#131 Belinda McClelland – Divorce Law

Get a clear insight into legal processes of the Family Court of Western Australia with divorce and family lawyer Belinda McClelland.

Belinda shares her story to becoming a divorce and family lawyer and starting her own practise.

Within this conversation, she takes time to talk through the legal process as well as providing some very clear insight and strategies to align expectations in terms of the time and the money implications of not working towards an agreement in a proactive fashion.

The podcast is super useful for someone who has recently separated and is in the middle of what is an immensely emotional event. However Belinda also explains how important it is to consider upfront the financial and administrative implications of moving in together with a partner – something so often overlooked.

Belinda is a lovely and down to earth lady which goes a long way to dispel some of the myths that many have about lawyers from the outside.

 

Read Full Transcript

Bryn 

gets a clear insight into the legal processes of the family court of Western Australia. With divorce and family lawyer, Belinda McClelland, Belinda shares her story to becoming a divorce and family lawyer and starting her own practice. Within this conversation, she takes time to talk through the legal process, as well as providing some very clear insight and strategies to align expectations in terms of the time and money implications of not working towards an agreement in a proactive fashion. The podcast is super useful for someone who’s recently separated and is in the middle of what is an immensely emotional event. However, Belinda also explains how important it is to consider upfront the financial and administrative implications of moving in together with a partner. Something so often overlooked. Belinda is a lovely and down to earth lady, which goes a long way to dispel some of the myths that many people About lawyers from the outside. So enjoy, Linda. Hello and welcome back to W a rail. I’m your host Bryn Edwards. Family Law is where we’re going today with my guest, Belinda McClelland, Belinda, welcome to the show.

 

Belinda McClelland 

Hi, Bryn. Thanks for having me on your show. You’re very

 

Bryn 

welcome. You’re very welcome. So one of the questions I like to ask my guests at the start, is how they came to be in Western Australia. Now I just said, You were born in Zimbabwe, and then move to South Africa when you were five, and then came here it was 1982 when you were 17

 

Belinda McClelland 

in 1994. So yeah.

 

Bryn 

Why did you end up in Western Australia? What was that like?

 

Belinda McClelland 

Okay, so when my parents separated when I was about nine in South Africa, and my dad later meeting Australian lady who lived in a share house with him, and then he decided to immigrate here Few years with her, and I stayed with my mum in South Africa. And then when it got to the time I finished school, I had a choice to either come here or stay and go to university in South Africa. And admittedly, at that time, there was no fees in Australia. So it was before, you know, university fees came in. And so it was a hard decision because I had all my friends in South Africa, but I thought, well, I’d come and come to Western Australia because my dad was here. So I did that as well. It was it was very upset. He was very upset right at the beginning because I left all my friends behind. I went to university and I knew nobody at all, you know, everybody else, had somebody to go and have a coffee with or, you know, sit next to someone they knew in the lecture, and I didn’t know anybody. at all. So for the first few months, that was kind of upsetting, you know, I wasn’t sure. But no friends and just knew my dad and admittedly my dad married the lady and, and actually, my sister, youngest sister come out before and my dad also had another child. So I had the family that I knew, but other than that, nobody, yes. Outside of that, so took a few months before I even you know, had the character say, Oh, you know, do you mind if I join you for coffee or, you know, just this actually meet people. And, you know, when you’re 1718 you know, other people are going out to parties and you know, that time of your life when you you know, I guess what I was having a really good time in South Africa and came here and no one to go to a party with no one to go to the movies with no one to you know, play with So it took a while, but obviously, I got there. Yeah. So and then so I studied at UW. And then they got got a job when I finished the two degrees, well, two degrees, but took three years for one. So if you had to do one year of economics or another degree before you could do law, then I did a Bachelor of Laws and then a one year bachelor jurisprudence. So that means I could

 

Belinda McClelland 

get a job. In those days, we did articles, so.

 

Belinda McClelland 

So that’s how I got into it.

 

Bryn 

And we don’t tend to go back to South Africa.

 

Belinda McClelland 

Well, I missed my friends and what have you, but I guess, by that stage, we knew things politically in South Africa, we’re going to be difficult to With you know, political upheaval, apartheid was breaking down. There was high crime rates already. And so there wasn’t really a good future for white people in South Africa. So to that extent, Australia was, you know, a great alternative. So is it home now? It’s been home ever since the news. I went back there on a holiday five years after being here, and, you know, seeing all your friends have moved on, and you know, and obviously, but bazzara been here five years, I started to bite friends and so, yeah, a lot. I mean, it’s a beautiful, South Africa was beautiful. Yeah, as well. You know, beautiful kilometres, those little similarities. That’s right. So nice climate beautiful scenery. It’s kind of a similar lifestyle really to here. But, but I guess the differences, certainly in those days, if you open the newspaper, you know, the front page might be, you know, three legged dog run over. But in South Africa, it was like, you know, 50 people killed killed here and 50 you know, so it’s certainly a lot safer. And you when you when you’re living there, you sort of

 

Belinda McClelland 

you don’t realise how unsafe you are until you sort of

 

Belinda McClelland 

you know, suicide.

 

Belinda McClelland 

That’s right. So is and

 

Belinda McClelland 

well, Western Australia is particularly beautiful.

 

Belinda McClelland 

I’ve now travelled all around and I do think it’s with Perth is such a beautiful city. I walk along the river every day, or along the ocean or, you know, I just think we’re blessed to be in such a gorgeous, gorgeous state. Turn country.

 

Bryn 

So you’re a practising family lawyer. You have your own practice which we’re sitting in at the moment. Why law? Why, why, why back then?

 

 

Well, funny I

 

Belinda McClelland 

My dad always tells me that when I was about 12, apparently I was always extremely argumentative and right. And he would say, you know, he would say, well,

 

Bryn 

is that a useful thing?

 

Belinda McClelland 

Well, if it’s if I said the cedar, the sky was blue, you’d say, Oh, no, it’s not as clarity. And he said, You know what, you should become a lawyer. And, and that kind of, I suppose, like the back of my head, but and then when it got to finishing school, you don’t really know what you want to do when you finish school. You know so many of you God and what do I do and But I thought in those days, I thought, well, if I do law, it’s, at least I know I can get a job at the end of it, because in those days, you who was the only law school, and so they’re only producing 200 graduates a year, and there was a shortage of lawyers, so he knew you were going to get a job. So I thought, well,

 

Bryn 

decision on what

 

Belinda McClelland 

I can do this and if something else comes along, you know, that I that I really want to do well, I can always do that, but at least in the meantime, at least be doing something rather than doing nothing. So that was my thinking. And so and then, in fact, I did law for two years and then decided a hiatus

 

Bryn 

really after,

 

Belinda McClelland 

after you Why are articles and then and then so your first years articles, you’re not really a lawyer the second years what they call restricted practice here, so you’re not allowed to go out on your own yet.

 

Belinda McClelland 

And anyway,

 

Belinda McClelland 

I don’t think I was happy with the firm that I was in.

 

Belinda McClelland 

And I just thought, I think was also the whole change from uni. We’ve got six weeks off over so many holidays and this business of suddenly working full time I have only four weeks annual leave a year. But I can’t you know, I can’t do this. So I did. I just gave up and Mr. Leon went on social security for three months and and then I was offered a job in a settlement agency. And I thought I can do this. Yeah, just buying and selling houses. You know, when you go to a settlement agent for someone to buy a house so did that it was quite straightforward. It was okay. But then I was offered a position in another food Okay, I’ll give it one more chance because it seems such a waste of you know, getting a law degree to and that film was a lot nicer. But I was doing commercial conveyancing and I guess that was the other thing is really dry. And so, and in fact that it wasn’t a lot of work, so sort of, I could see that I was never really going to go anyway, I was just doing debt recovery and that sort of thing. So and then I was offered a job at a family law firm. And it was just so interesting, and I thought, wow, this is this is me. I like this dealing with people dealing with you know, not well, in fact, the funny thing is that you with all that commercial conveyancing background that I had, yes, you realise the how very useful That is when you’re doing family law because you’re dealing with people’s finances. So you need to know what you know companies are and what trusts are. And you know, you need to know the processes of conveyancing and everything anyway, so it was a really handy background to have, but

 

Bryn 

just go back to sort of unique articles and things like that. And from an outsider looking in, you always hear that it’s hard work. Right? Is it really hard work?

 

Belinda McClelland 

Um, well, just like any other Well, I never, I was never really striving to be a nice student. So and the first year or two of course, it was kind of hard work because I was doing economics and maths and and I had no friends anyway. So I spent all my time union and kind of because you had to get good box net first you have a different degree before you can Get into law. So I did manage to get an eye in maths and, and got in and worked hard that year but then the next year because you’re there for a long slog beginning go to every lecture, do all the work but you realise how much less you have to do as the years go by and you know what lectures you can miss them which lectures, you know, and so I had a lot of fun really unique. I wasn’t I didn’t do a lot of summer work at law firms or anything like that. I had a job part time to stacking shelves, but the rest of it was you know, it’s a nice age to be a not have a full time job and, and have fun is, I guess. Yeah, I think it’s, anyone can really do it. It’s not that hard nine.

 

Bryn 

Because it always seems like something there’s a mistake.

 

Belinda McClelland 

No, in fact, I mean, you only have a few Contract hours a week and and I wouldn’t say I’m some sort of, you know, particularly brainy person, but it’s not. I don’t think it’s as hard as that Mike at night,

 

Bryn 

right. So you went through the conveyancing and then an opportunity came up in, in family law. And you mentioned earlier on that it was it was more appealing. The people aspect. Yeah. Tell me a bit more about that.

 

 

Yeah.

 

 

Well,

 

Belinda McClelland 

of course when you when you’re helping somebody through a breakup, you have to sit down and you really have to find out everything about the lives. So the sorts of things that nobody would ever tell you in a pub kind of thing is afraid and if you know what I mean, you in fact you find out the things That would never even tell the friends because they want to get advice from you. So you find out, you know, what they earn, how they run them, they finances what they own.

 

Belinda McClelland 

You know, as far as the fund, and then

 

Belinda McClelland 

so you find out a lot about the children, they marriage, how long they’ve been married for. And the first question is, is never you know, why did you? Why did you split up with the person, you first need to find out all of the circumstances anyway. In fact, the reason that they broke up with the person is not even relevant to the client for property settlement. Yeah, or, and of course, we also deal with parenting arrangements, so children, and so you’re just finding a lot out about people and you sort of get a lot of insights and you do and it’s so it’s interesting and it’s not always the case that the client is in there crying and you know, Quite often they’ve already dealt with it. And they just want to sort out they miss kind of thing. So you do. You know, I think I like to help people and I want to. So it’s kind of like, it’s like what you would do with a free No, come on, why don’t we do this? Why don’t you do that. And of course, I’ve got all the knowledge of how they can go about, let’s get this sorted for you. And so because all you want to do now is developed to get on with the rest of your life you just want this over and done with so let’s let’s find the quickest way we can get there the cheapest way we can get there. And I feel as if in a sense, I’m also like, it’s a helping profession. Really? Yeah.

 

Belinda McClelland 

I know that because people are in a,

 

Bryn 

you know, the end of a relationship is possibly one the most difficult it’s up there is that they were referred to the kleiss.

 

Belinda McClelland 

Oh, yes. almost wish sometimes that if someone does, as opposed to if someone leaves you for your business frightened, you know, I mean, it’s that really upset, you know, sort of

 

 

world is collapsed in. Yes.

 

Bryn 

Yeah. And, and so

 

 

yeah.

 

Bryn 

It’s like the most crucible of the cricket

 

Belinda McClelland 

Davis devastating. Let’s

 

Bryn 

go in and actually help someone through it.

 

Belinda McClelland 

Yes. Well, that’s right. So, I mean, people say to me, Well, you know, you’re dealing, you know, that must be so hard in fact dealing in family law that, you know, all these emotions and what about and I suppose I’ll say to them, the thing is, they come in on, I don’t feel the emotion. I’m not feeling upset. It’s not my husband, it’s not my child. It’s not my money. So, they come in and I can look at what they have to say objectively and go Look, I know that you might Want to you know, make sure he has nothing left after I’m finished with I know, that’s how you feel. But the truth is that actually the best thing for you financially and otherwise is to just, you know, do an amicable separation and sorted out in a fair and, you know, so they innovate hearing that from somebody objectively, you know, that’s how can be of help. Yeah. a tonne. Well, there are times that are supposed to interpret someone tells me the story, and the person on the other side really is a beach or Boston. Oh, yeah. And then I’d get a little bit involved or engaged myself because I think I’ll forget that, you know, it’s sort of mad. But, and so I do care. But mostly, I am, as I say, I do feel as if I can help them through it and most of the time at the end, they go off. Thank you so much, you know, You know, obviously my work is all on referral. So yeah, we’re not we’re not all painted with the same brush that some lawyers, you know. Will you do hear about nothing? I’ve seen myself in some my dealings with lawyers that you do get the feeling sometimes that they are more worried about how much money they’re going to make out of that case, then properly sorting it out. Yes. And I do have to say, I have seen that, you know, just even maybe it’s just the way that I deal with it. Instead of being I’m a real results person, I just want it let’s get to the end. And whereas sometimes you feel as if they dragging things out that they convincing proceedings are necessarily maybe blessing comes in, you know, man, it’s just that they’re incompetent, but You know, I do think some people are in it for the money, I guess. And

 

Belinda McClelland 

that’s not what drives me. So.

 

Belinda McClelland 

Yeah, so, you know, we’re not all I mean, when we’re not meant to be like that we’re meant to be professionals.

 

Bryn 

Yes.

 

Belinda McClelland 

The definition if you like to being a being a professional, is you treat your clients as if it was your sister, or as if it was, you know, you really have to have their best interests at heart. And when that comes into conflict with your own if, you know, you’re thinking you’re not getting enough money out of it or something, then you’re not really being a professional. You just think of duty tradesmen or something, you know what I mean? It’s and, and I say when I say tradesmen, a lot of tradesmen are professionals, you know that that would do it.

 

Belinda McClelland 

But yeah, so.

 

Bryn 

So, for somebody who doesn’t Quite know understand what is the legal process when the relationship breaks down?

 

Belinda McClelland 

That’s a good question. And I believe me, I think if people knew when I

 

Bryn 

first started, right, well, let’s start with the legal process. what is supposed to happen in house?

 

Belinda McClelland 

Okay. Because I, I do think that a lot of people get into relationships without any clue about the fact that what they’re doing is they’re entering into a financial partnership which is going to you know, so, so the Okay, so if it’s, I mean, depending on whether you’re talking about a children’s case or financial case, but if we’re talking about the fact that

 

Bryn 

Yeah, there’s little do say financial will always paint the picture of early 40s. Come to come to a finish Two kids. Okay. And and you know how son?

 

Belinda McClelland 

Yes. Okay. Or I would well just for the moment will say that the parenting arrangements are kind of a grade and so there’s

 

Bryn 

there’s two parts.

 

Belinda McClelland 

Yes there is I mean, in you know often a lot of the time parenting arrangements are agreed and everything’s fine and they do doesn’t need to be formally inventory that’s informally most people can work it out themselves when it comes to kids. Yeah. But in relation to the so so when you separate these a few things that need to be sorted out. The one is the division of the assets and liabilities. Yeah. Because even though things might be all in one name are all in the other person’s name, or often they jointly held. The idea is that when you said right, you need to sever your financial ties. So that you can each get on with your life that knowing that when you earn money, it’s yours, that assets are in your name. So there’s that division of assets and liabilities is one aspect. The other aspect is simply if you were married is getting divorced. A lot of people confuse divorce with property settlement. But the property settlement is the division of the assets and liabilities. The divorce is relatively normal. It’s a very easy process that people can do without using a lawyer and happens 12 months after the separation. And that’s just you have to in order to prove that you have grounds for divorce, you have to been apart from each other for 12 months. With defectors.

 

Belinda McClelland 

They can’t well

 

Belinda McClelland 

so let’s just get the size So with defectors, they have to get their property settlements sorted out within two years of a separation. But with married people, once you are divorced, you’ve only got another 12 months after that, if you haven’t already done your property seven to sorted out, yeah. So say it’s 12 months. And then sometimes there’s a right to one of the parties to claim maintenance, which is, so there’s child support on the one hand, but then sometimes a spouse or maintenance. So sometimes people think of it as alimony or whatever, but sometimes that is an issue that arises that needs to be sorted. So yes, it’s a hole. Yeah. And then, if, unfortunately, if they’re unable to come to an agreement about the parenting arrangements, then sometimes that needs to be sorted as well. So the aim of course is to hopefully try and People have been but what I would always say to people if you’ve been separated Firstly, don’t try and just do it yourself without any advice. Because, I mean, everyone’s scared of lawyers, they don’t want to get lawyers involved because they’re worried it’s going to cost a fortune. But I would always say go and get some preliminary advice just as to what you’re entitled to and so that you’ve got a ballpark idea. And then do it yourself if need be, but first get some advice.

 

Belinda McClelland 

And

 

Belinda McClelland 

yeah, so

 

Belinda McClelland 

yes, I would as I always recommend getting some advice, but otherwise, there’s lots of but you can do it yourself. You know, if it’s amicable so even if it’s amicable, you can do it, you know, to get some advice, you can do it in the text effective way. I mean, people for example, you own a house and they decide the husband says, Look, I want to keep the house and pay you out. The wife

 

Belinda McClelland 

if they

 

Belinda McClelland 

if they don’t get advice, and they try and do that between themselves, they probably end up paying stamp duty on the transfer of the house from jointly into the one person’s name. Yeah. Whereas if I just did an application for consent orders, then there’s an exemption from stamp duty so they think it can so in other words, so when you when you reach agreement about what it how the assets and liabilities are to be divided between you, then to make that agreement, a final agreement, so that neither of you can come back later down the track for another bite at the cherry. Yeah, you have to either get court orders that say it’s finished. Yes, or there is another way called the binding financial agreement which is a contract, but it also has the effect of finalising things. So The point is any property transfers that are done either pursuant to a binding financial agreement or consent orders is free of STEM gd. So people think they saving themselves money by just doing between themselves but meanwhile, the transfer they could have saved themselves $10,000 just on step, Judy, you know what I mean? And, and, and the other thing is also this business of finalising it so sometimes people think our we’ll just sell the house will divide up the proceeds between us and both go on with our lives. not realising that that doesn’t finish things. And the one of the parties might get a girlfriend or boyfriend who knows the process and says, Well, you didn’t get your suit you didn’t get enough. You didn’t get any super out of that person or, you know, you could have got more so five years down the track. They put in a claim and You just done it the proper way the beginning they wouldn’t have been able to make a claim. So you know, it is I think people don’t hesitate to go to a doctor.

 

Bryn 

It was

 

Belinda McClelland 

finished. That’s right. So as I said, people you know, don’t hesitate to go to a doctor or specialist but something’s wrong with them but spending some money just to make sure that this this is one of the biggest financial transactions you’re going to have is the division of the assets and liabilities. So it’s worth making sure you get it right and as I say, is finalising it

 

Bryn 

is it generally I’m 5050 separation or just

 

Belinda McClelland 

know, every case is different. And it so it depends on in the first place. Of course, well there’s sort of three steps firstly what is the pie to be divided up the Second step is what were the contributions made. So if the contributions were equal, you would think that that would mean that the assets should be divided equally. But then there’s a final area of inquiry, which is whether or not a court might adjust that percentage that 5050 because of the future needs of each of you. So for example, if you had, you know, husband and wife, they’ve contributed equally, but the wife at the moment is stuck at home with two children under the age of five. The husband’s got up, has got a great income. Well, even though they’ve contributed 5050, they will probably give the wife a bit extra because she isn’t able to go out and earn money and at the end of the day, she’s continuing with their contributions of being the primary parents so of the children, which means that can go out and work full time because He doesn’t have to worry about the care of children. Yeah. So it’s sometimes his fee to give her a bit extra. So those are the considerations. And I guess, Well, again, if people knew what they were getting into when they started living together

 

Belinda McClelland 

Now, let me put it another way.

 

Belinda McClelland 

I think not enough people do know what they’re getting themselves into. When they move in together. It’s all fun and games. And they don’t realise

 

Bryn 

when you say that, what are they?

 

Belinda McClelland 

Well, it’s a it is this financial partnership. Right. So

 

Bryn 

where does that start the moment you move into?

 

Belinda McClelland 

Well, it’s

 

Belinda McClelland 

so let’s put it this way after two people have been living together for more than two years. And there’s some other exceptions to that but they are treated the same as if they were married, right? But so when you’re looking at people’s So when you’re looking to see you know who should get what? You look at what they had when they first started living together even if they got married later it’s what when they first started living together and first joined a finances in effect, yeah.

 

Belinda McClelland 

One of the each firstly come into the relationship with

 

Belinda McClelland 

you then look at what they’ve acquired over the course of the relationship when you’re trying to work out this percentage on contributions, but a lot of work I will just say a lot of guys things that. I mean, I can’t tell you the number of guys that come into my office and go well, I paid for everything. I was the only one working. You know, all she did was stay at home look after the kids but I’m the one that paid for everything. And, you know, this is my house, and they don’t realise that the courts are not going to see it that way that her contributions have been the homemaker? You know, I’m talking about the traditional family setup is considered equal to you being, you know, being the one out earning and the other aspect which, okay doesn’t often happen but if one of you become seek or end is unable to work, whether it’s mental health issues or whatever, well, then they might be a requirement that the other person support that person financially, even after a breakup. I don’t think many people realise that. That that whole thing of you know, in sickness and in health, for richer for poorer, you know, that vow is translated into the actual way the courts will treat, will will take it, you know, those are the factors that will be taken into account when a court decides who gets what, what sort of support the other person gets. So particularly People, you know, as a side just don’t realise that so like you should really, I suppose, you know, you might be going out with this girl and she’s best fun ever but she spends all their money and is never you know, was always got a credit card through the roof and and your budget sir Will you know is that really the sort of person you should be settling down with and you think everything’s fine, we’re all in love. But she’s gorgeous and you know, she’s great in bed. But and who cares? You know, she’s a bit silly with a credit card, but who cares, but that will impact it, you know, 10 years down the track when you know, the hospital complain, you know, she just always used to max out the credit card and, you know, I kept telling me she needs to go back to work. Well, you know, and she won’t go back to work and you know, the people don’t talk about these things before they even get together. You know if we have children. Will you go back to work? You know, are we going to join our finances? You know, are we going to agree on a budget? And yeah, things like that. So

 

Bryn 

serious grown up stuff?

 

Belinda McClelland 

Well, it is, especially when children come along. And that thing of, you know, the wife going back to work that is often a huge cause of breakups because the wife, because they never even discussed it. The wife assumed that once I have children, I’ll be able to stay at home. And the husband assumed that she would go back to work, but they’ve never discussed it. And so, you know, and then that causes you know, all sorts of, I just see it, it’s lots of breakups happen with kids or the kids are, you know, four and five or three and two, and the husband wants to go back to work. She doesn’t want to go back to work. It just Things I should have talked about before? Is

 

Bryn 

that just to close it at close out the explanation, legal process, you explained how things go when everybody’s sort of getting along. If you don’t, then what happens? Is that, okay, so I mean, presume to start with it, have a lawyer involved help mediate or each person as lawyer they exchange to that then don’t get.

 

Belinda McClelland 

Okay. Yes. So

 

Belinda McClelland 

obviously that’s the preferred, preferred way to go is to try and negotiate an outcome.

 

 

But the theme is culminated in a

 

Belinda McClelland 

wall at the end. That’s rod in a consent order. Yeah. But at the end of the day, there’s only two ways that suddenly is going to be resolved. One is by agreement, and the other is by Judge my can decision. Yeah. And at the moment in Western Australia, We we have a very clogged up court system. They haven’t put on enough new judges to match the population growth and to match, you know, I mean, even the family court having jurisdiction over defector couples hasn’t been around forever, but they didn’t necessarily increase the number of judges. So that’s right. So the courts are underfunded, in my view. Yeah. So that it’s now at the stage where if you commence proceedings, so, you know, you’ve tried to argue and you’ve tried to negotiate, you’ve come to start my this, you know, there’s no way one person wants 80% of the assets. The other person says, No, you can only have 50%, or whatever it is. Then they start proceedings. And the average time to get to trial is 95 weeks. So that’s nearly two years right? That’s, that’s if it goes all the way to try to try.

 

Bryn 

And what are you doing along the way?

 

Belinda McClelland 

Yes. So there’s you prepare your application, you follow that you have your first day in court about six weeks later. Then orders are made about getting valuations of property or other assets, filing of documents by the other side, a process called disclosure where you have to give each other copies of any documents that you have in your possession that are relevant. Then there is a sort of a an in house mediation type process. It’s called a conciliation conference. That happens that happens about six six months down the track sort of thing. And then you go into this very long waiting list waiting for the next step which is called a readiness hearing. And you get given Notice of the readiness hearing about four months before the readiness evening, and that’s when you’ve got to file all your trial affidavits, your evaluations, you know, all the evidence that you’re going to rely rely on a trial. And then you get, then come the readiness hearing, then a registro will say, will determine whether you are indeed ready to go to trial. And then you’re placed in a monthly call over list because every month, these more cases that are ready for trial than they are trial dates. So you might then go from call over to call over every month waiting for your trial date. And then eventually you get your trial date. That’s the 95 weeks and then even then, once you’ve once you’ve had your trial, the judge doesn’t necessarily make the decision. On the last day of the trial. You might be waiting another three months for the decision to be here. There. So, of course, there’s a lot of incentive to try and reach agreements along the way. Because it’s okay.

 

Bryn 

To start.

 

Belinda McClelland 

Okay, yes.

 

Belinda McClelland 

I normally quoted into if I’m telling and I give this advice to a client at the first appointment of every new client, so that they know exactly when they’re arguing about $10,000. They know what it’s going to cost to get a judge to make the decision, because it’s not worth arguing over $10,000 You know? So, when I said the stage where you get to that conciliation conference, that’s sort of the first three months three to six months of the procedure. That’s probably about $10,000 each. Yeah. But to go from where you get notice of the readiness hearing and getting everything Ready and actually going to trial, that path probably between 40 and $50,000 per person. So, and of course, these are very modest quotes, depending I was just talking when you came in with a client and just on another metal together, but for her matter, and she’s not my client. And I’m not the husband, I’m acting for a third party. But anyway, where she spent $340,000 going to try so it’s, you know, I’m just talking to your average has been two cars kind of case, if that gets to trial, but no, yeah, it can be stuck out.

 

 

No.

 

Belinda McClelland 

So that’s Yeah, so I mean, obviously, when there’s millions of dollars, you don’t want people people don’t spend 300,000 unless they’ve got 300,000. And that is a couple of million. Worth arguing over, I guess. Yes, but So it’s exorbitant, and it’s really should be an option of last resort. In you know, for not as normal people. Yeah. And so I, the funny thing is that when you know how long it takes and you know how much it costs. There’s a barrister once said to me, and I’ve always said this to clients as since I heard so true. He said the only people that go to trial are people that are either mad, bad or greedy. And sometimes all three because most O’Grady because most people can work it out. You know, it’s not that hard. Even if your lawyer is saying you’re entitled to 60% and the husband is saying now I’m only going to give you 50% Well, it, it doesn’t take you two months to work out that the 10% you’re arguing over is only you know, 15,000 no point spending 50,000 to get 50,000 or, you know, so, so why do they go to trial? Because they mad? You know, really? And when when someone’s man you, you can’t rationalise with them, you can’t say, well, this brings me on to my next question.

 

Bryn 

This, this is a very straightforward logical process and the lore is the law tends to be dare I say, you can correct me if I’m wrong, but you know, it’s like quite a cold instrument. And it is what it is, this is the process this is we said right, early wrong. breakup of your relationship is up there with the death of some of the most emotive part. So, how did you end up managing this, you know, this very clear logical left hand side of the brain process which ultimately has the say, the ultimate say in the matter? Because if people don’t agree that and we’re off to court and somebody else’s decision, how do you reconcile to manage the fact that people are probably fired up? How the right hand side of that Brian and the hugely emotional, he’s awake? He did this? He did that. So you know, all the business? How do you manage to the job?

 

Belinda McClelland 

Yes, that’s right. So

 

Bryn 

probably was more fun than building.

 

Belinda McClelland 

I mean, you know, I was saying before about some, some lawyers. Well, especially in family law, this is this is my difficulty with some lawyers is that they take advantage of the fact that the client is upset and angry, and they can sometimes feed it, you know, because that means that the clients not going to want to settle and they Yes, let’s go, you know, So, yes, manager, I’d feel my job as a professional is, and especially in family law is to try and take the heat out of it. And to make sure that, for example, when I’m writing to the other side that I, you know, you can be quite provocative if you want to be yes. Or you can keep it nice and flat. Yes. And so I feel neutral. That’s right. No means, you know, sometimes, of course, you know, your letters are strategic and you you know, you do you know, but, but you also have a duty not to inflame the situation. And, I guess, with clients, I, I try to, you know, I just try to explain it from, as you say, from the say, Well, I know that’s how you feel about it, but this is the way a CT scanner Look at so this is the problem, you know, do you really want to spend your money and so you can try and rationalise with them and most people you can, even if they’re upset. And, frankly, I do also sometimes have to say to a client, if you want me to do that, it I don’t agree with that. That’s so I’ll say, Look, I’m not good. I don’t think you should do that. I think sometimes, for example, you know, I’ve had even just not that long ago where a Dad’s going well, you know, I want her to, you know, just say he wants you to settle 5050 and she’s wanting more. And he says, well have that I use the children, you know, like as leverage. I mean, I’ll say if you don’t give me this, I’m going to go for 50% custody of the children. You know, and then I’ve really got to say no, you know, you should not you can’t be I’m not to be judgmental, but I’m talking to them, you know. So that’s not going to be going down. Well, if the third record caught wind of that that would not be approved off. You know, I try not say I think your self aside, you know, I try to do, yeah. And if they insist on going down that path, I have had to sometimes say, Look, I’ve given you my advice on what you should do. If you don’t want to follow that advice. You’re paying me really good money, perhaps it’s best to to fund you know, that you go somewhere else. You know, because sometimes people just want that kind of a lawyer too. So, they are lawyers that will go Yep, come on, let’s whatever, you know, so. That’s right. So it is, but it’s that heightened emotion aspect, I guess, which I like about the two, you know, I mean, it’s it’s, it’s not just

 

Bryn 

because nobody strikes me that, you know, you’ve got people can often go into this in a very adversarial, I’m going to win. But in theory

 

 

nobody’s winning, except the lawyers.

 

Bryn 

It’s more a case of Look, you’re going to lose. You all lose it. Yes. In the end of a relationship, you’re going to lose part of your, your, your your property and assets. You’re not kind of seeing your kids every day like you used to lose it. You are losing, like, yeah, suck it up, get used to it. Yeah, you know, reconcile it within yourself. And then understand what what you willing to lose and what less so

 

Belinda McClelland 

and what’s the best possible outcome for you? Yeah, I mean, given the fact that winning across the board is not happening. Now. That’s right. You know, no one no one wins in feminine Oh, that’s that’s exactly right. It’s the best outcome is a fair and equitable settlement which is reason you know, Which is as cheap as possible.

 

Bryn 

Yeah. So I’m writing understanding that the the legal process, that it just treats the separation as a separation, it doesn’t matter who did. Well,

 

Belinda McClelland 

it’s a no fault jurisdiction. That’s right. It was different before 1975 Family Law Act was amended in 1975 to make it a no fault jurisdiction. But before that there was an element of you know, if there’s adultery, forget more money or that sort of thing, but but I think it was the right thing to do to remove that because that caused all sorts of problems improving who was at fault and you know, as you know, often when a relationship breaks down, it’s not necessarily one person’s fault or the other person’s fault. It

 

Bryn 

is a hole.

 

Belinda McClelland 

Exactly. It’s it’s, yeah, there’s a number of reasons why I mean, sometimes, yeah, the one person is the at fault in the sense of leaving the person for another person doing a Barnaby Joyce so what if he know that Yeah.

 

Bryn 

But yeah, what are some of the common sort of blockages you see towards okay to a fair and equitable outcome, you see a pattern?

 

Belinda McClelland 

Yes.

 

Belinda McClelland 

Well, it’s aside the whole mad bad greedy comment if you might have a reasonable clients on your side. But if the other side, the thing I’m most scared of for clients is when the other side is happy to cut their nose off to spite their face. In other words, they have the view that if you can’t, if I can’t get, you know, if you if I can’t get the house, nobody will get it. Right. Yeah, that’s sort of attitude. And because what can you do there? It’s So you feel so sorry for your client? Because, you know, it’s not like, she could say, Well, look, I don’t care, give him more given, you know, but he doesn’t want more, he wants to punish you, you know, and in if they like that, I’d have to said, those are the most difficult cases that I come across. And that’s in the financial

 

Bryn 

side, they’re the ones that will spend 20 grand to fight for 10 grand.

 

Belinda McClelland 

That’s right. And then and then, of course, when children are in the mix as well, that even becomes more tragic. Because it or it might be the WAF sometimes who, who is so angry because the fact that he’s lifter or whatever, and, you know, is, is is going to say, Well, he can never see the children again, you know, and and if somebody is determined to alienate the children from the other side, they can do it believe me. Yeah. So that That deliberate parental alienation. Yeah. those cases are extremely difficult. And, you know, they don’t happen all the time. Most people work at that. And but those cases are the most challenging. Because there’s not really much a family court can do. Yeah. You know, when when the mother who’s the primary care of the children who the children are most attached to, you know, because she’s been a stay at home mom who and they, they might have it find an okay relationship with a dad but the dad was always at work and so they did only just see the dead on the weekends and even though the court and everybody says look at in those children’s interest to have the dead in their lives, if she’s determined to make them height, the dead My goodness, a mom has all you know, so much influence over children and then you can Family Court Do you know you can’t force a person to be a good parent? Can you

 

Bryn 

know, unfortunately, no. And question I was curious to ask is, I suppose on one level, it might seem contentious, but our men and women treated fairly and throughout this process

 

Belinda McClelland 

Yes, that’s a common a common question. Certainly a lot of

 

Bryn 

just one up there.

 

 

Yes.

 

Bryn 

Eileen, I and very much my role is to go out the way and then all of a sudden they see what happens when they spend the time away. And so there’s all the different play outs of the archetypal role. But yes, I’m just interested in your

 

Belinda McClelland 

work Well, look, I mean,

 

Belinda McClelland 

I think it Certainly the intention is there to be fair to all parties. Yes. And there’s no conscious bias one against the other. The fact of the matter is really the fair, the studies show that certainly financially those stay at home moms, even though they end up getting 60% Yeah, which seems, you know, a lot of us think that’s really unfair. I’m the one that earned all the money and now she’s getting 60% of it, you know, but down the track, the overwhelming number of times dad will catch up and overtake mom again, and she will be left with only that six, you know what I mean? So, financially, usually, you know, just the way men earn more generally than women and so they generally down the track financially much better off and I suppose the family court does try to does know that Yeah. And I mean, so many women end up at, you know, 50 years old, they don’t have any super, they’ve got that that might have got, you know, the house, but they don’t have anything or that or they’ve got the house with a mortgage, and they’ve been paying that and they don’t earn very much. So, you know why? I suppose things are skewed against women.

 

Belinda McClelland 

You know, anyway, and then.

 

Belinda McClelland 

So yes, I suppose financially, I could say that, because of the fact that the traditional setup is that the women are at home with the children, they are going to get a bit more of the property settlement, but the dead usually earns more and is usually going to recover. Not always. And of course, sometimes it happens the other way that the wife is the one that earns the money, you know, and I mean, it’s not the server it is things are changing, and sometimes I think it’s quite unfair in Why? Because even when women earn more typically they do more of the housework and more of the childcare. And so if you’ve got a household where husband and wife in the same, usually her contributions are much greater. But she still only gets 50%. Yeah, kind of thing. You know. So

 

Bryn 

what about when it comes to the parenting?

 

Belinda McClelland 

They appear in the care of the children? All right. Yes. So I’ve been doing it a long time. So I was here before the full john Howard brought about some quite substantial changes to the legislation. So that before that, I can say that your average regime for men with children was that they would have every second weekend with the kids and half the school holidays. Yeah, that was kind of a very typical arrangement. Yeah. And it’s sort of, I suppose, worked in the sense that Often the typical situation was mom was the stay at home mom. Instead, the children were used to that was the role that was the agreement between the husband and the wife, when they were together is that she would stay home and looked after the kids and he would have go out and do the income earning. And so. So I suppose that every secret weekend and half a school holiday sort of reflected that kind of thing. But then there was a significant men’s lobby. And they brought in changes which were supposed to try and even up things a bit. And and so what I said is that, basically parents have equal parental responsibility upon the separation. And if there is no violence, so that the is equal parental responsibility, then wise, then the court must look at why shouldn’t dad have 50% of the time? why shouldn’t they be an equal?

 

Belinda McClelland 

carrying around

 

Belinda McClelland 

And so my observation once that law was passed was that the typical arrangement, since the latest since that legislation wasn’t that men had 5050 K, but certainly, they were now having quite often a long weekend, psycho from the Thursday to the Tuesday so that they would have more of a say with taking the kids to school and picking them up from school and more, instead of just being the fun weekend dead, they would have more of a day to die, which, which I think is a great development. You know, I think and I wish, I wish dad would have more, spend more time with the kids even you know, before separation, and because I think that’s the way society should go, in my view, my view but so, because but the only thing other observation I would have is that sometimes The main will go, you know, they separate, they know that if, if she’s got primary care, they then she might get an extra 10% of the property settlement, but also she’ll get more child support. So then it’s like, I want 5050 k you know and and suddenly and I do call them this I’m so they can become born again fathers suddenly with having no interest in the children or very little interest in the children part of separation suddenly this this newfound interest and wanting to spend you know, well so there’s the ones that genuinely do want to have equal time for the right reasons but sometimes it is also sort of used as a bit of a weapon tangibly. Yeah, that’s right. So it just depends on the and frankly, if they are kind of a born again, Father, but it means that the kids are now having a bit of relationship with their dad because they did for the first Tom is having them on design for the weekend or you know, then that’s great, too. I think that’s a that’s a welcome development

 

Belinda McClelland 

in in things. So yeah.

 

Bryn 

The question that popped up I thought I’d ask you was because you, you deal with people right? At the end of a relationship? Yes. And have you started to see patterns which have led to that end of the relationship or do you only deal with what’s happening?

 

Belinda McClelland 

persons?

 

Belinda McClelland 

Yes. Okay. So I guess my observation.

 

Bryn 

I mean, I think you sort of mentioned one earlier on when when kids are like three or four years old. Yes. And he wants her to go back to work.

 

Belinda McClelland 

Yes.

 

Belinda McClelland 

That’s right. Plus, there’s also the other thing when the children are two and three, whatever, that really changes things for that relationship doesn’t wind chill when people have children and I do think things become not as much fun anymore in a way. It You know, it really changes life, doesn’t it when you have children, no longer, free, easy single can do what you like, have fun and yeah, and so sometimes it’s kind of I think, I do just think that’s a difficult time. Women maybe once there’s been a couple of children perhaps aren’t as interested in that the whole affection and that side of things. I think that’s a common thing that our version intimacy, sex. Yeah,

 

Belinda McClelland 

yeah. So there’s less of that going on.

 

Belinda McClelland 

So yeah, so there’s that aspect. The other aspect is, as I said, this difference in the financial Goals are good. So if a person one person suspender or what the hell did I laugh is short Come on, let’s go to another holiday. And the other person is bloody hell, I work hard for this money Come on, we need to save up for our super we need to, you know, that’s going to cause friction and that can that can also be it. That’s always a disaster. Yeah, and I do do think if, you know, if they’ve got different financial goals or, you know, they Yeah, that would be often a cause for a breakup.

 

Belinda McClelland 

My observation is that

 

Belinda McClelland 

men generally, okay, don’t leave their wives and this is another woman or other that they don’t often just break up. Yes, it’s often because there is somebody else. And it might be because they were upset in the relationship anyway. And and It takes perhaps another person to give them the courage to actually go whereas

 

Belinda McClelland 

women think

 

Belinda McClelland 

not as often it’s because they’ve met another man but sometimes it is just because they’ve had enough you know, bad habits maybe or in and of course violence is sometimes an issue and yeah, I mean that’s a whole nother ballgame. You know, the curse of controlling behaviour and bad behaviours and and that kind of breakup which is obviously good reason for breaking up this so yeah, you do you do sort of see these things patents? I mean, I’m always surprised these days. I’ve become so I don’t know so jaded I guess the bath the whole thing. I’m always surprised. We don’t see a relationship that’s working. You know, go oh my god, really?

 

Bryn 

From one question to another does, how does this affect you in real life? Now you view your friends in that relationship.

 

Belinda McClelland 

Yeah.

 

Belinda McClelland 

Well, as I say, I’m,

 

Belinda McClelland 

I’m always very well, I see a relationship that is working. You know, I do have a friend of mine got a fantastic relationship, and that’s wonderful. But I do think I suppose I perhaps will see problems more than you know, that other people, all I can say is personally,

 

Belinda McClelland 

I think it’s somehow put me off.

 

Belinda McClelland 

And I think, yeah,

 

Belinda McClelland 

I don’t know. I’m afraid it possibly has had that effect. Or maybe it was just me, you know, I would have become that way anyway, that I’m really happy on my own.

 

Belinda McClelland 

Good or bad, but yeah, it

 

Belinda McClelland 

never happened. But yeah, I just

 

Belinda McClelland 

I’ve given relationships a red hot guy, don’t get me wrong, you know, I have tried and been then I’ve had my own family law issues in a sense by a little file but

 

Belinda McClelland 

yeah.

 

Belinda McClelland 

Well, as I say that I say that, you know, 50% of marriages these days are breaking up. I keep going well, we’re the 50% that are working. I feel as if that’s all I ever see is the ones that outwork you are because of what you do what I do, but even you know, anecdotally,

 

Bryn 

yeah, where are those 50% and what are they looking like and what are they doing that keeps them?

 

Belinda McClelland 

Yeah, yeah. Or are they just stuck

 

Belinda McClelland 

can afford to come forward to buy capital

 

Bryn 

or intention. So throughout all of this journey, With the with the family law, what did you learn about yourself?

 

Belinda McClelland 

I think when I when I first went to uni, I thought it was a fluke that I’d even got into uni. And then when I got into law, I thought that’s a flake. You know, like, I couldn’t believe I’d get the marks to even get that I don’t know. They must have stuffed it up somewhere you know, and and there’s no way anyone’s gonna employ me and and then I did get a job or no wait till they found out the real me You know, they’re not gonna end I guess. Yes. And so and then as I’ve gone along the journey, I’ve become more and more confident, I guess in myself and I finally got to the point of, actually I am good at my job and I you know, I am I do deserve to be here and it’s not a flake. And so that’s been good for me.

 

 

Yeah. Yeah,

 

Bryn 

yeah. Because I can imagine, you know, as we alluded to earlier in this conversation, being a lawyer brings a certain amount of expectation with it, you know, the very nature of it all. And so therefore, that that must demand high expectations and standard switch to be lawyers.

 

Belinda McClelland 

You think

 

Bryn 

that you need to

 

Belinda McClelland 

know? Yeah, I’ve probably looked up at them as well and can’t believe.

 

Bryn 

Yeah, can I? When? Yeah, one of the nice things of this conversation is just to find out.

 

Belinda McClelland 

Yeah,

 

Bryn 

yeah. So imagine that the journey of having to actually be comfortable in it and are in the role? Yeah. So.

 

Belinda McClelland 

Yeah. Yeah, and

 

Belinda McClelland  

I think I think I’ve throughout my life, I’ve suffered lack of self confidence. So it really has been good for that, too. Yeah. Yeah, I know what I’m doing and I can feel it positive and so that yeah, it’s been good.

 

Bryn 

So what do the next three years, five years?

 

Belinda McClelland 

Yes, I

 

Belinda McClelland 

have been some. I have a daughter, 11 year old daughter and my care of her has obviously have had to my career and work has been around my care of Ruby

 

Belinda McClelland 

in which, and I’ve enjoyed doing that.

 

Belinda McClelland 

But I suppose so now she’s in high school next this year. And so I’ve never been able to properly work full time or whatever. So I’m hoping you know what, I’ve got to get it through high school and that, you know, I want to be the sort of parent that is They when she comes home from school, you know at least you know I don’t want to be working long nights and weekends you know I want to be appear and so for me getting her through high school, I guess is my goal at the moment. And then, I mean, I’d like our practice to become

 

Belinda McClelland 

more profitable, I suppose.

 

Belinda McClelland 

I don’t well, Julian, I probably don’t charge as much as we shouldn’t sort of overgenerous and we can have we’ve got to sharpen up a bit you know, and I don’t don’t put pants on favourite coming to me to me. But yeah, you know, we should be a little bit less generous and soft with people.

 

Bryn 

What do you do to keep yourself grounded?

 

Belinda McClelland 

Yay.

 

Belinda McClelland 

Well, Ruby, but daughter brings You know, being a parent, what I discovered

 

Belinda McClelland 

a few years ago, because what I was doing is I mean, you know, I would get a bit frazzled by the end of the day, and you get home and it’s kind of hard to stop thinking about it, you know, you’ve got all these things going through your mind. And so, admittedly, I do get home and I have a glass of wine.

 

Belinda McClelland 

And

 

Belinda McClelland 

this or that, but what I really found is going for a walk in the morning, before work has been a godsend, and not not because of you know, I mean, not because of getting fixed up because of white, but all because of how much easier it is to deal with stress. Yeah. And approach the day and so you know, you go for a walk, you get home and instead of thinking, Oh, now I’m going to do breakfast. I gotta do this. It’s like, right. Come on breakfast time, you know. And so that has been a real really good technique to deal with stress and and then other nights. So I get home from work as have a glass of wine, put some put some classical music on a classic if M and play with friends.

 

Belinda McClelland 

Yeah, it’s my little, I’m a bit of a game.

 

Belinda McClelland 

I enjoy that. I don’t really have a lot of time to watch TV. So I’ve only got a couple of hours if you know what I mean to relax so I don’t I don’t watch TV because I just

 

Belinda McClelland 

I have enough drama

 

Belinda McClelland 

every day.

 

Belinda McClelland 

I’ve got a whole lot of episodes that every fall I see that you know the next episode and so I binge binge on drama all day every day. So I don’t need to watch TV. I like to go to bed early because I could get up early. I like my eight hours sleep

 

Belinda McClelland 

Yeah, I’m very strict on eight hours sleep. So

 

Belinda McClelland 

I go to bed, you know, 830 read a bit, and then I’m up at five in the morning. So not much of a life I know. But it’s getting me through the moment anyway,

 

Bryn 

the last question I like to ask all my guests is based on much of what we’re talking about today, if you could take a little nugget of information and load it up into the collective consciousness, so everybody just got it. What would that be?

 

Belinda McClelland 

I think you just described as an aha moment. That’s a really difficult question. To put it all into one. As I said, I’ve had little things that happen as I go that i think you know, yeah,

 

Belinda McClelland 

The brain.

 

Belinda McClelland 

I mean, I think as I said, the thing about

 

Belinda McClelland 

realising that you can be happy on your own, you know that you don’t. As far as just working at that when I finally realised the moment, I don’t have to have a partner to make me happy, you know, I’m not saying you can’t be happy with a partner, but the only person that’s going to make you happy is you. And that That, to me is really important. For Well, it’s been huge for me, it’s really taken. It’s such a relief, actually, to, you know, not that you can’t, you don’t have to have a partner you don’t and and the partners never going to make you happy either. It’s only you that’s going to make you happy. And so that was for me, that’s been a huge thing for my life, and anyway yeah. I don’t know. That’s not for everyone. But

 

Bryn 

you know, I’ve spoken to relationship counsellors on the podcast before who said a similar within the relationship itself? It’s not good to look to the other

 

Belinda McClelland 

word. It’s never gonna work. Yeah so, but the problem with me is that I realised I’m so bloody happy on my own. I don’t even consider don’t even think I want to have a relationship with anyone because I don’t want to spoil the how good it is at the moment.

 

Bryn 

People want to come and find you Where do they find you?

 

Belinda McClelland 

Well, the Am I allowed to say the name of the firm. Okay, so it’s McClelland lawyers which is Just me and Julie. But McClelland is just I can Google it, I’ve got a website. Most of the people that come to see me is word of mouth. So that’s that’s how we generally get work. But if I get any clients do this, that’ll be wonderful.

 

Bryn 

Thank you very much for your time. It’s been fascinating to hear how this all works from the other side. And and and just to listen to your wealth of experience and and the patterns that you must say. It’s been, it’s been great. Thanks very much.

 

Belinda McClelland 

Oh, thank you very much. It’s been great to talk to you too.

 

Bryn 

Thank you.

 

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