have a shared place if I’m with a friend and the shared place is a safe environment? Can I go back and live with my parents because they have an extra bedroom? There’s a lot of scenarios. Obviously, the best one is to have a place of their own. That is adequately put together for their children. It’s clean. They have their own bedroom, their meals are cooked like, you know, it’s a normal family
Daniel: That’s right.
Peter: That’s the optimum place I guess. But what do you see in — is it beneficial having your own place?
Daniel: Well it is, and having a stable environment that the children can come to is very important and it’s — In answering this question, it’s important for dads to remember that everyone’s circumstances are entirely different, and there are a whole number of other factors that are taken into consideration before we look at what does your accommodation actually look
like. But if we hone into that particular issue regarding your accommodation, it’s important that children have their own space. If they are teenage children, consideration needs to be made as to whether or not they need a bedroom separate to that of their younger siblings.
Peter: Yes, of course.
Daniel: So it’s really important that there is a suitable environment wherever it may be, that the children can call home really.
Peter: Yes. So I guess when you’re looking at a suitable environment, I suppose it doesn’t matter. You don’t have to have a second bathroom for your children.
Daniel: That’s right. No, it doesn’t need to be the Ritz that you’re staying at. It [could be] something that is a suitable — It’s difficult because the term suitable is so vague.
Peter: That’s right. Because it could be a really nice one-bedroom apartment with maybe a sofa couch.
Daniel: That might not fall within the category of something suitable.
Peter: Yes. Because they don’t have their own private space.
Daniel: That’s right.
Peter: Yes, I understand. Makes sense. And what do you think about shared accommodation?
Daniel: Shared accommodation is tricky, and we don’t want to be keeping children in an environment wherein shared accommodation typically, there’s a high turnover of tenants, and you can’t really assess whether or not there is risk present to the children if you don’t know the people living there.
Peter: True. You don’t know their friends.
Daniel: That’s exactly right. And further to that, a shared a combination is probably not going to be an environment suitable for the children because the extra bedrooms are tenanted out, so the question I’m asking in those circumstances is where are the kids sleeping?
Peter: Yes, spot on. That makes a lot of sense. I’m trying to think of scenarios that we’ve had dad’s writing to us, and I remember one dad said that while he was organising and getting his life back on track, he did have to move home to his parents who did have a three-bedroom home so they obviously had the master suite. There were two extra bedrooms, he was occupying one. There was one other bedroom there. Would you think a family law court
would find that adequate?
Daniel: In circumstances like that, it is possible that the court would consider that it is suitable for the children to spend overnight time there. Because that’s what we’re really speaking about when we’re speaking about parenting arrangements and whether or not suitable accommodation is available. Because your time during the day, it’s not so important as to
whether or not you’ve got extra bedrooms for the children. So in an instance where you’re forced to move back in with mum or dad, and there is a room that can be called the children’s room, then in some occasions that can be adequate in order for you to have some overnight time with your child.
Peter: Yes, okay. So let’s say one of the dads had moved back home to live with these parents for a period of time. And his partner was saying that the house was not adequate. They had two vicious Rottweilers in the backyard, and he’s saying, they’re not vicious but they are Rottweilers. Who determines who’s right and who’s wrong?
Daniel: Well that’s a tricky situation because they’re competing parties giving a different set of facts.
Peter: Yes, correct.
Daniel: And that issue might not be decided very quickly because the court will receive an affidavit from each of the party saying, well, the Rottweilers are dangerous and dad might say, no, they’re fine, and it’s not an issue. And it might result in a decision that needs to be made down the track. An issue that typically pops up for me is do the kids have their own bed? Quite often, I’ve seen the allegation that the children are sleeping on the couch or sleeping on the floor. And in those instances, I’ve tapped down on the shoulder or whoever it is that I’m acting for, and I’ve said, look, can you get me some photos of where the children are sleeping? And between parties, I’ve been able to show the other side that there is a bed for the child, and quite often that’s enough to deal with the issue. Although, on some occasions, it’s not going to be. But little issues like that pop up quite frequently and your lawyer can sometimes deal with them rather quickly.
Peter: Yes. I like the idea that you can take photos to clear up a dispute. Yes, that’s good.
Daniel: Yes. That’s right. I mean, it’s not to say that if you’re preparing in your application, get your Cannon out and get ready to do a shoot of the household, it is sometimes acceptable to deal with these issues provided mum on the other side says I’m happy with that, I’m satisfied. If we are asking the court to make a determination, photos might not be enough.
Peter: Okay. Right. I get you So what about the scenario where the dad moves out and he is paying child support, and he’s feeling like after he’s paying child support, and he is paying all his own personal bills, he doesn’t have enough left for himself to go and find a place of his own so that he can apply for 50/50 custody. How does a dad handle that?
Daniel: What immediately pops up to me is to suggest to the dad to maybe speak to the Child Support Agency. It may be the case that there needs to be a reassessment of the amount paid in child support, and this will obviously depend on the time that he’s spending with the children and his income. So doing something as simple as asking for reassessment if there are circumstances that will require that, that might be enough to resolve that issue.
Peter: Okay. It seems like there’s a process in place for fairness.
Daniel: That’s right. Exactly.
Peter: That’s good. So look, I guess, that’s been really interesting. I think the one thing that pops into my mind is that what are the top considerations for a judge or a family law court to consider when deciding on 50/50 custody? Are there a top three things or what are the top things that a judge might think about?
Daniel: Yes. So there are primary considerations that the court must consider before any other factors are taken into place and that’s to consider the benefit to the child or children in having a meaningful relationship with both of their parents. And also the need to protect the child from physical or psychological harm, or from them being subjected to or exposed to abuse, neglect, family violence, and these other issues as to what’s the bedding like
or are there enough bedrooms, that trails behind these two primary considerations. And the question of 50/50 is a really big question to ask. And I have a lot of clients that come in with the misconception that 50/50 is the starting point, but it’s not necessarily that in all cases. What needs to be considered is what’s in the best interest of the children?
Peter: Sure. No, I get that. I guess what you’re saying makes perfect sense. When we’re thinking of around 50/50 custody, there are so many factors I think us dads have to think about — It’s do you have a place? Is it adequate? Is it safe? And also, do you have the time? Because so times often, dads have a quite a busy job, and they have to either re-assess the particular
job that gives them enough time to be able to be available 50/50 when the kids need you to be home and also, get them ready for school in the morning, be home when they get home from school. So look, there’s a lot of considerations.
Daniel: And that’s exactly right. Sometimes dads will come to me and they’ll say, I want all of these days in the week. And my next question is, are you going to be home for those — for that time? And it’s tricky for dads because they want to have as much time with their children, but at the end of the day, a practical assessment has to be made. And you can get dads that will be able to deal with all of that and deal with the pickups and the drop-offs. I had a client who put together a schedule of how they might deal with that, and it was fantastic. But that’s not necessarily going to be the case with every day. Some dads might need a little bit more time in order to get the house sorted or they might have less time on their hands to be able to have real quality time with their children when they’re in their care. And at the end of the day, that’s what’s most important, having quality time.
Peter: Yes, it is. It’s great information. Look and I think it’s worth just mentioning that some of these topics are obviously really heartfelt, and there’s a lot of grief in talking about these types of issues. And I think if any dads out there are listening to this, and they’re going
through some hardship and they’re feeling a bit lost, there are places that you can call such as Lifeline on 131114 or even men’s line that particularly deal with issues around men, and that’s 130078 9978. And I’ll put those phone numbers in the podcast notes. But Daniel, it’s so good to speak to somebody who can help with great advice and information. And remember, Daniel, you’ve mentioned before that you don’t mind people calling you on your mobile if they’re seeking information.
Daniel: That’s right. I mean, these are such difficult issues to deal with that sometimes it’s important to be able to have a lawyer to give you advice, and sometimes advice is needed at the after hours. So it’s important to be there and I find for me, it’s important for me to be there for my clients.
Peter: Yes, it’s fantastic. I can imagine you’re probably not going to take a call at two o’clock in the morning, but they can leave a message. Do you have a voicemail?
Daniel: That’s right.
Peter: And you’ll call them back the next morning.
Daniel: That’s right. In some instances, you might wake me up. Just depends how heavy I’m sleeping that night.
Peter: Well, Daniel, you’ve been fantastic. Just everybody, Daniel’s phone number is 0423729686. And Daniel’s number will be in the bottom for anybody seeking advice. But again, stay tuned. This will be a series of information around family law. And we thank Daniel for offering his help to Dads Online. He’s a good friend of Dads Online so you have a good day and thanks again, Daniel.
Daniel: Thanks for having me, Peter.
Outro: Well dads, I hope you found that informative. Remember, if you need help with anything to do with Family Law, Daniel Dalli’s contact details will be listed in the podcast notes. And if you’re going through separation and divorce and feeling overwhelmed with sadness, or grief or simply looking for someone to talk to about how you’re feeling, there are organisations that are set up just for that. So give the men’s line a call on 130078 9978 or Lifeline on 131114. You don’t have to go through this alone. Best wishes. Don’t forget to subscribe to our podcast and bye for now.
If you would like to advice about your family law matter and would like to be informed regarding your options for finalising your financial matters (including options to settle out of Court), contact us on 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next.