~ 8 min. read
Within the community, current serving and military veterans are often tucked away as a sub-community, shielded from the view of mainstream society. How members of the Australian Defence Force (ADF) fill their working days and unique social lives is rarely shared with non-ADF members of society.
This arises from close relationships that are formed when men and women serve in the military, the police, and other emergency services: fields where teamwork, frequent danger, and violence form part of one’s occupation. For ADF Reserves members, many serve in emergency services as well, in part-time and full-time roles, including operational service.
Consistent within society, these people can and do suffer the breakdown of their personal relationships. They are often overrepresented in family law due to the high proportion of relationships and marriages ending in separation or divorce.
Legal practitioners who undertake family law matters may be engaged by a current or former ADF or emergency services employee seeking legal assistance. These clients often differ from other family law clients in the manner of legal advice provided to them. This extends to the unique requirements for parenting and property splitting orders that cannot simply be replicated from other similar legal matters for other members of the community. This is due to the unique conditions of service of their employment, as well as the differing superannuation and/or pension schemes.
A solicitor who approaches such a client’s family law matter with the mindset that it is just another family law case invites pandemonium into their firm and the court system.
The Veteran Client
In their military employment, veterans have been trained to expect teamwork, accountability, punctuality, integrity, and honesty in their dealings with other people. Some may say this is the expectation of all clients. This may be so, but a veteran client will hold a solicitor to this and point out if the solicitor fails on any part of these values.
For some practitioners, this type of feedback may be confronting. However, the boundaries will be quickly established when setting out a solicitor/client relationship. At times, some solicitors may find this to be ‘client conflict’. As a result, they may not have the resilience to engage with a veteran client and be unwilling to put up with direct criticism and demands.
Put simply, a veteran will not suffer a fool gladly as their legal counsel and will generally terminate engagement with their solicitor, seeking another legal firm or continuing their matter self-represented.
At times, this will apply to veterans who may have held command positions in their former military roles. Such veterans would hold the expectation that instructing their solicitor is an extension of their former command position. They may have further expectations of certain performance indicators with promised outcomes to be achieved within well-defined timelines. Many younger practitioners may find this approach confronting and challenging.
Unfortunately, the Federal Circuit and Family Court of Australia (FCFCOA) does not always function in the manner expected of military standards. Often, frequent adjournments are made, or interim or final Court Orders are not complied with and breached by other parties. This is overlaid by the perception of no apparent intervention or consequences for the perceived party that has breached the Order. When this occurs, veterans may and do openly voice their distrust of their perception of a process-driven legal system, which they find to be stiflingly bureaucratic.
This is often amplified if a veteran client suffers from post-traumatic stress disorder (PTSD) or other mental health condition/s. As a result, obtaining instructions or providing legal advice may be difficult from time to time, manifesting the time delays and processes of the court.
Unfortunately, the long periods of conflict in which the ADF has been engaged – from the First Gulf War in the 1990s to the end of the Afghanistan Conflict in 2021 – have created a proportion of veterans who suffer the impact of PTSD at varying levels. Notwithstanding, the issue of PTSD suffered in the workplace also extends to emergency services employees.
Common Solicitor/Client Mistakes
Current serving ADF members and emergency service employees do not work under what is considered ‘normal’ working hours or environments. This issue is frequently raised by the other parent seeking the care of children beyond the normal 50/50 shared parental care in applications for final parenting orders.
Post-separation life for children is disruptive, confusing, and confronting. Generally, reports prepared by a child psychologist or other court-appointed report provider will stipulate the requirement for a routine, a safe environment, and the capacity for the parent who is caring for the child to be able to attend to the child in emergencies. This is not limited to school and social engagements. This requirement extends to times when both parents may need to be available during the working day to assist the other parent if required at short notice for childcare.
Unfortunately, ADF and emergency service employees do not have such flexibility. Frequently, interim and final parenting orders will be drafted that limit their time with their own children based upon the restrictions they face from their employment. These include the parent’s requirement to participate in regional or interstate training exercises, short notice emergency call outs, drills, or for longer periods: overseas active service and/or postings.
With these issues being brought into a family law matter and set out as reasons to limit a parent’s access to and time with their children, practitioners need to be actively constructive for their client and seek alternative options for time spent with their children. Consideration must be given to advocate for extended holiday periods to include or flexibility in parenting orders to adjust for shift work or a parent required to work irregular hours. It is noteworthy that the ADF will provide funded family re-union travel for members posted away from where their children reside.
It is a too frequent occurrence that practitioners simply apply the ‘it’s too hard’ metric to these issues. They then advise their client to permit children, who have had previous loving relationships with their parent, to reside in the full-time care of the other parent. This invariably can and does frequently lead to the lessening of time spent with their client, and in some instances, complete parental alienation of their client from their children, irrespective of the parameters of Parenting Orders made either by consent or an Order of the Court.
Nearly all family law practitioners will approach a veteran, ADF or emergency services employee property settlement in the same manner they do for all members of the community. The ‘global approach,’ while not legislated, is the accepted general rule and approach applied to formulating the extent of the joint property pool. When considered in this manner, the property pools include the unique superannuation, or for some longer serving members, their unique (but discontinued in the 1980s and 1990s) police and ADF pension schemes.
If a client is still serving under the old pension scheme, they most likely will be within the demographic age of over 50. Additionally, they may also be facing the end of long term marriage or relationships, have adult children or even second or third relationship breakdown, with young school-age children.
Their pension may provide them with the opportunity to retire after a specific period of service and as early as age 50 or 55. These clients will have been in ADF or emergency services since joining in the 1980s or early 1990s. They are still entitled to the former pension for life schemes, that have now been replaced by superannuation schemes. It is these clients, who if a ‘global approach’ to the property is applied, may be at risk of long-term financial losses to their pensions scheme.
In addition to the above, military and emergency service superannuation schemes (emergency service schemes differ between each state jurisdiction), may incorporate a life pension scheme into the superannuation, which does not exist within any other civilian superannuation scheme. Further, ADF members can only have their superannuation paid into the Military Superannuation Benefit Scheme (MSBS). If their MSBS policy is subject to a splitting order once they have ceased ADF service, the member cannot ‘top up’ their policy, as can be done by other members of the community who have accounts with other superannuation companies.
Serving ADF members do not know what their future service may expose them to, and like emergency service employees, they are disproportionately highly reflected in suffering severe physical and mental health injures from their employment and operational deployments. The option that they often require from their superannuation with MSBS, is the unique capacity to convert their superannuation into a lifetime pension if they suffer a permanent injury. The future amount they may be entitled to be paid from such a pension is determined by the balance of the MSBS account at the time the claim is lodged with the Department of Veterans Affairs (DVA). Depending upon the superannuation and insurance scheme operated by differing state emergency services, similar policies apply to injured emergency service employees.
Herein lies the danger of exposing veterans, serving ADF and emergency service employees to a global approach in dealing with property settlement and exposing their unique MSBS scheme to a splitting order. Splitting an MSBS policy, that cannot later be topped up due to discharge from the ADF, will impart a reduced future incapacity pension available to a veteran later in life should they submit an incapacity claim during their lifetime. This is further compounded by the frequent error of rolling DVA pensions payable for incapacity into the property pool and seeking a percentage of those payments to be split or offset to the division of other property.
If Veterans, ADF and Emergency services employees find their life has been impacted by a breakdown of a relationship, they should engage a solicitor who understands the unique nature of their employment and their superannuation and pension schemes. At Wadlow Solicitors, we retain legal practitioners who have served in the military and/or emergency services who understand these unique client requirements and are prepared to advocate these issues for them.
About the writer – Peter Bogatec is a former senior Australian Army Officer and served in the NSW Police Force as part of his earlier life careers. As an Advocate Lawyer, he represents former and serving defence force and emergency services employees when dealing with relationship breakdowns and the subsequent Federal Circuit and Family Court of Australia proceeding. Peter works primarily in South Australia; however, he is available to represent clients nationally, regardless of which state Registry the matter is filed in.