Aston Legal Group


Should I Stay in the Family Home

Dads Online Podcast

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 one party should stay in the family home until after settlement.

You can access this podcast by clicking this link.

The below is a transcript of the podcast for your viewing. 

Should I stay in the family home until settlement?

Intro:          Hello everyone and welcome to Dads Online. It’s an exciting podcast we’re going to bring you today. We have a friend of Dads Online who is Daniel. Now Daniel is a family lawyer that handles family law matters and interventions orders. Daniel is going to be a resident speaker on Dads Online with everything to do with family law. So welcome Daniel. 


Daniel:       Thanks, Peter. Thanks for having me. I’m very happy to be here today. 


Peter:         Great stuff. Now Daniel is going to give us some insight into a couple of questions that I’ve been getting through the Dads Online website, through emails in the contact form there. And a couple of the regular questions that I get that Daniel is going to talk to is, does moving out of the family home affect settlement or should I stay in the home and move to another bedroom until settlement? We’re also going to touch on, does having a place of my own help get 50/50 custody? I guess Daniel if you also maybe wanted to touch on family law and — is it the same family law in every state? I think a lot of the dads would be really interested to know that you can represent them no matter where they are. So how do you go about that? 


Daniel:       That’s right. So the Law Act is a piece of Commonwealth legislation and it applies all over Australia, with the exception of Western Australia that has its own legislation in place, which is very similar to that of the rest of Australia. So in providing representation to clients Interstate, it’s not that difficult given the advances in technology that we have these days. A lot of work is or a lot of communication is done through email and telephone calls. When there is a need for appearance, there are many local agents that we can engage to appear before the court, or in those instances where it’s really necessary, we can travel to appear before the judge, you know, family law matter. 


Peter:        Fantastic. It is like Skype telephone — We live in a world of technology so you can be anywhere and provide that service. 


Daniel:       That’s right. It’s very easy to speak to a client these days regardless of where they are. 


Peter:         Yes. Would you actually — Would you need to fly into hypothetically Brisbane to represent someone or can you attend court via Skype? How does that work? 


Daniel:       On occasions, there is the ability for a party to attend via telephone. In family law, there aren’t all that many court dates. In the life of a family law case, you may have six or seven different court dates and that might span over a period of two years. So it’s a question of whether or not it’s necessary for that travel to be made because there are great barristers all over Australia that practice in family law and can appear before a judge on any particular day in any state. 


Peter:         Okay. That sounds great. So I guess if we move into our first question, and this is definitely one that I had an email recently. We had a particular dad that had been living and sleeping in a separate bedroom than his wife. Obviously in an unhappy situation, but he was doing that because he didn’t want to leave his children. Totally understand that but he was also worried about whether or not, if he was the first person to move out, does that affect settlement. So I guess that question is does moving out of the family home effect settlement or should I stay in the home and just move to another bedroom? And I’d really like to get your take on that. 


Daniel:       Well it’s a very interesting question and Family Law and Family Law matters in their nature of very complex and very difficult to deal with because there are so much emotion and stress attached to these issues. I mean, separating from a partner of a short relationship or a long term relationship can be very difficult, and it can be a very stressful event in someone’s life. So trying to get a little bit of clarity in terms of these issues and what potential issues might pop up is very important. Now, this question really intrigues me because there are a lot of elements that relate to intervention orders that I see pop up with this question, and there are a lot of issues that need to be considered. If someone has chosen to separate from their partner that — I guess the first question we need to ask is whether or not you can live in the same household and be separated? And the answer is yes. It is possible to be separated while you continue to reside in the same house. It’s actually quite a common issue given that more often than not, people do not have another house to move into. We see many people in these situations but the court will consider a number of factors in determining whether parties to a relationship have separated and are continuing to reside in the same residence. So what I’m trying to say there is just because you haven’t moved out doesn’t mean that you’re not separated. There are a lot of elements — a lot of factors that the court will take into consideration in assessing whether or not you’ve been separated under the one roof as we say in family law.


Peter:         Right. So you can be separated under the eyes of the family court whilst you’re living in the same house as your partner or wife with the children. So all you’re really doing is sleeping in a separate bedroom. You could be having dinner with the family sitting in the lounge room with the family, but sleeping in a different room, and the court would look at that as possible separation? 


Daniel:       That’s right. And there will be a number of other questions that are asked in addition to that, but a lot of parties might choose to continue to be amicable to each other for the sake of the children of course. So if we move back towards the question, one of the things that we need to consider is the potential for further arguments to occur between parents. If you have made the decision to stay at home and move into a separate bedroom, are you putting yourself at risk at having further disputes, verbal or physical whilst being in that household? And assessment needs to be made as to whether or not you need to remove yourself from that environment in order to prevent further arguments occurring. And further to that, we need to consider if further arguments do occur, are the children going to be there to witness that? Are they going to be exposed to instances of family violence?


Peter:         Yes. And as we know, family violence can take on many forms, from verbal to isolation to physical. There are so many different forms and one of the big factors that I’ve seen is that children cannot be present, or hear or see family violence. 


Daniel:       That’s exactly right. And the court will or I guess, in general, what we’d like to know is that parents are having these discussions out of sight from the children if they are having these discussions. Because when children see — when children are young, they don’t know how to process the information. They don’t know how to process what’s going on, and it can affect them and there is quite a huge impact that children suffer as a result of their parents separating. So it’s important to try and minimize that impact on the children and certainly if you’re having an argument in front of any children, that’s not going to help the situation. So in making that assessment to stay, you need a room really carefully consider whether or not there are going to be further arguments that are going to occur and where your child is in all of this. Because most dads that we see will say that their child is number one in their eyes and all that matters is their child. So it’s a really important consideration to make.


Peter:         Yes. I agree, if the children are the number one priority in their life, well then, they need to be protected from all of those elements. 


Daniel:       That’s right. And in the more serious instances of verbal or physical domestic violence, what might happen is the situation may escalate. If a couple has decided to separate, there’s a very high possibility that further arguments are going to occur and then that puts us into a dangerous territory where there’s a potential that intervention orders or police may be called to attend upon the property in the instance where a verbal argument has gotten out of control. And the verbal argument may have initially started as a discussion between mum and dad as to what’s going to happen moving forward, and before we know it, we’re in a screaming match, the police are called, and for mom or dad, it could mean that they’re the respondent to an intervention order, which can cause further stress and problems for them. 


Peter:         Yes. Particularly if the dads are still living in the house. Because I imagine that the intervention order is that you can’t come within a certain distance or radius of that other person. And if your only home is the house that you’re currently living in, where do you go? 


Daniel:       That’s right. Quite often, dads are the respondent to an intervention order that forces them out of the household. So as opposed to having the decision earlier, to leave on their own accord, there is now a court order from the magistrate’s court that says you can’t be within a certain distance of this particular property, which effectively means you cannot continue to reside at that house. And that will force dads to go and find other accommodation, whether it be with family or friends or seeking rental accommodation. So the path of an intervention order can compel you to have to move out of the household. 


Peter:         Yes. So having this knowledge, you know, knowledge is power, and I imagine knowing that these things can occur and can be quite detrimental to custody and your ongoing plans post-separation, it’s so important to get this information early. So you’d always recommend if you’re considering separation to at least maybe give you a call and get some hard facts around how to behave, what to think about and how to respond, and try very hard not to get involved with arguments. 


Daniel:       My favourite client is the client that calls me early on in the peace. Because then I can give them advice as to the process in terms of separation and what options are available for them whether it be going to court or mediation or Collaborative Law, the client that comes to me too late because A, B and C have happened — And one of those things that have happened maybe the fact that they’re the recipient of an intervention order. It makes the lawyer’s job much harder because now we have to work with what’s happened and we have to try and I guess help our client get back on the right track. If a client comes early, lawyers get a bad rep and sometimes deservingly. But a lawyer isn’t going to try and convince you to leave your partner. A lawyer will just look to inform you as to the process. And exactly what you said, an informed client is a client that’s going to make a better decision. 


Peter:         Yes. Save all that heartache, save money, because it gets complicated. 


Daniel:       That’s right. And especially if an intervention order pops up. Family Law matters, they’re usually litigated within the family court or the Federal Circuit Court. Intervention orders typically come from the magistrate’s court, which is a separate court. So the clients that I act for that have an intervention order and have family law proceedings on foot are fighting battles in two different courts. It’s very costly to do so. It’s incredibly stressful, and I think that’s probably the most important and taxing element to this. Because going through Family Law proceedings or just simply having separated from your partner is stressful enough. But to then be stretched between two courts is a challenge I can’t imagine. So it is important that if you are someone who is in this process, that you get advice, you get advice early, and although it’s difficult to step foot into a lawyers office, to begin with, having done so earlier without the need to do so will certainly help you in the long term. 


Peter:         Okay. Yes. That is great information. So you don’t mind taking some phone calls from some dads who might be in those early stages or actually any stage of their separation. You feel like you can help them but get in early is better. But at any point of the separation, the journey that they’re in, they need advice and they can call you? 


Daniel:       That’s right. And I’m quite happy to take calls from my clients on my mobile and quite often I’m talking at all different hours of the night. And that’s because these issues do pop up at times that you don’t suspect they’re going to. They’re very real issues and it’s just organic in nature. These issues will pop up when you least expect them and you need to get advice. You need to get advice quickly so that your decisions going forward are the right ones. 


Peter:         Yes, perfect. I love that. These things do like you said, they pop up when we don’t expect them. They can blindside you at three o’clock on a Tuesday afternoon and it’s like who do I call? Well, I guess it would be great having you Daniel in our corner. You’ve been helpful to many dads already and I can only recommend that if you are looking for a family lawyer that Daniel is definitely — can be in your corner. So Daniel’s number is 0423729686 and I’ll put Daniels email address and phone number in the podcast notes below so that you can have an easy reference. But before we sort of finish off that topic, is there anything that you wanted to add that we haven’t spoken about around that topic? 


Daniel:       It’s a bit of a balancing act. You really need to consider whether or not it’s worthwhile putting yourself in that environment and the potential for all these issues to arise that we’ve discussed, or are you better removing yourself from that situation, seeking a lawyer’s advice as to how best to protect any property that you’ve got concerns about? And having taken yourself out of that situation, you may avoid any other headaches that you may have subjected yourself to if you remain there. It’s a very difficult decision to make because there are children that are left in the household, there are attachments to property, and sometimes clients will feel like they’ve lost because they’ve moved out. And that feeling of loss is really difficult to deal with but sometimes moving out is the best decision to make. 


Peter:         Yes. And I know and I feel just that grief from dads who do leave the family home. They miss their kids so much and I think on many occasions, they’re very reluctant to leave the home because they have a feeling that if they leave the home, they’re going to cut ties with their kids. And I think that getting some advice early can save some of that worry, and at least have a plan so that when you do leave the home, you can at least have confidence that there’s a plan in place and you’ve got someone like you Daniel, that will work for them to make sure that they get a fair deal in having access to their kids. 


Daniel:       That sums it up quite nicely. 


Peter:         Yes. So look, thank you, Daniel. So check out Daniel’s contact details in the notes, and also look for the next podcast which we’re going to be talking about, does having a place help me get 50/50 custody. That’ll be the next episode. But for now, thanks to Daniel, and we’ll talk soon. 


Daniel:       Thank you. It’s been a pleasure. 


Outro:        Well dads, I hope you found that informative. Remember, if you need any help with anything to do with family law, then Daniel Dalli’s contact details will be listed in the podcast notes. And if you’re going through separation or divorce, and feeling overwhelmed with any sadness or grief, or simply looking for someone to talk to about how you’re feeling, there are organizations that are set up perfectly for that. So try men’s line and give them a call on 1300 789 978 or lifeline on 131114. You don’t have to go through this alone. Best wishes and don’t forget to subscribe to our podcast. Bye for now.

The Next Step

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.

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