# Coercive Control & Domestic Violence in Family Court: Should You Raise It or Stay Silent?

An episode of [The Divorce Course Podcast](https://invisiblenetwork.ai/podcast/1503451022), 29 Apr 2026, 50 min.

Audio: https://dts.podtrac.com/redirect.mp3/traffic.libsyn.com/secure/thedivorcecoursepodcast/Episode_314_Coercive_Control_in_Famiy_Court.mp3?dest-id=1908563

🎧 Listen to this episode if: • You want to understand if domestic violence can affect your property or parenting outcome • You've been told by a lawyer to "leave the family violence out" of your case • You're scared raising coercive control or domestic violence will backfire on you in mediation • You're confused by social media saying the courts ignore family violence • Your ex is still using coercive behaviour even after separation • You're heading into mediation or court and don't know how to bring it up ⚠️ Legal Disclaimer & Family Violence Trigger Warning This episode contains discussion of family violence, coercive control, post-separation abuse, and the impact of these behaviours on children, which may be distressing for some listeners. If you are unsafe or experiencing family violence, please reach out for support. Support is available in Australia: 📞 1800 RESPECT – 1800 737 732 📞 Lifeline – 13 11 14 🚨 In an emergency, call 000 This podcast provides general educational information about Australian family law only and is not legal advice. Laura is not a lawyer. Every situation is different, and you should seek independent professional guidance tailored to your circumstances. Episode Summary Should you bring up coercive control and domestic violence in your family law case… or will it backfire? If you've been online lately, you've probably seen wildly different opinions. Some people insist the courts ignore family violence completely. Others say the system is finally taking it seriously. And then there are the lawyers quietly telling clients to "just leave it out so we can settle." So who's right? In this episode, Mum and I unpack how coercive control and domestic violence are actually treated in Australian family law right now and the recent appeal cases that show the courts are starting to listen. We walk through real 2023 and 2024 decisions including Burnell & Rockford, Lainhart & Elinson, Dejani & Dejani, and Sad & Raymond cases your lawyer may not have caught up with yet. We talk about Section 4AB, Section 75, and Section 79 of the Family Law Act, why mediators sometimes forget you're still being coercively controlled while sitting across from your ex, and the very real "peace at any price" trap that costs people thousands in their settlement. If you've been silenced, dismissed, or told it's not worth raising this episode is for you. ⏱️ Episode Timeline 00:00 – Coercive Control & Domestic Violence in Family Court: Should You Raise It? 01:00 – Meet Laura & Lynette: Family Law Mum & Daughter Duo 02:00 – Trigger Warning & Legal Disclaimer (Australia & Overseas) 03:00 – Why Social Media Gets Coercive Control So Wrong 04:00 – Why Lawyers Tell Clients to Leave It Out (And Why It's Wrong) 05:00 – Judge Best's Powerful Speech: "Soften Your Gaze" 06:00 – Why Both Parents Having Issues Doesn't Mean Equal Blame 07:00 – Section 4AB: The Family Violence Definition That Changed Everything 09:00 – Why Courts Now MUST Consider Family Violence Allegations 10:00 – The Old Kennon Case vs The New Law: What Changed 11:00 – Choosing the Right Lawyer When Domestic Violence Is Involved 12:00 – "Don't Raise It Or You Won't Settle" — The Lawyer Myth 13:00 – When NOT to Mention Family Violence in Property Mediation 14:00 – The Smarter Way to Negotiate Coercive Control in Mediation 16:00 – Parenting Cases: Why You MUST Raise Family Violence 17:00 – Lainhart & Elinson 2023: The Appeal Case Every Mum Should Know 18:00 – Section 60CC: Safety of Children Now Comes First 19:00 – Why Parents Don't Tell Lawyers the Full Truth (And Why You Must) 20:00 – Coercive Control in Parenting Cases Explained 21:00 – Counselling Orders: When the Court Mistakes Lip Service for Change 23:00 – False Alienation Claims: The New Coercive Control Tactic 24:00 – 50/50 Is No Longer the Default — Here's What Replaced It 26:00 – Free Divorce Webinar With Lynette (Family Law Specialist) 27:00 – Property Settlement: How…

## Transcript

[0:00] Laura: Are you wondering how coercive control of family violence might
[0:02] affect your family law matter?
[0:05] Have you heard people say that the courts are just ignoring
[0:07] it and it is a waste of time?
[0:10] Are you now left feeling confused on whether you should bring it up in
[0:13] mediation or in your negotiations, or is it gonna somehow backfire on you because
[0:19] a lot of people are stuck in the middle about not knowing what is the right move.
[0:23] So we are gonna be talking today about how coercive control and family violence
[0:26] is treated in Australian family law when it can impact your parenting or property
[0:31] case, or whether there is actually any strategic reason why you might not.
[0:36] Raise it.
[0:37] We'll also break down the approach that you should consider taking
[0:40] in mediation and negotiations.
[0:42] If you've got family violence or coercive control matters so that you
[0:46] are not walking in blind and making decisions that could backfire later.
[0:49] Because it's not about whether coercive control or family violence matters.
[0:54] It's about how you raise it.
[0:56] Welcome mum.
[0:57] Lynette: Hello, Laura.
[0:58] Well set.
[0:59] Hello everyone.
[1:01] Laura: So mom, let's just really before we get started, just a reminder, this is
[1:07] mom's and my opinion some of the things the Family Law Act, and they are family
[1:12] law cases Mom will be talking about.
[1:14] These are relevant to Australians
[1:16] Lynette: okay.
[1:17] Laura: law, but it might not be exactly the same as your case.
[1:20] Lynette: Hmm.
[1:20] Laura: So please take the cases mom talks about today, two.
[1:24] your lawyer to discuss how similar it is with yours, but don't make any decisions
[1:28] on your case based on this podcast because we don't know your situation.
[1:32] I'm not a lawyer and mom's not your lawyer.
[1:36] Lynette: That's true, but we love our overseas listeners, so yeah.
[1:40] Laura: But if you are from overseas, we will be giving you strategies
[1:43] on how to negotiate , in mediation as well for these situations.
[1:47] Lynette: Yes.
[1:48] Laura: you may find that helpful.
[1:50] Alright, let's get to the jingle and let's get started.
[1:54] Hello, I'm Laura divorce mother of three, and I'm here with my
[1:57] mother, Lynette Galvin, with 35 years experience in family law.
[2:00] You're listening to the Divorce Course podcast.
[2:03] Throughout candid discussions, we hope to help you through your
[2:05] divorce or defacto separation.
[2:07] We'll be answering the most commonly asked questions and covering
[2:10] the stages and steps that you'll face on your way to freedom.
[2:15] Laura: Just a reminder, obviously there will be discussions of family
[2:18] violence and coercive control.
[2:20] If you feel triggered by that and you're in Australia,
[2:22] please call 13 11 14 Lifeline.
[2:24] If you're experiencing any of this, please call 1-800-RESPECT and get
[2:29] connected to some support in your area.
[2:32] So mom, at the moment,
[2:36] I think, I know you always say I, I'm a bit of a Pollyanna and I never really
[2:40] understand it, but you say it a lot because you're very positive about the
[2:43] Lynette: Yes.
[2:44] Laura: the court is moving through domestic violence
[2:47] and coercive control issues.
[2:49] But there is a real contention out there.
[2:52] Every time I post a video, a help reel or any kind of anything
[2:57] on social media, there's.
[2:59] Two lots of people.
[3:00] There's the people that say the courts ignore coercive control.
[3:04] Lynette: Oh
[3:05] Laura: yourselves.
[3:05] Or you're leading people down a garden path that, that
[3:08] Lynette: really?
[3:09] Laura: down.
[3:09] And then there's others that say, well, the courts are
[3:11] taking it really seriously now.
[3:14] And there's also people saying, my lawyer told me to leave it out.
[3:17] Lynette: Yes.
[3:17] Laura: a lot of, noise on social media, which I worry about,
[3:22] Lynette: Hmm.
[3:23] Laura: because people.
[3:24] Who are going through coercive control of family violence
[3:27] will be hearing these people
[3:29] Lynette: Hmm.
[3:30] Laura: who may be just speaking from their own personal experiences
[3:32] of what they've been through
[3:33] Lynette: No, maybe not.
[3:35] I mean, we've tried
[3:36] Laura: Yeah,
[3:37] Lynette: The court has tried to educate lawyers, right?
[3:40] About family violence.
[3:42] But it hasn't stuck with every lawyer.
[3:44] So I, I guess I'm happy to do this.
[3:48] Episode to educate the people the clients.
[3:51] You know, you are the litigants and you are the ones who have to say your case.
[3:55] But maybe some of the stuff we talk about today will give you some
[3:58] ammunition if you get one of those lawyers who wants you to defer talking
[4:03] about it or don't talk about it.
[4:05] Laura: Yeah.
[4:06] And if, other people say to you, oh, don't bring it up, it'll get used against you.
[4:09] We're gonna talk a little bit about
[4:11] Lynette: Yes.
[4:11] Laura: but I think it's really important to note that that's
[4:14] not just people on social media.
[4:16] Point of view because we did actually read on the 27th of March
[4:20] in the Family Law Proctor Magazine,
[4:24] Lynette: Mm.
[4:24] Oh, that's the QLS proctor, is it?
[4:27] Oh, okay.
[4:27] Laura: no title was Judge Urges Profession to Soften Your Gaze when Dealing
[4:31] with Domestic and Family Violence.
[4:33] And that's the Federal Circuit Family Court of Australian
[4:36] Judge her on a Cara Best.
[4:38] Lynette: Great.
[4:39] Laura: profession to help stop the justice system from failing women and
[4:42] children at a recent International Women's Day event in Brisbane.
[4:45] So I,
[4:46] Lynette: Hmm.
[4:46] Laura: quite a, a big deal for a judge to be saying that,
[4:50] Lynette: Hmm, and, and for her to admit that perhaps not everybody is
[4:54] bringing the right attitude to the court about family violence, because
[4:58] I've always said the judiciary.
[5:00] Are educated.
[5:02] They, they went through compulsory training about family violence
[5:05] and how it affects people.
[5:07] The legal profession, barristers and lawyers have, have had the
[5:12] offer of that sort of training.
[5:14] There's lots of information, but it's never been made compulsory and I think
[5:19] in busy daily practice, some lawyers just missed that change in the law or, or
[5:25] haven't adjusted their, their attitudes.
[5:28] Laura: Yes.
[5:28] Well, the, thing that I thought was really important that she said is we
[5:32] know that many perpetrators then use maladaptive behavior in a victim.
[5:36] The fact that the mother, for example, might be drinking too much or using
[5:39] drugs, which is not appropriate as a way of targeting and controlling any
[5:44] prospect of them leaving or thinking that they would retain the care of
[5:47] the child or could potentially get a job or in any way move forward
[5:50] in their life away from the abuser.
[5:52] So she was
[5:52] Lynette: Yeah.
[5:53] Laura: an example, but she was basically saying just because
[5:55] there's problems on both sides.
[5:57] doesn't mean that you're just saying they're both the problem.
[6:00] ' Cause
[6:01] Lynette: mm
[6:01] Laura: that it's a hidden
[6:03] Lynette: Yes.
[6:04] Laura: control or with family violence, and it doesn't necessarily
[6:07] mean there's risks on both sides.
[6:08] So you need to be really looking at it
[6:11] Lynette: Yeah.
[6:11] Laura: The, the stats are something ridiculous,
[6:14] Lynette: Was it
[6:14] Laura: think it was
[6:14] Lynette: 30?
[6:16] Laura: 77% of notices of risks that are filed at the beginning
[6:19] of a family law matter reveal an allegation as to the exposure of
[6:23] or an incident of family violence.
[6:25] So basically that's, that's, that's, that's a large proportion of the
[6:29] people going into family court,
[6:31] Lynette: Yes.
[6:31] Laura: Who are experiencing family violence.
[6:33] And we've always said that, mom, it's, you
[6:34] Lynette: Yeah.
[6:35] Laura: if you're reasonable and your ex is reasonable, you don't
[6:37] Lynette: You won't.
[6:37] Laura: court.
[6:38] Lynette: right.
[6:38] You'll be doing consent orders and, and it's good that the court
[6:41] is now identifying that, or at least, because we come in lawyers
[6:46] and judges and we come into a case.
[6:50] Towards the end of the story.
[6:52] And none of us can know what happened during the marriage, what, what the
[6:56] pattern of behavior was that has resulted in the current behaviors.
[7:01] You know, so if you don't tell, if our listeners don't, if you don't tell your
[7:05] lawyer, the lawyer can't tell the judge, and the judge can't make a decision that.
[7:10] Is just an equitable or that is in the best interest of the children.
[7:15] They need all the facts.
[7:17] Yeah.
[7:19] Laura: The confusion out there.
[7:21] Lynette: Hmm.
[7:21] Laura: Obviously that judge is pointing out that yes, there's some people
[7:25] that still haven't figured that out
[7:26] Lynette: Mm-hmm.
[7:27] Laura: but the judges are starting to point it out.
[7:29] So that's a good sign.
[7:31] Lynette: Yeah.
[7:31] Laura: got cases that you're gonna take us through
[7:33] Lynette: Hmm.
[7:34] Laura: mom as well.
[7:35] That show that that's a good sign.
[7:36] I would say, you know, the confusion right now is around people just being.
[7:42] Uneducated and afraid.
[7:44] And I do think that's really what it comes down to.
[7:46] And if that's you, we are not blaming you and saying it's your fault.
[7:50] We are just saying, you know, it does take a whole bunch of brave people in the
[7:53] start to really push it and get out there
[7:55] Lynette: Yeah.
[7:56] Laura: let their voice be heard.
[7:57] So mom, can you tell us so we can help people be brave?
[8:00] Lynette: Mm.
[8:01] Laura: does the Australian family law say about coercive control
[8:05] Lynette: Hmm.
[8:05] Laura: family violence, and how does it fit
[8:08] Lynette: Okay.
[8:08] Laura: and property?
[8:10] Lynette: If I can just make one comment about the brave people,
[8:13] our listeners having to be brave.
[8:15] You also need a courageous lawyer.
[8:18] To raise that issue.
[8:20] And I think some lawyers are risk averse and it might be someone on the other side.
[8:24] They don't, they're a bit nervous of, and that can be how it gets squished down.
[8:29] So to answer your question, so the issue of family violence pops up both
[8:33] in the children's matters, right?
[8:36] And in property matters.
[8:38] And also twice in property matters, once in relation to contributions
[8:43] and once in relation to future needs.
[8:46] The court has to prioritize the children's best interests, and the access.
[8:51] They've gotta protect them from family violence.
[8:54] And so from psychological and emotional harm, from family violence.
[8:57] And of course, section four AB talks about a definition of family violence,
[9:02] and it sets out a lot of examples that are an absolute eye-opener for
[9:06] coercive control or financial abuse.
[9:09] So I, urge our listeners to have a look at that section four AB
[9:14] and see what is family violence.
[9:16] Laura: Now if you'd like to go after this to listen to, is it family violence?
[9:20] Mom and I take you through that, that section four ab and read out each line
[9:25] we talk about, you determining what is it according to the Family Law Act, what
[9:29] you're experiencing, family violence.
[9:30] And you'd be quite surprised at some of the things in there.
[9:33] Lynette: Hmm.
[9:33] Laura: to that episode if you are currently to figure that out
[9:37] Lynette: Hmm.
[9:37] Laura: that that episode's there
[9:39] Lynette: okay.
[9:40] Yeah, so, so as I said, it matters in family law and in
[9:43] children's matters very much.
[9:45] And for the, for really the first time since they've amended the Family Law Act
[9:50] in 2025 for the first time, the court is now looking at family violence in
[9:55] terms of your contributions to a, to a.
[9:59] Shared life.
[10:00] And it used to just be in a case, it was Kennan and Kenon, which for
[10:04] a long time no one would apply.
[10:06] The judges didn't apply the case of Kennan and Canon.
[10:09] And then it has co become law now, so the court must consider any
[10:15] allegations of family violence.
[10:17] Laura: Right.
[10:18] So we're gonna go into some of
[10:20] Lynette: Hmm.
[10:21] Laura: mom, but I know we've kind of talked about why
[10:22] people think it's been ignored.
[10:24] Lynette: Hmm.
[10:25] Laura: I think it's really important, like you've just talked about in
[10:29] the courts, how they look at it, but it comes down to proof evidence.
[10:34] proving the impact on the kids really,
[10:36] Lynette: Hmm.
[10:37] Laura: Some people say, oh, the courts ignore it, or blah, blah, blah.
[10:41] But I do think maybe that is because maybe the case wasn't
[10:44] presented very well, do you think?
[10:47] Lynette: Yes.
[10:47] When you first go to a lawyer to prepare your case, the case theory
[10:52] as it is the way the case is going to be argued is really settled
[10:57] pretty well at that first visit.
[10:59] And if, they don't think, if the lawyer doesn't think it was family
[11:02] violence or if you've come out of a situation and you don't realize.
[11:07] It was family violence until you are kind of away and then
[11:10] you think, hang on a minute.
[11:11] That's, that was coercive control.
[11:13] So yes.
[11:14] So you, you do have to put it in, you have to present it
[11:17] properly and early in my opinion.
[11:20] And the court will decide whether it meets the threshold to give you a, a
[11:24] greater share of the property pool or not.
[11:26] Laura: If
[11:27] Lynette: yeah.
[11:27] Laura: it's being ignored, it's probably not being properly framed by the lawyer.
[11:31] The thing you'd mention before is when the lawyer's like, no, no, let's leave it out.
[11:35] Why?
[11:35] Why would lawyers be saying, let's leave it out?
[11:39] Lynette: I don't think the court is allowed to ignore, by the way.
[11:42] They, they must not ignore.
[11:44] Family violence, and there's one of the cases I'm going to talk about
[11:47] today says that they must not.
[11:48] So there's kind of a, a, a barrier being created either by people
[11:53] like Alice is not saying what happened or by the lawyers who.
[11:58] Maybe don't have the courage to do it.
[12:01] Maybe have got themselves stuck on the old case of Kennan and Kennon
[12:06] and saying no, it doesn't reach that threshold and haven't really educated
[12:10] themselves with the other thing.
[12:12] And sometimes I think there's a lot of people have been saying to us
[12:16] that their lawyers have said, oh, if you raise that, there's gonna be an
[12:19] argument, you're not going to settle it.
[12:21] And that might be something people are hearing as well.
[12:24] So, if you've been in a coercively controlling relationship, pointing that
[12:28] out to the coercive controlling person, never ever made them settle or or admit
[12:36] they had been wrong or, or anything.
[12:38] Laura: So you're saying if you are close to getting an agreement that you are happy
[12:42] with, that you are willing to live with.
[12:43] If you raise issues of family violence
[12:46] Lynette: Hmm.
[12:46] Laura: control, that may upset the entire
[12:49] Lynette: Yeah.
[12:50] Laura: and cause it all to fall
[12:51] Lynette: Yeah,
[12:52] Laura: So that may us be a strategic reason not to bring it up.
[12:56] Lynette: Yep.
[12:56] And also too, if it's only going to be an adjustment of a few percent,
[13:01] it might not be worth going to court to, to argue over that element.
[13:05] But if it's children,
[13:07] Laura: let's just talk
[13:08] Lynette: yeah.
[13:08] Laura: quickly.
[13:09] So, and that's the difference, I guess.
[13:11] In court you say it's, it's, it's the law.
[13:13] They must not ignore it.
[13:15] Lynette: Yes.
[13:16] Laura: ignore it.
[13:16] But most people to start out with and negotiating via lawyer letters,
[13:20] mediation and negotiation, which we're gonna get to later, but I
[13:24] guess then people can ignore it.
[13:26] The other lawyer can choose to ignore it.
[13:28] They, they can just.
[13:29] Say whatever.
[13:30] It's only going to be looked at if you do take it to court.
[13:34] Lynette: Yes.
[13:35] And in mediation if, if you believe that you should get 5% adjustment
[13:40] because of what a awful partner they made you don't have to say to the
[13:46] mediator to tell that person, I want 5% for you being such a, you know, jerk.
[13:51] What you do is you just ask for a bigger percentage and in your mind,
[13:55] you know, you've asked for more and you know, that'll be adequate compensation
[13:59] for you, for what you went through.
[14:01] But you know, with kids stuff, it's not the same.
[14:04] Right?
[14:04] Even with consent orders, you have to file a notice of, risk
[14:09] And so even with consent orders, and you have to answer those questions
[14:13] truthfully because the court wants to make sure the court says we want to
[14:17] know about it even if you both agree.
[14:19] Because they do.
[14:20] They can't make orders unless it's in the best interest of the children.
[14:24] And so they ask you actually to say how your orders protect the child given the
[14:31] risks identified, if any, in that notice.
[14:35] But property wise, I see a lot of people do leave that out.
[14:38] If you are arguing about children, I think you've gotta talk,
[14:43] even, even at a mediation level.
[14:45] I think you have to say that is why, that is why I can't agree.
[14:50] That is my concern.
[14:52] And there's pressure on you Yes.
[14:55] To settle things in mediation but you know your children
[14:59] Laura: Mm.
[15:00] Lynette: yeah.
[15:00] Laura: We've done a really good episode on when you have to go to mediation and
[15:05] there's risk and you definitely can't agree to 50 50 without supervised time.
[15:10] So we take you through some really good strategies on how to deal with that.
[15:13] 'cause we know a lot of people get pressured in mediation for
[15:16] Lynette: Yes.
[15:16] Laura: So, mom, how does coercive control.
[15:19] And family violence affect parenting arrangements or custody.
[15:23] So what it can, it can affect time with the kids
[15:26] Lynette: Hmm.
[15:28] Laura: whether it's supervised or
[15:29] Lynette: Yep.
[15:30] Laura: how to communicate with them,
[15:32] Lynette: Yep.
[15:32] Laura: by phone, face, or, and decision making.
[15:35] Lynette: Yep.
[15:35] And how frequently?
[15:37] How frequently.
[15:38] Laura: right.
[15:39] Lynette: they, they really, they want the children to be able to have a relationship
[15:42] with both parents, but only if it's safe.
[15:46] Laura: So have you got any cases that we can give some, some hope to?
[15:49] If
[15:49] Lynette: Yep.
[15:50] Laura: are listening today who are going through and they've got coercive
[15:54] control of family violence with
[15:55] Lynette: Mm mm.
[15:57] Laura: and they're worried that if they raise it, it's going
[15:59] to backfire spectacularly.
[16:02] Lynette: Yeah, so I've got the case my favorite case.
[16:06] On this factor for children is the appeal case of Sayed and Raymond.
[16:11] They, they're aliases, S-A-Y-E-D, and R-E-H-M-A-N-N, and this appeal
[16:18] was heard on the 21st of August.
[16:20] 2025 by an appeal court judge, and he's the Deputy Chief Justice McClelland.
[16:27] It was an appeal from a primary judge and the primary judge said there's been
[16:31] certain family violence allegations yet, but I don't think in this case,
[16:37] it was the mother, I don't think the mother is telling the truth.
[16:40] Therefore, he made arrangements for the children, didn't take into account
[16:44] the risks to the children and on appeal that this is what, what Deputy Chief
[16:50] Justice McClellan said is there was a whole lot of family violence allegations
[16:56] in the affidavit that the wife filed and she never waived from that in the
[17:01] witness box and the husband never.
[17:05] Said anything about them.
[17:07] So it was uncontested evidence in the end, and the appeal was that the judge
[17:13] should have taken into account that uncontested evidence of family violence,
[17:16] notwithstanding that he made a credit adverse finding against the wife.
[17:21] And this was what, judge McClellan said
[17:24] that.
[17:26] The Family Law Act relevantly, section 60, CC two A provides that in determining
[17:32] the best interests of the children, the court must, and he's put it in bold, they
[17:38] must consider the following matters, and A is what arrangements would best promote
[17:44] the safety, including from safety, from being subjected to or exposed to family
[17:48] violence, abuse, neglect, or other harm.
[17:50] Of the child and each person who has the care of the child.
[17:55] So the court now has to, they must look at the family violence and the
[18:00] safety of the kids and, and the carer.
[18:03] Laura: So what happened in that case?
[18:05] If that went to appeal and
[18:06] Lynette: Hmm.
[18:06] Laura: said you made a mistake, does it just get sent back to, to
[18:10] Lynette: In the end, he sent it back for a hearing before another judge, I believe.
[18:14] Laura: Okay.
[18:15] Lynette: He said in, in rejecting the mother's evidence as to
[18:17] the family violence, based on a generalized adverse credit finding,
[18:21] the primary judge failed to provide an adequately reasoned explanation.
[18:26] It required the primary judge to properly engage with the mother's evidence.
[18:31] And so what they've done, remitted it for a rehearing.
[18:35] By a judge in the federal circuit and family court, but , not the
[18:39] judge who made the original order.
[18:42] Okay.
[18:43] Laura: So that's, that's a positive case for
[18:45] Lynette: Yes,
[18:46] Laura: thinking about, because all the judges will be reading
[18:49] the appeal cases, won't they,
[18:50] Lynette: yes.
[18:50] S
[18:51] Laura: And they will be going, Ooh, I don't wanna get appealed.
[18:54] 'cause
[18:54] Lynette: that's.
[18:55] Laura: painful
[18:55] Lynette: Yeah, that's, well, it is painful and, and it's,
[18:59] a real embarrassment to them.
[19:02] Laura: So every judge who have read that case will be going,
[19:05] oh, I don't wanna get appealed.
[19:06] So if anyone raises any issues of family violence in kids matters, I
[19:10] have to take it into consideration.
[19:12] Lynette: you must, you absolutely must.
[19:15] Laura: Okay.
[19:15] Lynette: That's, that's my favorite Sayed and Ramen.
[19:19] Yep.
[19:20] Laura: In that case of I think that the lady was, there was some
[19:25] issues with the lady wasn't there
[19:26] Lynette: Yes.
[19:27] The judge didn't believe her evidence in a lot of things.
[19:31] Laura: Yeah.
[19:31] Lynette: you know, and that's that adverse credit finding.
[19:33] So they say, look, you know what?
[19:35] I didn't believe her, where it came to a choice between her and the father.
[19:39] I agree with the father, but the element was there were
[19:44] allegations of family violence.
[19:46] That the father said nothing about, not anything about, and
[19:51] so they were uncontested and so the court had to consider them.
[19:55] Laura: Yeah.
[19:56] Lynette: back they go
[19:57] they go to a different judge.
[19:59] Laura: That's, so that's how it can affect kids matters.
[20:01] Lynette: Hmm.
[20:02] Laura: Wise, if there's family violence, you know, they're obviously
[20:05] going to either do no time with the children or supervised time.
[20:10] So there was that other case mom, which I think is really important
[20:13] to point out here as well,
[20:15] Lynette: Mm.
[20:15] Laura: To give some hope to those people whose lawyers have said,
[20:18] well, well I'll do a, I'll get the father to do, or the mother to do an
[20:24] Lynette: Yes.
[20:24] Laura: course
[20:25] Lynette: Yes
[20:26] Laura: and then they can have supervised time for a couple of.
[20:29] months.
[20:29] And then after that, if they behave themselves, then they
[20:31] can have unsupervised time.
[20:33] And people
[20:34] Lynette: yes.
[20:34] Laura: about that 'cause
[20:34] Lynette: Hmm.
[20:35] Laura: my ex hasn't changed.
[20:37] I can't trust them around the kids just 'cause they've done a
[20:39] course or just because they've behaved themselves in a supervised
[20:42] Lynette: Yeah.
[20:43] Laura: mean they're gonna behave themselves in unsupervised.
[20:44] So mum, what's the case?
[20:46] Lynette: So the one,
[20:47] Laura: for
[20:47] Lynette: the heartening one for that is Lahar, L-A-I-N-H-A-R-T,
[20:52] and Ellenson, E-L-I-N-S-O-N.
[20:55] It's a 2023 case.
[20:57] And it was an appeal case , again, deputy Chief Justice McClelland.
[21:02] Justice Aldrich and Justice Austin.
[21:05] So that was a full court appeal.
[21:06] So what
[21:07] Laura: What.
[21:07] Lynette: what had happened was that, there are a plethora of courses people can do.
[21:14] You know, that then they say, I'm better now.
[21:16] I've attended anger management, or I've had life coaching, or I'm going
[21:20] to a counselor and, it's kind of like someone's given them a playbook.
[21:24] You know, if you've been accused, do this, this, this, and
[21:26] this, and then you'll be fine.
[21:28] And, and I think when the legislation said the people had to look at equal
[21:33] shared care first and equal time I think those sort of structures were put in
[21:39] place to give some comfort to the judge.
[21:42] If they were going to obey the legislation, which was, and they
[21:45] were, they have to obey, obey the legislation in the steps.
[21:49] So they were in the old days.
[21:50] Yeah.
[21:51] And
[21:51] Laura: legislation.
[21:52] Lynette: the old, yeah.
[21:52] And so they used to use that as a way of going, oh, well, you know, maybe
[21:56] the risk is ameliorated somehow.
[21:59] In lane, and Ellen said the judge made an order that the father attend
[22:04] a counselor and I think it was his own counselor for a certain number of times.
[22:10] After which, after which if the counselor or his social worker said
[22:16] it was okay, then after that he could move on to unsupervised time.
[22:22] And the argument actually with the judge was what, what the full court said was.
[22:27] May, you can't give that decision making to someone outside of the court.
[22:34] The court is the court.
[22:36] It was pretty clear from what the court said , in that case that these
[22:40] sorts of things are not the be all and end all of children's matters.
[22:44] And there is no magic silver path that will show you if a person has.
[22:50] Genuinely changed or have they just done the things, you know, saying
[22:56] what they're supposed to say, apply lip service, you know, and then
[22:59] they have all this to back them up.
[23:01] And then what they do, people in that situation is part of that
[23:05] scheme that I see is they then say that their ex has alienated the
[23:11] children and then they blame them.
[23:14] Laura: Yes.
[23:14] And I think that is another part of that old playbook.
[23:18] Lynette: Yes.
[23:19] Laura: I've done an anger management course, I've behaved myself at supervised
[23:22] contact so that, alienation allegation.
[23:25] Look, I look,, I don't doubt for a minute that there are people out
[23:28] there who are deliberately trying to
[23:30] Lynette: hm.
[23:30] Laura: make the children hate the other parent.
[23:32] I don't doubt that for a minute that that exists in the, world.
[23:35] But the, it, the strategy of the parental alienation argument that is used so
[23:39] heavily, in, courts against anyone who makes an allegation of family violence
[23:46] it just seems to be the go-to strategy.
[23:49] And we have an episode that you can go and listen to
[23:52] Lynette: Hmm.
[23:52] Laura: On the way that abusers use that and how to protect yourself from that.
[23:57] Lynette: Hmm.
[23:57] Laura: and listen to that episode,
[23:59] Lynette: Do
[23:59] Laura: How does that get looked at these days with the new
[24:02] Lynette: well.
[24:02] I think it flares up and shows itself when your lawyer might say, oh, if I say
[24:10] that, you'll be accused of alienation.
[24:13] So I think that might be some of the hesitancy in the legal profession,
[24:17] particularly if you've got a, a very robust and brusque maybe lawyer
[24:23] on the other side, or the, their client is very, you know, the other
[24:26] side is very tough and strong.
[24:29] And your lawyer might be saying, oh, well, you know, they're just going to
[24:32] say this, so why don't we leave that go.
[24:34] You know, and it just worries me.
[24:37] Laura: when it comes to kids
[24:39] Lynette: Hmm.
[24:39] Laura: Look, you've got a person like that, you're not gonna agree mediation.
[24:43] It is
[24:43] Lynette: Hmm,
[24:44] Laura: gonna end up in court and you're going to have to trust that the family
[24:47] court is gonna follow what it says it's going to do, and it's going to must look
[24:51] at the children's best interest and the
[24:53] Lynette: Hmm,
[24:54] Laura: of the children.
[24:55] Lynette: hmm.
[24:55] Laura: you've gotta have the courage and the belief that they will.
[24:58] And if it doesn't like those cases, moms read, you can go and appeal it.
[25:02] Lynette: Yes.
[25:03] Laura: the judge whatever his name is,
[25:05] Lynette: Yes.
[25:06] Okay.
[25:06] Laura: we'll, we'll shoot him down.
[25:08] Lynette: You know, Laura, I couldn't find any very recent cases that went
[25:13] on appeal, like nothing from this year.
[25:16] And that generally means that the lower courts have got the message.
[25:21] Laura: right.
[25:22] Lynette: these decisions that I've told her about are both appeal court decisions
[25:26] and particularly Lenhart, sson, the one where he was going to courses and
[25:31] talking to a psychologist that was a full bench, like three senior, senior judges.
[25:37] So that is binding on the lower courts, you know.
[25:41] Laura: is getting through now.
[25:42] Lynette: I think it is.
[25:43] But do you know, do you remember when the law changed?
[25:46] Right.
[25:47] So I want everyone to be clear, 50 50 is not something people aspire to anymore.
[25:53] The law doesn't require you to, your, the law requires you to protect the
[25:56] children from family violence and abuse.
[26:00] And this resulting psychological and emotional damage.
[26:04] So now the court is just looking at the best interests of the children.
[26:09] And so I think that these cases will show , to the world I guess.
[26:15] But they're showing to the lower court judges, this, this is how you
[26:18] handle family violence allegations.
[26:21] This is how you have to make orders.
[26:24] You can't delegate responsibility.
[26:27] So I'm excited about that.
[26:29] Laura: Now let's talk about how it affects property.
[26:31] Lynette: Okay.
[26:32] Laura: So, mom it so it can, it can come up in cases of financial
[26:36] control preventing work wasting assets, and it can influence your
[26:43] contributions on your future needs.
[26:45] People go, what's the point in bringing up family
[26:47] Lynette: Hmm
[26:47] Laura: coercive control for
[26:49] Lynette: hmm.
[26:49] Laura: point,
[26:50] Lynette: Okay.
[26:50] Laura: point?
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[27:28] Lynette: The point is that now in two sections of Section 79, 2 parts of
[27:33] Section 79, the court has to look at.
[27:36] Whether or not your contributions were made harder because the other
[27:42] person wasn't normal, wasn't, supportive or, or a normal person
[27:48] Laura: abusive.
[27:49] Lynette: or abusive.
[27:49] That's right.
[27:50] So if you feel that your contribution was harder, if you
[27:54] had someone who was drinking.
[27:57] You know, and maybe you've had to put that your partner to bed and, and then
[28:01] look after the children or they, you come home to a mess or whatever it is.
[28:06] If it's alcohol, drugs, just a bad behavior those sorts of things, when
[28:12] they're under, under the influence of alcohol, under the influence of drugs,
[28:16] then their behavior still matters.
[28:18] Because even if they say I couldn't help myself, they took the initial
[28:23] drugs, they took the other thing.
[28:24] And anyway, intention doesn't count.
[28:27] Was your work harder or or less hard?
[28:30] Were your contributions harder because of that person?
[28:33] And then going forward, they also have a look at the effect
[28:37] of any family violence on you.
[28:38] So when they're looking at current and future circumstances,
[28:42] they will look at the effect.
[28:44] That it had on you and, and going forward.
[28:46] So in the famous case of Kennan and Kennan, she'd broken her arm in
[28:51] an altercation of family violence and it meant she couldn't work.
[28:55] And so that was the very first case where that was discussed, and the impact was
[29:00] taken into account under Section 75.
[29:04] Oh, I think it was down the bottom of every, it said any other factor,
[29:08] the court thinks they should.
[29:10] And so for a while there people were saying, well, this is what's
[29:13] happened to my client after that.
[29:14] And then the court started to shut it down.
[29:17] And I think that's where some of our lawyers may be stuck, where it's, it's
[29:21] a hard argument to win Ken and Kennan.
[29:23] But, the government has put it in the legislation now, and so at
[29:28] section 79 5 a. They cl clearly say the effect of any family violence
[29:33] to which one part of the marriage ex subjects or exposed to the other on
[29:37] the current and future circumstances.
[29:39] Okay.
[29:40] And including any of the other matters mentioned in the section?
[29:44] Laura: so if you've got post-traumatic stress disorder,
[29:47] Lynette: Yep.
[29:48] Laura: I don't know,
[29:49] Lynette: Health?
[29:49] Laura: did break it.
[29:50] If you, if you've got an anxiety, panic attack situation that's like extreme
[29:54] Lynette: hmm.
[29:55] Laura: can that be, can that affect your property settlement?
[29:58] Can you get a a bit more percent
[30:00] Lynette: If you've got it should, you should.
[30:02] That's the way that it, the court will weigh it up, but
[30:05] that's what, what should happen.
[30:07] Okay.
[30:08] And the ca case of Dani and Dani that's a, that was mostly about
[30:13] parenting and it was about what led, what documents the court could use.
[30:18] But the other kind of nub of that was that there was, incidences of violence
[30:25] throughout the relationship including SA for the daughter that the mo
[30:31] Laura: that, please call 13 11 14.
[30:33] Lifeline
[30:34] Lynette: Hmm.
[30:35] But the mother didn't know, obviously.
[30:38] Right.
[30:38] It wasn't until the party separated.
[30:41] That the mother found out what had been going on in the relationship, the child
[30:46] disclosed, but during the relationship, the poor girl had so many issues.
[30:53] I'm not sure if there was anorexia, but there were other
[30:55] like outbursts and, and depression.
[30:59] And really this, this poor girl was.
[31:03] Wreaking havoc.
[31:04] I havoc I guess because of her secret that he, he made her keep, and the court
[31:10] said that meant during the relationship the, the mother's contributions were
[31:15] harder 'cause she didn't know why her daughter was kicking off all the time.
[31:18] And, and, yeah.
[31:19] Laura: had to look
[31:20] Lynette: Sh she had to, yep, she had to deal.
[31:22] And of course the daughter going forward was in need of, in a very intense therapy
[31:29] and, treatment for her post-traumatic stress disorder going forward.
[31:33] So the court got on on Dani and Dani one on the way through the marriage, even
[31:39] though he argued he, he had the hide to argue that the mother didn't know.
[31:44] Therefore, it couldn't have made her contribution harder.
[31:49] I know.
[31:50] Mic drop.
[31:51] Laura: What
[31:51] Lynette: That's what he argued.
[31:53] So that's what the Yes.
[31:55] Well, do you know the appeal court said, no, no, no, no.
[31:57] You know, this is the right use of this section.
[32:01] This is appropriate.
[32:02] Do you know he went on to appeal to the high court
[32:05] Laura: Mm,
[32:06] Lynette: as well,
[32:06] Laura: it
[32:07] Lynette: but it got kicked out.
[32:07] Yeah,
[32:08] Laura: Good.
[32:08] So,
[32:08] Lynette: so.
[32:09] Laura: the, the, they got a larger property percentage because the mother
[32:13] and the daughter would have to be working.
[32:15] Lynette: Hmm.
[32:16] Laura: To
[32:16] Lynette: They,
[32:16] Laura: her recovery
[32:18] Lynette: yeah.
[32:18] Laura: to make up for the, the harder work she had to deal with in, in the marriage
[32:23] Lynette: Yes.
[32:24] Laura: Havoc that the father had
[32:26] Lynette: Hmm.
[32:27] So that was under section 79 4, which is the contributions element,
[32:31] Laura: Yep.
[32:31] Lynette: then again in section 79 5 a. Which was for current and
[32:37] future circumstances and like,
[32:39] Laura: needs of
[32:40] Lynette: yes.
[32:40] And you know, oh my gosh.
[32:43] And, and she needed, like, she did need the lion's share
[32:46] of the property in that case.
[32:48] Laura: So are there any other cases that shows how it
[32:51] Lynette: There's one recent case, it's a 20.
[32:54] Laura: it.
[32:54] Lynette: 24 case that's called Burnell and Rockford.
[32:59] R-O-C-K-F-O-R-D.
[33:01] Now that's an interesting case.
[33:03] It was Judge Hughes, just a single judge.
[33:07] But what he said was he explored the allegations of family violence during
[33:13] the marriage and the wife in this case, again, of course, they're aliases.
[33:18] The wife in this case said she had a clinic of some kind.
[33:21] She was raising the kids pretty well.
[33:23] It sounds like she was doing it pretty well single-handedly, and
[33:26] being a clinician of some sort.
[33:29] The husband stepped in to help her at her request with the bass
[33:33] and, and tax generally, and, and keeping things in order.
[33:37] She says.
[33:38] She didn't know what the money was doing at any time.
[33:42] He took control and that was coercive control.
[33:44] And this is a case where the court said, you know what?
[33:48] Because she always knew the pin number, she could always log in.
[33:51] We are not satisfied, or I'm not satisfied that that behavior in itself
[33:55] was constituted any coercive control that would've made her contribution harder.
[34:00] It was mostly in a helping role.
[34:02] But then they went on to talk about his communication since separation, and the
[34:09] manner in which he conducted himself post-separation and the tone of the
[34:14] text messages, the cutting her phone off the, like the, all the snarky, nasty
[34:19] things that you can do if you have.
[34:23] Control of the, of the things, you know, and so that the courts, so that
[34:27] they said was family violence and as a result she got an adjustment
[34:32] Laura: So the post-separation abuse, silly behaviors that some people
[34:36] Lynette: Mm,
[34:37] Laura: ex cancels their insurance, turns off their phone,
[34:40] Lynette: yep.
[34:41] Laura: cuts them out of access to money, that kind of thing can
[34:44] now affect property settlement.
[34:46] If, if you get
[34:47] Lynette: Yep.
[34:47] Laura: a judge, they can give you a larger percentage because of their behavior.
[34:52] So realistically what we're seeing and, like mom said, that that.
[34:57] Once they start, once they've been appealed a few times,
[34:59] the judges get the message.
[35:01] Lynette: Hmm.
[35:01] Laura: so those appeal cases that would be very relevant for you if you are
[35:06] going through this to print out, have a look at, take to your lawyer, maybe give
[35:10] you a lawyer a bit, a bit of a bit of.
[35:13] A push.
[35:13] Now, mom, the, the problem is though, a lot of these people aren't in court.
[35:17] They don't
[35:18] Lynette: No.
[35:18] Laura: looking at it.
[35:19] They,
[35:19] Lynette: Yeah.
[35:20] Laura: go into mediation and say, well, because of your post-separation abuse
[35:24] your non-disclosure, you're wasting time.
[35:25] You're
[35:26] Lynette: Yeah.
[35:26] Laura: you're doing all these horrible things.
[35:28] You, took my car away.
[35:29] I couldn't drive my car
[35:30] Lynette: Hmm.
[35:31] Laura: the things.
[35:31] I deserve a larger percentage of the property pool.
[35:34] So what do people do in mediation?
[35:36] Lynette: Well, you can't say that you can because everything that you negotiate
[35:40] in mediation is with the understanding that if we don't sort it out here,
[35:45] the court's going to sort it out.
[35:47] I was just looking in that Burnell and Rockford she got a 4% adjustment
[35:51] in her favor because of the arduous, contributions that she's had to make
[35:56] post separation and greater parenting contributions during the relationship.
[36:00] So yes, I mean, that's what lawyers do.
[36:02] If you had a lawyer there, they'd go, oh, no.
[36:04] Rob's case, you know, that's the one where you get extra if you've
[36:07] had diff step children with you.
[36:09] So they just, each of them banter cases backwards and forwards.
[36:14] Laura: Right.
[36:14] Lynette: it might help your lawyer to have it.
[36:16] Laura: take the cases in.
[36:18] If you are going into mediation
[36:19] Lynette: Hmm.
[36:19] Laura: you've got coercive control or family violence, one, good
[36:22] luck trying to get a mediator.
[36:23] So that's, that's, that's a tricky battle that you might have to go through.
[36:28] So find someone who's willing to do it.
[36:30] We talk about how to do mediation safely.
[36:33] Lynette: Hmm.
[36:33] Laura: But consider doing, you know, shuttle
[36:36] Lynette: Yep.
[36:36] Laura: or via Zoom so you're not even in the same space.
[36:39] Lynette: Yep.
[36:40] Laura: And basically all you're doing is showing them, Hey, if we, if you
[36:45] don't agree to my thing, we're going to go to court and the judge is gonna
[36:49] look at this and it could be worse.
[36:50] Lynette: Yep.
[36:51] Laura: really
[36:52] Lynette: Yeah.
[36:52] Laura: what would happen?
[36:53] Lynette: Yep.
[36:54] That's, that's how everyone negotiates everything.
[36:57] Because when you go into mediation.
[36:59] You have to do it under a framework, otherwise, why would
[37:02] the other side give you anything?
[37:03] So you turn to, for properties, like you turn to section 79 and
[37:08] say, you know, these factors this is the contributions I made before,
[37:13] during, and after the relationship.
[37:14] Financial, non-financial.
[37:15] These are the contributions I've made post separation.
[37:18] These are the parenting contributions.
[37:20] All of the, where all, all of the arguments are.
[37:23] Under the umbrella of the likely outcome in court, and therefore they follow the
[37:28] structure of the legislation usually.
[37:30] So when I said like, if you are very close to settlement and a 4%
[37:36] adjustment say, is not worth fighting for you may not mention it in the
[37:42] mediation if it's going to destroy the settlement, but you must mention it.
[37:47] In relation to children's matters, because each of you has to fill
[37:51] in have to file a notice of risk in relation to the children.
[37:55] And so you can't be kind of making orders that a court wouldn't, make.
[38:01] Laura: Hmm.
[38:01] Lynette: the circumstances and the way reason I think the court gets people
[38:05] to put that document in very early in proceedings if they haven't, if it's
[38:09] going to go to court, that's said and that's there and it can't be unsaid.
[38:15] And then as people get weary of litigation or decide they'll worn down
[38:21] to compromise, the court's got that solid document there to challenge the
[38:26] orders when it comes to the children.
[38:28] Laura: And we've talked about percentages and how,
[38:31] Lynette: Hmm.
[38:31] Laura: how not to, negotiating percentages to start with and
[38:35] the day and the pitfalls of that.
[38:37] So go listen to that episode.
[38:38] But realistically, if you think, if you've done the numbers, you've got
[38:42] your property pool there, you've looked at what you think you're entitled
[38:44] to based on the Family Law Act.
[38:46] You've seen a lawyer, they've said you
[38:47] Lynette: Hmm.
[38:48] Laura: this percentage in a mediation if you think you're getting close.
[38:52] Lynette: Hmm.
[38:53] Laura: you don't have to say, well, look, I, I deserve an extra 4%
[38:56] because of your family violence.
[38:58] You could just add in the extra 4%
[39:00] Lynette: Yes.
[39:01] Laura: what I think I deserve.
[39:02] Lynette: Yeah.
[39:03] Laura: you don't have to say it's
[39:04] Lynette: Hmm.
[39:04] Laura: of family violence if you don't want to.
[39:06] Lynette: Yep.
[39:07] Laura: but with property, if you
[39:08] Lynette: Hmm.
[39:09] Laura: raise it, the reason I think sometimes it is a good idea to raise
[39:13] it is because if your ex has a lawyer.
[39:16] And we talked about this with kids as well.
[39:19] And you do say, look, here's the proof.
[39:20] Like this is, this is gonna go to court.
[39:23] And the lawyer is going to try and push you to settle as quickly as
[39:27] possible so you don't go to court.
[39:29] But if you don't call their bluff, they are gonna have to sit their client
[39:32] down and say your ex down and say, look, this is going to be put in court
[39:36] Lynette: Hmm.
[39:37] Laura: gonna be bad for you.
[39:38] Lynette: Yep.
[39:39] Laura: really do have to give it your best
[39:41] Lynette: Hmm.
[39:41] Laura: in mediation, I think.
[39:43] Lynette: Yeah, I agree.
[39:44] And that with children, you, you really have to mention it in, in
[39:48] in your negotiations because you might reach agreement, draw up your
[39:52] consent orders ready to go, and then.
[39:55] You each fill in a notice of risk, which you must answer truthfully, and
[40:00] that could destabilize the whole thing from the other person's point of view.
[40:03] That's it.
[40:04] I'm going for 50 50.
[40:05] Laura: mm.
[40:06] Lynette: yes, it's, it's it's, it's a challenge.
[40:09] . When you go to mediation, everyone knows the court, the law.
[40:12] Hopefully, and you guys have got the cases, you've got our course, you work,
[40:15] you've got the sections of the act.
[40:17] But I always think of it like a, a, like a blackboard, a little blackboard, right?
[40:22] Your workings out on this site and they might include four
[40:25] or 5% for family violence.
[40:27] They're working out on the other side.
[40:28] They might think because they put extra earned the money, they should get more.
[40:32] When, of course, earning the money.
[40:34] Isn't a reason to get more property, but who cares?
[40:38] Imagine the workings are all covered up and it's just those bottom two numbers.
[40:42] That's how I would mediate cases and say, well, you know,
[40:46] look, you're this far apart.
[40:48] Is there room for either of you to move or is this worth going to court?
[40:52] You know, have a think about it and, and that way you're not.
[40:55] Triggering each other in that negotiation.
[40:58] And bearing in mind, anything said in mediation is confidential.
[41:02] Laura: Hmm.
[41:03] Lynette: unless it's about harm to a person.
[41:06] Laura: But in, in saying that if you, for example, that poor person that
[41:09] has an older daughter now that's going to need all that therapy, all that
[41:13] psychiatrist help everything that they're going to have to put that poor
[41:16] child through to get them to a better place to, to, to deal with life after
[41:20] what the father's put them through.
[41:22] You obviously know you're going to need more property to be
[41:25] Lynette: Yeah.
[41:26] Laura: to deal with that.
[41:27] So you've gotta kind of look at.
[41:28] What your future needs actually are going to be
[41:31] Lynette: Hmm.
[41:32] Laura: what, what can you live with?
[41:33] What can't you live with?
[41:34] And way up, going through court to get
[41:36] Lynette: Hmm.
[41:37] Laura: So there's a lot
[41:38] Lynette: Yeah.
[41:38] Laura: So we've got an episode called settling or court and the considerations
[41:42] that you should weigh up and , the kind of 10 questions you should ask yourself.
[41:47] So if you haven't
[41:48] Lynette: Hmm.
[41:48] Laura: to that episode, please go put that.
[41:49] I'll put that in the show notes.
[41:50] Go listen to that.
[41:52] Lynette: Can, can I just say though that woman and any women in those positions,
[41:58] usually it's, any person I guess in those positions, they are also traumatized and
[42:04] it's very hard for them to be strong.
[42:08] Laura: Mm-hmm.
[42:09] Lynette: anything.
[42:09] Laura: Yeah.
[42:10] Yeah.
[42:10] Lynette: and the fact that she only found out about it after separation
[42:14] means that she's got, that, that lady has got so much to process and
[42:19] so much to, and it's a big ask then for them to stand up to their abuser.
[42:25] Laura: Yes.
[42:26] Lynette: so early on and, and demand a better outcome.
[42:29] And that's where I think those soft eyes, that judge best wanted us to lawyers to
[42:36] use comes in because it does seem to me that the mediators forget that one of
[42:43] the parties is still suffering because finding there was family violence.
[42:48] That's historical, but the, the.
[42:51] The nature of the person now, the victim now is still current and, and you have
[42:58] to be aware of that when you deal.
[43:00] Laura: that's so true.
[43:01] Lynette: Hmm.
[43:02] Laura: How then do you approach it in negotiation?
[43:05] So this is before mediation, or if you're negotiating, do you raise it?
[43:09] Do you raise it in a letter?
[43:11] Do you write a letter and say,
[43:14] Lynette: If,
[43:14] Laura: this
[43:15] Lynette: if it's safe, if it's safe to do so, right.
[43:18] So or it might be that it's just alluded to, you know, because you're
[43:23] only negotiating right at this early stage however, those early
[43:28] letters are admissible in the court.
[43:31] Laura: And have you seen it in court where they've said, well, they've never
[43:34] talked about family violence before.
[43:35] They're
[43:36] Lynette: Oh, yes.
[43:37] Yeah, I've heard the judge say that.
[43:39] It's just so, it's, it all comes down to you asked at the beginning,
[43:43] Laura, you said, how do you prove it?
[43:45] Right.
[43:46] There's two confusing aspects that have come into play.
[43:50] One is some states have criminalized coercive control and the evidence
[43:56] required for that charge, that criminal charge it has to be
[43:59] clear and and unequivocal, right?
[44:03] When you're in the family court, we are looking now at the best interest of the
[44:07] children or your financial situations.
[44:10] The court doesn't have to.
[44:13] Apply the same level of proof.
[44:16] And we all know most family violence happens behind closed doors.
[44:20] There's no record of it.
[44:22] And so it's your word against the other person's word.
[44:27] The thing that will get you through is what got I think Mrs. Lane
[44:32] Hart through lahar and Ellison, whichever one was the woman was
[44:36] that she put it in her affidavit.
[44:39] And then she wasn't, she wasn't cross-examined about, about
[44:43] some of it because I suspect the husband would've had to confess.
[44:47] And if you are doing an affidavit for court, then the way to make
[44:52] it live is like we said, you don't explain the, the outcome.
[44:57] You don't say he was domestically violent or she was domestically violent.
[45:00] You, you explain the behavior, the actual incident.
[45:05] That happened and set the scene.
[45:07] Laura: If you would like to know how to put your coercive control
[45:10] into an affidavit into writing, we've got a whole episode on that.
[45:13] It's called Putting Coercive Control into Writing for court.
[45:16] Lynette: Hmm.
[45:16] Laura: go and listen to that episode, mom takes you through
[45:18] some great strategies on that.
[45:20] Mom, what do you think the biggest mistakes people make when it comes
[45:24] to coercive control and family violence and, negotiating their
[45:30] property sentiment or kids matters?
[45:32] Lynette: Hmm.
[45:32] Laura: the biggest mistake?
[45:33] Lynette: I think the biggest mistake is the peace at any price
[45:37] mentality, and it's not their fault.
[45:40] If you've come out of that situation, as you can see in that Burnell
[45:45] and Rockford coercive behavior can continue right up until the mediation.
[45:50] I mean, they may accidentally on purpose run into you in the foyer of
[45:55] where you're gonna have your mediation.
[45:57] They may like drive behind you like so , you are not out of it yet.
[46:03] And that and that way, you have to rely on your advisors to tell you.
[46:08] And, and over the years, there've been people who've come in and
[46:12] go, I can't take it anymore.
[46:13] Just do this.
[46:14] Just give into that.
[46:15] I want you to just stop.
[46:17] You know?
[46:18] Laura: I
[46:18] Lynette: And
[46:18] Laura: over.
[46:19] Lynette: yeah, they do.
[46:20] Laura: A lot of people, I hear it all the
[46:22] Lynette: Hmm.
[46:22] Laura: lot of people do it in property
[46:24] Lynette: Yes.
[46:25] Laura: they just, they're like, I will, I will gladly give up.
[46:28] know, whatever percentage they're trying to get out of me
[46:31] Lynette: Yep.
[46:32] Laura: I don't have to put up with this man ever again or this
[46:34] Lynette: Yep.
[46:35] Laura: again.
[46:35] I, I, I totally understand the, the attitudes that we hear from people and,
[46:40] and why they would make that decision.
[46:42] Lynette: Hmm.
[46:42] Laura: mom, you're very right.
[46:43] You're still, if you are listening to this, you're
[46:45] still probably experiencing it.
[46:47] We got coercive control in particular.
[46:49] You can't just turn it off.
[46:50] These people they're not just gonna go, oh, well, you've left.
[46:53] I'll stop now.
[46:54] The post-separation abuse is real, and if you are still living it, sometimes
[46:58] it's even worse after you've left because it's, it's a new environment
[47:02] that you're dealing with and it's not something your, your body's been
[47:05] able to figure out a way of coping.
[47:07] Lynette: Yeah.
[47:07] Laura: and so you're right, mom, in mediation decisions are made out
[47:12] of panic and out of just wanting to get out and, and be free.
[47:17] Lynette: Hmm.
[47:17] Laura: And I'm not judging anyone for, for doing that at all because I
[47:21] can totally understand why you would.
[47:22] But just make sure you know what you're giving up.
[47:25] Make sure that you are not gonna come back in a year and go,
[47:29] Lynette: kick yourself
[47:30] Laura: I've made a big
[47:31] Lynette: and
[47:32] Laura: With kids.
[47:32] I don't see anyone compromising with kids.
[47:34] There's this like, if, if you've gotta stick to your guns,
[47:37] you've gotta stick to your guns.
[47:38] And, and, and we also think that, that those people are so brave
[47:42] Lynette: hmm.
[47:42] Laura: what they need to do.
[47:44] For their children.
[47:45] But
[47:46] Lynette: Yep.
[47:46] Laura: That is a big mistake that mom, you do see.
[47:49] Lynette: Hmm.
[47:50] Laura: do you think the, what do you think you could embroider on a cushion
[47:55] though, for anyone listening today?
[47:56] 'cause those cases do give me hope, that
[48:00] Lynette: Yes.
[48:01] Laura: even though it's basically saying some
[48:03] Lynette: Yeah.
[48:03] Laura: aren't doing the right thing gives me hope.
[48:06] Lynette: Hmm.
[48:07] Laura: what could we say to the people listening today to give them hope?
[48:12] Lynette: Yeah, it's too big for a cushion,
[48:14] Laura: I
[48:14] Lynette: but
[48:15] Laura: let's embroider a blanket.
[48:16] Lynette: okay, if, they didn't want you to talk about it, they shouldn't
[48:21] have done it in the first place.
[48:23] Laura: yeah, so
[48:24] Lynette: it's not your shame.
[48:26] It's theirs and you name it, and, and that's partly taking your power back.
[48:31] I think you'll have wobbly knees and palpitations
[48:35] sometimes to stand up to them.
[48:38] And sometimes you just can't, and you'll move, perhaps wait
[48:42] a while or, or pull back a bit.
[48:44] But yeah, eventually if they didn't want you to talk about
[48:47] it, they shouldn't have done it.
[48:48] And it's their shame not yours.
[48:50] Laura: And when you get to court and when
[48:52] Lynette: Hmm.
[48:53] Laura: are looking at this, with the new processes in place, the new systems in
[48:56] place, the attitudes slowly changing.
[49:00] The
[49:00] Lynette: Yes.
[49:01] Laura: that are happening, the smacks on the wrists that the judges are getting
[49:04] when they don't give it the right
[49:06] Lynette: Mm-hmm.
[49:07] Laura: Should be giving you some hope.
[49:09] So I will put Burn Burnell and Rockford.
[49:12] Leonhard and Ellison Dejani and Dejani Sad.
[49:14] And Raymond, in, in the show notes for you to have a
[49:18] Lynette: Yes.
[49:18] Laura: at, to take to your lawyer, to take to your mediation to
[49:22] Lynette: And
[49:22] Laura: better and give you a little bit more of assurance
[49:24] that the courts are listening.
[49:26] Lynette: Hmm.
[49:27] And that article
[49:28] Laura: Oh,
[49:28] Lynette: Judge Best and section four AB of the Family Law Act.
[49:33] Laura: And really please go listen how put coercive control into writing for,
[49:38] Lynette: Mm.
[49:38] Laura: court.
[49:39] And also go listen to, is it family violence?
[49:41] We take you through the Family Law Act
[49:43] Lynette: Yeah.
[49:43] Laura: go through each step.
[49:44] So thank you mom so much for your time today.
[49:47] Lynette: worries, Laura.
[49:48] Bye.
[49:49] Laura: a, a horrible subject to talk about, but that I know
[49:52] that a lot of our listeners will be so grateful that you have.
[49:56] Lynette: Mm-hmm.
[49:56] Laura: and if you are listening today and you are going through
[49:59] this, we are here for you.
[50:01] We are with you, and we give you big hugs.
[50:04] Lynette: We do.
[50:05] We do.
[50:05] You will get through and you'll be all the better for it.
[50:09] Bye.
[50:09] Bye darling.
[50:09] Laura: Thanks ma. Bye.
[50:11] Lynette: Bye everyone.
[50:14] If you found this podcast helpful, we'd love it if you
[50:16] could rate, review and subscribe.
[50:17] By doing so, you are spreading the word to help someone else just like you.
[50:22] Lynn would like to remind you that this podcast is general advice only, and
[50:25] you should always get legal advice in relation to your particular situation.
[50:30] And remember that the Australian laws may have changed since recording.

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