¶ Intro / Opening
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Happens the Divorce Down Under Podcast where we talk about the video. everything and everything family law related.
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The Divorce Down Under Podcast with me, Alex, and my fellow lawyer, Liza.
¶ Understanding Buyer's Remorse and Challenging Property Orders
Liza, today there's a topic that you mentioned to me that we might have a bit of a chat about, which is buyer's remorse. So what do you mean and what's the context for a family lawyer when somebody's talking about buyer's remorse?
Okay, so I'm not talking about picking the wrong partner'cause that's I think they're all probably gonna be privy to that ex experience.
That's again, isn't it, doing what we do.
So if you're in a family law dispute then there's a ch good chance that you suffered some s kind of bias remorse. But as far as what I'm talking about here is say for example you've agreed to a an order, whether it be a property order or a parenting order, and you then want to change your mind. for whatever reason you might have felt pressured, you might have felt like you weren't really with it, you or you just weren't happy with it or
It's the same thing. I know myself you go and buy something and you might have spent way too much money and you think it it's great at the time. And then you sleep when we have a restless night's sleep that night going, Oh dear, I shouldn't have bought that. I really need to take that back. So that's the sort of feeling that people often have after they've agreed.
And so this is in the context of you've worked through the issues with your ex and there's been some settlement agreed. It might be money or it might be the parenting arrangements, but you've slept on it and it's like that. Extravagant purchase, you think, oh, that was a mistake. Shouldn't have done that. So how do you unravel something that you've already agreed?
It's not very easy. That's the short of it.
Okay. Does it I suppose it does depend as to what stage the agreement has reached. If it's been absolutely finalised and then cast as you know court orders, that's going to be presumably the toughest type of thing to set aside.
So if you've got a final order that's been made by the court or at least an order, a document that is signed and ready to be filed as a final order, you're going to be in a bit of trouble.
What sort of circumstances might I be able to unravel that?
Okay. So there is a number of different ways. First of all, it might be if for example you were under any real duress or undue influence. Oh that sometimes is it's a very subjective thing. And people will confuse being a a place under duress uh with just being reality checked. So you might have your lawyer or a mediator during a mediation who goes through the document with you and says, Okay, what if what if you didn't get this? And a court's most likely gonna say
thi you know, that you you're going to have fifty fifty times. What's the what is the harm in having that sort of arrangement in place? And then you might at the time think, Okay, fine, I'll go with that. Yeah, that makes sense. But then afterwards you might think that I felt like I was pressured at the time when I look back on it. But I'm not too sure if that's gonna be enough to get you over that hurdle because
Just feeling regret and wishing you'd had something slightly different isn't really going to open up the legislative pathway to you anyway, because Family Law Act have has got a couple of provisions depending upon whether you're married or whether you're a de facto but There has to be a miscarriage of justice, doesn't there?
It does.
It's whether or not it's if somebody's been out and out fraudulent in getting you to agree to something, then that that opens up that opportunity for you clearly. But you're right. If your remorse, your buyer's remorse after the orders have been made is really to do with you really wanting to revisit those arrangements. That's not really in enough itself, is it?
find it much more difficult to have to revisit the parenting orders than it is to the property orders with property.
¶ Ensuring Informed Consent in Negotiations
You can maybe suggest that the documents that were provided weren't true or they weren't clear or something was not understood. There's when you've got valuations or a lack of valuations. So hang on a minute. I I agreed to that fifth that split on the basis that was worth X amount of dollars, but I've later found out that in f that it was in fact worth a lot more.
Yeah, so that's the suppression of evidence rule, isn't it? So if somebody deliberately hides information that's really relevant, so you're making your mind up about that deal.
Yeah, that could be a big problem.
Yeah, you bring an application to set aside those court orders. I realize this is yet more money that somebody's going to throw at a court case. But if we're talking about significant differences of of value and money, it's it may very well be worth your while.
That's and a lot of the time it is because we're talking about cases where they've said, Oh no, I've only got X amount of dollars, I've only got three hundred thousand dollars to pay you and you'll have to wait six, twelve months for that even. And so people say, Okay, I'll settle on that and it happens in commercial matters all the time.
people in s like civil litigation, you'll make a judgment call as to whether or not you might think, Okay, I can pursue this person for this debt or this amount that I say is owing And it may be that there's no you might be wanting to sue a company. And that company may have no assets. Or you may think that they have no assets. And so you're making that commercial decision at that time, you say, I'll take what I can get, even though technically I probably should be entitled to more.
For the fear of there not being any money at the end of that at no pot of gold at the end of that rainbow and and then losing out every And that's what often happens in family law cases as well. So you'll have, particularly in in a property dispute, you might have a party that's there's a power imbalance there.
And one one party might say, This is all I've got, this is all I can get And you might know that or you might have concerns that that they can in fact get more and that they will be getting more money. in that case I'd probably be saying just hold out and don't necessarily agree to to taking that to what we call settling in the true sense of the word where someone says, Oh, I just settled for this amount, I settled for less than what I was really wanting to get.
So you need to be really careful when you go into those sorts of negotiations that you are sure about the the true position of the other party and also the true position of the total value of your assets and and liabilities. Because if there's a difference there That agreement can be unraveled very quickly.
So really, the bet the better path to take is one of prevention rather than cure, as in all cases. So when you are going into those negotiation processes. if you are uncertain about the valuation or the what things are worth, whether it's an asset or a liability, then be cautious. I mean it again
It's about being reasonable and practical. If you have a relatively modest property pool and there's no complexities to that, then seeking extensive disclosure above and beyond that that you're obliged to give under the rules It it's probably going to cause problems anyway, it's likely to push away the deal forever and ever and a day because there's never gonna be a perfect time.
But if somebody has given full and frank disclosure, then proceed. But if they haven't, maybe you need to say, Well take a step back from that negotiation process. We'll get those valuations organised. We'll make sure that everybody knows the true financial position of the other. And if you've got any questions, uh then ask them in advance of whether it's a mediation or a negotiation or a proposal.
There's a more than one way to skin a cat these days, as we know. Going to court is often the last option, it should be. But going through a negotiation process even, because a court order being made by the court will require you to fill in an extensive application form, it runs to about twenty seven pages, I think, from memory.
And in that a registrar who's looking at it is going to look at the part, the statement of truth that you each will have to sign effectively saying that yeah, you're satisfied with the information you've been provided. So make sure that you are actually satisfied with that and if you're not sure
whether you should be signing into signing in documents to settle your case, maybe go and have a look at that statement of truth page on the application for consent orders and just read it carefully. Think, am I really saying that this thing's true? I have read those sections.
¶ Duress in Financial Agreements: Case Study and Pressure Tactics
or had the had my lawyer explain them to me. Because whilst you can certainly make applications to set aside orders, you know, you can do that under seventy nine capital A or you can do it under section ninety S N. you've still got to go through that process with a court. You've got to explain to them why it is that you say that the orders were reached by fraud or duress or some suppression of evidence or something else that the other person's done or hasn't done.
Dyna'n cael ei wneud ei wneud ei wneud ei wneud ei wneud ei wneud ei wneud ei wneud ei wneud ei wneud
It may be the case that there is a a huge difference between what the truth is in terms of a value of an asset and what what was put down as being the value of the asset. The court's going to want to know why did you just sit here? Come to the court with clean hands. You need to make sure that you have m satisfied yourself that they are in fact the true figures.
Because otherwise you're you've just told the court, No, I believe that they're true and now you're gonna ask the court to say, No, actually, I didn't really look.
So I think it's a reasonable request to the court to say please explain how did you come to sign off this statement of truth? that caused us to exercise our discretion. You have to take a bit of responsibility yourself. Now th there can certainly be circumstances where if you are being railroaded into something terribly and it's all happening at a rate of not you may have to rely upon somebody too much.
That's a risk. One thing that I you know I'm cautious about is when people are desperate to sign up on these documents and they make appointments to see solicitors at the eleventh hour and say, Oh, you've just got to sign it in front of me and I'm I say, That's absolutely not what's got to happen. I need to understand that you understand what you're getting yourself into here.
That's what people d often don't get. They think, Oh no, I just need I had one recently that they thought that they could just get me to do the advice and take about fifteen minutes to give them some advice and then fifteen minutes to sign off on the document and I said no that's not the way it's gonna work. Oh I don't care if it's If the advice isn't really thorough, I just need it done.
Our insurers our insurers are currently rolling their eyes and go, Oh my goodness me but if we don't sign off on those things, I refuse to take those instructions. So I I've just opened up that document actually. This is the consent orders application form and the it's on pages twenty
Four and twenty five that these are the statement of truths. And this goes through and I look I won't bore you with I won't read it number to number, but there are twelve separate things that you are declaring to the court as being truthful. So before you start thinking about, Oh, I didn't like that. I've got some settlement blues about it, make sure that when you look at that statement of truth that you've ticked off
Make sure that you haven't misrepresented yourself to the court and those things. So y you're saying that you've obviously read the application form. It's an obvious thing to say, but some people just will sign any documents put under their nose. It's important to go through that form and read each page.
If you've got any questions, you don't sign it. You make sure that you've read the proposed orders. Make sure you understand what they are. If you don't understand them and your solicitor can't explain them to you properly, don't sign them. Because you don't know what you're signing up to.
They've got to be agreed by everybody. You can't force the other person. You can't hold their hand over like Cromwell was alleged to do over the the death warrant for King Charles I. You can't do that. They must make their own informed consent to those orders. And obviously y you can get legal advice. Not everybody who settles their court cases or sorry, their property settlements with their partner need to engage solicitors and have a big old battle.
Be aware that you're saying, yep, I know I can get legal advice and sometimes get it. It might be appropriate. If it's a complicated matter, if you're not sure is this the right deal for me, what will be the consequences, then definitely go and seek advice from a family law slower. Then we need to think in terms of whether you're going for parenting orders or whether you're going for financial orders and maybe it's both.
You should at least familiarise yourself with what the legislation says. You're going to be asked in that form to say, Yes, I have read the sections in the legislation now. As a matter of form I always provide my clients with copies of those sections before they
sign anything so that I make sure that they've had the opportunity and I ask if they've read it. If they haven't, I'll go through them with them. So it's to make sure that they've actually had the opportunity. I think too many people will just tick those things off. And quite rightly the courts will later on if you bring a seventy nine A or S ninety S N application turn around to you and say, You did say that you'd read that. That's right. So you've understood it.
Why should we now think that you don't? It's the contradictory evidence that you're now saying, Oh no, actually what I said before wasn't truthful, but what I'm saying now is. So please let me revisit this bargain that I now think to be a bad one. Anybody listening in will probably pick up the fact that Liza's a little bit tongue tied today because she's got a very sore throat and she's been struggling with a cold. very manfully, if I can use that expression, come in to do the podcast anyway.
Oh look there. No, on that note though, mm with the with that reading the sections, what I like to do is I often put it in my correspondence to my client. and set it out and explain it. Some people might think, oh, I don't ask for that advice. We gotta give it to you.
Th do because if you wanna do consent order you've gotta sign that form, you've gotta say, I have read this stuff.
So if you wanna settle your case, we gotta give the advice.
¶ Navigating Parenting Orders and "Significant Change"
Yeah, and taking time over it as well is very important. Aside from setting aside court orders, of course, people oftentimes these days will resolve their financial matters by a financial agreement. So that you sort out your property affairs privately but with a quasi-contract that's written under the Family Law Act called a financial agreement.
Now famously there was a a case a few years ago that went all the way up to the High Court, because you you mentioned Duress a few moments ago. And that was Thorn and Kennedy. I it was in fact a Gold Coast case from our neck of the woods. As far as I understand it, the authoring firm isn't around anymore, but I won't give any names that as far as that's concerned. But this was a case where there was a great imbalance of power between the parties.
one being the extremely wealthy property developer husband and the other parsley being his proposed and intended wife who was moving to Australia from overseas. who was doing everything at the instruction and behest of the husband. And his solicitors, who put upon her a financial agreement and it was conveyed to her as I understand it that she needed to sign the
Document. She needed to agree to receiving what was going to be ultimately a very bad bargain for her in the event that their relationship floundered. She got some excellent advice from a practitioner here on the coast, which was to the effect of this is the worst agreement I've ever seen. Proceeded to sign it anyway, and when the marriage broke down later on. I I think then in estate it became partially an estate matter as well with the fellow's children.
The High Court looked at it and said the circumstances in which she was pressured into signing this, the time that she had available to read it was all inadequate. She said yeah, she refused to accept the perfectly good advice about not signing it, but signed it anyway. Still the agreement was set aside.
And we never know we never quite know how the the final breakdown was done because that's not part of the court's reported decision. It's not the relevant part. The relevant part is as you were saying about duress. So if somebody is really squeezed into signing an agreement and they really feel uncomfortable, they haven't had the time to consider the advice they're given.
Do you know what? Pressure. There's a really common thing that I find in a lot of property cases. Is that one party will say, If you don't sign it, I'm not gonna continue to pay your rent.
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There'll be pi parties are living separately. Usually the ink the rent for the other party is often still being paid for by the moneymaker of the household.
Yeah, the person in control of the money is usually the one applying the pressure.
Yeah. I that's a big one that I find that people just have I've a good friend of mine, she had the similar sort of thing. She had She actually ended up signing off on these property orders years ago and um they weren't in her favor, but she agreed to it because she had very little option. The rent was the lease was coming up, um, for renewal. She had no
Husband was paying the rent, and he said, I'm not going to renew this lease, and I'm not going to do anything unless you sign off on these property orders. And so she did. But she didn't know me back then, so I would have had something else to say.
have somebody in a corner like you but it is if you are ever having these documents thrust under your nose in those circumstances just grab them, bolt out of the door and get some quick advice from somebody practicing in family law and Be prepared for them to push back on your behalf and say, No, we're gonna take some time to make sure this is done properly. That old expression, you do it once, do it well. And that sometimes means stepping back.
not allowing yourself to sign to get it all over with and done with because we all know from our experience somebody agrees something at mediation and then they reflect upon it and days go by, weeks go by, months or even years go by. And they're constantly revisiting it in their mind thing, I wish I hadn't signed that and some people will challenge it and they'll fail. Occasionally people will challenge it and they've got legitimate reasons to challenge it.
Just changing in mind, that's not a good reason. Being under pressure and being forced to make a decision. That may be enough. That may make out the duress for you that you need. If you find out that there is There were a couple of dollars down the back of the sofa that you didn't know about. That is, in theory, a misrepresentation, but it's not material. It n if you're going to challenge
Needs to be a lot.
Needs to be significant, rel in in proportionate to the amount of the money that's being dealt with. But it needs to be significant, otherwise you're gonna throw good money after bad. Sometimes if you make a bargain that's not quite as great as you maybe later wish it had been
you might be better off to suck it up and move on with your life because a court, if it has approved those orders, has already considered that it was fair. It was within that range. That's right. So just rethinking it internally. Maybe not the way to go. Look, and if you're really unsure, then of course go and get some good advice from a local family law practitioner near to you. Or give us a call or drop us a note in the comments and we'll help we'll point you in the right direction.
Okay, that's more financial stuff. So the other part of the settlements that we do are property and then parenting. So parenting Children's orders, to a lesser extent parenting plans, but let's assume that you go through a process with your ex and you say, Okay, we've worked out the arrangements for the children, we've written them down, where do we go from there? Let's start with the more flexible, the informal one, a parenting plan.
Okay, so the you've got the parenting plan and you've both signed off on it and you're both at the time. you're gonna be okay with it. And then a week or two later you go, I don't really I don't really like how this is working out. Not advice, but it's the reality is that parenting plans are not enforceable, so do what you like.
Uh which as Liza quite rightly just said, that it's not legal advice. This is just by way of general information because every case is different. Parenting plans are not enforceable. You can't Compel somebody to do what's said in that order. They look they sorry in those plans. It's great if you have a relationship of trust with your ex.
you may not be best friends anymore, but you can trust each other to be uh do the right thing by those agreements with your children. Then by all means a parenting plan might be great for you. It might work out very well and it does in in some cases.
It'd be like that as I was talking to you about Ben Affleck and J Lo and Jennifer Garner That sort of dynamic because clearly they seem to get along quite all right. There are Jennifer Garner's out there with J Lo's daughter and all that sort of stuff. So they all seem to be playing happy family. So it might be that in that case the parenting plan would be really appropriate.
If you can work with your ex and your ex's new partner, then you know, kudos to you and it'll be great for the children. And well done and squeezing in some celeb gosse type thing in there of which I'm looking at you blankly'cause I'm not much of a one for the the sort of pages in the paper. Not that we have papers anymore.
I think it's called the Daily Mail these days on Facebook. That's about it. That's the extent of my my investigations. But anyway.
Other episodes will follow where we might talk about more of what happens to the social media circus and things in the media around family law. Let's go back to changing parenting orders then because a parenting plan you can replace that by just putting a line through something, writing the alternate arrangement and both initialing it and saying, Okay, that's the new parenting plan.
It's a bit like a will. Yeah, you can just keep updating it and updating it to suit the circumstances. But again, it's when you're getting on okay with the other parent. That's when the parenting plans work well. Parenting orders, on the other hand, you may have had to fight long and hard to get those, or you may have reached them by consent. From the court's perspective, they've applied the same discretion before making the orders, which is
Are the proposed orders were those orders in the best interest of the children? So at the time that they were made, you've both effectively said yes they were, or the judge has said these are in the best interest of the children. So how would I overturn Final parenting orders.
¶ Realities and Best Practices for Amending Parenting Arrangements
There needs to be a significant change in circumstances. Now what that means, who knows? It's going to be depending on the judge a lot of the time. It's things like say for example you have a parenting order in place and it might be for there to be fifty fifty time week about Say for example, has got a new job and he's now moving interstate and he needs to have some other arrangement in place. And the parties can't actually agree.
So it's you've got this threshold issue of whether or not there's been variation to the orders because obviously that current order of fifty fifty is not going to work. Dad needs to move for his work and he's it's not necessarily going to be a big dispute, but there's still unless they can just simply agree on the new regime.
Then it's not going to be a very straightforward process. You need to actually convince the court first of all that there is that significant change and then once you've established that then you The the proposed But the reason behind that is that the courts want the courts see these orders and coming to court is a place of last resort. And they w think that part of the best interest of your child is served by not litigating. Yeah.
Yeah.
Doing all things possible to ensure that everything does not hap nothing comes back to court. where, you know, you've got a final order, the courts aren't really going to interfere with that, particularly when they've considered what the best interests of the child were, and there needs to be some significant change to what What those ma fac facts, matters and circumstances are
compared to now. Little things like I don't know, little Johnny doesn't really like going wants to play soccer on the weekends when he's meant to be with I don't think that's a significant change.
If the child sees the light and actually wants to play football, then absolutely I think that's significant, but maybe not as far as a family law judge is concerned. But you're right, where the best interests are actually written down in the legislation in the Family Law Act, which is what we're talking about here. one of the considerations a judge has to have when making final orders for children about their best interests is what's the order that's going to
be least likely to need further litigation in the future. It's about getting some finality. Of course, kids shouldn't be locked in litigation battles for any period of time, but if they are make it as succinct as possible and make it so that the orders are not likely to be overturned. But of course life gets in the way. And the case that you've been describing without giving it its name is what we call the rule in Rice and Aspland. It's a nineteen seventy nine case where the full court looked at
changes to orders and it said that it shouldn't likely entertain any applications to reverse earlier orders. It's the finality of proceedings is important. There's got to be something a serious step just a change in jobs, a change in partners? Probably not. But if somebody's gonna be moving interstate or is or if there's a serious medical situation that arises or a very different set of circumstances to that which was At the time of the orders being made.
One of the things that the authorities don't really talk about too much is whether or not something was foreseeable at the time. But but it it's what d it actually comes up all the time because the judge will ask Why was it this if you've got a parenting order and you've negotiated and your child is four and then but you're after a change because the child is eight.
you may not have considered things like high school or those sorts of things at the time, but when you are con negotiating a parenting order You need to be thinking right up until your child is eighteen.
You do. What are going to be the big decisions around that child's upbringing? Are where are they going to school? Who are they going to live with? What time will they spend with each parent? Special days, arrangement.
All of those things and as you say, rolling those forward to when the child reaches their majority, aren't we or or in practical terms when they start being in a position to properly vote with their feet, which is late teens anyway. Then you've got to factor in relationships with other people like their siblings.
And you've got to think about their relationships with other grandparents and stuff. So putting it all together and trying to come up with that. But you do have a role as a parent trying to agree arrangements for your child with your ex
a deep responsibility to think about the future. So get your crystal ball out. And look again, at the risk of harping on about this, but your family law solicitor will help you with that. This is what we do. We look into the future as much as possible when casting out what those orders might be. So If something has been overlooked or if something changes, that's your opportunity then to make your application, to have a go under the get past that threshold of the rice and asplunk.
How many times have you been able to succeed?
Oh yeah, fair few. A fair few, yeah. Life changes. We live in a a more peripatetic lifestyle than perhaps we used to. People are bouncing around a little bit more interstate. I suspect that's gonna get more and more frequent. It means
Recent examples of the
I've got a matter right now that's going on where final orders were made a couple of years ago and one of the parents is now trying to overturn those and my r it it's only just coming into the court now. my reading of the material filed so far, that's to say the affidavit from her and the one that we're preparing for the other parent, is there really hasn't been a significant change. They just still don't get on with one another, seems to be the problem.
Yeah.
The the parent that's agitating for change has changed her solicitors and That's causing a different
Different advice, different.
Different advice, different approach, different opinions. You know what they say, when you put ten lawyers into a room you're gonna get ten different opinions. Yeah. Uh and and an eleventh one is available outside the door at cost. But so i i these things are going on all the time. We have A yeah. Constant vicissitudes of life as a parent. And if you drop in that factor of people moving interstate, people disliking one another, you throw in domestic violence issues as well.
An allegation, sometimes baseless, sometimes my goodness me, yes, it's yeah. The world is full of litigation, which is why that rule is so important. Yeah. It's to stop people from using trivial things to overturn what should be the arrangements locked in for your children.
It's not about you. It's not about the your vanity and your ego wanting to change and wanting to control your ex. That's neither here nor there. Try and think about how these constantly shifting arrangements are going to affect your child in the long term.
I think that's where the expression you get less for murder comes into it. So if you've got like a couple of if you've got a kid who's only three And if you've got y you're technically bound to stay in the same location potentially until that child's eighteen. It's a very long time that that you're under that control of a direction of the other party of what they want to do as well because both parties have the same rights. So it's yeah.
Probably could if you I'm not suggesting anyone kill anyone, but the point is that you can get less for murder, you'd be probably back uh to move quicker and get in and
None of which is legal advice.
No, not it's not legal advice or anything like that. It's more just about it's where people no wonder people go off the rails and go crazy about things because If I was breaking up with my husband and I've got a three year old and a six year old and if I knew that I would be stuck and in a spot if I'm lucky I've got family support. I could be someone who has no support and I'm stuck in this And I'm thinking, God, for however many more years, no what people go and do silly things.
I can understand where they're coming from sometimes. Anyway, the dark crest.
I'm nodding thinking, where is this going? But I guess that going back to what we were talking about as a general theme, if I just summarise that a little bit, which is If you've made final orders for your children, you've got those arrangements are in place, they've been approved by the court or they've been made by the court.
You can change that in a couple of ways. You can agree with the other side. You can just say, look, hey, this isn't working anymore, is it? Let's amend this bit. And that might be fine. You could then formally apply to vary the orders, and the courts may well approve that, if it's by consent.
You may make an application which might be resisted, which is what we deal with a lot. Yep. You could if you're getting on go back to the idea of the parenting plan and remember that if you have court orders They can be made subject to a later parenting plan. So d do be careful. Make sure you get legal advice from somebody before you sign a parenting plan if you've already got court orders. Because you could be changing the world without realizing it. Yeah. Your legal world that is a legal.
But agreement is always the best option for you. If things have changed or you perceive they're gonna change, then don't sit on your hands about it. Make an approach the other side, explain what's happening. Say, hey, look, can we revisit these orders, these arrangements? Try and negotiate an outcome. It's always going to be better when you're communicating more effectively, rather than just dropping it on somebody by way of an application.
That doesn't help. It usually antagonizes people, it polarizes people. And at the end of the day, you have to co parent for those children. Whether they're eighteen or twenty eight or thirty eight, they're always gonna be your children and they will know how you behaved in their childhood to one another.
So we're onto philosophy there. Look, that probably wraps up as far as we wanted to talk about with some of the changing your mind issues that we got in family law. If you've got any questions about changing orders or arrangements or agreements that you've entered into. Please we'd love to know, just drop us a comment and we'll talk about those specific issues on another episode. Thanks very much for listening to Split Happens, the Divorce Down Under Podcast.
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